Federal Life Insurance v. Nichols

Connor, J. On the admissions in the pleadings, which were introduced as evidence by the plaintiff at the trial of this action, the defendant is entitled to recover of the plaintiff the sum of $2;500, under the terms and provisions of the policy of insurance described in the pleadings, unless, as alleged in the complaint, the issuance of said policy was procured by false and fraudulent representations with respect to his *820 occupation at the date of the application, made by the defendant in his application, or unless, as further alleged in the complaint, after the issuance of the policy, the defendant changed his occupation to one more hazardous than that stated in the application and in the policy, or unless at the time he suffered the loss of his foot by accident he was engaged in the performance of an act pertaining to the more hazardous occupation. At the close of the evidence for the plaintiff, the trial court was of opinion that the plaintiff had failed to offer any evidence tending to support the allegations of its complaint, and accordingly, on motion of the defendant (C. S., 567), dismissed plaintiff’s action. In this there was no error. There was no evidence tending to show that the representations made by the defendant in his application for the policy, with respect to his occupation and the duties incident thereto, were false or fraudulent. The defendant’s occupation, as stated -in the application and in the policy, to wit: “Lumber buyer and salesman — not handling lumber in yards or woods),” ordinarily includes as its incidents the inspection and checking of lumber bought and sold. The defendant’s employment, as stated in the application, to wit: As buyer and salesman of lumber on the yards of his employer, ordinarily includes the supervision of the unloading of lumber bought by him and the loading of lumber sold by him. These duties are incidental to the occupation of a buyer and salesman of lumber, employed by a wholesale lumberman, and do not require of him the handling of lumber. The performance of these incidental duties do not increase the hazards of the occupation of buying and selling lumber. At the time the defendant was injured by an accident which resulted in the loss of his foot, he was at work on the lumber yard of his employer. He had directed other employees of his employer to move a car loaded with lumber. The car accidentally ran over and knocked him down on the track. The injury to his foot necessitated its amputation. He was not engaged at the time of the accident in the performance of an act which was incident to an occupation more hazardous than that stated in his application or in the policy. For that reason the plaintiff was not entitled to a reclassification of the defendant with respect to his occupation, with the result that it would be liable to the defendant, under the policy, for a smaller sum than $2,500. In support of the dismissal by the trial court of plaintiff’s action against the defendant, see Womack v. Ins. Co., 206 N. C., 445, 174 S. E., 314; Smith v. Ins. Co., 179 N. C., 489, 103 S. E., 887, and Hoffman v. Ins. Co., 127 N. C., 337, 37 S. E., 466. The judgment in this action is affirmed. No error.