Smith v. Massachusetts Bonding & Insurance

Walker, J., after stating the facts as above: There was no change of occupation by the deceased. He was performing his duty in his occupation as supervisor, foreman, or overseer at the time he was killed, although he may have done one hazardous act not pertaining to that occupation, which caused his death. This has been settled by this Court, and the principle seems to have received the almost uniform approval of the other courts. Hoffman v. Ins. Co., 127 N. C., 338; Miller v. Ins. Co., 168 Mo. App., 330-332; Schmidt v. Am. M. Acc. Asso., 96 Wisc., 304; Fox v. M. F. Acc. Asso., 96 Wisc., 390; Pac. Mu. Life Ins. Co. v. Van Fleet, 47 Colo., 401; Hall Am., etc., Acc. Asso., 86 Wis., 518. In the Hoffman case, Crisp, the insured, represented that he was “a freight flagman, not coupling or switching,” and he was killed while placing a “slack pin” behind a coupling pin, and he was allowed to recover. We do not construe the expression “or while doing an act or thing pertaining to any occupation so classed” as more hazardous, to mean that if the injury is caused by the doing of an act within the line or scope of the insured’s employment, if hazardous, he is to be paid only the diminished amount of insurance, if it also be an act which pertains to a more hazardous business, but as meaning, at most, that if he does a more hazardous act of another occupation, not pertaining to his own, the payment to him shall be reduced as specified. Cutting the wire would not be an act or thing more hazardous than his own occupation, as that was a part of his own duty as overseer, as we have, shown, and therefore would not be embraced by the following language of the policy: “while doing an act or thing pertaining to any occupation so classed as more hazardous than that herein.” Any other construction would make the policy a deception and a snare. The one we adopt is a reasonable interpretation of the language used, and the only admissible one. Under the other construction the company would be saying to the insured: We accept your risk as a supervisor and overseer, but if you do a certain act, which is essential to the proper and full performance of your duties to your employer, you must forfeit the larger part of your insurance. *492 It was said in Redmond v. U. S. Health & Acc. Ins. Co., 96 Neb., 744: “The diminished liability for which the contract provides applies to a change of occupation, or the doing of an act or thing pertaining to a changed occupation, classed as more hazardous than the one abandoned, and not to 'mere temporary acts generally performed by those in other occupations, where there has in fact been no change in assured’s occupation,” citing Thorne v. Casualty Co., 106 M., 274; Miller v. Mo. State L. Ins. Co., 168 Mo. App., 330. Our case is stronger for the plaintiff than the case from Maine was for Thorne, because here the act done which proved to be fatal was within the line of Ollie Kistler’s duty, or there is evidence that it was, and we must assume that evidence to be true in dealing with a directed verdict. The same principle as that decided in the Redmond case, supra, was adopted in Pacific Life Co. v. Van Fleet, supra, where it was held, as shown by the tenth headnote, that, “A condition in an accident policy avoiding it, or limiting the recovery, in case the assured is Injured or killed while following any occupation, or in any exposure, or performing acts parallel in hazard to the characteristic acts of any occupation classed by this company as more hazardous,’ etc., is effective only where there is a permanent change of occupation. A recovery is not defeated by the circumstances that the assured is injured or killed in performing some individual act, or exposing himself to some particular risk, of greater hazard than that attending his customary occupation upon which the policy was issued.” It will be observed, when reading them, that the cases we have cited go beyond what is necessary for us to hold in order.to justify the larger recovery in this case. Here the insured was doing an act directly within the line of his employment as supervisor of the hands. It was his master’s legal duty to have them instructed by the foreman or some one else, and his right to have them familiarized with the methods of performing their work, and this is what the intestate was doing when he received the fatal stroke of the electric current, and intestate also was required by the implied terms of his employment to instruct the hands in their work. He could not well supervise them without doing this. It was held in Schmidt v. A. M. Acc. Asso., supra, that “The acts of the insured (a supervisor), in such a case, in not only indicating how the work should be done, but actually taking hold and assisting therein when necessary or convenient would not constitute a substantial change of occupation, since the word 'supervising,’ as used in the applications, means taking part in the work.” It was said in Thorne v. Casualty Co., supra, that “Erom the nature of the business then is to he implied the duties and responsibilities of his employment. As head of the concern in Gardiner, he was solely *493 responsible for its management. He was superintendent of every department, and responsible for every detail of the business. Tbe designation of bis office, therefore, by necessary implication not only authorized but required him to visit every part of the establishment, to direct in every detail of the work, and, if necessary, point out and illustrate bow it should be done. To bold, then, that a person designated as manager of a business concern could not step from bis office, to direct the performance of any part of the work, without being charged under an insurance contract with engaging in work defined in the policy as extra hazardous, would be to put a serious check upon the transaction of business, or cut down the indemnity for which a policy bolder bad fully paid, and to which be would be otherwise entitled.” In Miller v. Ins. Co., supra: “As has been stated, it is agreed deceased was a contractor, and we can see no sound reason foi the assertion that a contractor loses his character as a supervisor because be sees the need of some temporary labor on bis part to enable him properly to carry on bis duty of supervision. In this case the evidence shows that deceased was directing or supervising the work, and was not engaged as one of the laborers. If be bad not been killed be would soon have left and gone to another place. Tbe fact that after seeing the tank was not working properly be undertook to adjust it, so as to see if it would properly perform its function, did not destroy bis capacity as supervisor within the meaning of the schedule of warranties.” And lastly, in Schmidt v. Ins. Co., supra, it was said: “Supervising does not mean not working. On the contrary, it means, and would be naturally understood to mean, taking part in the work. Supervising indicates work, not idleness. It would be entirely consistent with supervising if the deceased not only indicated bow work was to be done, but actually took bold and assisted in the work when necessary or convenient.” This statement of the law was approved in the Miller case, supra, at p. 333. The right and duty of the master to instruct bis servant as to bow be should perform dangerous work may involve questions of fact to be decided by the jury, but the right, and the duty, to instruct in proper cases will not be denied. Brazille v. Barytes Co., 157 N. C., 454. It was said in Horne v. R. R., 153 N. C., 239, at p. 240: “Tbe claim of negligence is founded upon the theory that it is the duty of employers to instruct their employees in the use of dangerous machinery before assigning them to their duty. Such obligation is recognized generally by the law writers and courts of the country,” citing Avery v. Lumber Co., 146 N. C., 592; Chesson v. Walker, 146 N. C., 511; Craven v. Mfg. Co., 151 N. C., 352; Marcus v. Loane, 133 N. C., 54; Turner v. Lumber Co., 119 N. C., 388. *494 There being evidence for tbe consideration of tbe jury upon tbe question of defendant’s liability for tbe larger, or undiminisbed, amount, it was error to direct a verdict for tbe smaller amount. It would even be error to instruct tbe jury tbat, if tbey found tbe facts to be as stated by tbe witnesses, tbe verdict should be for tbe smaller amount. New trial.