Irwin v. Phœnix Accident & Sick Benefit Ass'n

Montgomery, C. J. Plaintiff recovered in an action on an accident policy issued to her son, George P. Irwin, in which policy plaintiff was named as beneficiary in case of death. The defense was that the death of George P. Irwin was caused by voluntary and unnecessary exposure to danger. The policy, by reference to the application, exempted the company from liability in case of either voluntary or unnecessary exposure to danger. It is contended that this language is such as to distinguish it from Johnson v. Accident Co., 115 Mich. 86 (72 N. W. 1115, 69 Am. St. Rep. 549); and counsel cites the case of Shevlin v. Accident Ass’n, 94 Wis. 180 (68 N. W. 866, 36 L. R. A. 52), in which an exception of exposure to unnecessary danger was held to exempt the company from liability for an injury resulting from exposure to unnecessary danger when such exposure was attributable to the negligence of the assured. The facts of that case show a case of gross negligence. We think ‘the language of this contract indicates the purpose of limiting the exception to cases of exposure to recognized dangers, and does not exempt the company from mere thoughtlessness on the part of the assured. The words “unnecessary exposure” are coupled with “voluntary,” [632] and, while the disjunctive is used, we think this is not conclusive of the construction. The word “exposure,” used in this connection, implies an intentional act.- We do not think the case is distinguishable from Johnson’s Case. Was the court justified in withdrawing the case from the jury ? The deceased met his death while working as a mason. The evidence shows that the support had been removed from one end of the scaffolding, and that, in stepping on the unsupported end of the boards, he fell to the ground and was killed. Alexander McIntosh, the contractor, testified: “I had been on the scaffold not to exceed two or three minutes before the accident,—it certainly could not have exceeded five minutes,—and had a conversation with George Irwin.” He went on the scaffold to give Irwin some instructions about the work. “ Q. Did you say anything to him about the scaffold ? “A. I might have remarked just as I got on the scaffold—It struck me very forcibly why that horse wasn’t there. There were previous orders given distinctly to have it there, and, in my coming close to him, I noticed that the horse was out of there. * * * He [George Irwin] just turned around, and he reached me his hand,—gave me a jei’k up. Just as he reached me his hand, I just made a casual remark. I had noticed at that instant that the horse had been removed from there. I says, ‘ George, look out for those loose ends.’ Whether he took any special notice of it or not, is something beyond my comprehension. I supposed at the time he did, but he might not have. “ Q. You called his attention to it, and said, ‘ Look out for those loose ends,’ referring to that— “A. Referring to that particular place. “ Q. What was the reason for making the remark to George Irwin, to look out for those loose ends ? “A. If he stepped out there, there was danger.” It is doubtful whether deceased heard McIntosh, and it is also doubtful whether he understood what was meant [633] by “loose ends.” My Brethren are of the opinion that there was no evidence of negligence, and that the instruction directing a verdict was authorized. Judgment affirmed. The other Justices concurred.