Moore v. Citizens' Mutual Life Insurance — 26 N.Y.S. 1014

Majority

p. 1014

MOORE v. CITIZENS’ MUT. LIFE INS. CO.

(Supreme Court, General Term, Fifth Department.

January 18, 1894.)

Headnote

Life Insurance—Waiver of Loss from Certain Causes.

An ' agreement signed by insured recited that in his application he stated his occupation as that of a “yard conductor or yard master;” that he waived all claim under the policy in the event of death, from any cause, resulting from his occupation as “said yard master;” and that the policy was Issued in consideration of such waiver. Held, that no

p. 1015

recovery could be had on the policy, if death resulted from his occupation as yard conductor; it appearing that insured, at times, acted both as yard master and yard conductor.

Appeal from circuit court, Monroe county.

. Action by Mary Moore against the Citizens’ Mutual Life Insurance Company. From a judgment entered on a verdict directed by the court in favor of plaintiff, defendant appeals.

Reversed.

Argued before DWIGHT, P. J., and HAIGHT and LEWIS, JJ.

L. C. Whiton, for appellant.

Walter S. Hubbell, for respondent.

This action was brought to recover the sum of §2,000 upon a policy of insurance issued by the defendant upon the life of John Moore, the husband of the plaintiff, and payable to her, as beneficiary. Moore was lolled on the 20th day of March, 1892. The evidence tends to show that he was in the employ of the Buffalo, Rochester & Pittsburgh Railroad, as a yard conductor, and was in the discharge of his duty as such; that he had been sent out by the yard master at Rochester to take some cars down to the Rome, Watertown & Ogdensburgh Railroad, near Charlotte, and to get. some cars therefrom; that as they arrived near Charlotte, he got upon the tender of the engine, and was engaged in giving signals to the engineer; that while so engaged, in some way, he slipped or fell therefrom, and was run over and killed. The defense was that the contract of insurance was entered into by the defendant, subject to the following:

“I, John Moore, of Rochester, Monroe county, New York, having applied to the Citizens’ Mutual Life Association of New York, under date of June 4th, 1891, for $2,000 insurance on my life, and having stated in said application that my occupation was that of a yard conductor or yard master, do hereby certify that my duties do not require me to shift or switch cars in the yard; and I do hereby agree to waive, and do waive, all claim under policy No. 7,356, issued to me, in the event of my death occurring from any cause arising from my occupation as said yard master, and that, in consideration of the statements and representations in this waiver, said policy is delivered to me.

“Dated Rochester, N. Y., this 6th day of July, 1891.

[Signed] “John Moore.

“Witness: J. F. Wellington.”

In his application he had described his occupation as that of yard conductor. The evidence tends to show that he had been both yard master and yard conductor. That at the time of making the application he was yard conductor. In September following he again became yard master, and so continued until February, 1892. That during February, 1892, he acted in a double capacity,—as night yard master and yard conductor,—with the title of “yard conductor,” and that at the time of the accident he was yard conductor. The yard master had charge of the yard conductors, in the shifting of. cars and the making-up of trains. The yard conductor acted under the orders of the yard master, and had charge of the crew that did the work of shifting the cars and making up the trains. His duties as yard master or yard conductor were extra hazardous, and,

p. 1016

.as we have seen, he had served, and continued to serve, in both capacities, from time to time. It was under these circumstances that the company exacted the execution of the instrument in question before delivering the policy of insurance. In it, as we have seen, he refers to his occupation as that of a “yard conductor or yard master.” He then waives all claims under the policy issued to him, in the event of his death occurring from any cause arising “from my occupation as said yard master.” True, in this connection, he does not make use of the term “yard conductor;” but he speaks of his occupation, and evidently refers to it, as previously described, as that of “yard conductor or yard master.” In other words, he treats both as one occupation. It appears to us that this is the fair and reasonable interpretation of the instrument. This view Is strengthened from the fact that at that time he was a yard conductor, as he describes himself in his application. It is undisputed that his cause of death arose from his occupation as yard conductor. It consequently follows that,- if we are correct in our view as to the proper construction of the instrument, a verdict for the plaintiff should not have been directed. The judgment appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.