Womack v. Federal Life Insurance

Stacy, C. J.

Tbe evidence shows, and the jury found, tbat plaintiff was engaged in no more hazardous undertaking at tbe time of bis injury than was imposed by bis duties as superintendent when tbe policy was issued.

Hoffman v. Ins. Co., 127 N. C., 337 , 37 S. E., 466 . In the face of this showing and finding, it would seem that plaintiff is entitled to recover tbe full amount provided for tbe loss of a band, as stipulated in tbe policy, and not according to tbe schedule of diminished liability.

Smith v. Ins. Co., 179 N. C., 489 , 102 S. E., 887 . There was no change to a more hazardous occupation as contemplated by tbe clause in question. Indeed, in no legitimate sense could it be said tbat plaintiff was pursuing tbe occupation of a “Sawyer not using automatic guard” at tbe time of bis injury.

Simmons v. Travelers’ Asso., 112 N.

W.

(Neb.), 365.

It is contended, however, tbat, at tbe time of tbe accident, plaintiff was doing an act or thing pertaining to tbe more hazardous occupation of sawyer, wbicb automatically reduced tbe indemnity under tbe policy.

Non constat tbat tbe same act or thing might not have been done by tbe plaintiff as superintendent, tbe position be beld when tbe policy was issued.

It appears, then, tbat as superintendent of tbe Grinnell plant, plaintiff might have been engaged in tbe same act wbicb produced bis injury without diminishing tbe liability under tbe policy. Hence, it is just as reasonable to say tbat at tbe time of plaintiff’s injury be was engaged in an act or thing pertaining to tbe occupation of superintendent, as it is to refer it to tbe more hazardous occupation of sawyer. Tbe evidence supports tbe verdict, and we are bound by tbe jury’s finding.

*448 Tbe provision with, respect to diminished liability has reference to a changed occupation, classed as more hazardous than the one stated in the policy, and not to mere temporary acts generally performed by those in other occupations, where there has in fact been no change to a more hazardous occupation, but only a loss of assured’s position.

Redmond v. Ins. Co., 96 Neb., 744 , 148 N.

W., 913 ;

Thorne v. Casualty Co., 106 Me., 274, 6 Atl., 1106 ;

Miller v. Ins. Co., 168 Mo. App., 330 .

The clause in question, being one in the nature of a forfeiture of a portion of the benefits provided for in the policy, will be construed favorably to the assured.

Smith v. Ins. Co., 175 N. C., 314 , 95 S. E., 562 ;

Cottingham v. Ins. Co., 168 N. C., 259 , 84 S. E., 274 ;

Gazzam v. Ins. Co., 155 N. C., 330 , 71 S. E., 434 . The courts look with disfavor upon forfeitures.

Johnson v. Ins. Co., 172 N. C., 142 , 90 S. E., 124 .

The plaintiff had not changed his occupation to a more hazardous one. He was unemployed at the time and had temporarily returned to do an act or thing which might have pertained to his original occupation. This did not increase the hazard against which the defendant’s policy was intended to protect him. The verdict and judgment will be upheld.

No error.