The opinion of the court was delivered by
This was an action to recover death benefits under an accident insurance policy. The appeal is from a judgment for plaintiff, wife of the deceased insured and beneficiary under the policy, rendered by the trial court upon special and general verdicts returned by a jury. Errors, assigned as grounds for reversal of the judgment and essential to disposition of the appeal, will be given consideration in the order in which they appear in defendant's specification of errors.
On March 6, 1941, defendant Commercial Casualty Insurance Company issued an accident policy of insurance to H.F. Braly, a resident of Coldwater, for an annual premium of $1 per year. The policy provided death benefits only under specified limited conditions in the amount of $1,500, which increased $100 per year for 5 years if the policy should be kept continuously in force, payable to the wife of the insured as beneficiary.
Included in the policy thus issued is a provision that the death benefit covered by its terms should be payable if the accidental death of the insured should occur:
Such policy also contains an exception clause which reads in part:
For all purposes of this appeal it is conceded H.F. Braly met his death by external, violent and accidental means on November 18, 1943, that on such date he had paid premiums on the policy for three years bringing death benefits under the conditions there specified to $1,800, that proof of loss was made by the beneficiary (plaintiff) within the time and manner required by its terms and that in view of the conditions and circumstances under which the insured met his death provisions of the policy on which the rights of the parties must ultimately depend are those heretofore quoted.
The next three errors relied on by appellant as grounds for reversal of the judgment can be considered together. In our opinion they present the most difficult questions involved in the law suit. They are that the trial court erred (1) in overruling its demurrer to appellee's opening statement to the jury, (2) in overruling its demurrer to her evidence, and (3) in overruling its motion for judgment notwithstanding the general verdict.
Except for one question to which we shall presently refer, the gist of the over-all position of appellant on all three of the errors thus assigned is the same and is to the effect that the opening statement, the evidence, and the answers of the jury to the special questions show that the conveyance located in the grain elevator where the insured was working, and in which it is conceded he was riding immediately prior to his death, was not a passenger elevator used for passenger service only in a place regularly provided for the sole use of passengers, hence there is no liability under the policy sued on. This position necessarily requires an examination of the evidence and the answers returned by the jury to special questions. The opening statement requires little attention inasmuch as the record discloses it was in line with evidence subsequently adduced by the appellee and must stand or fall upon our decision with respect to the legal sufficiency of the facts disclosed by the testimony on which appellee relies to sustain her cause of action.
Sumarized as to substance the fair import of the evidence can be stated as follows:
The Wolcott-Lincoln Grain Elevator Company maintains and operates a grain elevator at Coldwater. The building in which it carries on its business is a structure consisting of several floors or stories. Ascent and descent to and from the upper floors of the structure is accomplished by means of ladders or by riding on
The construction of the conveyance heretofore mentioned, reflected by the testimony of the witnesses, is described by appellee in her brief as follows:
On November 18, 1943, the insured, H.F. Braly was employed by the company above named. While engaged in the performance of his duties, and for some purpose of no consequence to the issues, he went to and got upon the conveyance in question, started it and rode it upward out of the sight of two other persons who were on the ground floor, one of whom was an employee of the company and the other a bystander. Each of these individuals testified at the trial. Their testimony was to the effect that they saw Braly start up on the lift, that they did not hear it stop at any floor landing until it hit the top of the grain elevator and that the next they saw of him was when his body came hurtling down the shaft feet first and crashed upon the ground floor.
So far as the record discloses W.E. Richardson, the employee who was working with Braly at the time he started up on the lift, testified at greater length than any other witness produced on behalf of the appellee. With respect to matters not heretofore mentioned he stated in substance that no one saw and he did not
With the foregoing evidence and some other testimony of similar import the appellee rested her cause.
The record with respect to evidence offered by the appellant is not complete. Attached to its abstract are two photographs of the lift marked defendant's Exhibit "1" and defendant's Exhibit "3" and we shall assume its Exhibit "2" was of a similar nature. At any rate the matter is of little moment and need not be labored for in its brief the appellant states "There is no dispute in the facts; the lower court refused to admit in evidence (referring to defendant's Exhibit "4") the only testimony offered by defendant." Be that as it may the record does reveal that after resting her case appellee was called as a witness on behalf of the appellant and asked questions to which she made answers as follows:
It further discloses that thereafter appellant sought to introduce this Exhibit in evidence and that an objection to its admission was sustained by the trial court on the ground it was hearsay. Appellant then rested without evidence other than the three Exhibits to which we have heretofore referred.
Inasmuch as the rejected Exhibit becomes of importance later in this opinion it had just as well be quoted at this point. It reads:
The special questions and answers returned by the jury on which appellant bases its claim the trial court erred in overruling its motion for judgment non obstante read as follows:
The first contention advanced by appellant in support of the over-all position to which we have previously referred is that the term "passenger elevator" as used in the first provision of the policy, heretofore quoted, has such a plain, ordinary, and well recognized meaning that it must be construed as having reference only to elevators provided for the use of the general public in office buildings, retail stores, hotels, apartment houses and other buildings of such character or, in any event, must be construed as a matter of law as excluding conveyances of the character herein involved even though used exclusively for the purpose of carrying passengers.
It must be admitted, as the parties agree, there are no Kansas cases on the issue thus raised. Indeed appellant goes so far as to say it has been able to find but one reported case, and that a decision of a Nisi Prius Court (Ray v. Accident Insurance Co., 19 Ohio N.P.N.S. 140; 27 Ohio D.N.P. 266; 96 A.L.R. anno 1412), directly in point. It should be said our somewhat extended research has revealed another (Employers Casualty Co. v. Langston [Tex. Civ. App.] 214 S.W.2d 131), involving facts and circumstances quite similar to those herein involved, upholding its position. Even so it must be kept in mind the rules to be applied in the construction of insurance contracts are well established in this jurisdiction and that we are not bound to follow the decision of a court of some foreign jurisdiction if upon application of our established principles of contractual construction, or others to which we subscribe, we are unable to agree with its result.
Some of the established principles to which we have referred and decisions supporting them are to be found in our decision in Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P.2d 310, which holds:
Another such principle appears in the opinion of Spence v. New York Life Ins. Co., 154 Kan. 379, 383, 118 P.2d 514, where it is said:
Still another is that the language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein. It is to be noted, however, that in the application of this rule the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean. (See Koehn v. Union Fire Ins. Co., 152 Neb. 254, 40 N.W.2d 874, also, Hoyt v. New Hampshire Fire Ins. Co., 92 N.H. 242, 29 A.2d. 121, and cases there cited.)
After careful consideration of all of appellant's arguments, and notwithstanding the two decisions on which it relies, we are unable to agree with its position the phrase "a passenger elevator" is entitled to the construction appellant would have us give it. On the contrary, our view is, that such phrase is a generic term covering more than a single type of passenger elevator and susceptible of more than one construction. Therefore, application of the foregoing rules of contractual construction requires that the phrase be construed in the sense most favorable to the insured. That, since appellant prepared its own policy, means that if it desired to exclude passenger devices of the type disclosed by the evidence it should have specifically excluded them and that having failed to do so it must suffer the consequences. It follows the question whether such conveyance was a passenger elevator, within the meaning of that term as used in the policy, was one of fact and properly submitted to the jury.
In holding as just indicated, we frankly confess, we have failed to find any reported case that can be classed as directly in point. However, it can be said our examination of the authorities has revealed several decisions wherein courts have refused to uphold contentions similar to those advanced by appellant and hold in accord with our decision. See Wilmarth v. Pacific Mut. Life Ins. Co.,
In passing it should perhaps be said that even if the term "passenger elevator" as used in the policy was to be regarded as unambiguous we would still be unwilling to say, as a matter of law, that when given its plain and ordinary meaning or subjected to the test applicable when construed in such manner as to give effect to the intention of the parties at the time it was included in the policy as executed that it was intended to or did exclude a passenger conveyance of the type disclosed by the evidence.
It is next argued the demurrer should have been sustained because the insured was not riding the elevator "as a passenger". The burden of appellant's argument on this point is that Braly was riding such conveyance as an employee in the performance of his duties and that such phrase must be construed as excluding employees from the passenger classification. Again we cannot concur in appellant's construction of the contract. Instead we adhere to the rule announced in Fitzpatrick v. Metropolitan Ins. Co., supra, holding the fact an insured at the time of an accident on an elevator car was an employee of the company maintaining the elevator and was carrying on his duties as such did not exclude him from "passenger" classification under an accident policy providing for double indemnity if death was caused by injury received while riding as a passenger in a regular passenger car, and approve of the statement (See 59 P.2d 199, 202) appearing in its opinion which reads:
There is another sound reason for rejecting appellant's contention on the point last mentioned. That the parties intended the term "as a passenger" as used in the provision of the policy under consideration to include employees is evidenced by the fact that the provision immediately preceding it, providing for liability under other circumstances, reads: "WHILE ACTUALLY RIDING AS A PASSENGER, and not a railroad employee on duty... within a surface or elevated railroad or subway car ..." (Emphasis supplied.) Obviously, if appellant had intended to exclude the risk of accidental injury or death to employees in the involved provision of the contract it would have written into it an express exception similar to the one just quoted.
Finally appellant suggests the word "passengers" in the phrase "in a place regularly provided for the sole use of passengers" required the trial court to sustain the demurrer because the evidence disclosed the elevator would carry but one passenger. This suggestion merits little consideration. We believe it is crystal clear the word "passengers" as used in this phrase has reference to the utilization of elevators not their carrying capacity.
The undisputed evidence is to the effect that immediately prior to the accident the insured was riding in an elevator used for passenger service only in a place regularly provided for the sole use of passengers. Even so, and with the contract construed as heretofore indicated, appellant insists the trial court erred in overruling its demurrer because appellee's evidence failed to establish the insured was injured while riding in the elevator. We shall not devote space to a review of the evidence. It suffices to say that even the appellant concedes the evidence discloses the accident resulting in insured's death occurred while he was getting on or off the elevator. The law is clear that under such conditions and circumstances, in the absence of an exception in the contract, appellant would be liable. See 45 C.J.S. 991, § 990(f); 29 Am. Jur. 731 § 970; 5 Couch, Cyclopedia of Insurance Law, 4005, § 1151(k), 1 Appleman 742, § 603. True, as we have heretofore stated, the instant contract contains
What has been heretofore stated compels the conclusion the trial court did not err in overruling the demurrer to the evidence. For the same reasons and, since it is clear there is evidence to sustain the answers to the special questions and nothing in such answers to compel the setting aside of the general verdict, we hold there was no error in overruling the motion for judgment non obstante.
Heretofore we have indicated the trial court refused to permit the appellant to introduce as part of its evidence a letter written by the appellee, supplementing her original proof of loss and stating the circumstances under which the insured met his death, rejecting it on the ground it was hearsay and therefore incompetent evidence. This letter shows on its face that it was written in reply to the appellant's request for additional information regarding the cause of the insured's death and in our opinion must be regarded as supplementing the original proof of loss. Appellant insists the rejection of this evidence was error and entitles it to a new trial.
The general rule is that proof of injury or death furnished by a beneficiary to an insurance company is admissible in evidence against such beneficiary as an admission against interest, and that rejection of such evidence is reversible error even though the beneficiary, after it is admitted, may contradict adverse statements or admissions appearing therein by showing they were made through inadvertence, mistake, or misinformation and were erroneous. This, it can be stated, is the rule even though the information therein contained has been furnished to the beneficiary by third persons and is based upon statements made by them. (See 7 Cooley's Briefs on Insurance [2d Ed.] 5927 to 5943, incl., § 10[a] to [g], incl., also
Insurance Company v. Newton, 89 U.S. 32, 22 L. Ed 793, holds that the preliminary proofs presented to an insurance company in compliance with the condition of its policy of insurance, are admissible as prima facie evidence of the facts stated therein against the insured and on behalf of the company. In the opinion of that case it is said:
Decisions of courts of this state dealing with the admissibility of a proof of loss when an insurer seeks to introduce it in defense of an action on an insurance policy are not numerous. However, it can be said that those giving that question consideration have recognized and indicated approval of the general rule announced in the decisions and authorities heretofore cited.
Long ago in Modern Woodmen v. Von Wald, 6 Kan.App. 231, 49 Pac. 782, it was held:
See, also, National Reserve Life Ins. Co., v. Jeffries, 147 Kan. 16, 75 P.2d 302, a comparatively recent decision of this court, which holds:
Based on the foregoing authorities we are convinced the trial court erred in refusing to permit the appellant to introduce the letter, which as we have indicated is tantamount to a supplemental proof of loss, in evidence. As applied to the facts of the instant case the soundness of the general rule, and the reasons why appellee's claim that its rejection resulted in no substantial prejudice to the appellant cannot be upheld, are well illustrated. Appellant had the burden of proving the insured was injured while he was getting on or off
In view of the conclusion just announced the determination of divers other trial errors assigned by appellant as grounds for reversal of the judgment, many if not all of which will become unimportant on a new trial, do not require consideration in this opinion.
The judgment is reversed, solely upon the ground heretofore stated, with directions to grant a new trial.
WEDELL and PRICE, JJ., concur in the result but dissent from subdivision (1) and from subsections (c) and (d) of subdivision (2) of paragraph 11 of the syllabus and corresponding portions of the opinion.