
    Alloway v. General Accident Insurance Company, Appellant.
    
      Insurance — Accident insurance — Unnecessary exposure to risk — Powder explosion.
    
    Where an accident insurance policy cut down the liability of an insurance company if injuries shall result from an unnecessary exposure to obvious danger, and it appears that the insured was described as a “ clerk in a store, not doing porter’s work,’’ and it also appears that the store was a general store in a mining region, and that one of the clerk’s duties was to go to a powder house about one and' one-fourth miles away from the store, and deliver the powder to customers, the insurance company has no standing to claim a reduction in liability because the insured was killed by an explosion at the powder house while in the ordinary performance of his duties. In such a case the mere handling of explosives either in the store or in the powder house was not an unnecessary exposure to obvious danger within the meaning of the policy.
    Argued Oct. 31, 1907.
    Appeal, No. 175, Oct. T., 1907, by defendant, from judgment of C. P. Huntingdon Co., Feb. T., 1907, No. 15, on verdict for plaintiff in case of Amanda Alloway v. The General Accident Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance. Before Woods, P. J.
    At the trial the jury returned a verdict for plaintiff for $504.20 subject to point of law reserved.
    Woods, P. J., subsequently filed the following opinion:
    The General Accident Insurance Company of Philadelphia issued a policy to Edmund A. Alloway, of Robertsdale, Huntingdon county, Pennsylvania, and numbered 320,522. Said policy provides for the payment of a certain sum of money to' the insured in case of his meeting with an accident and sustaining injuries thereby, and in case of death resulting by reason of said injuries, then said policy provides for the payment, by said defendant company, of a certain specified sum to be paid to the wife of the insured, Amanda Alloway, the plaintiff in this suit. Edmund A. Alloway, the person named in the policy, was injured in an accident and died by reason of injuries he received in said accident. The injuries received, from which death occurred,, were due to the explosion of powdér which was kept and stored in a small shanty or building about a mile and a half away from Robertsdale where the insured was employed as a clerk in the store of Jesse O. McClain, and the testimony shows that the said powder house' was used in connection with the said store and that Edmund A. Alloway was sent by the proprietor of the store to furnish some miners with powder, and while'there an explosion took place and the insured was so badly burned that he died in a few hours. We cannot learn from the evidence just how the accident occurred. The defendant .company claim that under the provisions contained in said policy, they are. not liable for the full amount named in the policy, and the plaintiff brought this suit to recover the full face of the policy. Before the trial of the case the defendant company tendered to plaintiff the sum of $80.00 with accrued interest and costs which was refused; this tender was again renewed when the case was called for trial and again refused, whereupon a jury was called and the case was proceeded with. After the plaintiff had offeréd evidence the defendant company then proceeded by offering the proofs of death for the purpose of showing fully the manner of the death of the deceased; the schedule of warranties indorsed on the back of the policy, and a written agreement as to a tender having been made and rejected. This was the extent of defendant’s testimony and the evidence was closed’. The counsel for the defendant company submitted the following point for the consideration of the court:
    
      First. The insured, in his application for a policy issued by the defendant company, set forth that his business was that of a clerk in a store, and that his duties were general duties in a store and not doing porter’s work, and the policy issued to him by the defendant company contains the following provision-: “In the event of injuries, fatal or otherwise, resulting from unnecessary exposure to obvious risks of injury or obvious danger,” and it appearing from the plaintiff’s own testimony that the deceased lost his life by the explosion of a powder house about a mile or more distant from the store in which he - was employed as a clerk, the plaintiff cannot recover any more than one-fifth of the amount of the policy, with interest from the date of his death to March 29, 1907, the date when the' tender was made of the sum of $80.00, with interest from July -23, 1906, to March 29, 1907.
    The court not being satisfied reserved the point and directed the jury to render a verdict .in .favor of plaintiff subject to the opinion of the court upon the point of law reserved.
    The defendant company does not deny its liability but contends .that under the terms and conditions contained in said policy they are only liable for one-fifth of the amount provided for in said policy. The policy provides for certain conditions and restrictions as to employment and character of work to be engaged in by the insured. The fourth condition or limitation reads in part as follows: “In event of injuries, fatal or otherwise, .... resulting from unnecessary exposure to obvious risks of injury or obvious.danger .... the limit of the company’s liability shall be one-fifth of the amount which would otherwise be payable under this policy, anything herein to the contrary notwithstanding.” Under this clause of the policy the counsel for defendant company contends that under the evidence in this case of the plaintiff herself, she would only be entitled to recover $80.00 with costs and interest up to the -time the tender was made, being the one-fifth of the face of -the policy. The argument of the counsel is,that powder itself arid the handling of it is dangerous and known to be dangerous .and that the insured having exposed himself to the risk of being injured and that the danger, following the handling of the powder, was obvious, he thereby brought himself within the condition attached to said policy above cited and that the plaintiff is therefore only entitled to recover the one-fifth of the amount. The policy does not prohibit the handling of powder. If the insured had gone to the powder house with a lighted cigar ór pipe or was in the company of one who had a lighted cigar or pipe then in that case he would have exposed himself to an “obvious risk of injury or obvious danger” and that risk would have been unnecessary exposure and under such circumstances the plaintiff could not recover, but there is no evidence that these circumstances caused the accident. The evidence shows that the deceased was sent to the powder house by his employer and that he was performing his duties as clerk and there is no evidence that he did anything to bring about the accident which caused his death. Surely the fact that powder being recognized as a dangerous commodity, is not of itself a bar to recovery when an accident occurs by reason of an explosion, not the result of the act of the insured. There is no evidence in this case to show that the deceased acted in a careless or reckless manner. The evidence shows that the store, in which the deceased was employed as a clerk at the time the policy was issued, was located in a mining district and that all kinds of mine supplies were kept, such as “dry goods, notions, hardware, powder, dynamite, and oil, miners’ oil, everything that is needed in the line of mining,” and that he had been sent by his employer to furnish the miners with powder to be used in the coal mines. Is a clerk in a hardware store in a mining town prohibited from handling oil, or cartridges or other necessary articles because it is known that when these things come in contact with heat or fire they will explode and cause damage? We think not. It is incumbent on the person handling these necessary articles to use care. “If a man acts so recklessly and carelessly that he shows an utter disregard of a known danger, then he may be said to have exposed himself voluntarily to danger:” DeLoy v. Travelers’ Insurance Co., 171 Pa. 1. There is no contention on the part of defendant company that the deceased had changed his occupation but, on the other hand, the evidence shows that the deceased lost his life while engaged as a clerk in the same store in which he was engaged when the policy was issued to him. There is another requisite contained in said clause of the policy and that is that the injury must be the result of an “unnecessary exposure to obvious risks of injury or obvious danger.” The accident occurred while he was performing a duty, in other words, the deceased was in the line of duty; doing what his employer directed him to do and can it be said he was unnecessarily exposing himself when he was selling powder to be used in the regular course of mining and the powder exploded without any act on his part? As we have already said powder itself becomes dangerous when it comes in contact with some other substance or element and in the absence of evidence to show that the deceased knew of the existence of any other substance or element by which the powder would explode it cannot be said that he unnecessarily exposed himself to an obvious danger. That element which made powder dangerous is wanting in the evidence and hence it must be said to have been unknown to the deceased and the accident did not happen by any act of his. Judge Mercer has said in Burkhard v. Travellers’ Insurance Co., 102 Pa. 262, “accident is defined by Worcester to be an event proceeding from an unknown cause or happening without the design of the agent; an unforeseen event; incident; casualty; chance; and by Webster, an event that takes place without one’s forethought or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause and therefore not expected; chance; casualty; contingency.” From the evidence in this case we are led to the conclusion that the death of Edmund A. Alloway was caused by an accident arising from a substance or element coming in contact with powder, the existing presence of that substance or element having been unknown to him and that the injury was not brought about by any act or carelessness on his part and we think that there was not such an unnecessary exposure to “obvious risks of injury or obvious danger” as to fairly bring the cob-duct or act of the insured within the meaning of the clause contained in the point submitted for our consideration. We base our conclusion on the cases already cited: DeLoy v. Travelers’ Insurance Co., 171 Pa. 1, and Burkhard v. Travellers Insurance Co., 102 Pa. 262. Nor do we think our finding conflicts with the law as laid down in the last case decided by. the Supreme Court in Rebman v. General Acc. Ins. Co., 217 Pa. 518, where it is decided that the exposure must be “intentional and unnecessary.”
    ■ In the case last cited the words used in the policy are as follows, to wit: “Nor does this contract extend to nor insure against death or any kind of disablement resulting wholly or partly, directly or indirectly from. voluntary exposure to unnecessary danger.” “The certificate holder is required to use all- due diligence, for personal safety and protection.” The policy, which is before us for consideration, does not contain the words “voluntary exposure,” nor that the “holder is required to use all due diligence.” While it is presumed a holder of a policy is not to voluntarily expose himself and that he is expected to “use all due diligence,” still if a person acts carefully and prudently in the face of known danger it cannot be said that he unnecessarily exposed himself to an obvious risk or to obvious danger. . ,
    As was held in the case of Rebman v. General Acc. Ins. Co., 217. Pa. 518: “The clause of the policy must be held to apply whenever the insured is injured in a manner that should have been anticipated while voluntarily doing something that ordinary prudence would forbid.” In the case at bar the deceased could not anticipate an explosion unless something came in contact with the powder which would cause it to explode and there was.no evidence to show that he failed to use ordinary .prudence or that he did anything to cause the explosion.
    . And nqw., August 12, 1907, the point reserved by us for our •consideration is refused and it is ordered and directed that the judgment be entered upon the verdict as rendered by the jury to which decree the defendant excepts and bill sealed..
    ■ Errór assigned was in entering judgment for the plaintiff bn the ’verdict.
    
      H. H, Waite, for appellant.
    
      February 28, 1908:
    
      W. M. Henderson, for appellee.
   Opinion by

Morrison, J.,

The action was on a policy of insurance issued by the defendant to Edmund A. Alloway, insuring him against injury resulting from accident. In his application the insured set .forth that his occupation was that of a “clerk in a store, not •doing porter’s work.” The policy was dated August 29, 1903. It contained the following: “In event of injuries, fatal or otherwise, resulting from an unnecessary exposure to obvious risks of injury or obvious risks of danger .... in such case the limit of the company’s liability shall be one-fifth of the amount which would otherwise be payable under this policy.” The policy also provides: “If the insured is injured after having changed his occupation or duties to one classified by this company as more hazardous than that herein stated, or is injured while doing any act or thing pertaining to any more hazardous occupation, the company’s liability shall be only for such proportion of the principal sum or other indemnity as the premium paid by him will purchase at the rate fixed by the company.”

The policy was for the sum of $400; the judgment is for the amount of the policy, with interest. The contention • of the learned counsel for defendant is that because the insured ■lost his life on July 23, 1906, by reason of an explosion of powder in a house about one and one-fourth miles away from the store where he was employed, he was killed from unnecessary exposure to obvious risks of injury or obvious danger so •that the liability of the company was limited to the one-fifth of the amount of the policy, under the clause first above quoted. .It is not contended that the insured changed his occupation to a more hazardous one; he was a clerk' in a store, and continued in this same employment to his death, and under the . undisputed evidence it must be conceded that one of his duties as such clerk was, when so directed by his employer, to go to the powder house and deliver powder to customers of his employer.

-.The policy did not prohibit the insured from handling powder or anything else kept in a general store in a mining region. The court below was of the opinion that the injuries to the insured did not result from unnecessary exposure to obvious risks of injury or obvious danger, and, therefore, entered judgment against the defendant for the full amount of the policy, with interest.

The real question, then, is: can this ruling be sustained? We think it has been fully vindicated by the opinion of the learned court below and the authorities therein cited. That opinion is so full and clear that it seems unnecessary for us to attempt to add anything to it. We are not convinced that under the policy the insured was prohibited from properly and reasonably handling explosives, or anything else usually sold in a general store. He described his occupation in his application as a “clerk;” general duties in a store, not doing porter’s work.

If he had sold and delivered powder in the store, it ought not to be held that he was unnecessarily exposing himself to obvious risks of injury or obvious danger. It would hardly be possible to convince experienced and prudent persons familiar with powder, that weighing it out and delivering it to customers, would be unnecessary exposure to obvious risks or obvious danger. If powder is carefully handled, it is not obvious that it will become dangerous. It is an article that is being constantly handled by many men who consider themselves careful and prudent. If the insured could have sold and delivered powder in the store, without violating .the terms of the policy, it is not apparent why he could not go to the powder house and sell and deliver powder under the direction of his employer and in the line of his duty.

' Unless the insured knew of or saw something at the powder house which might explode the powder, how can it be said that he exposed himself to obvious risk or obvious danger? There is no evidence of how the explosion happened, nor is there a particle of evidence that anything came to the attention or knowledge of the insured to warn him of obvious danger while he was at the powder house, or at any time before.

The able argument of the learned counsel for the defendant has not convinced us that there is any serious error in. the record and, therefore, the assignments of error are all dismissed.

Judgment affirmed.  