{ "id": 1737959, "name": "Ross v. Equitable Life Assurance Society", "name_abbreviation": "Ross v. Equitable Life Assurance Society", "decision_date": "1964-02-10", "docket_number": "5-3184", "first_page": "643", "last_page": "649", "citations": [ { "type": "official", "cite": "237 Ark. 643" }, { "type": "parallel", "cite": "375 S.W.2d 222" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "222 Ark. 968", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1652957 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/222/0968-01" ] }, { "cite": "206 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1485086 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/206/0430-01" ] }, { "cite": "11 P. 2d 215", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2794805 ], "opinion_index": 0, "case_paths": [ "/colo/90/0581-01" ] } ], "analysis": { "cardinality": 627, "char_count": 11695, "ocr_confidence": 0.506, "pagerank": { "raw": 1.5887635899707377e-07, "percentile": 0.6816961143294454 }, "sha256": "9d12fa604daca2034a63be2104993c8787fa323f864cf530cb9dbc45a13103e2", "simhash": "1:28fa48cde9c7e25a", "word_count": 1896 }, "last_updated": "2023-07-14T21:17:18.904164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ross v. Equitable Life Assurance Society." ], "opinions": [ { "text": "Cakleton Harris, Chief Justice.\nThis case relates to an employment practice that has become widespread in recent times, and which is sometimes referred to as \u201cmoon-lighting.\u201d Appellant, Elmer E. Ross, a resident of Little River County, has been employed regularly by Day & Zimmermann, Inc., Loan Star Ordnance Division, Texarkana, Texas, as an equipment mechanic, since November 15, 1951. In his employment, Ross worked eight hours per day. During the last eight years, his work day started at 7:00 o\u2019clock A.M., and concluded at 3:30 o\u2019clock P.M. About six years ago, he became a part-time night policeman for the City of Ashdown. Ross acted as a relief or substitute policeman for the regular employee, Chester Pruitt. For four of the last six years, he has served in such capacity for the City of Ashdown two nights each week.\nOn August 4, 1962, Ross, Avhile working as a night policeman for the city, stopped an automobile, in which five youths from Fort Smith were riding. The automobile was stopped because the driver had run a stop sign. During the investigation, appellant Avas shot by one of the occupants of the car, requiring medical and hospital expenditures, for which appellant seeks to recover from the appellee company. The City of AshdoAvn carried no Workmen\u2019s Compensation coverage.\nAt the time Ross was injured, there were in full force and effect, group accident, health, hospital, and life insurance policies issued by the appellee, the Equitable Life Assurance Society of the United States, in favor of Day and Zimmennann, Inc., Loan Star Ordnance Division, affording non-occupational accidental bodily injury, or non-occupational sickness insurance benefits to the employees of Day and Zimmermann. The insurance company refused to make any payment to Ross, contending that his injuries arose out of his employment with the City of Ashdown; that, therefore, he had suffered an occupational accident, which precluded Ross from receiving any benefits under said policies. Appellant instituted suit against the company, seeking judgment in the amount of $791.39, together Avith statutory penalty and reasonable attorney\u2019s fees. On hearing, the court, sitting as a jury, found that Ross\u2019 injury arose out of and in the course of his employment Avith the City of Ashdown, and was not a non-occupational accident. From the judgment entered, denying recovery, appellant brings this appeal. Only one point is relied upon for reversal, vis,\n\u201cThe trial court erred in ruling that the accidental bodily injury of appellant Avas \u2018 occupational, \u2019 precluding recovery under the involved policies of insurance.\u201d\nThe section relative to hospital expense, inter alia, provides:\n\u201cNo payment shall Tbe made under the provision hereof entitled \u2018Hospital Confinement Benefits.\u2019 * * *\n\u201c(b) due to accidental bodily injuries arising out of and in the course of an employee\u2019s employment.\u201d\nThe accident and health sections also provide that no benefits are payable \u201cfor disability due to accidental bodily injuries arising out of and in the course of the employee\u2019s employment. \u2019 \u2019\nAppellant contends that the \u201cemployment\u201d referred to concerns solely the employee\u2019s employment with Day and Zimmermann, Inc., and the accident and health insurance coverage is due to be paid when the epxployee is injured at any time, except when injured on his job with Day and Zimmermann. Appellant states:\n\u201cInsurance benefits are afforded the employees of Day and Zimmermann, Inc., for non-occupational bodily injuries preventing the employee from performing any and all duties pertaining to his employment, precluding benefits due to disability arising out of and in the course of the employee\u2019s employment. The employment, to which the policy refers, can only mean the employment of the named employee with the named employer, Day and Zimmermann, Inc.\u201d\nOn the other hand, appellee asserts that the policies were intended to cover accidents or sickness arising from non-occupational sources, and that Ross, though not injured because of his employment with Day and Zimmermann, was injured by virtue of his employment with the City of Ashdown, and consequently, since such injury occurred during a time when he was carrying out the duties of employment, the policies do not afford coverage. That, then, is the question\u2014what is meant by the phrase, \u2018 \u2018 due to accidental bodily injuries arising out of and in the course of an employee\u2019s employment?\u201d Does this refer to any employment engaged in by an insured, or does it only refer to the employee\u2019s duties with the company which made the group insurance plan available for the benefit of its employees, vis, Day and Zimmermann ?\nWe are of the opinion that the phrase has reference to the employment with Day and Zimmermann, for the \u25a0wording of the policies strongly supports that interpretation. Day and Zimmermann, Inc., are mentioned as \u2018 \u2018 the employer, \u2019 \u2019 and this company is given the right to terminate the policies on any premium due date, or, subject to appellee\u2019s approval, to modify, amend or change the provisions, terms and conditions of the accident, health, or hospital insurance. The life insurance coverage gives the employee the privilege of changing the beneficiary from time to time by filing a written request with the employer (Day and Zimmermann), but the change of beneficiary is ineffective until Day and Zimmermann enter the change upon the insurance records.\nAn \u201cInformation Manual,\u201d explaining the insurance plan, was prepared by Day and Zimmermann for distribution to the employees. This manual commences, \u201cTo our employees: as evidence of our interest in the welfare of you and your family, we have made available for your benefit a Contributory Group Insurance Plan, which consists of the following: * *\nThe various benefits to employees of the company are then explained in detail. At Page 14 of the manual, it is pointed out that \u201caccidents\u201d are not covered if intentionally self-inflicted, sustained while performing military service in time of war or riot, sustained while performing police duty as a member of any military or naval organization, or sustained outside of the United States or Canada. Certainly in setting out these exceptions to coverage under the policy, it would have been quite easy to have likewise provided that coverage was not afforded if bodily injuries were sustained while working at any employment, for any employer.\nNo helpful cases have been cited on the particular point involved, and we have found none dealing with the exact situation. Perhaps the case which comes closest to the instant litigation is Federal Life Insurance Company v. Hall, 11 P. 2d 215, which was decided by the Supreme Court of Colorado in 1932. There, Hall\u2019s occupation was not mentioned in the policy, and no language used therein related to any given occupation. As here, the insurance did not cover death or loss while performing occupational duties. Hall was a rancher, had a herd of milch cows, sold cream, and butchered and sold his calves for veal. He raised chickens, and marketed from 350 to 500 turkeys per year. When not so occupied, he took such work as he could get. This included employment on the public highways, and acting as a salesman. For about fourteen months before his accident occurred, he had occasionally done rough carpenter work, actually acting as what might be termed a \u201ccarpenter\u2019s helper.\u201d He was killed while assisting in the erection of a shed for a neighbor, when the shed was hit by a tornado. In answer to the question contained in the proof of death, the occupation of the deceased, at the time of the injury, was listed as \u201ccarpenter and ranchman.\u201d As here, the company refused to pay because it contended that Hall was performing occupational duties at the time of his death. The Supreme Court disagreed, stating,\n\u201cIf the words, \u2018occupational duties\u2019 were to be applied to every casual and temporary employment in which Hall engaged, this policy would be thus construed into a mere instrument for the furthering of a confidence game. The phrase was doubtless intended to apply to the insured\u2019s ordinary and usual occupation. There is nothing in this record to justify the conclusion that the carpenter trade was such. Hall\u2019s work in that line was apparently nothing more than the roughest and most ordinary sawing and nailing of boards. It might have been performed, and is every day performed, by unskilled farm boys. It has been repeatedly held that the term \u2018occupation,\u2019 as used in accident policies and applications therefor, refers to the insured\u2019s ordinary and usual business, neither to recreational activities nor to incidental nor temporary employment. * * *\n\u201cHence \u2018occupational duties\u2019 refers to duties incident to insured\u2019s ordinary and usual occupation, not to duties incident to an unusual and temporary employment.\u201d\nIt is true that Hall had engaged in carpentry work for only fourteen months, while Ross had been holding the night policeman job (though only two nights per week) for several years, but that fact is hardly sufficient to distinguish the cases. Another difference is that Hall purchased the insurance himself, while Ross is contending for benefits under policies purchased by his regular employer\u2014but this circumstance would seem to. make Ross\u2019 position even stronger, since the policies definitely define his employer. The main similarity in the cases, and, we think, the most significant fact, is that neither Hall nor Ross was engaged in his \u201cusual occupation\u201d at the time of being injured. Hall\u2019s usual occupation was rancher, and Ross\u2019 usual occupation was equipment mechanic. For the reasons herein cited we are definitely of the view that the employment referred to by the policies can only have reference to the employment of Ross with Day and Zimmermann, Inc.\nEven if it can be said that the policies are susceptible to the interpretation contended for by appellee, it must also be stated that they are certainly susceptible to the construction we have given. In such event, appellee still cannot prevail. As we stated in National Life and Accident Insurance Co. v. Horace, 206 Ark. 430, 175 S. W. 2d 984:\n\u201c \u2018If it be admitted that the policy is susceptible to this construction, it must also be admitted that this is not the only construction to which it is reasonably susceptible. The policy is ambiguous, to say the least of it, and the rule of construction followed by this court in many cases is to resolve ambiguous and doubtful language in favor of the insured, and against the insurer.\u2019 \u201d\nLikewise, in Firemen\u2019s Insurance Company of Newark, N. J. v. Motley, 222 Ark. 968, 264 S. W. 2d 418:\n\u201c \u2018Under well-settled principles, where the provisions of a policy are susceptible of two equally reasonable constructions, one favorable to the insurer and the other to the insured, the latter will be adopted. This is because the language is chosen by the insurer with the aid of experts employed for the purpose of writing the policy, and the insured has no voice in the matter. Therefore, where either of the two constructions may be adopted, it is fair that that which will sustain the claim and cover the loss will be chosen.\u2019 \u201d\nThe judgment is reversed, and the cause is remanded with directions to render judgment in favor of appellant, together with costs, statutory penalty, and a reasonable attorney\u2019s fee.\nIt was stipulated at the trial that if Ross was entitled to anything at all under the policies, he was entitled to the amount sought in his complaint.", "type": "majority", "author": "Cakleton Harris, Chief Justice." } ], "attorneys": [ "Shaver, Tackett & Jones, for appellant.", "Keith, Clegg & Eckert, for appellee." ], "corrections": "", "head_matter": "Ross v. Equitable Life Assurance Society.\n5-3184\n375 S. W. 2d 222\nOpinion delivered February 10, 1964.\nShaver, Tackett & Jones, for appellant.\nKeith, Clegg & Eckert, for appellee." }, "file_name": "0643-01", "first_page_order": 665, "last_page_order": 671 }