#### WILLIE POOLE v. IMPERIAL MUTUAL LIFE and HEALTH INSURANCE COMPANY.

(Filed 29 October, 1924.)

1. Insurance Policies — Contracts—Interpretation.

Where the terms of a policy of insurance are therein ambiguously expressed, the interpretation more favorable to the insured will be given. them.

2. Same — Accidents—Stipulations — Unlawful Acts.

A policy of accident insurance that excepts from the company’s full liability diseases contracted before the date of the policy, “nor for sickness due to immorality or the violation of law,” does not of itself exclude such liability for an injury caused by the plaintiff’s stealing a ride on a railway train, made a misdemeanor by C. S., 3508, unless the plaintiff’s act was so reckless as to withdraw it from the class of accidents covered by the policy.

3. Same — Questions for Jury.

Where' the evidence is conflicting as to whether the plaintiff in an action to recover for an accidental injury on his policy of insurance, of had forfeited his right under its terms and conditions, the matter of such defense is a question for the jury.

Civil ACTION, to recover for loss of foot on a disease and accident policy beld by plaintiff in defendant company, tried on appeal from a justice’s court, before McElroy, J., and a jury, at September Term, 1924, of FoRsyth.

At the close of plaintiff’s evidence, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.

John D. Slawter and Raymond Q. Parker for plaintiff.

John C. Wallace and'Richmond Rucker for defendant.

*469Hoke, C. J.

Tbe evidence on part of plaintiff tended to sbow tbat be beld a policy in defendant company wbieb guaranteed to plaintiff tbe payment of specified weekly sick and accident benefits, tbe payment guaranteed in case of accidental loss of foot being $125; tbat while said policy was alive and in force, all premiums baving been fully paid, plaintiff, on 80 April, 1922, in endeavoring to aligbt from a railroad train, fell and was struck by tbe train and bis leg broken, so tbat same bad to be amputated.

There was also evidence from plaintiff himself permitting tbe inference tbat at tbe time of tbe injury be was or bad been on a railroad freight train without permission of tbe conductor or other, and “with tbe intention of being transported free and without paying tbe usual fare,” contrary to tbe provisions of O. S., cb. 67, sec. 3508, constituting such act a misdemeanor.

It appeared also tbat tbe policy sued on and introduced in evidence by plaintiff contained, among others, stipulation as follows: “No benefits will be paid for any disease contracted before tbe date of this policy, nor for sickness due to immorality or violation of law; and if tbe company has evidence tbat tbe insured is presenting a claim void under this provision, or is feigning sickness or disability, it reserves tbe right to refund tbe amount of premiums paid, less benefits drawn, if any, and take up and cancel policy and be discharged from further liability hereunder.”

Defendant resists recovery and contends tbat tbe judgment of nonsuit should be upheld: First, by reason of tbe express stipulation of Clause F of tbe policy, exempting company from payment of benefits “for any disease contracted before tbe date of tbe policy, or for sickness due to immorality or violation of law.” Second, because it appears tbat plaintiff at tbe time was engaged in an unlawful act, contributory to tbe injury. But, in our opinion, neither position can be maintained. Even if there were ambiguity in tbe clause of tbe policy relied upon, permitting construction, it is tbe accepted principle in such cases tbat tbe question should be resolved in favor of tbe insured. Parker v. Ins. Co., ante, 403; Allgood v. Ins. Co., 186 N. C., p. 415; Rayburn v. Casualty Co., 138 N. C., p. 379; Kendrick v. Ins. Co., 124 N. C., p. 315. And, furthermore, it is very generally understood tbat tbe term “sickness or disease” does not extend to or include accidental injuries. 1 Cyc., pp. 248-262, etc.

On tbe second position tbe judgment of nonsuit is erroneous: First, because it does not appear as a conclusion of law tbat plaintiff was guilty of tbe crime imputed to him, and in any event tbe question should be submitted to the jury. Ferrell v. R. R., 172 N. C., p. 682. Second, even if tbe unlawfulness of plaintiff’s conduct at tbe time be *470established by the evidence, or conceded, the policy in case of accidental injuries containing no exception in reference to it, and the contract of insurance being supported by a separate and independent consideration, to wit, the payment of the premiums charged, the right of recovery, in our opinion, should not be affected by any unlawful conduct of plaintiff, unless it be so reckless or under such circumstances as to remove the injury from the class of accidents, and so withdraw same from the effects of the policy. Freeman's Ins. v. Huyley, 129 Miss., p. 525, reported also in 23 A. L. R., p. 1470; Ins. Co. v. Bennett, 90 Tenn., p. 256; London v. Travelers Protective Assn., 126 Mo., p. 104; Phalen v. Clark, 19 Conn., p. 421; 9 Cyc., p. 556; 1 Corpus Juris, p. 960.

A case to some extent in illustration of the position occurs in our own reports, in Clay v. Ins. Co., 174 N. C., p. 642. And, applying the principles approved in these authorities, we are of opinion that the judgment of nonsuit should be set aside and the cause submitted to the jury on the question of whether plaintiff at the time of the injury was knowingly and willfully engaged in an act of a kind and under circumstances to render his injury so altogether probable as to remove same from the class of accidental injuries contemplated and provided for in his policy of insurance.

Reversed.