#### Mildred Hamilton et al., appellees, v. North American Accident Insurance Company, appellant.

Filed March 18, 1916.

No. 18560.

1. Appeal: Affirmance: Instructed Verdict. Upon a jury trial in district court, if each party asks an instructed verdict in his favor, the decision of the court for plaintiff will he sustained if a verdict could he sustained for plaintiff upon the evidence with proper instructions.

2. Insurance: Policy: Construction. The word “dwelling” alone is not commonly used with exactly the same meaning as the words “dwelling house.” As that word'is used in .the policy in suit, under the circumstances in .which the insured was placed, it is capable of being understood to mean, “home or place of habitation.” If the insured did so understand and the insurer had reason to suppose she so understood it, that meaning must prevail. Rev. St. 1913, sec. 7909.

3. Appeal: Affirmance. ■ In this case it is not so clear that the trial court was wrong in so construing the evidence as to require a reversal.

Appeal from the district court for Keith county: Hanson M. Grimes, Judge.

*Affirmed.*

*3. 3. Qoodall, Edward St. Glair*and *3. A. Dana,*for appellant.

*Wilcox & Ealligan, Elicldnger & Powell*and *L. A. De Voe, contra.*

Sedgwick, J.

These plaintiffs, Mildred Hamilton and Clarence Hamilton, minors, by their guardian, I. N. Flickinger, recovered a judgment in the district conrt for Keith connty against the defendant on an insurance policy, and the defendant has appealed.

The policy was issued to the mother of these minors,, and provided: “Two thousand dollars for loss of life occurring within 30 days from date of the event causing the *580fatal injury, provided the assured shall sustain exclusively by the means hereinafter stated, bodily injuries, effected solely by external, violent and accidental means, and which, independently of all other causes, shall be immediately, continuously and wholly disabling, and which shall be the sole and exclusive cause of the death of the assured within the time limit of this paragraph, as follows.” Then follow twelve provisions purporting to limit the liability on the policy, the fourth being:

> “By the burning of a dwelling, hotel, theater, clubhouse, lodge room, school building, office building, store or barn, in which the assured may be burned by fire or suffocated by smoke, but this shall not apply to or cover the assured while acting as a volunteer or paid fireman.”

The insured was a widow, who was supporting and educating, largely by her own efforts, these two young children. The evidence is that she was attempting to extinguish fire which had burned some rubbish in the rear of her dwelling house in the village of Ogallala, and while attempting to stamp out the smouldering fire her clothing became ignited. She ran to a neighboring house, and there the burning of her clothing was extinguished, and she was carried to her own house, where within a few hours she died from the effects of the burns. One witness who, from a distance of “about a block,” saw the clothing of the deceased take fire, was asked: “Q. Was this fire on her own lot? A. I should think it would be in the street, but I don’t know.” She was also asked: “Q. Where was that fire? A. Right north of the fence around her yard; between that and the road. * * * *Q.*State what she was doing. A. She had burned off the weeds and grass, and there was a little cinders that was burning, and she was walking on that and tramping it out with her feet, so that the blaze wouldn’t blow over into her buildings.” The defendant contends that this evidence shows that the accident happened in the street, and not on her premises. The parties each asked for an instructed verdict, and the court directed a verdict for *581plaintiffs. Under the oft-announced rule, we must sustain the decision of the court if a verdict for the plaintiffs could be sustained upon the evidence with proper instructions. That is, all issues of fact will be considered as found in favor of the decision, and those findings upon conflicting evidence will not be disturbed unless clearly wrong. Within this rule it will, if necessary to support the judgment, be considered that the court found that the accident occurred upon the premises of the deceased, and such finding is not so unsupported that we can say that it is clearly wrong. It is conceded that the injury was “effected solely by external, violent and accidental means,” and was within the terms of the policy, unless excluded by the limiting clause. The defendant contends that paragraph 4 of the limiting clause above quoted applies directly and precludes a recovery on the policy. The plaintiffs point out that if the 12 limiting articles are construed as defendant contends, the result is that the deceased, under the circumstances in which she was placed at the time of procuring the insurance, had. practically no indemnity by the policy of which her children could avail themselves' in the event of her accidental death, so that with such a construction of the policy she paid her premium practically without consideration. It is substantially alleged in the reply, Avhich is without objection treated as alleging a substantial issue in the case, that the deceased understood when she bought the policy .that her children were protected by the policy against any fatal accident that might happen to her while she Avas at her home; that the defendant company knew that she so understood the policy and purposely led her to rely upon the insurance Avith that meaning. The word “dwelling” alone is not commonly used with exactly the same meaning as the words “dwelling house.” Webster’s New International Dictionary defines “dwelling,” as “habitation; place or house in which a person lives.” The words “dwelling house” are given a much more restricted meaning. The trial court was asked to find that *582this insurance company took the money of this woman and gave her a policy in which it agreed to pay her children “two thousand dollars for loss of life occurring within 30 days from date of the event causing the fatal injury,” and then followed that agreement with a long list of provisions of such a nature as to practically deprive the children of any protection whatever. The trial court considered that the use of the word “dwelling” instead of the expression “dwelling house” might reasonably be understood by the insured to include her “habitation” or home place, that the insurer had reason to believe that she did so understand it, and that section 7909, Rev. St. 1913, applies: “When the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it.”

Under the peculiar circumstances of this case, we cannot say that the trial court was wrong, and the judgment is

Affirmed.