dissenting: I do not agree to the disposition being made of this case and will state my views very briefly.
As an abstract principle of law, I concede the correctness of the rule of the Rraly case that where an insurer seeks to avoid liability on the ground the accident for which recovery is sought is covered by a specific exception in the policy the burden is on the insurer to prove the facts which bring the case within the specified exception. I also concede the correctness of the rule of the Jameson case that where a policy of insurance is so drawn as to require an interpretation a construction most favorable to the insured will be adopted for the reason that the insurer prepares the contract, thereby selecting its' own language.
I think, however, that under the facts of this case there is no room for their application.
The plain purpose of the “exception” in this insurance policy is that there is no liability where recovery is had under the workmen’s compensation law for the injury, sickness or death. The facts shown by this record are that plaintiff knew all along that she did not have sufficient evidence to establish recovery under the workmen’s compensation law. Nevertheless, the $3,000 settlement with the workmen’s compensation insurance carrier was agreed to prior to the hearing before the commissioner, thus rendering that proceeding a “sham.” Pursuant to that agreement plaintiff was paid $3,000. Call it what one may — settlement, compromise or award — the cold hard fact remains that plaintiff received the payment by virtue of protection provided by the workmen’s compensation law.
I would reverse the judgment.
Schroeder, J., joins in the foregoing dissenting opinion.