Mossop v. The Continental Casualty Company
| Citation | 118 S.W. 680,137 Mo.App. 399 |
| Parties | MOSSOP, Respondent, v. THE CONTINENTAL CASUALTY COMPANY, Appellant |
| Decision Date | 20 April 1909 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.
REVERSED AND REMANDED.
STATEMENT.--Action on an accident insurance policy for twenty-one weeks indemnity at $ 15 a week or $ 315, plaintiff alleging he was totally disabled during that period by an accidental injury. This fact is not contested, the defenses being, first failure to furnish proof of loss as required by the policy second, intentional infliction of the injury by another person, third, that it was received while plaintiff was quarreling, fighting and violating the law, fourth, while he was intoxicated, fifth, was the result of intoxication. It is alleged any or all of those facts would excuse defendant from liability. The injury was received in the afternoon of December 17, 1906, and about the premises of a saloon kept by George Mills. According to plaintiff's version of the occurrence, he went into the saloon and asked for a drink of liquor. Mills refused him because of a dispute in the saloon two or three weeks before, ordered him out and just as he passed through the door slapped him on the back, but in a friendly way and without force enough to hurt or cause a fall. The saloon stood at the intersection of two streets and the walls did not join at right angles, but at the corner was a narrow wall set diagonally to the street and in it was the entrance to the saloon. A porch projected from the second story and was supported by a post located where the front and side walls of the building would have joined if they had met. The entrance of the saloon was set back some feet from this post and was elevated about a foot above the sidewalk, the triangular space between the entrance and the post being a raised platform. Plaintiff said in stepping off this platform he slipped, and in falling struck his knee against the iron post, thereby causing the injury, which was a fracture of the knee cap or patella. He testified he was perfectly sober, but there was evidence to prove he was intoxicated, had been in a quarrel with the saloon keeper and was ejected by the latter with a shove which might have caused him to fall. The policy provided for the payment of an indemnity to the plaintiff, or his wife, and the material parts said the indemnity would be paid on the conditions following:
"In the event the insured, while his policy is in force, shall receive personal, bodily injury, which is effected directly and independently of all other causes through external violent and purely accidental means (suicide sane or insane not included) and which causes at once total and continuous inability to engage in any labor or occupation and provided that neither such injury nor inability is in consequence of nor contributed to by any bodily or mental defect disease or deformity of the insured.
PART I * * * * *
PART II. WEEKLY INDEMNITY.
If such injury shall not result in any of the losses scheduled in Part I the company will pay said Weekly Indemnity for total loss of time necessarily resulting from injury as before described for such period not exceeding one hundred and four consecutive weeks, as the insured shall be under the treatment of a legally qualified physician or surgeon by reason of such injury.
PART III. SPECIAL INDEMNITIES.
Another paragraph required notice of a claim to be given by the insured or beneficiary to the company within fifteen days of an accident causing the loss for which claim was made, and "affirmative proof" to be furnished in case of loss of time, within thirty days from the termination of the period for which the company was liable; and declared no proceedings in law or equity should be brought to recover the indemnity until after the expiration of the time for filing proofs, or, in case the claim was for weekly indemnity, within one year from the termination of the period for which the company was liable. The policy as a whole is not preserved in the record. The answer denies either first notice or "affirmative proof" was given; but it was proved defendant received a card from plaintiff on December 28th, which appears to have been furnished by defendant, and contained blanks to be filled to state the date and hour of the accident, when plaintiff quit work, what he was doing when injured, what injuries he received, about how long he would be disabled, his occupation, address, doctor's name, number of the policy and some other matters. It was proved too, defendant received January 2, 1907, what is entitled "Claimant's Preliminary Notice of Injury," a document containing questions with blanks for answers, as did the card, but calling for more particulars than the latter; in truth, for all the details of the accident, and the kind, gravity and consequences of the injury. On the back were questions and blanks for the report of a surgeon, which were expected to be and were filled in by the surgeon then in attendance, in the hospital of the Missouri Pacific Railway Company where plaintiff lay, on thirty-five or forty patients who were suffering from injuries for which defendant might be liable. The surgeon's report stated the nature of plaintiff's injury and that it alone totally disabled him from attending to every part of his work, how the accident occurred according to plaintiff's statement, that his disability would continue for six or eight months, that the injury was not aggravated by any prior disease and he had no other chronic ailment, defect or deformity. This document was stamped by defendant: "Received April 10, 1907." The court left it to the jury to say whether defendant had been given notice of the injury within fifteen days after it happened, and thereafter and before filing suit, had furnished "affirmative proof" on one of defendant's forms; or, if this had not been done, whether defendant had waived notice. There was a verdict for plaintiff for full indemnity and defendant appealed.
Reversed and remanded.
Edwin S. Puller and Manton Maverick for appellant.
Where the policy excepts injury happening while the insured is intoxicated, the exception applies to prevent a recovery whether the condition was the cause of the injury or not. 1 Am. and Eng. Enc. (2 Ed.), 318; Shader v. Assurance Co., 66 N.Y. 441; 23 A. R. 65; Standard L. A. I. Co. v. Jones, 94 Ala. 434; 5 Thomp. & C. (N. Y.) 643; Campbell v. Fidelity & C. Co., 109 Ky. 661; Carr v. Insurance Co., 100 Mo.App. 602; Mair v. Insurance Co., 37 L. T. R. 356, C. P. D. (Eng.); Flint v. Insurance Co. (Tex.), 43 S.W. 1079; Culley v. Insurance Co., 96 N.Y.S. 282; Affirmed 187 N.Y. 517; De Van v. Insurance Co., 92 Hun 256; Affirmed 157 N.Y. 690; 3 Joyce on Insurance, sec. 2612, p. 2547; 2 May on Insurance, sec. 531, p. 1258.
Henry E. Haas for respondent.
By the terms of the policy the injury must have the result of intoxication, quarreling or...
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