118 S.W. 680 (Mo.App. 1909), Mossop v. The Continental Casualty Company
|Citation:||118 S.W. 680, 137 Mo.App. 399|
|Opinion Judge:||GOODE, J.|
|Party Name:||MOSSOP, Respondent, v. THE CONTINENTAL CASUALTY COMPANY, Appellant|
|Attorney:||Edwin S. Puller and Manton Maverick for appellant. Henry E. Haas for respondent.|
|Case Date:||April 20, 1909|
|Court:||Court of Appeals of Missouri|
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.
"A. In any of the losses covered by this policy and specified in parts I or II (1) where the accidental injury results from the...
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