Carr v. Pacific Mutual Life Ins. Company

Citation75 S.W. 180,100 Mo.App. 602
PartiesMICHAEL T. CARR, Respondent, v. PACIFIC MUTUAL LIFE INSURANCE COMPANY, Appellant
Decision Date08 June 1903
CourtCourt of Appeals of Kansas

Appeal from Jackson Circuit Court.--Hon. W. B. Teasdale, Judge.

Judgment reversed.

J. C Rosenberger for appellant.

(1) The court erred in overruling the demurrer to the evidence and in refusing the peremptory instruction to find for defendant. When death or injury is caused directly or indirectly by disease, there can be no recovery on a policy containing an exception identical with the one in the policy in the case at bar. Traveler's Ass'n v. Fulton, 79 F. 423; National Ass'n v. Shyrock, 73 F. 774; Sharpe v. Traveler's Ass'n, 139 Ind. 92; Hubbard v Accident Association, 98 F. 932; McCarthy v Insurance Co., 8 Biss. (U.S.) 362; Insurance Co. v. Jones, 94 Ala. 434; Shader v. Assurance Co., 66 N.Y. 441. (2) The rule of "ejusdem generis" never applies except where the persons or things specifically enumerated are of the same kind or class--the same genera. State ex rel. v. Corkins, 123 Mo. 56; State v. Phelan, 66 Mo.App. loc. cit. 556; Sutherland Stat. Const., sec. 279. (3) There can be no recovery on this policy on account of the breaches of warranty made by plaintiff. Wolf v. Insurance Co., 75 Mo.App. 337; Cagle v. Ins. Co., 78 Mo.App. 215; Loehner v. Insurance Co., 17 Mo. 247, approved by United States Supreme Court, 117 U.S. 519; Greenwood v. Insurance Co., 27 Mo.App. 412; Sprague v. Insurance Co., 49 Mo.App. 423; Shoup v. Insurance Co., 51 Mo.App. 286; Lama v. Insurance Co., 51 Mo.App. 447; Burnham v. Insurance Co., 63 Mo.App. loc. cit. 93.

Frank P. Walsh, E. R. Morrison for respondent.

(1) The court did not err in overruling the demurrer to the evidence and in refusing the peremptory instruction to find for defendant. (2) The presumption is that plaintiff's injuries were not intentionally inflicted and the burden is upon defendant of showing that said injuries happened under conditions falling within the exceptions named in the policy. This question should have been, and was submitted to the jury, which found that said injuries were the results of an accident. Hodson v. Ins. Co., 97 Mass. 144; Campbell v. Ins. Co., 98 Mass. 381; Redman v. Ins. Co., 49 Wis. 431; Ins. Co. v. Brown, 57 Miss. 308; Meadows v. Ins. Co., 129 Mo. 76; Ins. Co. v. Hicks, 56 S.W. 87; Ins. Co. v. Hogan, 80 Ill. 35; Ins. Co. v. Bennett, 90 Tenn. 256; Niblack on Life Ins., sec. 381 and cases cited; Bower v. Supreme Lodge, 74 Mo.App. 490; Amer. and Eng. Ency. of Law, vol. 1, p. 332, cases cited. (3) The question of the proximate cause of plaintiff's injuries was a question of fact properly submitted to the jury, which was unquestionably justified in finding the issues thereon for plaintiff, as submitted in instruction 2, given for plaintiff. Railroad v. Kellogg, 94 U.S. 74; Bailey v. Casualty Co., 8 A.D. 127; Accident Ass'n v. Shryock, 54 Neb. 250; Ins. Co. v. Hicks, 56 S.W. 87; Amer. and Eng. Ency. of Law, vol. 1, pp. 315 and 318; Lawrence v. Ins. Co., L. R., 7 Q. B. D. 216; Winspear v. Ins. Co., 6 Q. B. D. 42. (4) A general clause of exception in a contract will be limited by the specific exceptions preceding it. Grumley v. Webb, 44 Mo. 444; St. Louis v. Laughlin, 49 Mo. 559; Am. and Eng. Ency. of Law, vol. 23, p. 441; Harper's Admr. v. Ins. Co., 19 Mo. 506; Straus v. Ins. Co., 94 Mo. 182; Ins. Co. v. Hicks, 56 S.W. 87. (5) Appellant is estopped to urge breaches of warranty as a defense in this case. Bush v. Ins. Co., 85 Mo.App. 155; Ormsby v. Ins. Co. (No. 6330 Kansas City Court of Appeals); Ins. Co. v. Barnes, 41 Kan. 161; R. S. 1899, sec. 7891; Logan v. Casualty Co., 146 Mo. 114.

OPINION

BROADDUS, J.

Plaintiff's suit is on an accident policy to recover for injuries received by him during the life of said policy. The policy was issued on the 15th day of July, 1899, and the plaintiff was injured in March, 1900; proper proof of loss was made and the controversy at the trial arose as to defendant's liability under the evidence.

The first defense is that it was provided in said policy that "it did not insure or cover injuries fatal or otherwise received while or in consequence of plaintiff being or having been under the influence of or affected by, or resulting directly or indirectly in whole or in part from intoxicants, anaesthetics, vertigo, sleepwalking, or any disease or bodily infirmity; and that whatever bodily injuries were sustained by plaintiff were received while or in consequence of plaintiff being or having been under the influence of or affected by, or resulted directly or indirectly in whole or in part from vertigo or sleepwalking or disease or bodily infirmity." The second defense is, that it was provided in said policy that, "in case of injuries . . . intentionally inflicted upon the insured by himself or by any other person or inflicted upon himself or received by him while insane, the measure of this company's liability shall be a sum equal to the premium paid, the same being agreed upon as in full liquidation of all claims under this policy," and that whatever injuries were sustained by plaintiff were intentionally self inflicted, or were received by him while insane, in which case the liability of plaintiff by the terms of the policy is limited to the total amount of premiums paid by plaintiff to the defendant. The third defense is, that in plaintiff's application for said policy, he "willfully, falsely and fraudulently warranted in said application that he had never received indemnity for accident, and that no accident policy ever issued to him by any other company had been cancelled when in truth and in fact plaintiff had theretofore received indemnity from another insurance company in which he had been insured, which company had cancelled the policy held by plaintiff by reason of the number and character of the claims made by plaintiff. That plaintiff received indemnity from said company for alleged accidents on three separate and distinct occasions prior to the date of his application to this company," and that defendant would not have issued the policy in suit except for said representations.

The evidence tended to show that prior to the issue of the policy in controversy that plaintiff had been insured in another insurance company against accidents and that he had received indemnity from such company for accidents suffered, and that his policy for that reason had been cancelled; but it was shown that the agent who contracted with plaintiff and issued the policy herein was fully informed thereof at and prior to the time plaintiff signed said application.

It is fully agreed that at the time plaintiff was injured he was confined in a hospital at Pittsburg, Kansas, on account of sickness known as la grippe; that he was suffering, too, from a high fever and that he was mentally unconscious and had no knowledge as to how he became injured. His delirium was so great that at times he had to be restrained by force for fear of his doing injury to himself or to others. His nurse testified that on the morning of his injury she left the plaintiff in his bed in his room for a few moments; that when she returned he had left his bed, and that she rushed to the window, looked out and saw him falling. He fell a distance of about twenty feet. His injuries were serious and he did not return to consciousness until about four days thereafter.

When plaintiff was testifying he was asked if he was able to state any circumstances as to how or what caused him to get out of the window, to which he answered: "No, sir, I do not." He was also asked: "You were unconscious from the sickness from which you were suffering?" His answer was: "Yes, sir." The doctor in attendance said he was delirious.

Section three of the policy reads as follows:

"3. This insurance does not cover disappearances, nor any injury, fatal or otherwise, of which there is no visible mark upon the body, nor any such injury resulting from dueling or fighting, from exposure in war or in riot, from voluntary or unnecessary exposure to danger, medical or surgical treatment, except when amputation rendered necessary by any injury received within the period of this policy is made within ninety days from date of accident, nor injuries, fatal or otherwise, resulting from poison or anything else, consciously or unconsciously, accidentally or otherwise taken, administered, absorbed or inhaled, nor injuries fatal or otherwise received while or in consequence of being or having been under the influence of or affected by or resulting directly or indirectly in whole or in part from intoxicants, anaesthetics, narcotics, sunstroke, freezing, vertigo, sleepwalking, fits, hernia, orchitis, or any disease or bodily infirmity, nor any injury, fatal or otherwise, received while violating law, resisting arrest or fleeing from justice."

At the close of plaintiff's case the defendant interposed a demurrer to the evidence, which was overruled. The jury returned a verdict for plaintiff for $ 543.43. The defendant appealed.

The defendant's contention is, that under the evidence, about which there is little or no dispute, the court should have peremptorily instructed the jury to find in its favor. The plaintiff contends that the plaintiff's sickness was not the proximate cause of his injury.

In Lawrence v. Accident Ins. Co., L. R. 7 Q. B. D. 216, the facts were that the plaintiff while on a railroad platform was suddenly seized with a fit, which caused him to fall off the platform and onto the railway track. A locomotive engine passing at the time ran over his body, causing injuries from which he died. It was held that the proximate cause of his injury was in being run upon by the train, and not the fit. And if a man while...

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