Loesch v. Union Casualty And Surety Company

Decision Date02 July 1903
Citation75 S.W. 621,176 Mo. 654
PartiesLOESCH v. UNION CASUALTY AND SURETY COMPANY, Appellant
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. John A. Talty Judge.

Reversed and judgment here.

Percy Werner for appellant.

(1) There is no substantial proof that the death of the insured Frederick Loesch, resulted from accidental means. A presumption must be based upon fact, and not upon inference or upon another presumption. Glick v. Railroad, 57 Mo.App. 104; State v. Plass, 58 Mo.App. 152. (2) The holding of the post-mortem examination over the body of insured without notifying defendant and giving it opportunity to have its medical adviser present, under the terms of the policy, forfeited all claims thereunder. Wehle v. U. S Mut. Acc. Assn., 153 N.Y. 116. (3) Insured having procured insurance under the "preferred" class, as a "stock-dealer, not tending in transit," could not recover more than the pro rata insurance if injured whilst temporarily or otherwise engaged in the extrahazardous occupation of a drover, "tending in transit." Employers' Liability Assn. Co. v. Back, 102 F. 229; Aldrich v. Merc. Mut. A. Assn., 148 Mass. 457; Ins. Co. v. Martin, 133 Ind. 379; Cram v. Equitable Acc. Assn., 58 Hun 11; Standard L. & A. Co. v. Taylor, 34 S.W. 781; Mutual Acc. Assn. v. Hilton, 61 Ill.App. 100; R'y Officials Co. v. Bradley, 97 Ill.App. 355; Fidelity & Cas. Co. v. Jones, 62 S.W. 927; National Masonic Acc. Assn. v. Seed, 95 Ill.App. 43; Kern v. Ins. Co., 40 Mo. 19. (4) The court erred in giving instruction 1 on behalf of plaintiff. Instructions unsupported by evidence of the facts for which they call, are erroneous. Gorham v. Railroad, 113 Mo. 408. (5) Instruction 2, given on behalf of plaintiff, was erroneous in requiring that the "act of untying the bull" had to be specified in defendant's manual of occupations, as an occupation more hazardous than that of "stock-dealer, visiting yards, not working, nor tending stock in transit," before a classification other than that insured under could be looked to in determining the amount of recovery under the policy. Employers' Liability Assn. Co. v. Back, 102 F. 229; Mut. Acc. Assn. v. Hilton, 61 Ill.App. 100; Miller v. Ins. Co., 40 N.W. 839. (6) The verdict is excessive, and should in no event exceed $ 1,250.

R. M. Nichols for respondent.

(1) Under the testimony it was proper to submit the question to the jury, and it was a question for the jury as to whether deceased's death was the result of external, violent and accidental means. Bailey v. Interstate Casualty Co., 40 N.Y.S. 53, 158 N.Y. 723; Martin v. Equitable Acct. Assn., 68 S.Ct. (N. Y.), 61 Hun 467; Freeman v. Mercantile Mut. Acct. Assn., 156 Mass. 351, 30 N.E. 1013; Laessig v. Travelers' Prot. Assn., 169 Mo. 281. (2) Instruction 2, given for plaintiff, submits the question to the jury as to whether the act of untying the bull was designated or classed by the defendant in its manual as "more hazardous," i. e., was it an act which would properly come under the occupation described in the manual as "stock farmer or dealer, tending in transit, extra hazardous, limit of risk $ 1,000," or was it an act which would properly come under the occupation described in the manual as "stockfarmer or dealer, not working or supervising, not tending in transit, preferred limit of risk $ 5,000?" It was the province of the jury to decide the question as to whether or not the act of untying the bull belonged to the one or the other classes of hazard. Union Mut. Acct. Assn. v. Frohart, 134 Ill. 228; Berliner v. Ins. Co., 121 Cal. 462; Stone v. U. S. Cas. Co., 34 N. J. L. 371; Ins. Co. v. Martin, 133 Ind. 376; Hess v. Association, 112 Mich. 196; Fox v. M. F. A. A., 96 Wisc. 396. (3) Furnishing necessary blanks for the proof of loss upon which plaintiff was induced to expend the sum of $ 15 in making the proofs; retaining the proofs of loss, made in compliance with the policy, without objection; the efforts, after the proofs were made, to compromise the death claim for $ 1,200 or $ 1,500; the offer to submit the body of the deceased to a post-mortem examination for defendant company's special examination, and defendant's reply that they would attend to the matter -- these are acts consistent with no other theory than that there was an intention on the part of the defendant to waive any alleged forfeiture on account of holding the post-mortem without notice to it, and was evidence sufficient to go to the jury as to whether or not the defendant had waived the alleged forfeiture. Trippe v. Provident Fund Society, 140 N.Y. 28, 35 N.E. 316; Unthank v. Ins. Co., 4 Biss. (U.S.) 357. (4) The clause "If post-mortem be held without notifying the company in time to have its medical adviser present, then all claims under this policy shall be forfeited," in its natural construction does not preclude the holding of more than one post-mortem, and it does not say at which post-mortem "its medical adviser" shall be present. The clause does not say that he shall be present at all or any post-mortem, but only that it shall not be held "without notifying the company in time," and if present at any, or an opportunity given to be present at any, the object of the clause has been accomplished. In this light, there was not only a substantial, but a strict, compliance with the clause, for the physicians, after discovering the clause in the policy and while acting for the beneficiary, offered to hold another post-mortem for the benefit of the defendant, and such offer saved any forfeiture, if the clause had not been waived. McFarland v. Accident Assn., 124 Mo. 204; Sudduth v. Ins. Co., 106 F. 822.

OPINION

VALLIANT, J.

Suit on an accident policy insuring Frederick Loesch against loss by bodily injury sustained through external, violent and accidental means; in case of his death by that means the defendant agreeing to pay the plaintiff, his mother, $ 5,000. The petition alleged that the insured in his lifetime performed all the conditions of the policy and that while it was in full force on September 26, 1900, he died by reason of bodily injuries received through external, violent and accidental means; that due proof of loss was made to defendant, yet defendant refused to pay, etc.

The following summary of the affirmative matter pleaded in the answer is copied from Mr. Werner's brief:

"The answer admitted the issuance of the policy in suit, but denied the fact of death through accidental means, as stated. It then set up as a special defense the violation of the following condition of the policy, to-wit: 'If the company's representatives are denied the right to make examination of the insured's person or body, in respect to alleged injury or cause of death, or if post-mortem be held without notifying the company in time to have its medical adviser present, then all claims under this policy shall be forfeited, alleging that a post-mortem examination was held over the body of Frederick Loesch, on or about September 27, 1900, without the knowledge of the defendant, and without notifying the defendant in time to have its medical adviser present, and without any notice to it of any intention to hold such post-mortem examination, though the defendant had at the time a medical adviser whom it would have had present had it been advised of the intention of holding such examination.

"For further defense the following condition of the policy was pleaded, viz: '19. I agree that, for any injury, fatal or otherwise, received by me while exposed temporarily or otherwise to a hazard classed by the company in its manual last issued prior to this date, as more hazardous than that given as my occupation in this application, the company's liability shall be limited to the amount that the premium paid by me would purchase in such more hazardous class. I agree that the classifications in said manual shall be and are a part of this contract.'

"The answer then set out that the deceased, Frederick Loesch, was insured as a 'stock-dealer,' whose occupation and duties were in the policy described as 'visiting yards, not working, or tending in transit,' and that the hazard of such occupation was therein classed as 'preferred,' and that the premium of $ 25 charged for said policy was the usual and customary charge for such risk; and that part of the consideration of the policy sued on were the representations of the deceased made by the deceased in his written application, relative to the occupation in which he was engaged; and that at the time deceased received the alleged accidental injuries he was engaged in working and tending stock in transit, and that the injuries alleged to have been received were so sustained whilst defendant was untying a bull in a car; and that said occupation was more hazardous than that stated by deceased in his application and in the policy, and that the said occupation of working and tending stock in transit was classified by defendant in its manual issued and in force last prior to the issuance of the said policy as an 'extra hazardous' risk, and that the premium of $ 25 paid by deceased if he had been described as a 'stock-dealer and tender in transit' to which hazard he was exposed at the time he received the alleged accidental injuries, would have purchased for defendant the sum of $ 1,250 insurance and no more, and that if liable at all under the policy to plaintiff, defendant was not liable for more than $ 1,250; the manual in question being filed with the answers as an exhibit thereto."

The reply joined issue on the matters pleaded in the answer.

The policy was filed as an exhibit to the petition and showed that its terms and conditions, and also those of the application which was a part of it, were...

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2 cases
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