James v. United States Casualty Company

• Citation: 88 S.W. 125,113 Mo.App. 622
• Parties: J. CRAWFORD JAMES, Respondent, v. UNITED STATES CASUALTY COMPANY, Appellant
• Decision Date: 05 June 1905
• Court: Court of Appeals of Kansas

88 S.W. 125

113 Mo.App. 622

J. CRAWFORD JAMES, Respondent, v. UNITED STATES CASUALTY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 5, 1905

Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.

AFFIRMED.

Judgment affirmed.

Henry Lee Jost for appellant.

(1) Because the evidence conclusively shows, and the plaintiff admits that he was at no time "wholly disabled." Assn. v. Millard, 43 Ill.App. 148; Saveland v Casualty Co., 67 Wis. 174; Lyon v. Assn., 46 Ia. 631; Maccabees v. King, 79 Ill.App. 145; McKinley v. Ins. Co., 106 Ia. 81; Smith v Lodge, 62 Kan. 75, 61 P. 416; Knapp v. Ins Co., 53 Hun (N. Y.) 84; Rhodes v. Ins. Co., 5 Lans. (N. Y.) 77; Bylow v. Ins. Co., 72 Vt. 325; Williams v. Assn., 91 Ga. 678; Merrill v. Ins. Co., 91 Wis. 329; Ford v. Assn., 148 Mass. 153; Spicer v. Ac. Co., 16 Pa. Co. Ct. 163, 4 Pa. Dis. 271; Gracey v. Ins. Co., 21 Pitts. Law Journal 25. (2) The peremptory instruction should have been given, because the evidence conclusively showed, and the plaintiff himself admitted that he was not "immediately" disabled. Williams v. Assn., 91 Ga. 698; Merrill v. Ins. Co., 91 Wis. 329; Pepper v. Ins. Co., 69 S.W. (113 Ky.) 956. (3) The evidence conclusively showed, and the plaintiff admitted that he was not continuously disabled. Authorities cited supra. (4) The evidence conclusively shows that plaintiff was not injured while actually riding as a passenger in a public conveyance, and this issue should not have been submitted to the jury. Schaefer v. Railroad, 128 Mo. 71; Schepers v. Railroad, 126 Mo. 665. (5) The court erred in giving to the jury instruction numbered 2 asked by plaintiff, which told the jury that plaintiff was not required to give defendant notice of the injury, within ten days of the event causing said injury, and in refusing instruction "K" asked by defendant to the effect that such notice was necessary, and that plaintiff was not entitled to recover in the absence of proof that he gave defendant such notice. 1 Am. & Eng. Enc. of Law (2 Ed.), 323; Heywood v. Assn., 85 Me. 289; Cawley v. Assn., 1 C. & E. (2 B.), 597; Cohn v. Ins. Co., 62 Mo.App. 271; Albers v. Ins. Co., 68 Mo.App. 543; Burnham v. Ins. Co., 75 Mo.App. 394-397; Clanton v. Assn., 101 Mo.App. 312. (6) The court erred in refusing to compel the plaintiff to obey the subpoena duces tecum duly issued and served on plaintiff, which commanded him to produce at the trial letters written by him during the time in which he claims to have been disabled, and for which he seeks to recover indemnity. R. S. 1899, sec. 4654; 1 Thompson on Trials, sec. 731. (7) The court erred in making improper remarks in the presence of the jury, and during the progress of the trial, which prejudiced the jury against defendant. 21 Ency. of Plead. & Pr., 994, 1000; Abbot's Trial Brief (Civ. Jury Tr.), 358; McIntosh v. McIntosh, 79 Mich. 198, 203; Williams v. West Bay City, 119 Mich. 395; Cronkhite v. Dickinson, 51 Mich. 177; McDuff v. Journal Co., 84 Mich. 1; Wheeler v. Wallace, 53 Mich. 355; Walker v. Coleman, 55 Kan. 381.

Ward, Hadley & Neel for respondent.

(1) Plaintiff was immediately, continuously and wholly disabled within the meaning of defendant's policy of insurance. 17 A. & E. Ency. of Law (2 Ed.), 15; Cunningham v. Surety Co., 82 Mo.App. 607, 614. (2) Respondent was injured while actually riding as a passenger on a public conveyance. Smith v. Railroad, 32 Minn. 1, cited with approval by our Supreme Court in Barth v. Railroad, 142 Mo. 535; Barth v. Railroad, 142 Mo. 546; Holt v. Railroad, 87 Mo.App. 203. (3) The failure of respondent to notify appellant of his injury within ten days after the happening thereof was not and is not fatal to a recovery in this case. Joyce on Insurance, sec. 3282; Dezell v. Casualty Co., 176 Mo. 253. (4) The subpoena duces tecum served on respondent was of no force and effect.

OPINION

ELLISON, J.

The plaintiff, a wholesale and retail queensware merchant, fell from a street car and suffered injury. He had in force at the time with defendant company, what is known as an accident insurance policy wherein it was stipulated that if he was hurt in certain named ways, which caused certain described disabilities, he should receive indemnity at the rate of fifty dollars per week during the time he was disabled, not exceeding 104 weeks. He brought this action on the policy and prevailed in the trial court. The chief contention between the parties relates to the construction to be given, under the evidence, to the following provisions of the policy:

"In consideration of the agreements and warranties contained in the application for this policy, which application is made a part of this contract of insurance, and the payment of an annual premium of $ 24, does hereby insure, subject to the provisions hereof, J. Crawford James, of Kansas City, Missouri, by occupation a proprietor, wholesale and retail queensware (office duties and traveling only) classified by the company as No. 1.

"Against loss, as hereinafter provided, caused solely and exclusively by bodily injuries, which are immediately, continuously and wholly disabling, and which are effected by external, violent and accidental means, . . . For loss of time per week, for a term not exceeding one hundred and four consecutive weeks, $ 25. . . By wholly disabled shall be understood that the insured is totally unable to perform any part of the duties pertaining to the occupation stated above."

The evidence disclosed that plaintiff fell from a moving street car and was severely injured on and about the knee. That he was confined to his bed a small part of the time and went upon crutches all of the time for which he claims indemnity. That, excepting a time he was absent from the city, he came to his place of business almost daily where he signed checks, approved orders for goods and dictated letters. His absence was while he was on a business trip to New York for the purpose of buying goods. But he could not do many of the principal matters pertaining to the business of a queensware merchant. He could not get about the store and was compelled to sit in his office in a crippled condition. His wholesale house was a building of five or six stories and his presence was required in all parts of it. His retail place was several blocks away and his duties required him at each place every day when at home. When in health he looked after customers, sold goods, saw that they were packed and shipped. He supervised the force of employees, including traveling men who sold goods for the house in several States and territories; and with these he frequently took trips. His efforts at business in New York were hampered by his injury. He could only visit a small number of the many houses he usually dealt with--perhaps only two. He was compelled to travel about in a cab and to be accompanied by some one to assist him.

The parties were quite liberal in the breadth and scope each allowed the other at the trial of the cause; and that cuts an important figure in the conclusion we have reached. For, the rule prevails uniformly in this State that the parties, on appeal, are bound by the theory, mode and manner they adopt in the trial court. [Hill v. Drug Co., 140 Mo. 433, 41 S.W. 909.]

It appears that the policy did not insure plaintiff against a disabling of the performance of the general occupation of a proprietor of a wholesale and retail queensware merchant; for it specifically limited the insurance to the office duties and traveling of such occupation. And so the question should have been, under such limited view of the clause in question "was plaintiff wholly disabled from performing office duties and traveling?" The evidence shows that he was, perhaps, not so disabled, for he did, practically, much of the office duties he could have performed had he not been injured, and he did a part of the traveling. But defendant allowed the issue to broaden into the field of the plaintiff's general occupation as a wholesale and retail queensware merchant. For, while objection was made to plaintiff showing that he was substantially prevented from attending to his business as a queensware merchant, an examination of the record will show that no effort was made to confine such business to the two branches, viz.: office business and traveling. In other words, that point on the policy was not made and plaintiff was permitted by defendant to state the relation the injury had to his performing the whole business, defendant's counsel joining in such examination. That is, the parties have interpreted the policy as covering, generally, the entire business of a wholesale and retail queensware merchant. And plaintiff, not to be outdone in courtesy and liberality, permitted defendant to inquire into plaintiff's various other occupations, such as member of the school board, director of other business corporations, etc., with a view of ascertaining if he was wholly disabled from performing the duties devolving upon him in those parts of his business. One might be very well able to perform the duties of a director in a school or gas company and yet be wholly unable to travel or conduct the office of a queensware merchant. So we take the case as we find it, and must therefore determine whether the trial court would have been justified under the evidence in declaring, as a matter of law, that plaintiff was not wholly disabled from performing the general occupation of a wholesale and retail queensware merchant. If, as appears from the case cited further on, a physician was insured for that occupation, he might receive an injury which would wholly disable him, physically, from going about to visit patients, yet leave him able to dictate prescriptions from a sick room. Or, the injury might...