93 S.W. 880 (Mo.App. 1906), Driskell v. United States Health & Accident Insurance Co.

Citation:93 S.W. 880, 117 Mo.App. 362
Opinion Judge:[117 Mo.App. 364] JOHNSON, J.
Party Name:JOHN D. DRISKELL, Admr., etc., Appellant, v. UNITED STATES HEALTH and ACCIDENT INSURANCE COMPANY, Respondent
Attorney:H. T. Williams for appellant. Shain & Barnett for respondent.
Case Date:March 05, 1906
Court:Court of Appeals of Missouri
 
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Page 880

93 S.W. 880 (Mo.App. 1906)

117 Mo.App. 362

JOHN D. DRISKELL, Admr., etc., Appellant,

v.

UNITED STATES HEALTH and ACCIDENT INSURANCE COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

March 5, 1906

Appeal from Pettis Circuit Court.--Hon. George F. Longan, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

H. T. Williams for appellant.

(1) Scalding water escaping from the steam engine into deceased's right ear accidentally, and resulting in his death eleven days later, constitutes a bodily injury caused solely and exclusively by external, violent and accidental means. The petition sufficiently alleges such injuries. Jamison v. Casualty Co., 104 Mo.App. 306; Dalzell v. Fidelity and Casualty Co., 176 Mo. 253; Loesch v. Casualty Co., 176 Mo. 654; 104 Mo.App. 157; 1 Cyc., 249, 257; 1 Cyc., 248; 42 Am. St., 374; 1 Cyc., 285, F, 2 b. (1). (2) It is not necessary for the petition to negative conditions or exceptions in the policy. These are matters of defense. 1 Cyc., 286 [V].; 1 Cyc., 287, 3, g, [I]; Farrell v. Liability Co., 34 A. 478; Ins. Co. v. Koehn, 33 S.W. 133. (3) Only such terms of the policy need be set forth in the petition as apply to the kind of injury and state of facts. Moore v. Mountcastle, 72, Mo. 605; 11 Ency. Pl. and Pr., 418. (4) The words "Such Injuries" refer to the character of the injuries and not to their effect nor to the time of their effect.

Shain & Barnett for respondent.

(1) A petition upon an accident insurance policy should expressly allege that the injury from which the assured died was incurred by him through external, violent and accidental means. An allegation to this effect is essential to support a judgment. Hester v. Fidelity and Casualty Co., 69 Mo.App. 197. (2) Material facts should be distinctly and not inferentially alleged. The court will not supply by intendment an averment which the pleader has failed to make. Cook v. Putman Co., 70 Mo. 668; Bredell v. Alexander, 8 Mo.App. 110. (3) The merits of appellant's case are not here in controversy, the pleadings only being the issue, and as the pleader does not allege that the injury was external, violent and accidental he is not in a position to ask the court to pass upon the merits of his case. (4) Respondent's objection to appellant's pleading is on the ground that the pleader has not affirmatively pleaded the express conditions of the contract sued on, Moore v. Mountcastle, 72 Mo. 605. (5) The provision of paragraph b, if it would aid in any such construction, is not a part of petition as exhibits form no part of a petition in determining sufficiency on demurrer. Hickory Co. v. Fugate, 143 Mo. 71.

OPINION

[117 Mo.App. 364] JOHNSON, J.

Action upon a policy of accident insurance. The petition is as follows:

"For his cause of action, the plaintiff states that heretofore, to-wit, on the 10th day of February, 1904, the probate court of Pettis county, Missouri duly appointed him administrator of the estate of John W. Driskell, deceased; that he qualified by giving the required bond as such administrator, and said probate court issued to him letters of administration on said estate, and that he is now the authorized acting administrator in charge of said estate with full power to sue in the courts of Missouri upon all obligations due said estate. Plaintiff states that the defendant is a corporation carrying on the business of accident insurance in the State of Missouri with the authority to sue and the liability to be sued under the laws of Missouri and in the courts of Missouri.

"Plaintiff states that heretofore, to-wit, on the 29th day of October, 1902, the defendant by its agents in consideration of the premiums, statements and agreements mentioned in its policy Number 217918, issued and delivered its said policy...

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