97 S.W. 240 (Mo.App. 1906), Foglesong v. Modern Brotherhood of America

Citation:97 S.W. 240, 121 Mo.App. 548
Opinion Judge:BROADDUS, P. J.
Attorney:Higbee & Mills and Ball & Sparrow for appellant. A. D. Morris, S.W. Mills and C. C. Fogle for respondent.
Case Date:November 05, 1906
Court:Court of Appeals of Missouri

Page 240

97 S.W. 240 (Mo.App. 1906)

121 Mo.App. 548

JOHN H. FOGLESONG, Respondent,



Court of Appeals of Missouri, Kansas City

November 5, 1906

Appeal from Schuyler Circuit Court.--Hon. Nat. M. Shelton, Judge.


Cause reversed and remanded.

Higbee & Mills and Ball & Sparrow for appellant.

(1) It was manifest error for the court to refuse to permit appellant to show that respondent directed what work should be done on his farm, and in that manner was able to carry on and conduct the avocation of farming. That clause of the benefit certificate under consideration here provides that, before the member is entitled to recover, he must be so permanently and totally disabled as to render him unable to "carry on or conduct any vocation or calling." (2) The court erred in overruling defendant's demurrer to the evidence offered at the close of plaintiff's case. (3) As hereinbefore stated the contract of indemnity, or membership certificate, issued by appellant to respondent is somewhat unlike most others, and, for that reason it is impossible to find a case "on all fours" with the case at bar, but possibly the case more nearly like it than any other that can be found is the case of Lyons v. Assurance Co., 46 Iowa 631; Rhodes v. Assurance Co., 5 Lansing (N. Y.) 77; Post v. Rel. Assn., 122 Pa. St. 579, 6 Am. St. Rep. 147; Albert v. Chosen Friends, 34 F. 721; Hutchison v. Maccabees, 68 Hun 355, 22 N.Y.S. 801. (4) A person who is able to perform or direct any kind of labor or business, is not totally disabled. King v. K. of M. of W., 79 Ill.App. 145; Cox v. K. of M. of W., 25 Tex. Civ. App. 366, 60 S.W. 971; 4 Joyce on Insurance, sec. 3032; Bacon on Ben. Soc. and Life Ins., 595a; Coad v. Ins. Co., 61 Neb. 563, 85 N.W. 558; McMahon v. Chosen Friends, 54 Mo.App. 468.

A. D. Morris, S.W. Mills and C. C. Fogle for respondent.

(1) A policy of insurance is to be interpreted in all respects by the same rule as other contracts, and so as to ascertain the meaning and intention of the parties from the whole instrument. Brewing Co. v. Ins. Co., 63 Mo. 663; Straus v. Ins. Co., 94 Mo. 182; Wren v. K. of P., 83 Mo.App. 442. (2) If there is a doubt in respect of the meaning of the terms of a clause of an insurance policy, that doubt must be resolved in favor of the interpretation of the assured; although intended otherwise by the insurer. Hale v. Ins. Co., 46 Mo.App. 508. (3) In the construction of contracts, words are not to be taken in their broadest import, when they are equally appropriate in the sense limited to the object that the parties had in view, and their apparent intention as deduced from the whole instrument. Hoffman v. Ins. Co., 32 N.Y. 405. (4) Every intendment should be made against a construction of a contract, under which it would operate as a snare. (5) Insurance companies are not restricted in the right to insert such terms and conditions in their policy as they see fit, but where equivocal language is used, especially such as is calculated to mislead, it is to be construed most strongly against the company using it. Reynolds v. Ins. Co., 47 N.Y. 597. (6) If the language in the policy is ambiguous and can be applied in two different ways, it should be construed most strongly against the insurer and all doubts be resolved in favor of the insured. (7) The policy is the law by which the mutual rights and liberties of the parties are to be measured and should be construed strictly against the insurer; where they narrow the range and force of the obligation. Wren v. K. of P., 83 Mo.App. 442. (8) That meaning of an insurance contract must be adopted which, is most favorable to the insured, and any doubt must be resolved in his favor, although intended otherwise by the insurer. Wren v. K. of P., 83 Mo.App. 442. (9) Total disability must from the necessity of the case be a relative matter and must depend largely upon the occasion and employment in which the parties insured is engaged. Kerr on Insurance, 385, 386; Neil v. United Friends, 44 N.E. 145; Wall v. Casualty Co., 111 Mo.App. 504; Mahon v. Chosen Friends, 54 Mo.App. 468; Kerr on Insurance, p. 447.


[121 Mo.App. 550] BROADDUS, P. J.

--The plaintiff's suit is to recover indemnity on a benefit certificate issued by defendant, which provided: "Within a period of ninety days after receipt of satisfactory proof, of the permanent and total disability of the said member (plaintiff), which renders him unable to carry on or conduct any vocation or calling, and the surrender of this certificate, one-half the amount that would have been due beneficiary in case of the member's death, will be paid said member in full." The plaintiff's wife is the beneficiary named in the certificate, [121 Mo.App. 551] who in case of his death would be entitled to the sum of $ 1,000. The plaintiff alleges that he has suffered permanent and total disability and seeks to recover the sum of $ 500 by reason thereof, it being one-half of said $ 1,000 to which he would be entitled if he proves his case.

The plaintiff's vocation was that of a farmer, having lived on a farm all of his life. He was at the time of the trial fifty-seven years of age, and seriously afflicted in his right leg and had been so afflicted for more than three years. The evidence tended to show that the diseased condition of his leg was permanent and that it would be necessary to...

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