Beem v. General Acc. Fire and Life Assur. Corp., 18889.

• Decision Date: 03 May 1937
• Docket Number: No. 18889.,18889.
• Citation: 105 S.W.2d 956
• Parties: MARY BEEM, RESPONDENT, v. GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, LTD., APPELLANT.
• Court: Missouri Court of Appeals

105 S.W.2d 956

MARY BEEM, RESPONDENT, v. GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, LTD., APPELLANT.

No. 18889.

Kansas City Court of Appeals. Missouri.

May 3, 1937.

Appeal from Circuit Court of Cass County. — Hon. Leslie A. Bruce, Judge.

REVERSED.

Will H. Hargus, Jos. Koralchik and Rosenberg & Brenner for respondent.

Leslie A. Welch and Crouch & Crouch for appellant.

SHAIN, P.J.

This is a suit for alleged accidental death. The cause of action was based upon an insurance policy issued by the defendant to Walter D. Beem and wherein his wife, the plaintiff herein, was designated as beneficiary.

Plaintiff's petition alleges that the insured met his death by gun shot wound by person or persons unknown and during the course of highway robbery.

By answer the defendant alleges that the contract of insurance does not cover the result of the intentional act of insured or any other person.

There is no issue presented to this court as to incorporation, as to the issuance of the policy, as to payment of premiums, as to death of insured by means stated, nor as to proof of loss. The sole issue is as to whether or not the coverage clause of the policy covers death as admittedly caused in this case.

There was a trial by jury and the jury found for the plaintiff in the sum of $1500 the face of the policy and for $285 accumulated interest totaling $1785. Judgment was had and entered in accordance with verdict of jury and defendant appealed.

We will continue to designate appellant as defendant and respondent as plaintiff.

The defendant in its brief makes an assignment of error as follows:

"I. The court erred in not sustaining defendant's demurrer to the evidence."

OPINION.

Reference is made in briefs herein to the fact that the premium charge for the policy is but $5 per annum. In other words, the cheapness of the insurance is brought into notice. As has been before stated by this court, we must look to the coverage clause and not to the price of the insurance. However, as we have stated before, the cheapness of the premium is often manifest in limitation as to coverage. The purchasers of insurance should realize that the insurer is in the business for profit. Concerning same our conclusion, based upon experience in reviewing insurance cases, is that the insurer at least intends, in the contract, to limit the risk to the price. It has occurred in our experience in examining insurance contracts, that we have been caused to suspect, in some instances, that there was some evidence of an intent to divert the mind of the purchaser from a full understanding as to limitations in the coverage clauses of policies purchased.

For the above reason, and other reasons as well, Appellate Courts should carefully study the contract and construe same against the insurer and in favor of the insured to the limit of fair and lawful interpretations. However, it is not within the scope of Appellate Court power to make a new and different contract from that expressed in the policy.

In the policy before us there are shown two sections defining and stating the coverage of the contract. Section two of the contract is as follows:

"(Automobiles.)

"Section 2.

"(a) The effects resulting exclusive and independent of all other causes while the insured is driving or riding in any privately used automobile.

"(b) While changing or repairing a tire or doing minor repairs or adjustments on a privately used automobile, while in transit or in transit use.

"(c) While cranking an automobile, or if caused by the burning or explosion of an automobile if as a result of gasoline or gasoline vapors.

"(d) By being struck or knocked down or run over by an automobile or truck while the insured is walking or standing on a public highway, including the streets of cities, towns or villages.

"(e) By the wrecking or disablement of any public omnibus, taxicab, or automobile stage, plying for hire, which is at the time of wrecking or disablement being driven or operated by a licensed driver, and in which the insured is traveling as a fare paying passenger."

Section three of the contract is as follows:

"(Lightning, Cyclone or Tornado.)

"Section 3.

"(a) The effects resulting exclusive and independent of all other causes by being struck by lightning or due to cyclone or tornado.

"(Earthquakes or Floods.)

"Section 4.

"(a) The effects resulting exclusive and independent of all other causes by earthquakes or floods."

Section eleven of the policy gives the general provisions and contains this language: "This insurance does not cover ... (4) the result of the intentional act of the insured or any other person."

The cause of action plead in plaintiff's petition is plainly shown as intended to come under the provisions of section two, set forth above. The coverage therein is clearly shown, first, confined to instances of driving or riding in a privately used car as expressed in sub-topics (a), (b) and (c), second, confined to being hit by an automobile expressed in sub-topic (d) and third, to injuries received by wrecking of automobile being operated for fare paying passengers, as expressed in sub-topic (e).

It is evident from the showing of the record herein that the claim of plaintiff is not based upon the sub-topics (b), (c), (d) or (e).

The theory of plaintiff is fairly expressed by plaintiff's counsel in his opening statement as follows:

"I will tell you right now that if you believe that he committed suicide, under the preponderance of the evidence, then Mrs. Beem is not entitled to recover on this policy. If you find that he was killed in a premeditated murder she is not entitled to recover on this policy. But the facts will show that he was accidentally killed in connection with the motivating forces of highway robbery and the purpose of his unknown assailant was highway robbery.

"If the preponderance of the evidence satisfies you gentlemen that he was killed during the course of highway robbery, then under the Court's instructions, if I am right on the question of law, Mrs. Beem is entitled to a verdict for $1,500.00, being the face value of the policy, plus 6% interest from the 10th day of May, 1933, 60 days after the death of Walter Beem."

The theory of the defendant is expressed as follows:

"The evidence in this case is going to show that there is no liability on this insurance company in this case for the...