Boillot v. Income Guaranty Co.

Decision Date04 June 1935
Docket NumberNo. 22983.,22983.
Citation83 S.W.2d 219
PartiesWILLIAM W. BOILLOT, RESPONDENT, v. INCOME GUARANTY COMPANY, A CORPORATION, APPELLANT.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Audrain County. Hon. William C. Hughes, Judge.

AFFIRMED.

Davis & Davis for appellant.

(1) The court committed error in striking out paragraph 2 of defendant's answer. Said paragraph set up facts sufficient to defeat a recovery. Drake Hotel Co. v. Crane, 210 Mo. App. l.c. 459 (top of page). (2) At the time of his injury, he testifies that he was hunting, each of which occupations were classified by defendant as more hazardous than that of a piano tuner and under the terms of this policy, if plaintiff were entitled to recover, he was only entitled to that portion of the monthly indemnity which the premium paid by him would have purchased in the more hazardous occupation in which he was so engaged, and the court erred in refusing defendant's request to so instruct the jury. Loesch v. Union Casualty & Surety Co., 176 Mo. 654; Aldrich v. Mercantile Mutual Acci. Asso., 149 Mass. 457, 21 N.E. 873; Montgomery v. Continental Casualty Co., 131 La. 475, 59 So. 907; Lane v. General Accident Ins. Co., 113 S.W. 324 (Tex. Civ. App.); Thomas v. Masons' Fraternal Accident Asso., 71 N.Y. Supp. 692; Green v. Casualty Co., 151 Pac. (Wash.), l.c. 509-10. (3) Plaintiff was required to allege in the statement of his cause of action every constitutive fact that he intended to rely upon to recover and every fact which affected the amount of his recovery. Lackey v. Rys. Co., 288 Mo. 120, 231 S.W. l.c. 962; Shohoney v. Railroad, 223 Mo. l.c. 671; Ozark Fruit Growers Asso. v. Sullinger, 45 S.W. (2d) l.c. 890; Walrath v. Crary, 222 S.W. 896. This necessarily included the claim that he was hunting for recreation. If, however, the court should hold that plaintiff was entitled to give evidence that he was hunting for recreation, then he should have stated the facts and not his conclusions. Sparr v. Wellman, 11 Mo. l.c. 234. (4) The courts enforce policies as written and do not undertake to rewrite such contracts. Lachterman v. Mutual Benefit Health & Accident Ass'n., 60 S.W. (2d) 646; Grover v. Hartford Accident & Indemnity Co., 51 S.W. (2d) l.c. 211; State ex rel. v. Cox, 322 Mo. 88, 14 S.W. (2d) l.c. 602; State ex rel. v. Trimble, 306 Mo. l.c. 309; Winter v. Ins. Co., 290 S.W. l.c. 112. (5) The contract as made by the insurance policy, like many other contracts, includes all that is contained in the "four corners of the instrument." Hubbard v. Hubbard, 264 S.W. l.c. 424, par. 3. See also numerous cases cited 7 Mo. Dig., title Contracts, par. 147 (3). "Each word in it (the contract) will, if possible, be given effect." 13 C.J., p. 727, Sec. 486, and Missouri cases cited.

Irwin & Bushman and Harry L. Buchanan for respondent.

(1) The court properly struck out paragraph 2 of defendant's answer, because the prayer shows that the paragraph intended to state only a purely equitable defense, and the facts as related in said paragraph did not entitled defendant to equitable relief. Wollums v. Mut. Benefit Health & Accident Assn., 46 S.W. (2d) l.c. 264; Zeiser v. Chon, 44 Misc. Rep. 462, 90 N.Y.S. 66; Southern Cotton Oil Co. v. Shelton, 220 Fed. 247. (2) Plaintiff at the time of the injury was only a piano tuner out for a little recreation. He was not following the occupation of a hunter, nor was he doing any act pertaining to the occupation of a hunter except, possibly, as his recreation might include acts pertaining to the occupation of a hunter. Southern Surety Co. v. Georgia Casualty Co., 215 S.W. 501 (Mo. Sup.); Business Mens Assurance Co. v. Bradley, 275 S.W. 622 (Tex. C.A.); Union Cas. & Surety Co. v. Goddard, 25 Ky. L. 1035, 76 S.W. 302; Holiday v. Am. Mutual Accident Assn., 103 Ia. 178, 72 N.W. 448; Accident Assn. v. Frohard, 134 Ill. 228, 25 N.E. 642; Casualty Co. v. Sheppard, 61 Kans. 351, 59 P. 651, 47 L.R.A. 650; Kenny v. Bankers Accident Ins. Co., 136 Ia. 40, 113 N.W. 566. (3) While it is true the evidence shows plaintiff was a farm owner and rented it on a crop sharing basis, there is no evidence to show that his occupation was that of a farmer — supervising or otherwise. 1 C.J. 434-35; National Accident Soc. v. Taylor, 42 Ill. A. 97. (4) The petition contains all the allegations necessary in insurance cases. It was not necessary that plaintiff in his initial pleading anticipate negative and affirmative defenses, such as exceptions and limitations in the policy. 33 C.J. 83. (5) The answer alleges as new matter that plaintiff at the time of injury was doing an act pertaining to the occupation of a hunter and was not engaged in recreation at the time of his injury. Plaintiff's reply, which was a general denial, put this issue in the pleadings. Miller v. Keaton, 236 Mo. l.c. 311; Colvin v. Houenstein, 110 Mo. l.c. 581; Brown v. Adams Transfer & Storage Co., 31 S.W. (2d) l.c. 120. (6) The actor or doer knows more about his purpose and intention for the doing of any act than anyone else and he may testify as to what his purpose or intention was when called as a witness. Chambers v. Chambers, 227 Mo. l.c. 281-83; Hefferman v. Neumand, 198 Mo. App. l.c. 685. (7) The evidence showed the injured hand was amputated and medical attention could obviously not restore it, nor cure or relieve the disability occasioned by its loss. Conway v. Casualty Co., 37 S.W. (2d) 493; Harasymczuk v. Mass. Accident Co., 216 N.Y.S. l.c. 101-02; Hunter v. Casualty Co., 191 N.Y.S. l.c. 475; Earl v. National Casualty Co., 122 Or. l.c. 562-63; National Life Ins. Co. v. Patrick, 28 Ohio A. 267; Rechtzigel v. Casualty Co., 143 Minn. 302, 173 N.W. 670. (8) An insurer making an unconditional promise in the principal clause cannot by a subsequent limitation outside of the principal clause change its liability. Goess v. Indemnity Co. of America, 3 S.W. (2d) l.c. 275; Bean v. Aetna Ins. Co., 111 Tenn. 186; Caine v. Physicians Indemnity Co., 45 S.W. (2d) 904; Lemaitre v. Casualty Co., 195 Mo. App. 599. (9) Where one of the provisions of a policy of insurance makes for liability and the other withholds it, the former will be enforced and the latter disregarded. Miller v. Mut. Benefit Health & Accident Assn., 56 S.W. (2d) l.c. 796, and cases cited. (10) The court only permitted the testimony relative to the arbitration on the question of vexatious delay. It was only cumulative of what was otherwise established by competent evidence and does not materially affect the merits in view of Sec. 1062, R.S. 1929. O'Keefe v. Ry. Co., 124 Mo. App. 613. (11) The court did not err in submitting to the jury the question of the allowance of penalty and attorney's fees, because defendant's refusal to pay after the injury was unreasonable and its attitude vexatious and recalcitrant. Wollums v. Mutual Benefit Health & Accident Assn., 46 S.W. (2d) 259; Porter v. Equitable Life Assurance Co., 71 S.W. (2d) l.c. 779; Exchange Bank v. Turner, 321 Mo. 1104, 14 S.W. (2d) 425; Curtis v. Indemnity Co. of America, 37 S.W. (2d) l.c. 628; National Battery Co. v. Standard Accident Ins. Co., 41 S.W. (2d) 599. (12) Because an insurance company's refusal to pay a policy is vexatious where founded merely on the possibility that later investigation may develop facts justifying a refusal to pay. Ins. Co. v. Bommarito, 42 Fed. (2d) 53; 70 A.L.R. 1211. (13) Because an insurer disclaiming liability on one ground, cannot relieve itself of the penalty and attorney's fees upon another ground. Block v. U.S.F. & G. Co., 290 S.W. 429. (14) The court properly gave plaintiff's instruction No. 3 omitting defendant's defenses. There was no evidence to support these defenses and the instructions should not be broader than the evidence. 64 C.J. 760; Stahlberg v. Brandes, 299 S.W. 836; Small v. Polar Wave Ice & Fuel Co., 179 Mo. App. 456. To have given an instruction not supported by evidence would have been error. Dunn v. Life & Accident Ins. Co., 179 Mo. App. l.c. 472; 64 C.J. 773-774; Gundelach v. Compagnie Generale Transatlantique, 41 S.W. (2d) 1; Gately v. Ry. Co., 56 S.W. (2d) 54. (15) The giving of instructions upon the burden of proof and other cautionary instructions, is a matter within the discretion of the trial court, and the court will not be convicted of error in refusing such instructions unless there is a manifest abuse of such discretion. Wiedman v. Taxicab Co., 182 Mo. App. l.c. 529 (St. L.C. of A.); Beasley v. Jefferson Bank, 114 Mo. App. 406 (St. L.C. of A). (16) The assignment is too general. An assignment complaining of an instruction without pointing out the error will not be considered. Detmering v. Ry. Co., 36 S.W. (2d) l.c. 117; Nolen v. Haplin Dwyer Const. Co., 29 S.W. (2d) l.c. 220; LaBella v. S.W. Bell Telephone Co., 24 S.W. (2d) l.c. 1077; Braden v. Friederichsen Floor & Wall Tile Co., 15 S.W. (2d) l.c. 929; Boyer v. Ry. Co., 293 S.W. 386. (17) The provisions of the policy with reference to partial disability were not pleaded, and therefore such an instruction was not authorized even if the evidence had taken a wider range. Krelitz v. Calcaterra, 33 S.W. (2d) 909; State ex rel. Bank of Sumner v. Melton, 251 S.W. 447, 213 Mo. App. 662; Budd v. Hoffheimer, 52 Mo. 297. (18) Total disability, as used in accident policies like the one at bar, means that the insured is disabled from performing substantially the occupation stated in the policy. James v. U.S. Cas. Co., 113 Mo. App. l.c. 627-628; Foglesong v. Modern Brotherhood, 121 Mo. App. l.c. 553; Katy v. Union Ins. Co., 44 S.W. (2d) l.c. 252; Richards Laws of Insurance (4 Ed.), page 756. (19) The court of its own motion instructed the jury on forms of verdict on both sides, which action was not expected to. It is not error to refuse instructions substantially covered by other instructions given. Lohmeyer v. Young, 195...

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