Carr v. Pacific Mut. Life Ins. Co. of California

• Decision Date: 08 June 1903
• Citation: 75 S.W. 180,100 Mo. App. 602
• Parties: CARR v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.
• Court: Missouri Court of Appeals

75 S.W. 180

100 Mo. App. 602

CARR v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.

Court of Appeals at Kansas City, Missouri.

June 8, 1903.

ACCIDENT INSURANCE — INJURY WHILE DELIRIOUS — RECOVERY UNDER POLICY — CONSTRUCTION OF POLICY — PREVIOUS INSURANCE — MISREPRESENTATIONS — WAIVER.

1. Where one holding an accident policy falls from a window in delirium, the delirium is the proximate cause of the injury.

2. Under an accident policy providing that the insurance does not cover injuries received in consequence of being or having been under the influence of, or affected by, or resulting directly or indirectly, in whole or in part, from, disease or bodily infirmity, recovery cannot be had for a fall from a window while delirious, whether the delirium be regarded as the proximate or remote cause of injury.

3. In construing an accident policy providing that the insurance shall not cover injuries received while under the influence of, or resulting directly or indirectly from, intoxicants, sunstroke, vertigo, hernia, or any disease or bodily infirmity, the phrase "disease or bodily infirmity" will not be limited by the preceding specific exceptions, they not being related to each other.

4. A misrepresentation, in applying for accident insurance, as to previous insurance, is waived where the company's agent had knowledge of the truth.

5. Under an accident policy providing that the insurance shall not cover injuries received while under the influence of disease or bodily infirmity, recovery cannot be had for injuries from a fall while under the influence of disease.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by Michael T. Carr against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant appeals. Reversed.

J. C. Rosenberger, for appellant. Frank P. Walsh and E. R. Morrison, for respondent.

BROADDUS, J.

Plaintiff's suit is on an accident policy, to recover for injuries received by him during the life of said policy. The policy was issued on the 15th day of July, 1899, and the plaintiff was injured in March, 1900. Proper proof of loss was made, and the controversy at the trial arose as to defendant's liability under the evidence.

The first defense is that it was provided in said policy that "it did not insure or cover injuries, fatal or otherwise, received while or in consequence of plaintiff being or having been under the influence of, or affected by, or resulting directly or indirectly, in whole or in part, from, intoxicants, anæsthetics, vertigo, sleepwalking, or any disease or bodily infirmity, and that whatever bodily injuries were sustained by plaintiff were received while or in consequence of plaintiff being or having been under the influence of, or affected by, or resulted directly or indirectly, in whole or in part, from vertigo or sleepwalking, or disease or bodily infirmity." The second defense is that it was provided in said policy that "in case of injuries * * * intentionally inflicted upon the insured by himself or by any other person, or inflicted upon himself or received by him while insane, the measure of this company's liability shall be a sum equal to the premium paid, the same being agreed upon as full in liquidation of all claims under this policy," and that whatever injuries were sustained by plaintiff were intentionally self-inflicted, or were received by him while insane, in which case the liability of plaintiff, by the terms of the policy, is limited to the total amount of premiums paid by plaintiff to the defendant. The third defense is that in plaintiff's application for said policy he "willfully, falsely, and fraudulently warranted in said application that he had never received indemnity for accident, and that no accident policy ever issued to him by any other company had been canceled, when in truth and in fact plaintiff had theretofore received indemnity from another insurance company in which he had been insured, which company had canceled the policy held by plaintiff by reason of the number and character of the claims made by plaintiff; that plaintiff received indemnity from said company for alleged accidents on three separate and distinct occasions prior to the date of his application to this company"; and that defendant would not have issued the policy in suit, except for said representations. The evidence tended to show that, prior to the issue of the policy in controversy, plaintiff had been insured in another insurance company against accidents, and that he had received indemnity from such company for accidents suffered, and that his policy for that reason had been canceled; but it was shown that the agent who contracted with plaintiff, and issued the policy herein, was fully informed thereof at and prior to the time plaintiff signed said application. It is fully agreed that at the time plaintiff was injured he was confined in a hospital at Pittsburg, Kan., on account of sickness known as "la grippe"; that he was suffering, too, from a high fever; and that he was mentally unconscious, and had no knowledge as to how he became injured. His delirium was so great that at times he had to be restrained by force, for fear of his doing injury to himself or to others. His nurse testified that on the morning of his injury she left the plaintiff in his bed in his room for a few moments, that when she returned he had left his bed, and that she rushed to the window, looked out, and saw him falling. He fell a distance of about twenty feet. His injuries were serious, and he did not return to consciousness until about four days thereafter. When plaintiff was testifying, he was asked if he was able to state any circumstances as to how or what caused him to get out of the window, to which he answered: "No, sir; I do not." He was also asked: "You were unconscious from the sickness from which you were suffering?" His answer was: "Yes, sir." The doctor in attendance said he was delirious. Section three of the policy reads as follows: "(3) This insurance does not cover disappearances, nor any injury, fatal or otherwise, of which there is no visible mark upon the body, nor any such injury resulting from dueling or fighting, from exposure in war or in riot, from voluntary or unnecessary exposure to danger, medical or surgical treatment, except when amputation rendered necessary by an injury received within the period of this policy is made within ninety days from date of accident, nor injuries, fatal or otherwise, resulting from poison or anything else, consciously or unconsciously, accidentally or otherwise, taken, administered, absorbed or inhaled, nor injuries...