Cochran v. Standard Accident Insurance, Company of Detroit, Michigan

• Decision Date: 25 March 1925
• Citation: 271 S.W. 1011,219 Mo.App. 322
• Parties: HELEN E. COCHRAN, as Administratrix of the Estate of P. O. COCHRAN, Deceased, Respondent, v. STANDARD ACCIDENT INSURANCE, COMPANY OF DETROIT, MICHIGAN, Appellant.
• Court: Kansas Court of Appeals

271 S.W. 1011

219 Mo.App. 322

HELEN E. COCHRAN, as Administratrix of the Estate of P. O. COCHRAN, Deceased, Respondent, v. STANDARD ACCIDENT INSURANCE, COMPANY OF DETROIT, MICHIGAN, Appellant.

Court of Appeals of Missouri, Kansas City

March 25, 1925

Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.

AFFIRMED.

Judgment affirmed.

Atwood Wickersham, Hill, Levis & Chilcott for respondent.

Warner Dean & Thompson for appellant.

OPINION

TRIMBLE, P. J.--

This is an action upon an accident insurance policy wherein defendant insured plaintiff's husband against the effects of bodily injuries received during the term of insurance "effected solely by external, violent and accidental means," and promised to pay $ 2500 if such injuries should, independently of all other causes, result in death within ninety days.

There is no controversy over the issuance and delivery of the policy, nor over the fact that the policy was in force at the time of insured's death on January 20, 1923, from external, violent and accidental means. It is also agreed that on said date insured was sitting in a seat in a day coach, riding as a passenger upon a train traveling a short distance west of El Paso, Texas, and that while thus sitting, an insane man suddenly and without warning fired a pistol and killed insured, and that insured in no manner caused or contributed to said act or his death.

The controversy arises over the construction and effect to be given to a provision in the policy which provided that it was "issued by the company and accepted by the insured with the understanding and agreement that no benefits will be paid for injuries, resulting fatally or otherwise, received under or in consequence of any of the following conditions:

(1) While on a locomotive, freight-car or caboose used for passenger service or otherwise or while on the platform or steps of any railway-car while in motion; or while entering or leaving, or trying to enter or leave any moving conveyance; or while improperly on the right-of-way or bridge of any railway; or (2) while, or in consequence of being, or having been, affected by, or resulting directly or indirectly, wholly or partly, from intoxicants, anaesthetics, narcotics, sunstroke, freezing, vertigo, sleepwalking, fits or any bodily or mental infirmity in any form, either as a cause or effect, or medical or surgical treatment or operation; or from gas or poison in any form or manner, or contact with poisonous substances; or (3) while engaged in aerial navigation, hunting, fishing, or in exploring expeditions, or under any circumstances from firearms of any kind, explosives, war or riot; or (4) from wrestling, lifting, racing, or competitive games, etc. (Italics ours.)

Defendant relies upon the above exception clause No. (3); and asked a declaration of law from the trial court, sitting as a jury, to the effect that if deceased was killed in his seat in the coach by a man suddenly and without warning firing a pistol, then plaintiff could not recover. The court refused to give the declaration and rendered judgment for plaintiff, and defendant has appealed.

The pivotal question in the case is whether the exception clause relied upon is so plain and unequivocal as to afford no room for construction. If the terms are plain and unambiguous, they cannot be changed by judicial construction, for that would be making a new contract for the parties. [Penn v. Travelers' Insurance Co., 225 S.W. 1033, 1034.] "So long as the contract is plain and unambiguous, not open to different constructions, and is so framed as that the insured is not justified in thinking the contract to be something other than it is, it is not within the power of the courts to change it or to make a new contract for the parties by judicial construction." [Taylor v. Loyal, etc., Ins. Co., 194 S.W. 1055, 1057.] But when an insurance contract is so drawn as to be "fairly susceptible of two different constructions, so that reasonably intelligent men on reading the contract would honestly differ as to the meaning thereof, that construction will be adopted which is most favorable to the insured." [Imperial, etc., Ins. Co. v. Coos County, 151 U.S. 452, 462.] Such construction, where there is room for it, should be as favorable to the insured as reasonably may be, but it must be "only a natural and logical one and not a sophistical one." [Bader v. New Amsterdam Casualty Co., 102 Minn. 186, 189.] However, the "just interpretation of a contract arises on the whole subject-matter. It must be viewed from end to end and corner to corner and all its terms pass in review, for one clause may modify, limit or illuminate the other." [Mathews v. Modern Woodmen, 236 Mo. 326, 342; Groves v. Great Eastern Casualty Co., 246 S.W. 1002.] So that in construing the insurance contract in the case at bar, we must look at the entire paragraph relating to the exceptions or exemptions. Defendant would have us to construe the policy as if it read "no benefits will be paid for injuries resulting under any circumstances from firearms of any kind." But the exception is not so unequivocally stated, and as said in Cooper v. National, etc., Ins. Co., 212 Mo.App. 266, 274, "when it is attempted to relieve the insurer from liability for such an (accidental) injury by a clause in the nature of an exception in a policy of this character, it can only be accomplished by language unequivocal in its meaning." Examining the entire paragraph relating to exceptions or exemptions from liability, we find they are all stated in one sentence, and the words "under any circumstances from firearms of any kind" must not be wrenched from their setting nor from the context in which they are found. Considering then the entire paragraph, it manifestly sets out or specifies various situations wherein the insured, by getting into certain relations or enterprises has increased the hazard or risk of injury. Now, what would a "reasonably intelligent man on reading the contract" and about to accept and pay for the policy, understand to be the meaning of that entire paragraph? He would naturally and reasonably understand that, under exception No. (1) of the policy, it provided no insurance if he were hurt or killed "while on" a locomotive, freight-car or caboose, or the platform or steps of a railway-car while in motion, or "while entering or leaving," or attempting to do so, any moving conveyance, or "while improperly on" the right-of-way or bridge of a railway; and

That under exception No. (2) no insurance would be paid if he were hurt or killed "while, or in consequence of being, or having been, affecte...