Dezell v. Fidelity & Casualty Co.

• Decision Date: 30 June 1903
• Parties: DEZELL v. FIDELITY & CASUALTY CO.
• Court: Missouri Supreme Court

75 S.W. 1102

176 Mo. 253

DEZELL v. FIDELITY & CASUALTY CO.

Supreme Court of Missouri.

June 30, 1903.

INSURANCE — ACCIDENTS INSURED AGAINST — ADMINISTRATION OF MEDICINE — PROOF OF LOSS — NECESSITY — WAIVER BY PLEADING — ANSWER — SUFFICIENCY OF ALLEGATIONS.

1. A petition alleged a compliance with all the conditions of a policy of accident insurance, and the immediate giving of written notice of death as required thereby. The defendant first answered by general denial, but afterwards filed an amended answer specifically denying that insured died of an accident within the meaning of the policy, and further stated that no immediate notice of the accident or proof of loss was given, as alleged in the petition. Held, that defendant did not, either by its general denial, which included a denial of the specific allegations of the complaint that notice of accident and proofs of loss were furnished or by its amended answer, denying liability for the accident, waive the defense based on the neglect to give notice of accident and proofs of loss.

2. An answer denying "each and every other allegation in said petition not specifically admitted" is neither the general nor special denial called for by the statute and amounts to nothing.

3. An allegation in an answer that insured "did not die of any bodily injuries sustained through external, violent, or accidental means" states a mere conclusion of the pleader.

4. In an action on a policy of accident insurance which provided that immediate notice of accident and proof of loss must be furnished, but which did not stipulate for a forfeiture in case of neglect so to do, where the answer, by admission of allegations of the complaint, showed that the insurer was fully cognizant of the facts, it must be conclusively presumed that it had notice thereof in due time, and failure of plaintiff to give such notice was no defense to the action.

5. Where there is no controversy as to the means by which insured came to his death, it is purely a question of law whether death resulted from a cause insured against by the policy.

6. A policy insured against bodily injuries sustained through external, violent, or accidental means, but provided that it did not cover injuries resulting from anything accidentally or otherwise taken, administered, absorbed, or inhaled. Held, that the exception did not preclude a recovery for unintentional death caused by medicine, even though containing poison, taken or administered in good faith to alleviate physical pain.

Robinson, C. J., and Marshall and Burgess, JJ., dissenting in part.

In Banc. Appeal from Circuit Court, Jackson County; J.H. Slover, Judge.

Action by Mary E. Dezell against the Fidelity & Casualty Company. From a judgment for defendant, plaintiff appeals. Reversed.

The following is the opinion in Division No. 1:

MARSHALL, J.

This is a suit upon an accident policy for $5,000. James Dezell was the insured, and the plaintiff, his wife, the beneficiary. He died on September 28, 1896, while the policy was in full force, from the effects of an overdose of morphine, taken upon the prescription of a doctor, to relieve the pain of neuralgia. There was no intention to commit suicide. The answer admits the issuance of the policy and that it was in force at the time of the death, and avers that it was issued to indemnify the insured "against bodily injuries sustained through external, violent, and accidental means," etc., and that by its express terms it was provided: "This insurance does not cover disappearance, nor war risk, nor voluntary exposure to unnecessary danger, nor injuries, fatal or otherwise, resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled" — and then avers that the insured did not die of any bodily injuries sustained through any external, violent, or accidental means, but, upon the contrary, died from the result of a medicine, commonly called "morphine," intentionally and knowingly taken by said deceased without expecting or intending the same should produce death. The answer further pleads that the policy provided: "Immediate written notice of accident must be given to the company. Affirmative proof of loss must be furnished as soon as the nature and extent of the same can be determined" — and then pleads that no such notice or proof was ever made. The reply is a general denial.

Upon the trial the plaintiff proved that the insured was not addicted to the use of morphine, and had only taken it two or three times in his life, under the advice of a doctor, to allay the pain of neuralgia; that on Saturday and Sunday before his death he was suffering with neuralgia; and that on Sunday evening he had the prescription for neuralgia which his physician had given refilled, and then took the medicine and went to bed. About midnight his wife went to his room to inquire about him, and he said he felt some better, and told her to go to bed, which she did. About 7 o'clock on Monday morning she went to his room again, and found him unconscious, and he died about 11 o'clock on Monday morning. The doctor testified that he died from the effects of morphine. The plaintiff also introduced evidence tending to show that after the death this policy, with three life policies, were found among the insured's papers in the bank, and that the plaintiff's attorney wrote to all of the companies, notifying them of the death, and asking for proper forms upon which to make out proofs of loss; that all the other companies paid, but that no answer was made by the defendant. The defendant introduced evidence tending to show that no notice or proof of loss was ever received by it, and that it never knew of the loss until the institution of the suit, which was about 3½ years after the death. This last, however, must be a mistake, for the policy was issued only for a year from March 24, 1891, and was kept alive only by the payment of an annual premium of $21, and it nowhere appears, and manifestly could not be the fact, that any such premium was paid after the death, which occurred on Sept. 28, 1896, and therefore the company must have known that there had been a loss, or, at any rate, that no annual premium was paid on March 24, 1897, or thereafter.

The defendant asked a peremptory instruction, which the court refused, and the case went to the jury upon two instructions, asked by the plaintiff, to the effect that if the death occurred from morphine taken to allay the pain of neuralgia, without any intention of committing suicide, and if the plaintiff gave immediate written notice of loss by a letter written by her attorney to the defendant, and mailed to it in New York, with a request for blank forms upon which to make proofs of loss, and if the defendant ignored the letter, the verdict should be for the plaintiff. The jury found for the defendant. In due time the plaintiff filed motions for new trial and in arrest, and also a motion for judgment non obstante, upon the ground that the plaintiff was entitled to a judgment as a matter of law, because the death was for a cause covered by the policy, and because, by denying in its answer all liability under the policy, and claiming that the policy did not cover a death under the circumstances stated, the defendant was precluded from pleading or showing that no notice or proof of loss had been given, and by so pleading it had waived the right to plead and prove that no notice and proof of loss had been given or made. The court overruled all of said motions, and in so doing entered the following order: "Now, on this day, the court doth take up the plaintiff's motions for a new trial, in arrest of judgment, and for judgment notwithstanding the verdict, filed herein, and, being duly advised in the premises, doth overrule the same, for the reason that the defendant did not, in the opinion of the court, as a matter of law, undertake to insure against death by poison, accidentally or otherwise taken; that the undisputed evidence shows that the deceased took an overdose of morphine, from the effects of which he died, and thus his death was due to a cause not covered by the policy; that where, as a matter of law, plaintiff is not entitled to recover, as in this case, a motion for a new trial will be overruled, notwithstanding there may have been errors in the trial of the case that under other circumstances would require the motion for a new trial to be sustained — to which actions and ruling of the court the plaintiff then and there duly excepted." In other words, the court held that it had erred in giving the instructions asked by the plaintiff, and should have given a peremptory instruction to the jury to find for the defendant, because the policy did not cover a death under the circumstances of this case. After proper steps the plaintiff appealed.

1. The policy insured "against bodily injuries sustained through external, violent, and accidental means," and provided that "this insurance does not cover * * * injuries, fatal or otherwire, resulting from poison or anything accidentally or otherwise taken, administered, absorbed, or inhaled"; and the answer pleads that the insured "did not die of any bodily injuries sustained through any external, violent, or accidental means, but, upon the contrary, died from the result of a medicine, commonly called `morphine,' intentionally and knowingly taken by said deceased, without expecting or intending the same should produce death." And there is no controversy in the case that such was the fact; for the plaintiff proved it, and the defendant admitted it in its answer, and offered no testimony on the question. It is therefore purely a question of law whether the death resulted from a cause insured against.

The case of Renn v. Supreme Lodge, K. of P., 83 Mo. App. 442, was an action on a fraternal beneficial certificate which provided, inter alia, that it should be void if the death was caused or superinduced by drunkenness, or...