Dixon v. Travelers Protective Ass'n of America

• Decision Date: 01 March 1938
• Parties: GERTRUDE K. DIXON, APPELLANT, v. THE TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, A CORPORATION, RESPONDENT
• Court: Missouri Court of Appeals

113 S.W.2d 1086

234 Mo.App. 127

GERTRUDE K. DIXON, APPELLANT, v. THE TRAVELERS PROTECTIVE ASSOCIATION OF AMERICA, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

March 1, 1938

Appeal from Circuit Court of City of St. Louis.--Hon. Robert J Kirkwood, Judge.

AFFIRMED.

Judgment affirmed.

M. P Phillips for respondent.

(1) In the absence of a statute precluding such a contract, an accident insurance company may exclude certain kinds and classes of risks from those that might fall under general terms of their policy. Aufrichtig v. Columbian National Life Ins. Co. (Mo.), 249 S.W. 912; Taylor v. Loyal Protective Ins. Co., 194 S.W. 1055, l. c. 1057. (2) In the construction of an insurance contract plain and unambiguous language must be given in plain meaning. The contract should be construed as a whole. The courts do not authorize a perversion of the language or the exercise of inventive powers for the purpose of creating an ambiguity when none exists in order that the rule may be invoked concerning a strict construction of the provisions of the contract in favor of the insured and against the insurer. State ex rel. Mutual Benefit Health & Accident Association v. Trimble et al., 68 S.W.2d 685, l. c. 687. (3) Plaintiff, to make a case, cannot rely upon a presumption from which the jury must draw its conclusion where such presumption must, in turn, be drawn from another presumption. Phillips v. Travelers Insurance Co. (Mo.), 231 S.W 947. (4) The testimony in this case having destroyed the presumption which might aid plaintiff, where the death is due to violence, the cause of death must be established by proof other than presumption. Landau v. Pacific Mutual Life Ins. Co. (Mo., en banc). 267 S.W. 370. (5) An affirmative finding that the insured came to his death by accidental means must find support, if at all, in the evidence in the case and not in speculation or conjecture. Landau v. Pacific Mutual Life Ins. Co., 267 S.W. 370, l. c. 375. (6) Landau v. Pacific Mutual Life Ins. Co., 267 S.W. 370, l. c. 375; Mayhew v. Travelers Protective Association of America, 52 S.W.2d 29 (first appeal), 66 S.W.2d 199 (second appeal). (7) The contract excludes liability for death resulting from poison. It does not concern itself with the manner in which the poison was taken or administered, so far as this clause is concerned. The means are immaterial, that is, whether they were accidental or intentional. Such provisions are operative under the facts of the case at bar. Penn v. Travelers Insurance Co., 225 S.W. 1033. (8) (a) That they are a condition precedent to liability is so held by Clanton v. Travelers Protective Association, 101 Mo.App. 312, 74 S.W. 510, l. c. 513. (b) That the association had a right to rely upon the truth of the statement made in each is so held in the following cases: Sheehan v. The Southern Ins. Co., 53 Mo.App. 351; Mutual Benefit Life Insurance Co. v. Deacon, 89 U.S. 32, 22 L.Ed. 793; Supreme Lodge v. Beck, 181 U.S. 49, 45 L.Ed. 740. (9) Sheehan v. The Southern Ins. Co., 53 Mo.App. 351. (10) In neither the Dezell case, 176 Mo. 253, nor the Beile case, 155 Mo.App. 629, 135 S.W. 497, was the defense predicated upon the exclusion, death "resulting from poison."

I. R. Goodman, Haynes Carter and Robert L. Aronson for appellant.

(1) On the issue of suicide there was a question of fact for the jury. Hoette v. North American Union, 187 S.W. 790; Brunswick v. Standard Acc. Ins. Co., 278 Mo. 154, 213 S.W. 45; Parker v. Aetna Life Ins. Co., 289 Mo. 42, 232 S.W. 708; Andrus v. Business Men's Acc. Assoc., 283 Mo. 442, 223 S.W. 70; Prentiss v. Illinois Life Ins. Co., 225 S.W. 695; Thompson v. Business Men's Acc. Assoc., 231 S.W. 1049. (2) All doubts and ambiguities in the construction of insurance contracts must be resolved liberally in favor of the insured and strictly against the insurer. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379; Henderson v. Massachusetts Bonding Co., 337 Mo. 1, 84 S.W.2d 922; Matthews v. Modern Woodmen of America, 236 Mo. 326, 139 S.W. 151; Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 75 S.W. 1102; Cooper v. National Life Ins. Co., 253 S.W. 465 (Mo. App.); Kimbrough v. National Protective Ins. Assoc., 35 S.W.2d 654. (3) The trial court erred in directing a verdict on a theory which was outside the issues made by the pleadings. (4) Even if pleaded, the "anything accidentally taken" phrase does not bar the instant type of case. Dezell v. Fidelity & Casualty Co., 176 Mo. 253, 75 S.W. 1102; Beile v. Travelers' Protective Assoc., 155 Mo.App. 629, 135 S.W. 497; Renn v. Supreme Lodge, K. of P., 83 Mo.App. 442; Cameron v. Massachusetts Protective Assoc., 275 S.W. 988; Metropolitan Acc. Assoc. v. Froiland, 161 Ill. 30, 43 N.E. 766. V. The phrase "resulting from poison," standing alone, must mean voluntary or intentional, not accidental poisoning, as here. Travelers Ins. Co. v. Dunlap, 160 Ill. 642, 43 N.E. 765; Metropolitan Accident Assoc. v. Froiland, 161 Ill. 30, 43 N.E. 766. (6) Since the phrases of the contract had been judicially construed before the contract was made defendant is charged with knowledge of the most favorable interpretation of the contract and is bound thereby. Fidelity & Casualty Co. v. Lowenstein, 97 F. 17. (7) By the language of its denial of liability herein defendant has waived its right, if any, to rely in defense upon the so-called "poison clause."

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover five thousand dollars accident insurance on the life of Norman Volney Dixon.

The Travelers' Protective Association of America is a Missouri corporation, and is a fraternal beneficiary association. Norman Volney Dixon held a certificate certifying that he was a class A member of the association and entitled to such benefits as may be provided for class A members in the constitution and by-laws of the association, benefits in case of death being payable to Gertrude K. Dixon, his wife.

The by-laws of the association provide that whenever a class A member, in good standing, shall, through external, violent, and accidental means, under the limitations and provisions of the constitution, and amendments thereto, receive bodily injuries which shall independent of all other causes result in death, five thousand dollars shall be paid to the beneficiary of such class A member.

The constitution provides as follows:

"The Association shall not be liable in case of injury fatal or otherwise, resulting from any poison or infection (unless the infection is introduced into, by and through an open wound, which open wound must be caused by external, violent and accidental means, and be visible to the naked eye) or from anything accidentally or otherwise taken, administered, absorbed or inhaled."

The constitution also provides that the association shall not be liable in case of suicide by the member while sane or insane.

The evidence tends to show that the insured came to his death as the result of drinking carbolic acid from a bottle, believing that he was drinking a medicine known as sodium bromide, used to alleviate pain, or allay nervousness, or as a sedative to induce sleep.

The cause was tried to a jury. At the conclusion of the whole case the court gave an instruction in the nature of a demurrer to the evidence. The jury returned a verdict in obedience to such instruction, and judgment was given accordingly. Plaintiff appeals.

Plaintiff assigns error here upon the giving of defendant's instruction in the nature of a demurrer to the evidence. Defendant contends that the giving of this instruction is justified by the so-called poison provision of the constitution above set out. Plaintiff contends that insured's death, having resulted from the unintentional or accidental taking of carbolic acid in the belief that he was taking medicine, is not within this provision, and that recovery is therefore not barred by it.

This provision may be set out, for the sake of clarity, as follows:

"The association shall not be liable in case of injury fatal or otherwise, resulting from any poison . . . or from anything accidentally or otherwise taken, administered, absorbed or inhaled."

Plaintiff insists that the two clauses of this provision are independent of each other, and must be so read and understood, so that the decision of this case depends upon the meaning of the first clause unaffected by the second.

For the purpose of this case we may accept the plaintiff's view, and let the decision hang upon the first clause of the provision, that is, that "the association shall not be liable in case of injury fatal or otherwise, resulting from any poison." So that the question presented for solution is whether a death resulting from poison accidentally taken under the mistaken belief that it is a harmless medicine is a death "resulting from any poison."

It may be helpful just here to quote what was said by the court, speaking through Judge SANBORN, in McGlother v. Provident Mutual Accident Company, 89 F. 685, wherein the policy under construction provided that the insurance did not cover death "from poison," as follows:

"Is a death from poison accidentally taken under the mistaken belief that it is a harmless medicine a death from poison? That is the real question in this case and to ask it seems to answer it. If death from poison unconsciously taken under the belief that it is not poison is not a death from poison, what is it a death from? The whole is greater than any of its parts, and includes them all. Death from poison is greater than, and necessarily includes, death from poison taken in any particular way, because it includes death from poison taken in every way. It...