Driskell v. United States Health & Accident Ins. Co.

• Decision Date: 05 March 1906
• Citation: 93 S.W. 880,117 Mo. App. 362
• Court: Missouri Court of Appeals
• Parties: DRISKELL v. UNITED STATES HEALTH & ACCIDENT INS. CO.

93 S.W. 880

117 Mo. App. 362

DRISKELL v. UNITED STATES HEALTH & ACCIDENT INS. CO.

Kansas City Court of Appeals. Missouri.

March 5, 1906.

1. INSURANCE—ACCIDENT INSURANCE—ACTION ON POLICY—PLEADING.

In an action on an accident policy, a petition alleging that the injury which resulted in the death of the insured was caused by the accidental falling of scalding water into his ear sufficiently showed that the death was produced by external, violent, and accidental means, within the terms of the policy, without an express allegation to that effect.

2. SAME.

In an action on an accident policy, an allegation that the insured died from the effects of the accidental injury is in effect an averment that the injury was the direct, and not the remote, cause of death, and was equivalent to an allegation that the death of the assured resulted solely from the injury, within the terms of the policy.

3. SAME—PROXIMATE CAUSE OF INJURY—CONSTRUCTION OF CONTRACT.

In an accident policy, under a provision for a payment if death should result solely from accidental injuries, it is sufficient if the injury stands out as the predominant factor in the production of the result, and it is not necessary that it must have been so virulent in character as inevitably to have produced the result, regardless of all other conditions and circumstances.

4. SAME—QUESTION FOR JURY.

Under an accident policy providing for payment if death result solely from accidental injuries, where evidence is introduced that points to the injury as the active force that brings into operation death-producing agencies, the issue of proximate cause is one for the jury, and not for the court.

5. SAME.

Where an accident policy provided for the payment of a monthly sum if the insured were disabled, to the extent described, solely by external, violent, and accidental means, and also providing for a payment "if death should result solely from such injuries," the words "such injuries" have no regard to the extent of disablement that immediately followed the injury.

Appeal from Circuit Court, Pettis County; George F. Longan, Judge.

Action by John D. Driskell, administrator, against the United States Health & Accident Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

H. T. Williams, for appellant. Shain & Barnett, for respondent.

JOHNSON, J.

Action upon a policy of accident insurance. The petition is as follows: "For his cause of action, the plaintiff states that heretofore, to wit, on the 10th day of February, 1904, the probate court of Pettis county, Missouri, duly appointed him administrator of the estate of John W. Driskell, deceased; that he qualified by giving the required bond as such administrator, and said probate court issued to him letters of administration on said estate; and that he is now the authorized acting administrator in charge of said estate with full power to sue in the courts of Missouri upon all obligations due said estate. Plaintiff states that the defendant is a corporation, carrying on the business of accident insurance in the state of Missouri, with the authority to sue and liability to be sued under the laws of Missouri and in the courts of Missouri. Plaintiff states that heretofore, to wit, on the 29th day of October, 1902, the defendant by its agents in consideration of the premiums, statements, and agreements mentioned in its policy No. 217,918, issued and delivered its said policy of accident insurance to the said John W. Driskell, deceased, which said policy is marked `Exhibit A,' attached to this petition, and filed with the same as a part of the record. Plaintiff states that deceased paid all premiums and performed all conditions by him to be paid and performed under the terms and provisions of said policy, and that the same was in full force at the time of said deceased's injury and death. Plaintiff states that it is provided in said policy that the defendant did thereby insure the said John W. Driskell during the time said policy was in force `in the sum of twenty-five dollars ($25.00) per month, or at that rate for any proportionate part thereof, against loss of time resulting from bodily injuries caused solely and exclusively by external, violent, and accidental means, other than those specified in paragraph "b" of said policy which shall, independently of all other causes, and immediately following the receipt thereof, wholly and continuously disable and prevent the assured from performing any and all duties pertaining to any business or occupation; or, if such injuries should not wholly and continuously disable the assured, but should immediately, wholly, and continuously disable and prevent him from performing one or more important daily duties pertaining to his occupation, or in event of such partial disability following a period of less than twelve months total disability, the company would pay the assured two-fifths of the indemnity per month so specified for a period not exceeding six consecutive months, but the combined period for which indemnity should be paid for any such total and partial disability should not exceed twelve consecutive months.' And that by paragraph `c' of said policy it is provided that `if death should result solely from such injuries, within three months from the date of the accident, the company should pay the principal sum of two hundred dollars ($200.00) to the estate of the said deceased.' That it was provided by paragraph `e' of said policy that `the indemnity in said policy provided should be increased 10 per cent. on any claim accruing thereunder if the premiums thereon should be paid annually in advance, or on any claim originating after the policy should have been maintained in continuous force without default for not less than one year immediately preceeding.'

"Plaintiff states that said deceased paid all premiums without default, and kept said policy in force to the time of his death as therein required. Plaintiff further states that the assured, John W. Driskell, deceased, was, at the time of such insurance, employed as a laborer in the Missouri Pacific railway shops at Sedalia, Missouri,...