Herwig v. Business Men's Acc. Ass'n of America

• Citation: 234 S.W. 853
• Decision Date: 20 September 1921
• Docket Number: No. 16232.,16232.
• Parties: HERWIG v. BUSINESS MEN'S ACC. ASS'N OF AMERICA.
• Court: Court of Appeal of Missouri (US)

234 S.W. 853

HERWIG v. BUSINESS MEN'S ACC. ASS'N OF AMERICA.

No. 16232.

St. Louis Court of Appeals. Missouri.

September 20, 1921.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

"Not to be officially published."

Action by Emil M. Herwig against the Business Men's Accident Association of America. Judgment for plaintiff, and defendant appeals. Reversed.

Solon T. Gilmore, of Kansas City, and Pipkin & Story, of Farmington, for appellant.

B. H. Boyer, of Farmington, for respondent.

BRUERE, C.

The plaintiff seeks to recover on an accident insurance policy issued to him by the defendant.

In his petition he alleged:

That, while driving in the dark, on the 21st day of November, 1915, he was injured by being struck a violent blow over the right eye by the limb of a tree, and that within a few minutes thereafter, while crossing a swollen stream, he was thrown from his carriage into the cold water and became drenched; "that as a direct result of the blow over his eye it became swollen and inflamed, and as a direct result of having been thrown into the cold water as aforesaid, and the resulting exposure aforesaid, inflammation set up in his right eye, the right ear, the eustachian, the pharynx, and the mastoid cells, and thence to the lateral sinuses of the brain, directly affecting the optic nerve of the right eye, resulting in atrophy and the loss of sight of said eye, and that as a direct result of the external and violent injury aforesaid, resulting directly in the complications above set forth, plaintiff has from and after February 14, 1916, and still does, suffer from a loss of the sight of his right eye, whereby plaintiff has been and still is disabled from prosecuting any and every duty pertaining to his occupation as a physician."

The answer contained a general denial and several specific defenses. The only special defense therein that need be noted here is the plea that the defendant was an assessment accident association of which plaintiff was a member; that the certificate of membership or policy of insurance issued by defendant to plaintiff, which provided for the payment of $1,250 for the loss of an eye, further provided that "the payment of the above benefit shall be subject to the provisions, exceptions and limitations prescribed in the by-laws of the association"; that there was printed on the back of said certificate in very large type, the words "Important: Read the By-Laws: They and all amendments thereto are a part of your contract;" that section 1 of article II of said by-laws so made a part of the policy was as follows:

"Subject to the provisions, exceptions and limitations prescribed by and contained in his application for membership, in the accident certificate issued to him, and in the by-laws, a member shall be entitled to benefits for injuries, and his beneficiary to benefits for the death of the member caused during his membership solely and exclusively by external, violent and accidental means, notice and proof of which accident shall have been given as in these by-laws provided, as follows: Loss of one eye, $1,250.00. Which benefits shall be payable within ninety days after the receipt by the association of proofs satisfactory to the board of directors of said injuries, and as to the accidental cause thereof; provided, however, that such death or loss occurs within ninety days after the accident which caused it, and provided, further, that in case of death or such loss, such member shall be immediately totally disabled as a result of such accident, and such total disability shall continue to the time of his death or such loss."

The answer further alleged that plaintiff suffered no immediate disability from his alleged accident, and no continuous disability from the date of the accident to the loss of the eye, and that because of that fact no liability was occasioned even if he had lost the sight of his eye, which was denied, as the result of accidental means which was also denied.

The reply joined issue on the matters pleaded in the answer.

The cause was tried and submitted to the circuit court sitting as a jury at the November term, 1917, of said court, and was by the court taken under advisement. On March 7, 1918, at the February term of said circuit court, the court found the issue in favor of the plaintiff, and rendered judgment against the defendant for the sum of $1,250.

Defendant filed no motion for a new trial within the four days required by our statute. However, on March 30, 1918, and at said February term, 1918, of said circuit court, the defendant filed its motion to set aside said judgment rendered, which motion was sustained and said judgment was by the court set aside and for naught held. Thereupon, by agreement of parties in open court, this cause was submitted to the court upon the pleadings and evidence theretofore introduced, and the court found the issues in favor of the plaintiff and rendered judgment against the defendant for the sum of $1,230. The defendant thereupon filed his motion for a new trial, which was overruled by the court. Thereupon the defendant duly perfected an appeal to this court.

The defendant contends that the court erred in rendering judgment for the plaintiff, for the reason that no immediate disability followed the accident.

The provisions of the policy pertinent to the issue raised are as follows:

"The Business Men's Accident Association of America does accept and insure Emil M. Herwig as a member of said association, and in the event of his accidental injury, will pay to him, or in the event of his accidental death, will pay to Genevieve Herwig (wife) the indemnity set forth in the following table, provided such injury or death be caused during his membership, solely and exclusively by external, violent and accidental means.

"Specific Indemnities.

"Loss of one eye, $1,250.00.

"The payment of the above indemnities shall be subject to the provisions, exceptions and...