Maupin v. Southern Surety Company
| Decision Date | 28 February 1920 |
| Parties | LAURA L. MAUPIN, Respondent, v. SOUTHERN SURETY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Cedar County.--Hon. B. G. Thurman Judge.
REVERSED.
Judgment reversed.
M. D Aber for appellant.
(1) The word "surgeon" as used in its plain, ordinary sense does not mean a veterinarian, as ordinarily understood when an average person hears the word, and it is in that sense it must be understood in the contract. Goode v. St Louis, 113 Mo. 270-1; Richardson v. C. & A. Ry., 62 Mo.App. 1; Lovelace v. T. P. A., 126 Mo. 111; Liggett v. Bank, 233 Mo. 601; 6 R. C. L., page 843, begin, line 12; 13 Corpus Juris, page 531; Johnson County v. Wood, 84 Mo. 489; Good v. Erker, 170 Mo.App. 681; Lumber Co. v. Dent, 151 Mo.App. 614, s. c. 164 App. 442. (2) Contracts of insurance are like other contracts and their terms are to be construed according to the plain ordinary meaning of the terms. Hoover v. Insurance Company, 93 Mo.App. 118, quoting from Imperial Fire Ins. Co. v. Coos. Co., 151 U.S. 463. (a) And, like other contracts, the object is to ascertain the meaning and intention of the parties, which is to be gathered from all parts of the instrument in contemplation of which they are supposed to contract. Renshaw v. Insurance Company, 103 Mo. 595; Renn v. Supreme Lodge, 83 Mo.App. 442; Brewing Co. v. Ins. Co., 63 Mo.App. 666-7, quoting "A contract of insurance differs in no respect from other contracts, as to the rules of interpretation. The object is to ascertain the meaning and intention of the parties, to be gathered from the whole instrument. (Citing Renshaw case above) It should be so construed as to give meaning to all its provisions. (Citing Ins. Co. v. Kieman, 83 Ky. 473.) (b) In construing a contract in numerous sections or parts, no section or clause can be considered alone as controlling; the duty of the court is to harmonize all parts if possible in a reasonable and natural construction. Power Co. v. Independence, 188 Mo.App. 157. (c) No word or phrase should control the terms of a written contract in opposition to the intent of the parties as disclosed by the entire instrument. Miles v. Bank, 187 Mo.App. 230, 243, quoting from Carney v. Chillicothe W. & Lt. Co., 76 Mo.App. 532, 536; Lumber Co. v. Dent, 151 Mo.App. 618. (d) It is only when after construing all the terms of an insurance contract together, the one with the other, that an ambiguity remains, that the rule of construing strongly against the insurer applies. Banta v. Casualty Co., 134 Mo.App. 222-226; Smith v. Phoenix Co., 181 Mo.App. 455, 458-9; Dunn v. Life & Acc. Co., 197 Mo.App. 457, 471; Mitchell v. Accident Co., 179 Mo.App. 7. (e) And when a clause in a policy of insurance stands with others, its meaning may be gathered from those which precede and follow it. Straus v. Ins. Co., 94 Mo. 182, 189. (f) And the prime rule for interpretation of contracts is that when the words used are plain and unambiguous, they must be enforced in their natural sense, and that effect must be given to every part of the instrument. Webb v. Ins. Co., 134 Mo.App. 576, 580; Lovelace v. Ass'n., 126 Mo. 104; 6 R. C. L., sec. 231, p. 841.
Walter L. Chaney, S. J. Caudle and W. E. Owen for respondent.
(1) When a policy is capable of two meanings that meaning which is more favorable to the insured must be applied, even though it was intended otherwise by the insurer. Brown v. Assurance Co., 45 Mo. 221; Hoffman v. Accident Association, 56 Mo.App. 308-9; Cunningham v. Casualty Co., 82 Mo.App. 614; Crotty v. Casualty Co., 163 Mo.App. 636-7; Schmoll v. Insurance Co., 189 S.W. 600, 192 Mo.App. 159; Greenlee v. K. C. Casualty Co., 192 Mo.App. 303; Stout v. Fidelity & Casualty Co., 179 S.W. 993; Stix v. Travelers Ins. Co., 175 Mo.App. 171; Mitchell v. Accident Co., 179 Mo.App. 1; Still v. Connecticut F. Ins. Co., 185 Mo.App. 550; Stark v. John Hancock M. L. Ins. Co., 176 Mo.App. 574. (2) If the language of a contract is susceptible of different constructions, or there is a dispute as to meaning of terms, the construction put on it by the parties is of great weight and should control. White v. Nelson Mfg. Co., 53 Mo.App. 337; Rose v. Eclipse Carbonating Co., 60 Mo.App. 28; Williams v. K. C. Belt Ry., 85 Mo.App. 103; St. Joe Depot Co. v. Railroad, 131 Mo. 291; Smith Drug Co. v. Saunders, 70 Mo.App. 221; Wetmore v. Crouch, 150 Mo. 671; City St. Louis v. Leclede Gaslight Co., 155 Mo. 1; Craig v. Seybt, 91 Mo.App. 242; Meyer v. Christopher, 176 Mo. 580; Laing v. Holmes, 93 Mo.App. 231. (3) A veterinary surgeon is a person lawfully practicing the art of treating and healing injuries of domestic animals. Lyford v. Martin, 79 Minn. 246, 82 N.W. 479; Cyc. 1546, (note 8); Standard Dictionary; Webster's New International Dictionary.
This is a suit upon a limited accident insurance policy for $ 3000. Plaintiff is the widow of the insured and beneficiary in the policy. The cause was filed in Johnson county from which the venue was changed to Cedar county and there tried before the court and a jury. The verdict and judgment were for plaintiff for the face of the policy with interest, and for $ 500 for attorneys' fees for vexatious refusal to pay. From this judgment defendant appealed.
The policy was issued on January 12, 1916, for one year, the premium paid, and policy delivered. The insured was a duly licensed veterinarian and was practicing his profession in Johnson county. On September 27, 1916, insured was vaccinating some hogs for J. T. Allen, giving them what is called the "double treatment." After a hog was treated one of its ears was slit so as to distinguish it from those yet untreated. After administering the treatment to one of the hogs and while endeavoring to slit its ear, insured accidentally cut his finger from which blood poison resulted, and from which he died on October 14, 1916. Defendant denies liability. By the terms of the policy defendant insured Dr. Peter B. Maupin, subject to the terms, provisions, conditions and limitations stated, provided the injury sustained was effected exclusively by external, violent and accidental means which should independently of all other causes, immediately continuously and wholly disable insured or be the sole cause of his death or other injuries specified, within thirty days from the date of the event causing such injury, and provided such injury to the insured be received under certain conditions and specifications named. There are twelve of these specifications, and it is conceded that if insured's injury falls under either it is under the twelfth one. By the policy and this specification it is provided that the insurer, the defendant, will be liable: "In the event that a legally qualified physician, surgeon or dentist, while holding an autopsy or performing a surgical operation, or a legally qualified undertaker while embalming or preparing a body for burial, actually cuts or wounds himself, and by reason of such cutting or wounding and simultaneously therewith be inoculated with poison."
The controversy hinges on the construction of surgeon and surgical operation as used in the specification quoted. Plaintiff contends that the insured was a surgeon and that the operation he was performing when injured was a surgical operation as these terms are used in the specification; while defendant on the other hand makes the opposite contention. A contract of insurance does not differ from other contracts respecting rules of interpretation. The object in interpretation and construction is to ascertain the meaning and intention of the parties, and this will be reached by a consideration of the whole instrument. [Brewing Co. v. Union Ins. Co., 63 Mo.App. 663; Renshaw v. Ins. Co., 103 Mo. 595, 15 S.W. 945; Smith v. Ins. Co., 181 Mo.App. 455, 168 S.W. 831.] It is only when the language in the contract is ambiguous that the rule obtains that it will be strictly construed against the insurer. [Smith v. Ins. Co., supra; Banta v. Casualty Co., 134 Mo.App. 222, 113 S.W. 1140; Dunn v. Ins. Co., 197 Mo.App. 457, 196 S.W. 100; Mitchell v. Accident Ins. Co., 179 Mo.App. 1, 161 S.W. 362.] The contract must be construed as a whole and when a clause in the policy stands with others its sense may be gathered from those clauses which precede and those which follow. [Strance v. Ins. Co., 94 Mo. 182, 6 S.W. 698.] When words are used in one sense in one part of a contract, and such words are again used in the same contract they are as a general rule deemed to have been used in the same sense as in the first instance, nothing to the contrary appearing. [13 C. J., sec. 491, p. 532.] Of the construction of contracts in general no one challenges the rule that all parts must be considered together if possible. This is the general rule.
With these statements of the law as we find it, it is pertinent to consider other specifications in the policy sued on in the instant case as they throw light on the construction which we think was evidently intended by the word surgeon and the words surgical operation as used in...
To continue reading
Request your trial