Meredith v. Business Men's Accident Association of America

• Decision Date: 11 June 1923
• Citation: 252 S.W. 976,213 Mo.App. 688
• Parties: MAUDE L. MEREDITH, Appellant, v. BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA, Respondent
• Court: Kansas Court of Appeals

252 S.W. 976

213 Mo.App. 688

MAUDE L. MEREDITH, Appellant, v. BUSINESS MEN'S ACCIDENT ASSOCIATION OF AMERICA, Respondent

Court of Appeals of Missouri, Kansas City

June 11, 1923

Appeal from the Circuit Court of Caldwell County.--Hon. Arch B Davis, Judge.

AFFIRMED.

Judgment affirmed.

Davis & Ashby for appellant.

Solon T. Gilmore for respondent.

OPINION

ARNOLD, J.

This is an action to recover upon an accident insurance policy for the death of plaintiff's husband from external, violent and accidental means. The cause was tried to the court without the aid of a jury, upon agreed statement of facts, as follows:

"1. That at the time of the death of Oscar O. Meredith, husband of the plaintiff, he held a policy issued by the defendant, by which it agreed to pay her the sum of $ 5000 in the event of his death from external, violent and accidental means, subject, however, to the terms and conditions set forth in said policy.

"2. It is further admitted that while said policy was in full force and effect, said Oscar O. Meredith was riding as a passenger for hire in an aeroplane, and was killed by a fall of said aeroplane.

"3. It is admitted that plaintiff has done all of the things required by her to be done under the terms of said contract.

"4. That the said policy shall be introduced in evidence, that all of its terms may be before the court.

"5. That defendant denies liability upon the ground that said Oscar O. Meredith lost his life as the result of injuries sustained while participating in or in consequence of participating in aeronautics.

"6. That if this defense is good under the terms of said policy, plaintiff is not entitled to recover; otherwise plaintiff is entitled to recover the sum of five thousand dollars, with interest at six per cent per annum from February 4, 1920.

"7. That a jury is waived and all questions as to pleadings are waived, including the filing of an answer."

The policy is set out in full in the abstract, but the only parts which we have to deal with in this review are as follows: Section 12, article 13, provides: "This policy does not cover any injury, fatal or otherwise, sustained by the insured while under the influence or suffering from the effects of any liquor or narcotic; nor any injury, fatal or otherwise, contributed to or effected by disease, bodily or mental infirmity, hernia, orchitis, fits, vertigo, sleep-walking, or medical or surgical treatment; nor any injury, fatal or otherwise, intentionally inflicted by the insured (sane or insane) or by any other person (sane or insane) except it be established that the assault was committed for the sole purpose of burglary or robbery; nor any injury, fatal or otherwise, sustained by the insured while participating in or in consequence of having participated in aeronautics, or while riding a motorcycle, or while violating any law."

And that part of section 10 of article 13, which reads:

"In the event the insured is injured, fatally or otherwise, or contracts sickness after having changed his occupation to one classified by the Association as not eligible, or while doing any act or thing pertaining to any occupation so classified, no indemnities shall be payable. Provided, however, that full indemnities shall be paid for injuries sustained or sickness contracted while the insured is engaged in games or sports for recreation or while performing ordinary duties about his residence."

The policy was issued August 29, 1913. The petition alleges that on the 27th day of September 1919, and during the life of said policy, while Oscar O. Meredith, the insured, "was riding, as a passenger for hire in a public conveyance, using gasoline or other substance as a motive power, to-wit, an airplane, at Breckenridge, Missouri, he was injured by reason of said airplane, upon which he was a passenger colliding with the ground; that said injury caused the death of said Oscar O. Meredith, and said death occurred almost immediately as a direct result of said collision and said injury and death was effected through external, violent and accidental means and independent of all other causes, to-wit, the collision of said airplane with the ground as aforesaid."

Plaintiff was the wife of Oscar O. Meredith and the beneficiary named in the policy. Defendant denied liability and this suit followed. The finding and judgment of the court were for defendant and plaintiff appeals.

The only point presented for our determination on this appeal is the intent and meaning of that clause in the policy quoted from section 12, article 13. It is urged that as a general rule, a policy of accident insurance is to be liberally construed as against the insured and strictly construed as against the insurer, in the event there is ambiguity in the contract. The correctness of this rule is not denied by defendant and we need not discuss it. The question for our solution is as to whether or not the language of the policy is ambiguous as used in the clause under discussion.

Plaintiff urges that the word "participate," as used in the policy, has a technical meaning, to-wit, sharing in any and all profits accruing to the company or class to which the participator belongs. In other words, that it means here, the business of sailing the air. It is also contended...