Miller v. Mutual Ben. Health & Accident Ass’n
| Decision Date | 28 January 1935 |
| Docket Number | 17631 |
| Citation | 80 S.W.2d 201 |
| Parties | MILLER v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS’N. |
| Court | Kansas Court of Appeals |
Rehearing Denied Feb. 18, 1935.
Appeal from Circuit Court, Henry County; Haysler A. Poague, Judge.
Action by Finis E. Miller against the Mutual Benefit Health & Accident Association. Judgment for plaintiff, and defendant appeals.
Affirmed.
See also, 56 S.W.2d 795; 68 S.W.2d 685.
Winger, Reeder, Barker & Hazard, of Kansas City, and Jones & Wesner, of Sedalia, for appellant.
Ross E. Feaster, of Windsor, for respondent.
The respondent, hereinafter designated as plaintiff, filed suit in the justice of the peace court of Henry county, Mo., seeking to recover the sum of $140 for disabilities as alleged as suffered by him and covered by an insurance contract issued to him by the appellant, defendant below, and hereinafter so designated.
The policy in question is a health and accident policy. The policy provides for $100 per month for total disability, and $50 per month for nonconfining sickness necessitating total disability.
In the first clause the scope of coverage, applicable to the case at bar, is expressed as: "*** And against loss of time on account of disease contracted during the term of this Policy, respectively, subject, however, to all the provisions and limitations hereinafter contained."
The plaintiff’s petition pleaded all facts necessary to recovery. The defendant admits liability, but denies liability in the amount of $140, and admits liability in the sum of $84.99, and makes full tender and deposits in court said amount.
In the justice of the peace court, the plaintiff was given a judgment for $115. The defendant appealed to the circuit court. A change of venue was taken from the regular judge, and by stipulation Hon. Haysler A. Poague, a person duly qualified to act, was chosen and qualified as special judge to try the case. In the circuit court a jury was waived and trial was before the court.
It appears that at the close of the evidence, presented by the plaintiff, the defendant demurred to the evidence and prayed the court, sitting as court and jury, to find the issues for defendant. The court refused the instruction in the nature of a demurrer, and defendant, duly objecting and excepting thereto, stood upon the demurrer. The court thereafter rendered judgment in favor of the plaintiff in the sum of $139.93, and from this judgment the defendant has duly appealed.
The defendant presents six specifications, under "Assignment of Errors and Points and Authorities," which are as follows:
Opinion.As to the defendant’s specifications 3, 4, and 5, the same present nothing for an appellate court to review, and specification 6 assigns no reason for the evidence, merely designated as appearing on certain pages of the record being immaterial, irrelevant, and incompetent.
The appellate courts of this state, by printed rules and by plain and concise language in opinions, have so clearly set forth the requisites to reviewable assignments of error that it is charitable to say that failure to comply is negligence.
Let us here reiterate:
"Points not supported by assignments of reasons will not be noticed." Kiger v. Sanko (Mo. App.) 1 S.W.2d 218.
"Supreme Court will not search record for errors not specifically pointed out." Coffey v. Higbee, 318 Mo. 10, 298 S.W. 766.
"Complaints of prejudicial error not specifying wherein the error lies present no point for consideration." Martin v. Continental Ins. Co. (Mo. App.) 256 S.W. 120.
"Appellate court will not search record for errors, existence of which is stated in general terms, in view of rule 17." Williams v. American Exchange Bank, 222 Mo.App. 483, 280 S.W. 720.
"Errors should be distinctly alleged." McElvain v. McElvain, 221 Mo.App. 135, 296 S.W. 460.
An assignment of error as to admitting evidence, which does not disclose what objection was made thereto when offered, is without merit. Blair v. Paterson, 131 Mo.App. 122, 110 S.W. 615.
The why and wherefore of so many specifications is not apparent in the face of the fact that there is but one point presented for consideration in this case, and that point is fairly and squarely presented in the first paragraph and paragraph (a) in point 2 of defendant’s brief.
At the outset of the trial, the attorney for the defendant stated: "No dispute as to the number of days he was confined, but simply as to how many days he was attended by a duly licensed physician."
Paragraph H of the policy reads: "The association will pay, for one day or more, at the rate of One Hundred Dollars ($100.00) per month for disability resulting from disease, the cause of which originates more than thirty days after the date of this policy, and which confines the Insured continuously within doors and requires regular visit therein by legally qualified physician; provided said disease necessitates total disability and total loss of time." (Italics ours.)
Paragraph I reads:
Following paragraphs H and I there appears what is designated "Additional Provisions," paragraph (a) thereof reading as follows: "This policy does not cover death, disability, or loss sustained in any part of the world except the United States and Canada, or while engaged in military or naval service, or while the Insured is not continuously under the professional care and regular attendant, at least once a week, beginning with the first treatment, of a licensed physician or surgeon other than himself ; or received because of or while participating in aeronautics; or resulting from insanity; or disability from any disease of organs which are not common to both sexes." (Italics ours.)
An opinion in this cause was handed down by the Kansas City Court of Appeals, October term, 1932 .
The cause was taken to the Supreme Court by certiorari, and the record and opinion of this court was quashed, and the cause certified back to this court by the mandate of the Supreme Court. State ex rel. Mutual Benefit, Health & Accident Ass’n v. Trimble, 68 S.W.2d 685.
As matters involving the class of insurance herein, by reason of amount involved, most frequently come to our state appellate courts, we, to the end of one of the purposes of certiorari, to wit, uniformity of law, deem it but fair to litigants that the matter wherein this court is held to have erred be fully set forth that it may serve as a landmark for future travelers along the road.
In the former opinion of this court, we construed the provisions of H and I as having no ambiguity. We reached such conclusion by giving the word "requires" an accredited meaning that would not conflict with coverage of total disability, if total disability be conclusively shown to have existed. The word "requires" has an accredited meaning, "to need; want or have occasion for," and as the evidence of the case is clearly to the effect that the insured was stricken with sciatic rheumatism, rendering him helpless, this court held that the insured was entitled to recover from the inception of total disability, regardless of the fact as to whether or not he had called in a physician at the beginning of said disability.
In reaching the above conclusion, this court, of course, had to take into consideration the after provision of paragraph (a) and in doing so construed that paragraph (a) was merely an "additional provision," which could not, of course, restrict the coverage of H and I without being repugnant thereto. Having concluded as above, we construed the language of paragraph (a) as an attempt to restrict coverage for...
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