Mossop v. Continental Casualty Co.

• Decision Date: 20 April 1909
• Parties: MOSSOP v. CONTINENTAL CASUALTY CO.
• Court: Missouri Court of Appeals

118 S.W. 680

137 Mo. App. 399

MOSSOP v. CONTINENTAL CASUALTY CO.

St. Louis Court of Appeals. Missouri.

April 20, 1909.

Rehearing Denied May 11, 1909.

1. INSURANCE (§ 539)—ACCIDENT INSURANCE —AFFIRMATIVE PROOF OF LOSS—TIME.

Provision in an accident policy that, in case of loss of time, affirmative proof be furnished within 30 days from termination of the period for which the insurer is liable, does not necessarily mean that the proof cannot be furnished before recovery of insured, as would appear proper if the indemnity be payable weekly.

2. INSURANCE (§ 460)—ACCIDENT INSURANCE —PROVISIONS AGAINST LIABILITY—INTOXICATION.

Provision of an accident policy that, if injury is sustained while insured is intoxicated, his recovery shall be one-eighth what it otherwise would be, applies without regard to whether the intoxication causes the injury, though another clause provides for the same result where the injury is caused by intoxication.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Joseph E. Mossop against the Continental Casualty Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded.

Action on an accident insurance policy for 21 weeks' indemnity at $15 a week, or $315; plaintiff alleging he was totally disabled during that period by an accidental injury. This fact is not contested—the defenses being, first, failure to furnish proof of loss as required by the policy; second, intentional infliction of the injury by another person; third, that it was received while plaintiff was quarreling, fighting, and violating the law; fourth, while he was intoxicated; fifth, was the result of intoxication. It is alleged any or all of those facts would excuse defendant from liability. The injury was received in the afternoon of December 17, 1906, and about the premises of a saloon kept by George Mills. According to plaintiff's version of the occurrence, he went into the saloon and asked for a drink of liquor. Mills refused him because of a dispute in the saloon two or three weeks before, ordered him out, and just as he passed through the door slapped him on the back, but in a friendly way, and without force enough to hurt or cause a fall. The saloon stood at the intersection of two streets, and the walls did not join at right angles, but at the corner was a narrow wall set diagonally to the street, and in it was the entrance to the saloon. A porch projected from the second story, and was supported by a post located where the front and side walls of the building would have joined if they had met. The entrance of the saloon was set back some feet from this post, and was elevated about a foot above the sidewalk; the triangular space between the entrance and the post being a raised platform. Plaintiff said in stepping off this platform he slipped, and in falling struck his knee against the iron post, thereby causing the injury, which was a fracture of the kneecap or patella. He testified he was perfectly sober, but there was evidence to prove he was intoxicated, had been in a quarrel with the saloon keeper, and was ejected by the latter with a shove which might have caused him to fall. The policy provided for the payment of an indemnity to the plaintiff or his wife, and the material parts said the indemnity would be paid on the conditions following:

"In the event the insured, while his policy is in force, shall receive personal, bodily injury, which is effected directly and independently of all other causes through external, violent and purely accidental means (suicide, sane or insane, not included) and which causes at once total and continuous inability to engage in any labor or occupation, and provided that neither such injury nor inability is in consequence of nor contributed to by any bodily or mental defect, disease, or informity of the insured.

"Part I. * * *

"Part II. Weekly Indemnity. If such injury shall not result in any of the losses scheduled in part I, the company will pay said weekly indemnity for total loss of time necessarily resulting from injury as before described, for such period, not exceeding one hundred and four consecutive weeks, as the insured shall be under the treatment of a legally qualified physician or surgeon by reason of such injury.

"Part III. Special Indemnities. (A) In any of the losses covered by this policy and specified in parts I or II (1) where the accidental injury results from the intentional act of the insured or of any other person while the insured is not engaged in his occupation (assaults committed upon the insured for the sole purpose of burglary or robbery excepted); or (2) where the accidental injury results from or is received while quarreling fighting or violating the law; or (3) where either the accidental injury or the loss results from any poison, asphyxiation or gas, or from fits, vertigo, somnambulism or intoxication, or from sunstroke or freezing sustained by the insured while not engaged in his occupation; or (4) where the accidental injury is sustained while the insured is insane, delirious or under the influence of any intoxicant or narcotic or while the insured is undergoing any surgical operation or treatment (except such as is made necessary solely by injury covered by this policy and performed within ninety days thereof) then and in all cases...