Roseberry v. American Benevolent Ass'n.

• Decision Date: 02 October 1909
• Citation: 142 Mo. App. 552,121 S.W. 785
• Parties: ROSEBERRY v. AMERICAN BENEVOLENT ASS'N.
• Court: Missouri Court of Appeals

121 S.W. 785

142 Mo. App. 552

ROSEBERRY v. AMERICAN BENEVOLENT ASS'N.

St. Louis Court of Appeals. Missouri.

October 2, 1909.

1. CONTRACTS (§ 303) — BREACH — EXCUSES.

While, when the law creates a duty, and the party is disabled to perform it without any fault on his part, and he has no remedy over, the law will excuse him, yet where by his own contract he creates a charge or duty on himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, since he might have provided against it by his contract.

2. CONTRACTS (§ 147) — CONSTRUCTION.

The cardinal rule for the interpretation of contracts is that the intention of the parties shall be effectuated.

3. INSURANCE (§ 146) — CONTRACTS — CONSTRUCTION.

Insurance contracts must be liberally construed in favor of the insured.

4. INSURANCE (§ 146) — FORFEITURES.

In order to work a forfeiture under an insurance contract, it must clearly appear that the matter was within the contemplation of the parties at the time the contract was entered into; and, if the question be doubtful, the doubt must be resolved against the insurer, and in favor of effectuating the indemnity.

5. INSURANCE (§ 539) — ACCIDENT INSURANCE — NOTICE OF DISABILITY.

Where insured under an accident policy was, by reason of his injuries and of the administration of opiates in the treatment thereof, rendered unconscious for the period of three weeks, he was excused from complying with a condition of the policy requiring written notice of injuries to be given within 10 days, and a notice given within a reasonable time after insured became conscious was sufficient, especially in view of the fact that the policy did not include a stipulation requiring compliance therewith as to notice under such circumstances.

6. INSURANCE (§ 646) — ACCIDENT INSURANCE — EXTRAHAZARDOUS OCCUPATION — BURDEN OF PROOF.

If, under an accident policy, a certain occupation was classed in the manual of defendant association as hazardous, rendering a higher rate of premium necessary, or affording a lesser amount of indemnity with the same premium than that pertaining to the ordinary occupation of insured, it was a matter within the knowledge of insurer, and the burden rested on it in an action on the policy to establish the same.

7. INSURANCE (§ 146) — POLICY — CONSTRUCTION.

The conditions of an insurance policy, providing for the forfeiture of indemnity if insured engage in an occupation or act other than that mentioned in the policy, are strictly construed against the insurer.

8. INSURANCE (§ 531) — ACCIDENT INSURANCE — EXTRAHAZARDOUS RISK.

That defendant insurance company had classified in its manual laborers engaged about an oilcloth and linoleum factory, and also laborers about oil wells, under an extra hazard did not amount to such classification of labor in handling gasoline, there being no specification as to the handling of gasoline.

9. APPEAL AND ERROR (§ 1066) — HARMLESS ERROR — INSTRUCTIONS.

In an action on an accident policy, providing that if insured was injured while engaged in an act or occupation classified as more hazardous than that for which the policy was issued, he should receive only the indemnity for the more hazardous occupation, there being no evidence that plaintiff was injured while so engaged, any inaccuracy in submitting the question whether he was so engaged when injured was harmless to the insurer.

Appeal from Circuit Court, Knox County; Charles D. Stewart, Judge.

Action by David J. Roseberry against the American Benevolent Association. Judgment for plaintiff, and defendant appeals. Affirmed.

O. D. Jones and E. S. Puller, for appellant. F. H. McCullough and C. R. Fowler, for respondent.

NORTONI, J.

This is a suit on an accident insurance policy. Plaintiff recovered and defendant appeals.

It appears plaintiff was insured in the defendant company for the period of one year in consideration of $1 per week premium paid by him. Plaintiff was insured as a railroad pumpman, and under the defendant's classification of risks relating to that vocation. The policy vouchsafed insurance at the rate of $35 per month during the period of total disability, provided the insured received bodily injuries solely through external, violent, accidental, and involuntary means which should produce visible marks upon his body, and, independently of all other causes, immediately, totally, and continuously disable him from performing any kind of labor or business. It was further provided that in no case should the indemnity exceed 12 consecutive months. Plaintiff was employed as a railroad pumpman at the time of his injuries. From this we infer it was his duty to attend to the pumping of water into the railroad water tank for the purpose of replenishing the supply of locomotives. He performed the service at night. Among other things, the railroad company maintained at the place of plaintiff's employment a small gasoline engine. This engine was not used in connection with the pumping of water, but instead was maintained for the purpose of hauling cars of coal into the coal chute there situated. It seems the railroad maintained a coal chute at this point where its locomotive engines received coal. It was necessary, every few days, to replenish the supply of coal in the chutes, and to do this cars laden therewith were placed therein and unloaded. When it was necessary to remove a car of coal from the side track into the coal chutes, plaintiff would operate the gasoline engine referred to for that purpose. His duties in respect of this engine may not have been parcel of the duties pertinent to a railroad pumpman, generally speaking; nevertheless such duties were incidental to his employment in the present instance, and he was required by the railroad company to perform them. While engaged in carrying a bucket of gasoline to replenish the gasoline engine, he spilled a considerable quantity of the fluid upon his trouser legs. His trousers became saturated therewith from his knees to his ankles. The gasoline with which his trousers were thus saturated became ignited from the fire in his lantern, which was near. This resulted in burning his limbs from the ankles to about four inches above his knees so severely as to partially roast the flesh. The physicians testified, not only was the skin of his limbs destroyed, but the muscles were severely burned as well. The testimony tends to prove that as a result of the pain incident to the burn, plaintiff became unconscious. The attending physicians testified that he was immediately placed under the influence of opiates, and so continued between two and three weeks. He was confined to his bed thereafter for more than eight months, and rendered wholly unable to perform any kind of labor or service for more than 14 months after the injury. In fact his disability was total for a period greater than the full term for which indemnity was provided in the policy. Although the policy required that in case of accidental injury, as above indicated, the insured should give defendant company written notice thereof within 10 days thereafter, it appears no notice whatever was communicated to defendant in that behalf until 19 days after the accident occurred. The stipulation in the policy touching this matter is to the effect, by its acceptance, plaintiff agreed "that notice in writing on blanks furnished by the association with full particulars of any disability or death for which claim is to be made, must be delivered to the association at St. Louis, Missouri, within ten days after the beginning of said disability in order to entitle the member to indemnity." This provision of the policy is invoked by the defendant, and it is urged that plaintiff is precluded thereby from any recovery on the claim asserted, for the reason the notice referred to was not given until 19 days after the date of the injury. To excuse himself in respect of this matter plaintiff himself testified that he was in an unconscious state of mind from the time of his injury for nearly three weeks thereafter. This condition of mind was induced by reason of the severity of his burns and the opiates administered by the physicians in order to allay his sufferings. The two physicians who attended him gave testimony to the same effect. It appears notice was given to the company forthwith after the plaintiff's mind was relieved from the influence of the opiates. It is argued on the part of defendant that these facts are not sufficient to relieve the plaintiff of the duty imposed upon him by the contract of insurance. It is said that where a person voluntarily assumes an obligation by contract, he is bound to perform it or suffer the consequence, notwithstanding that accident or necessity enforced his failure to perform, and that this is true for the reason he might have provided against such by contract. There can be no doubt that the condition of the policy above quoted requiring notice to the company within 10 days after the injury is a condition precedent to the right of the plaintiff to recover, and as a rule, failure to perform such condition within the time and manner specified, invalidates a claim to indemnity. McFarland v. U. S. Accident Ass'n, 124 Mo. 204, 27 S. W. 436; Ins. Co. v. Kyle, 11 Mo. 278, 289, 49 Am. Dec. 74; McCullough v. Ins. Co., 113 Mo. 606, 21 S. W. 207; 2 Bacon on Benefit Societies (3d Ed.) § 505. It must be conceded that the doctrine urged by defendant obtains in our law.

The question in respect of duties assumed by a party through his contract, which is neither immoral nor against public policy, was determined at an early date in the case of Paradine v. Jane, Aleyn's Rep. of Cases before the King's Bench, 27. It is said in that case: "When the law creates a duty, and the party is disabled to perform it, without any default in him, and he has no remedy over, the law will excuse him. But when the party by his own contract creates a charge or duty upon...