State ex rel. Commonwealth Cas. Co. v. Cox

• Decision Date: 02 March 1929
• Parties: The State ex rel. Commonwealth Casualty Company v. Argus Cox et al., Judges of Springfield Court of Appeals
• Court: Missouri Supreme Court

14 S.W.2d 600

322 Mo. 38

The State ex rel. Commonwealth Casualty Company v. Argus Cox et al., Judges of Springfield Court of Appeals

Supreme Court of Missouri

March 2, 1929

Record quashed.

Allen & Allen for relator.

(1) Where a policy of insurance contains no ambiguities and the language of the policy is plain, concise, unequivocal and unambiguous, the courts, in construing it, will give its language its plain meaning. State ex rel. Park v. Daues (Mo.), 289 S.W. 957; State ex rel. Ins. Co. v Allen, 305 Mo. 607; State ex rel. Ins. Co. v Trimble, 306 Mo. 295; State ex rel. Automobile Ins Co. v. Trimble, 297 Mo. 659; State ex rel. Am. Fire Ins. Co. v. Ellison, 269 Mo. 410. (2) The word "continuously," in its common and accepted significance, means uninterruptedly, in unbroken sequence without intermission or cessation, and without intervening time. Rocci v. Mass. Accident Co., 110 N.E. 972.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

Certiorari. The writ brings here for review the record of the Springfield Court of Appeals in the original suit of Robert Lusk v. Commonwealth Casualty Company. The Court of Appeals affirmed, conditionally, a judgment obtained by plaintiff in said suit, and relator now seeks to quash the record of that court, alleging a conflict between its opinion and controlling decisions of this court.

For a proper consideration of the ruling of the Court of Appeals and the facts upon which it is based, we find it necessary to quote its opinion in full, as follows:

"Action for sick benefits under an accident and sickness insurance policy. Trial by jury; verdict for plaintiff for $ 250, the full amount sued for. Judgment accordingly and defendant appealed.

"There is but one provision of the policy sued on which is involved in this litigation. That provision is as follows:

"'Sickness Benefits.

"'If the insured shall be continuously confined within the house not leaving it at any time or for any purpose whatsoever, and regularly visited therein at least once in every seven days by a licensed physician and be wholly prevented from transacting any and every kind of business solely by . . . eczema, scurvy, . . . not including their complications and consequences, provided that this insurance shall have been in continuous force for thirty days from this date prior to the contraction of the disease, the company will pay for such confinement after the first seven days and not exceeding ten weeks a weekly indemnity of twenty-five dollars ($ 25.00).' (Our italics.)

"There are a large number of diseases named in the policy, but the claim in this case is based upon eczema and scurvy and for that reason others are omitted in this statement. The evidence on part of plaintiff developed that the policy had been in force more than thirty days prior to the contraction of the disease named, and omitting the first seven days of his illness he was sick and unable to work for more than ten weeks, the time limited in the policy for which sick benefits would be paid; hence the merits of the case on the facts depends on whether the sickness for which the benefits are asked was covered by the terms of the policy above set out. Appellant insists that respondent has not shown that he was 'continuously confined within the house not leaving it at any time or for any purpose whatsoever,' by reason of either eczema or scurvy as required by the policy in order to entitle respondents to sick benefits. The evidence for respondent on the question may be briefly summarized as follows:

"He lived about one and one-half miles from Marionville in Lawrence County, and after being taken sick he went to Marionville in an automobile and went to the office of Dr. Titterington and was treated by him. This was kept up for three or four weeks. During this time he was not able to do any work and remained in the house most of the time. He went out now and then, but not to work. He then went to Springfield and was in a sanitarium conducted by Dr. Anderson for five weeks. While there he was in bed in the forenoon and in the afternoon when the weather was good he would walk out some. He would sometimes walk to the post office, a distance of two and one-half blocks, and on two occasions walked to the court house, a distance of three or three and one-half blocks. Two or three times each week he rode on a street car some six or seven blocks to the public square and walked around there for a time, possibly for one hour at times. On two occasions he went with Dr. Anderson somewhere in an automobile, but where or how far or how long they were away on these occasions does not appear. After being in the sanitarium for five weeks, he returned home and was treated by a doctor for five weeks, that is, the doctor prescribed for him and on one occasion the respondent made a trip to Springfield to consult Dr. Anderson. During this time he was unable to work. He went out to the barn occasionally to see if the boys were keeping the work up in the right way. He also went to Marionville occasionally to see Dr. Titterington. No doctor ever visited him at his home either before or after his confinement in the sanitarium. Both doctors testified that he was afflicted with eczema and scurvy, and Dr. Anderson testified that he also had poison in his system which he called auto-toxemia, but which he was not able to tell much about. He said it might result from scurvy if he had a severe case of it. Anything that would prevent proper digestion and elimination of the food would cause auto-toxemia. Dr. Titterington did not discover he had auto-toxemia while he treated him. The doctors were both sure that he had eczema and scurvy, but their testimony was not very clear as to the effect of these diseases on the question of necessary confinement in the house. The real facts as to his confinement are better related by the plaintiff himself than by the doctors.

"Whether a case for the jury was made by respondent depends pretty largely upon his own testimony and the construction to be given the provisions in the policy that to entitle the insured to sick benefits, the disease with which he was afflicted must have caused him to be 'continuously confined within the house, not leaving it at any time or for any purpose whatsoever.' Our first conclusion is that the phrase 'not leaving it at any time or for any purpose whatsoever' add nothing to the meaning of the policy. If we were to give these provisions of the policy a strict literal construction the phrase 'continuously confined within the house' would, standing alone, mean that he must not be able to leave it at any time or for any purpose whatsoever. In some of the cases in which a similar provision of the policy has been construed the words 'not leaving it at any time for any purpose whatsoever' have been included and in others omitted. The construction given the provision has been the same in all cases, which is, that in order for an assured to make a case he was not required to show that he was unable to leave the house at any time for any purpose, but it was sufficient if he were confined to the house in a substantial sense. [Bradshaw v. Benevolent Assn., 112 Mo.App. 435, 87 S.W. 46; Hays v. Benevolent Assn., 127 Mo.App. 195, 104 S.W. 1141; Ramsey v. Insurance Co., 160 Mo.App. 236, 142 S.W. 763; Bass v. Pioneer Life Ins. Co., 206 Mo.App. 626, 227 S.W. 639; Olinger v. Insurance Co., 278 S.W. (Mo. App.) 86.]

"Insurance policies of this character are prepared by the insurance company. Insurance contracts of this kind are never made as a result of negotiation and discussion between the parties. The terms of the policy and its limitations and restrictions are not placed there as a result of negotiations between the parties and hence with a full understanding by the insured as well as the insurer of all its limitations and restrictions and the insured seldom, if ever, fully understands at the time he receives the policy how restricted and limited is the protection which he purchased. He often, if not always, buys protection, as he thinks, against the loss of time by sickness, but when he undertakes to collect under his policy he finds that loss of time is not considered at all and nothing is paid because of loss of time. He now wakes up to the fact that the...