State ex rel. Mutual Benefit, Health & Acc. Ass'n v. Trimble

• Decision Date: 23 February 1934
• Citation: 68 S.W.2d 685,334 Mo. 920
• Parties: State ex rel. Mutual Benefit, Health & Accident Association, Petitioner, v. Francis H. Trimble, Ewing C. Bland and Hopkins B. Shain, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

68 S.W.2d 685

334 Mo. 920

State ex rel. Mutual Benefit, Health & Accident Association, Petitioner, v. Francis H. Trimble, Ewing C. Bland and Hopkins B. Shain, Judges of the Kansas City Court of Appeals

Supreme Court of Missouri

February 23, 1934

Record quashed.

Winger Reeder, Barker & Hazard, Jones & Wesner and Blair & Blair for petitioner.

(1) The opinion of the Kansas City Court of Appeals creates by construction a repugnancy between two provisions of the policy, and contravenes a well-established rule of the Supreme Court that where the language of an insurance policy is plain and unequivocal there can be no room for construction and the words employed must be given their usual and natural meaning. Liggett v. Levy, 233 Mo. 590; Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543; State ex rel. Am. Fire Ins. Co. v. Ellison, 269 Mo 410; Mathews v. Modern Woodman, 236 Mo. 342; Turner v. Fidelity & Casualty Co., 274 Mo. 260; State ex rel. Natl. Life Ins. Co. v. Allen, 256 S.W 737; State ex rel. Commonwealth Cas. Co. v. Cox, 322 Mo. 38, 14 S.W.2d 600. (2) The opinion of the Kansas City Court of Appeals is contrary to rulings of this court in that it fails to give effect to all of the provisions of the contract of insurance, and in that it attempts by construction to rewrite the contract for the parties rather than to ascertain and give effect to the intention of the parties. Authorities cited under Point 1; Wendorff v. Mo State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; State ex rel. Am. Fire Ins. Co. v. Ellison, 269 Mo. 410, 190 S.W. 879; Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523; State ex rel. Ins. Co. v. Trimble, 297 Mo. 664, 249 S.W. 902; Blanke Bros. Realty Co. v. Am. Surety Co., 297 Mo. 41, 247 S.W. 797. (3) The purpose of certiorari is to produce harmony of opinions and if the opinion of respondents is not in harmony with the decisions of this court, it should be quashed. The conflict which petitioner must establish is sufficiently shown if the principle announced by the Court of Appeals is contrary to the principles announced by the Supreme Court under analogous circumstances. State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014; State ex rel. Mo. State Life Ins. Co. v. Allen, 295 Mo. 307, 243 S.W. 839; State ex rel. Ins. Co. v. Trimble, 297 Mo. 664, 249 S.W. 902.

Ross E. Feaster for respondents.

(1) On certiorari to the Court of Appeals to quash its opinions on the ground of conflict with the decisions of the Supreme Court, the latter court does not go into the merits of the case as presented to the Court of Appeals, but is concerned, solely, with the question of conflict. State ex rel. Mo. State Life Ins. Co. v. Allen, 295 Mo. 307, 243 S.W. 839; State ex rel. Continental Ins. Co. v. Reynolds, 235 S.W. 88; State ex rel. Kroger v. Haid, 18 S.W.2d 478; State ex rel. Am. School of Osteopathy v. Daues, 18 S.W.2d 487; State ex rel. Northwestern Natl. Ins. Co. v. Trimble, 20 S.W.2d 246; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054. (2) It is not for the Supreme Court to determine whether the appeal court erred in its application of the rules of law to the facts stated in its opinion, but wholly whether upon those facts it announced some conclusion of law contrary to the last previous ruling of the Supreme Court, upon the same or a similar state of facts. State ex rel. Continental Ins. Co. v. Reynolds, 235 S.W. 90; State ex rel. Am. Packing Co. v. Reynolds, 230 S.W. 642; State ex rel. Peters v. Reynolds, 214 S.W. 122. (3) The Supreme Court on certiorari to quash appellate court's opinion for conflict with Supreme Court's decision, can only ascertain whether opinion conflicts with its previous controlling decisions and cannot determine correctness of appellate court's interpretation of the law, and cannot construe contract involved independently and declare that appellate court erred in its construction. State ex rel. Tummons v. Cox, 282 S.W. 694; State ex rel. St. L.-S. F. Ry. Co. v. Haid, 37 S.W.2d 437; State ex rel. Sei v. Haid, 61 S.W.2d 950. (4) The Supreme Court has laid down the following rules for the interpetation of contracts of insurance: (a) Where terms of the policy are uncertain, and susceptible of two meanings, the meaning is to be given which is most favorable to the insured. Swanson v. Georgia Casualty Co., 287 S.W. 455; Block v. U. S. F. & Cas. Co., 290 S.W. 429; Union State Bank v. Am. Surety Co., 23 S.W.2d 781; State ex rel. Am. Surety Co. v. Haid, 30 S.W.2d 100; State ex rel. Mill Lumber Co. v. Trimble, 39 S.W.2d 355. (b) If one provision of a policy makes liability and the other withholds it, the former will be enforced and the latter disregarded. Kimbrough v. Natl. Protective Assn., 35 S.W.2d 654; Mathews v. Modern Woodmen, 139 S.W. 151; State ex rel. Mills Lumber Co. v. Trimble, 39 S.W.2d 355.

Fred A. Boxley, amicus curiae.

Westhues, C. Cooley, C., dubitante; Fitzsimmons, C., concurs.

OPINION

WESTHUES

This is an original proceeding by certiorari whereby it is sought to quash an opinion of the Kansas City Court of Appeals in the case of Miller v. Mutual Benefit, Health & Accident Association, 56 S.W.2d 795, because the opinion is alleged to be in conflict with certain decisions of this court. The only question involved in the case is the construction and interpretation of certain clauses in an insurance contract. We will, therefore, quote in full the opinion of the Court of Appeals. It reads:

"Plaintiff brought suit upon an accident and health insurance policy to recover loss of time resulting from sickness which caused him to be continuously confined within doors from April 28, 1931 to May 6, 1931, and for sickness which disabled him from work but did not cause him to be confined within doors, from May 5, 1931, to May 23, 1931, and for loss of time resulting from sickness which caused him to be continuously confined within doors from May 23, 1931, to June 8, 1931. The cause was tried to the court, jury waived, finding and judgment in favor of plaintiff in the sum of $ 139.93. The defendant has appealed.

"The plaintiff, though disabled, as claimed by him, did not consult with a doctor until May 23. Counsel for the parties agree: 'There is only one question involved in the appeal, viz: Is the plaintiff entitled to receive benefits for the disability preceding his consultation with a doctor?' The question will be determined by construing the contract of insurance, the pertinent parts of which are as follows:

"'Illness Indemnities. Part H. Confining Illness One Hundred Dollars Per Month for Life.

"'The Association will pay, for one day or more, at the rate of One Hundred ($ 100) Dollars 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 visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.

"'Part I. Non-confining Illiness, Fifty Dollars Per Month.

"'The Association will pay, for one day or more, at the rate of Fifty ($ 50) Dollars per month, but not exceeding one month, for disability resulting from disease, the cause of which originates more than thirty days after the date of this policy, and which does not confine the Insured continuously within doors but requires regular medical attention; provided said disease necessitates total disability and total loss of time.

"'Additional Provisions. (a) 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 attendance, at least once a week, beginning with the first treatment, of a licensed physician or surgeon, other than himself. . . .'

"The defendant contends the provisions of the policy are in harmony with each other and 'each should be given equal weight.' [Paul v. Missouri State Life Insurance Company (Mo. App.), 52 S.W.2d 437, 438.] Upon the facts of record, if one of the provisions of the policy makes liability and another withholds it, the former will be enforced and the latter disregarded. Such is the rule governing the construction of contracts of insurance. [Kimbrough v. National Protective, 225 Mo.App. 913, 35 S.W.2d 654; Mathews v. Modern Woodmen, 236 Mo. 326, 139 S.W. 151, Ann. Cas. 1912D, 483; State ex rel. v. Trimble, 327 Mo. 899, 39 S.W.2d 355.]

"We do not find ambiguity in part H. Therein defendant promised to pay plaintiff at the rate of $ 100 per month for disability resulting from disease which confined him continuously within doors 'and requires regular visits therein by legally qualified physician.' The term 'requires, has been defined as meaning 'to need; want, or have occasion for.' [54 C. J. 691; Bowerman v. Lackawanna Min. Co., 98 Mo.App. 308, 71 S.W. 1062; Music v. Commonwealth, 186 Ky. 45, 216 S.W. 116; Norwich Fire Ins. Soc. v. Rayor, 70 Colo. 290, 201 P. 50.] But never so far as our research discloses has it been construed as meaning 'must' or 'shall.' Inasmuch as plaintiff suffered from the effect of sciatic rheumatism, 'could not move a muscle,' it should not be said that he was not in need of medical aid. We hold that, under the terms of part H, proof of actual attendance by a physician upon the plaintiff was not an essential element of his right to recover. What has been said of part H is applicable to part I. Additional provision (a) is not, standing alone, ambiguous. Its terms are plain and clear, and thereby the defendant said the policy did not cover disability unless the insured was continuously under the care and regular attendance, at least once a...