State ex rel. Mutual Life Ins. Co. of New York v. Shain

• Citation: 126 S.W.2d 181,344 Mo. 276
• Decision Date: 15 March 1939
• Docket Number: 36223
• Parties: State of Missouri at the relation of the Mutual Life Insurance Company of New York, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and William E. Kemp, Judges of the Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

126 S.W.2d 181

344 Mo. 276

State of Missouri at the relation of the Mutual Life Insurance Company of New York, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and William E. Kemp, Judges of the Kansas City Court of Appeals

No. 36223

Supreme Court of Missouri

March 15, 1939

Record Quashed.

William C. Michaels, Roy P. Swanson and Kenneth E Midgley for relator, Louis W. Dawson and Michaels, Blackmar, Newkirk, Eager & Swanson of counsel.

The opinion of the Kansas City Court of Appeals should be quashed because it is directly in conflict with controlling decisions of this court in that it fails to enforce the contract as written by the parties, it fails to give common words their usual, natural and customary meaning, it enlarges under the guise of construction an unambiguous contract, and it substitutes new and different words for those used by the contracting parties. And hereunder: (a) Plain and unambiguous contracts, where the intention is clear, must be enforced as written. Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523; Wendorff v. Mo. State Life Ins Co., 318 Mo. 363, 1 S.W.2d 99. (b) Where a Court of Appeals gives such a contract a meaning not embraced within its terms, its opinion conflicts with such decisions. State ex rel. Life Ins. Co. v. Trimble, 306 Mo. 309 276 S.W. 876; State ex rel. Mut. Benefit v. Trimble, 334 Mo. 920, 68 S.W.2d 685; State ex rel. Casualty Co. v Cox, 322 Mo. 38, 14 S.W.2d 600. (c) Though facts are not identical, conflict exists if the contract as a matter of law requires the application of such rule. State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915. (d) On certiorari this court determines for itself whether the contract is unambiguous, in order to determine whether such conflict exists. State ex rel. Met. Life Ins. Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469; State ex rel. v. Ocean Acc. & Guar. Corp. 341 Mo. 488, 108 S.W.2d 17.

McVey & Randolph for respondents.

The opinion of the Kansas City Court of Appeals is not contrary to or in conflict with any ruling of this court on the same or similar policy provisions, and does not contravene any principle of law announced by this court. Hence, certiorari does not lie and the writ should be quashed. State ex rel. Amer. Surety Co. v. Haid, 30 S.W.2d 105; State ex rel. Clark v. Shain, 119 S.W.2d 974; State ex rel. Arndt v. Cox, 38 S.W.2d 1079; State ex rel. Superior Mineral Co. v. Hostetter, 85 S.W.2d 743. (a) Respondent judges, under the decisions of this court, properly found that when Sections 1 and 13 are read together, the intention of the policy was to cover the hazard causing insured's death as a risk inhering in her occupation. Brown, Admx., v. Ry. Passenger Assur. Co., 45 Mo. 221; 14 R. C. L. 1151, sec. 531; Clubb v. Sentinel Life Ins. Co., 42 P.2d 792; Provident Life Ins. Co. v. Fennell, 49 Ill. 180; 1 C. J., pp. 434, 437, secs. 81, 86; Schwindermann v. Great Eastern Cas. Co., 38 N.D. 584, 165 N.W. 982; Hungerford v. Mut. Life Ins. Co., 190 Iowa 852, 180 N.W. 849; Richards v. Travelers' Ins. Co., 18 S.D. 287, 100 N.W. 428, 67 L. R. A. 175; Pacific Mut. Life Ins. Co. v. Snowden, 58 F. 342; Dailey v. Preferred Masonic Mut. Acc. Assn., 102 Mich. 289, 26 L. R. A. 171; Hobbs v. Iowa Mut. Ben. Assn., 47 N.W. 983; Peters v. Prudential Ins. Co., 233 N.Y.S. 500; Miller v. Travelers' Ins. Co., 39 Minn. 548, 40 N.W. 839. (b) Based upon the canons of policy interpretation previously announced by this court that there are antagonistic or conflicting provisions, or where the policy contains an ambiguity, or its terms are reasonably susceptible to a construction favorable to the policyholder, that the most favorable provisions or interpretation allowing recovery will be adopted, the opinion below properly applied such principles to the provisions of the policy in suit. Boillot v. Income Guar. Co., 102 S.W.2d 132; Day v. Equitable Life, 83 F.2d 147; Soukop v. Employers' Liability Assur. Corp., 108 S.W.2d 86; Tomnitz v. Employer's Liab. Assur. Corp. 121 S.W.2d 745; Henderson v. Mass. Bonding & Ins. Co., 84 S.W.2d 924; State ex rel. Mills Lbr. Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 358; Schmahl v. Travelers' Ins. Co., 189 S.W. 597; Mo. State Life Ins. Co. v. Hearne, 226 S.W. 789; Indiana Company v. Keiningham, 161 S.W. 384; Rieger v. Mut. Life Ins. Co. of Now York, 110 S.W.2d 878; Cooper v. Natl. Life Ins. Co. of U.S.A., 253 S.W. 465.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

Certiorari to review the ruling of the Kansas City Court of Appeals in Hansen v. Mutual Life Insurance Company of New York (relator here), 118 S.W.2d 505, an action by the beneficiary of an insurance policy providing for $ 1,000 ordinary or $ 2,000 accidental death benefits. Insurer made payment under the ordinary death benefit provisions and this action involves only the accidental death or double indemnity provisions. Insurer's motion for judgment on the pleadings and the opening statement for plaintiff was sustained, which judgment was reversed and the cause remanded by the Court of Appeals.

The contentions of the litigants with respect to double indemnity revolve around Section 1 and the "occupation" clause of Section 13 of the policy. They read, so far as thought material, (italics ours):

Section 1. "The Double Indemnity will be payable upon receipt of due proof that the insured died before the end of the endowment period as a direct result of bodily injury effected solely through external, violent and accidental means independently and exclusively of all other causes . . .; provided that the Double Indemnity shall not be payable if death resulted directly or indirectly from . . . [mentioning such acts as self-destruction, taking poison, etc.] from military or naval service in time of war, or from any act incident to war; . . . or from operating or riding in any kind of aircraft, whether as a passenger or otherwise, except as a fare-paying passenger in a licensed passenger aircraft . . ."

Section 13. "Occupation -- This policy is free from restrictions as to occupation except the restrictions as to military or naval service applying to Double Indemnity as provided in Section 1."

Insured's application and policy were dated December 12, 1932, and December 30, 1932, respectively. The application stated and at that time insured was a "trained nurse, employed as an assistant to a physician." Sometime after the issuance of the policy insured changed her occupation to that of "'stewardess on airplanes,'" which occupation required her to ride in aircraft, and while insured in the performance of her duties as stewardess was riding in an aircraft, but not "as a fare-paying passenger," the plane crashed, resulting in the death of insured.

Reading the policy as a whole, giving effect to that portion of Section 13 reading "this policy is free from restrictions as to occupation," and considering it in connection with the sole exception expressed in said section of "the restriction as to military or naval service applying to double indemnity as provided in Section 1," there being a total absence of any restriction with respect to occupation which required persons engaged therein "to operate or ride in any kind of aircraft;" the Court of Appeals held: ". . . the exclusion provisions of clause 1 [providing "that the double indemnity shall not be payable if death resulted directly or indirectly . . . from . . . riding in any kind of aircraft, whether as a passenger or otherwise, except as a fare-paying passenger . . ."] refer to those who operate or ride in aircraft other than those required to engage therein as a necessary part of the duties of his occupation, or, such duties as must be performed in order that the occupation itself be performed. Otherwise, the clause is a restriction, limitation or restraint as to occupation." (l. c. 507.)

Relator expressly disavows interposing any defense resting on insured's "occupation"; asserts its defense goes solely to the manner and cause of death, disregarding entirely insured's occupation, and that since insured's death resulted directly or indirectly from riding in an airplane while not a fare-paying passenger, the beneficiary may not recover under the expressed double indemnity provisions of the policy.

Speaking to the quoted policy provisions the Court of Appeals, l. c. 507(1), states: "But we are of opinion that there is no ambiguity."

The opinion, l. c. 508, continues: "Under the terms of the policy if the insured had been a lawyer, doctor or merchant and were fortunate enough to have a free pass and if he were killed while riding in an airplane, not being a fare-paying passenger, etc., although it were customary for the lawyer doctor or merchant, in connection with his profession or business to travel by airplane, no doubt there could be no recovery." We add: so, too, as respects a "trained nurse, employed as an assistant to a physician." And, after citing and quoting from the Dailey case, ubi infra, continues: "So, in the case at bar, defendant agreed: 'This policy is free from any restrictions as to occupation' and, in effect, agreed that insured was privileged to enter the occupation of airplane stewardess without affecting the accident provisions of the policy . . ."; but held, since insured thereafter became an airplane stewardess and was required to ride in airplanes, "the restriction contained in clause 1, relating to riding in any kind of aircraft, cannot be relied upon by defendant." We are unable to perceive how said accident provisions remained unaffected if insured had met her death from riding in an airplane when not a "fare-paying passenger" while "a trained nurse, employed as an assistant to a physician," her beneficiary could not but after...