State ex rel. Ocean Acc. & Guar. Corp. v. Hostetter

• Decision Date: 30 July 1937
• Docket Number: No. 35318.,35318.
• Citation: 108 S.W.2d 17
• Court: Missouri Supreme Court
• Parties: STATE OF MISSOURI at the relation of OCEAN ACCIDENT & GUARANTEE CORPORATION, LTD., a Corporation, Relator, v. JEFFERSON D. HOSTETTER ET AL., Judges of the St. Louis Court of Appeals.

108 S.W.2d 17

STATE OF MISSOURI at the relation of OCEAN ACCIDENT & GUARANTEE CORPORATION, LTD., a Corporation, Relator, v. JEFFERSON D. HOSTETTER ET AL., Judges of the St. Louis Court of Appeals.

No. 35318.

Supreme Court of Missouri.

Division One, July 30, 1937.

Certiorari.

WRIT QUASHED.

Joseph N. Hassett and Ernest E. Baker for relator.

The language of the policy of insurance in question was unambiguous and the intention of the parties could be determined from the contract itself. The St. Louis Court of Appeals, in their opinion, resorted to construction of this contract and in so doing their opinion came in conflict with prior controlling decisions of this court on the general principle of law that the unambiguous terms of a written contract must be given their usual and reasonable meaning and the court cannot resort to construction of such a contract. State ex rel. Mut. Benefit, Health & Acc. Assn. v. Trimble, 68 S.W. (2d) 685, 334 Mo. 920; Prange v. International Life Ins. Co., 46 S.W. (2d) 523, 329 Mo. 651; State ex rel. Commonwealth Gas Co. v. Cox, 14 S.W. (2d) 600; Wendorff v. Mo. State Life Ins. Co., 1 S.W. (2d) 99, 318 Mo. 363; State ex rel. N.Y. Life Ins. Co. v. Trimble, 267 S.W. 876, 306 Mo. 309; State ex rel. Am. Fire Ins. Co. v. Ellison, 190 S.W. 274, 269 Mo. 410; United States Radium Corp. v. Globe Ind. Co., 13 N.J. Eq. 316, 178 Atl. 271, affirmed 182 Atl. 626; Belleville Enameling & Stamping Co. v. U.S. Cas. Co., 266 Ill. App. 586.

Leahy, Walther, Hecker & Ely for respondents.

(1) Where the language of a policy of insurance is ambiguous or is susceptible to different constructions, one favorable and the other unfavorable to the assured, the policy must be construed strictly against the insurer and liberally in favor of the insured. Henderson v. Mass. B. & I. Co., 84 S.W. (2d) 924. (2) Clause 7 was intended to restrict coverage to the policy period, and the term "accidents" in this section cannot be used in its restricted and narrow sense. Beehler Steel Products Co. v. Am. Mut. Liab. Ins. Co., 108 S.W. (2d) 985. (3) Under the rules of construction applicable to policies of insurance, clause seven is a restrictive and not a granting clause and limits insurance to injuries occurring during the policy period. It is not intended to otherwise limit, restrict or cut down the insurance previously granted. Restrictive clauses in insurance policies are never construed liberally in favor of the insurer, but are always construed strictly against the insurer. Wendorff v. Mo. State Life Ins. Co., 1 S.W. (2d) 102; State ex rel. Security Mut. L.I. Co. v. Allen, 267 S.W. 381; Mathews v. Modern Woodmen, 236 Mo. 342; State ex rel. Mills Lbr. Co. v. Trimble. 39 S.W. (2d) 358. (4) The word "accidents" or "such injuries sustained by reason of accidents" should be given its ordinarily accepted meaning and should not be construed to have been used in a legal or restricted sense in a contract of insurance issued by an insurer to a manufacturer or layman. Funk & Wagnall's Standard Dictionary; 1 Ency. Britannica (11 Ed.), p. 114; Bouvier's Law Dictionary, Rawles Edition: 1 C.J.S., pp. 426-427; Baker v. C., B. & Q. Railroad Co., 327 Mo. 1001; Hogan v. Pub. Serv. Co., 322 Mo. 1116; Beehler Steel Products Co. v. Am. Mut. Liab. Ins. Co., 108 S.W. (2d) 985; Updike Inv. Co. v. Employers Liab. Assur. Corp., 270 N.W. 107; Walker v. Bairds. 153 Law Times (N.S.) 322. (5) "Personal injury," as used in the policy, means bodily injury covering any harmful effect upon the body by violence or disease. Blanke-Baer Extract & Preserving Co. v. Ocean Acc. & Guar. Co.; Beehler Steel Products Co. v. Am. Mut. Liab. Ins. Co., 108 S.W. (2d) 985.

Jacob M. Lashly for Hartford Accident & Indemnity Company amicus curiae.

Sullivan, Reeder & Finley amici curiae.

HAYS, J.

This is a proceeding upon our writ of certiorari directed to the St. Louis Court of Appeals, and issued on the ground that its opinion rendered in the case of Blanke-Baer Extract & Preserving Company, respondent, v. Ocean Accident & Guarantee Corporation, appellant, is in conflict with certain decisions of this court and that the record accordingly made should be quashed. On the question of conflict the relator cites the cases of State ex rel. Health & Accident Assn. v. Trimble, 334 Mo. 920, 68 S.W. (2d) 685: Wendroff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W. (2d) 99; Prange v. Insurance Co., 329 Mo. 651, 46 S.W. (2d) 523; State ex rel. Boeving v. Cox et al., 310 Mo. 367, 276 S.W. 869; State ex rel. Calhoun et al. v. Reynolds et al., 289 Mo. 506, 233 S.W. 482.

It appears from said opinion that said case on which this proceeding is predicated is an action over, brought by respondent as an insured employer to recover, as for indemnity, from appellant, the insurer, money paid by the employer in discharging a judgment obtained against it by its employee, one Florence Schaales, in a suit prosecuted by her for damages which she sustained in the performance of her said employer's work.

Quoting now from said opinion: "The petitions filed by Florence... alleged that Florence from and after October, 1926, was in the employ of the plaintiff, and whole so employed she was seriously and permanently injured and damaged as a direct result of the negligence of (her employer)." The opinion sets out the constitutive facts as follows: "While working for (her said employer) she washed olives. While washing the olives water would splash upon her and drip from her apron upon her clothing so that she was wet from her waist down. The sewer at times became clogged so that the floor became flooded and the water stood in pools on the floor, and Florence in the course of her work walked through the water over the floor. Her feet were always wet. The room where she worked was cold, and she contracted colds during the wintertime. She would just get over one cold and then catch another. This was particularly so during the last winter she worked. Her clothing was made wet by the water splashed as she handled the olives. After leaving the plaintiff's employ, it was discovered that she was suffering from active tuberculosis of the lungs, which the testimony of her physician tends to show resulted from the lowering of her resistance by reason of the colds contracted while working for (said employer)."

[1] Said opinion discloses that after due notice given by the employer before the Schaales action was instituted, and again after it was instituted, the insurance company declined to defend the same. By necessary implication the Court of Appeals held that the judgment therein was conclusive in the action over, as to the facts established in the damage action, under the established rule. [See Dolph v. Maryland Casualty Co., 303 Mo. l.c. 546, 261 S.W. 330.] The opinion then stated the...