State ex rel. Prudential Ins. Co. of America v. Shain

• Decision Date: 02 May 1939
• Docket Number: 35729
• Citation: 127 S.W.2d 675,344 Mo. 623
• Parties: State of Missouri at the relation of the Prudential Insurance Company of America, a Corporation, Relator, v. Hopkins B. Shain et al., JJ. of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

127 S.W.2d 675

344 Mo. 623

State of Missouri at the relation of the Prudential Insurance Company of America, a Corporation, Relator, v. Hopkins B. Shain et al., JJ. of the Kansas City Court of Appeals

No. 35729

Supreme Court of Missouri

May 2, 1939

Opinion quashed.

William C. Michaels, Kenneth E. Midgley, Boyle G. Clark, and Paul M Peterson for relator; Ralph W. Hyatt, Michaels, Blackmar Newkirk, Eager & Swanson and Clark, Boggs, Peterson & Becker of counsel.

(1) 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, 267 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, 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. Ocean Acc. & Guar., Corp., 108 S.W.2d 17. (e) Although the contract here plainly and clearly excludes liability, the opinion affixed liability by erroneously holding, contrary to the above decisions: That death resulting from typhoid fever is "death . . . as a result directly and independently of all other causes of bodily injuries, effected solely through external, violent and accidental means, of which . . . there is a visible contusion or wound on the exterior of the body." That the policy so providing is "insurance against accident" rather than insurance against death resulting solely from bodily injuries caused in a particular manner and excluding death resulting from disease. That diseases and diseased conditions and the symptoms thereof are "bodily injuries" caused solely by external, violent and accidental means. That death resulting from typhoid fever is not death resulting "directly or indirectly from disease in any form." (f) The words "bodily injuries" do not mean diseases and diseased conditions, and the opinion should be quashed for holding to the contrary, in conflict with the following decisions: Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Hall v. Coal & Coke Co., 260 Mo. 351, 168 S.W. 927. (g) A contract cannot be "construed" by substituting words for words used, then construing the substituted words, and the opinion should be quashed from "construing" the contract in that manner contrary to the following decision. The opinion substitutes for the words "confusion or wound," the words "any lesion," then so construes the substituted words as to impose liability and permit recovery. Martin v. Travelers' Ins. Co., 310 Mo. 411, 276 S.W. 380. (h) "Death from accident" and "death from bodily injuries caused by accidental means" are not synonymous, and the opinion should be quashed because it construed those phrases as if they were synonymous. Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907.

John J. Cosgrove and Carl L. Anderson for respondents.

(1) No case similar in fact or with like policy provisions has been decided by this court contrary to respondents' opinion. Therefore, unless the terms of the contract are so plain and unambiguous as to leave no room for doubt or uncertainty as to its meaning, there is no conflict with the decisions cited by petitioner. State ex rel. v. Allen, 85 S.W.2d 469; State ex rel. v. Hostetter, 108 S.W.2d 17. (2) The various terms of the exclusion clause are so general as to leave room for doubt and uncertainty as to their meaning. This is established by the necessity for construction of like terms and phrases by other decisions, as follows: Soukop v. Employer's Liability Co., 108 S.W.2d 86; State ex rel. v. Hostetter, 108 S.W.2d 17; Cameron v. Ins. Co., 275 S.W. 988; Hood v. Maryland Cas. Co., 92 N.E. 329; Aetna Life Ins. Co. v. Portland Gas Co., 229 F. 552; Vennen v. Lumber Co., 154 N.W. 640; Lewis v. Ocean Ins. Co., 120 N.E. 56; O'Connor v. Ins. Co., 232 S.W. 218, 208 Mo.App. 46; Buel v. Kansas City Life Ins. Co., 250 P. 635; Moore v. Fed. Cas. Co., 265 P. 207; Christ v. Pac. Mutual, 144 N.E. 161, 312 Ill. 525; Peoples v. Durand, 139 N.E. 78; Thompson v. Loyal Protective Assn., 132 N.W. 554; Robinson v. Masonic Protective Assn., 88 A. 531; Mutual Life Ins. Co. v. Schenkat, 62 F.2d 236. (a) There being no decision of this court construing these terms contrary to the construction made by respondents there can be no conflict. Because of the necessity for construction as shown by the foregoing authorities respondents' opinion does not conflict with the decisions cited in petitioner's brief. (3) The disease of which assured died having resulted from prior "bodily injuries" accidentally sustained the exclusion clause in the policy as to disease does not apply. Bellows v. Travelers' Ins., 203 S.W. 978; Anderson v. Mut. Ins. Co., 231 S.W. 35; Wheeler v. Fidelity Ins. Co., 298 Mo. 619; Beckerleg v. Ins. Co., 74 S.W. 917. (4) There can be no conflict with obiter. State ex rel. v. Higbee, 43 S.W.2d 825; Kennark v. Smith, 41 S.W.2d 381.

OPINION

Douglas, J.

This is an original proceeding in certiorari to review for conflict the respondents' decision in the case of Mary Gasperino, Appellant, v. The Prudential Insurance Company of America, a Corporation, Respondent, 107 S.W.2d 819.

The plaintiff is the beneficiary in an insurance policy which contains a provision for "double indemnity" in case the insured's death was the result of an accident. The insured died of typhoid fever. Plaintiff has sued for the additional indemnity claiming the death was the result of accidental means and therefore covered by the policy. The facts are undisputed and judgment on the pleadings was rendered for the defendant. On appeal, the Kansas City Court of Appeals reversed the judgment of the trial court.

During the hot weather in July the insured found the tap water, which was piped to his home from the city waterworks in Lexington, warm and unpalatable so he drank the cool and refreshing water from an old, unused well in his backyard. Unknown to him there were typhoid germs in the well water. He soon took to his bed with typhoid fever. He suffered the usual effects of the disease such as diarrhea, passing blood, swollen mouth, lips and tongue, cracked and blackened lips, swelling in his abdomen and finally delirium. He died. The parties admit that he died solely of typhoid fever and that it is a specific, infectious disease and cannot be contracted through a bruise or wound, but can only be contracted by being taken into the alimentary canal with food or drink containing typhoid germs.

Plaintiff claims under the following provisions of the policy:

"The amount of Accidental Death Benefit specified . . . shall be payable . . . immediately upon receipt of due proof that the death of the Insured occurred . . . as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which . . . there is a visible contusion or wound on the exterior of the body, . . . provided, however, that no Accidental Death Benefit shall be payable if the death of the Insured resulted . . . directly or indirectly from . . . disease in any form."

In sustaining her claim under such provisions the respondents held that the taking of the germs was accidental, the germs were an external means producing violent injury resulting in death; the cracked lips constituted the visible contusion or wound on the exterior of the body; and that the provision excluding death from disease must be construed not to apply in this case because the disease followed or was incidental to accidental bodily injuries caused by the germs. Relator contends in so construing the policy the respondents gave to plain and unambiguous language an unusual and unnatural meaning.

On certiorari the question whether the decision of the Court of Appeals is correct on the merits is, of course, no proper concern of this Court. This Court has not previously considered the particular question decided by respondents. Therefore, the sole issue in this proceeding is whether, in construing the language of the policy, the Court of Appeals' opinion conflicts with the controlling decisions of this Court which hold that unambiguous language in an insurance policy is not open to construction, but must be given its plain meaning and be enforced as written. In deciding this issue we have the right to, and we must determine whether the language of the policy is ambiguous. [State ex rel. Metropolitan Life Insurance Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469.] Where there is no ambiguity, there is no room for construction. Unequivocal language is to be given its plain meaning though found in an insurance contract. [State ex rel. New York Life Insurance Co. v. Trimble, 306 Mo. 295, 267 S.W. 876.] This is so even when considering a...