Stewart v. Mutual Ben. Health & Acc. Ass'n

• Decision Date: 09 April 1932
• Docket Number: 30392.
• Citation: 9 P.2d 977,135 Kan. 138
• Parties: STEWART v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N. [*]
• Court: Kansas Supreme Court

9 P.2d 977

135 Kan. 138

STEWART v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N. ^[*]

No. 30392.

Supreme Court of Kansas

April 9, 1932

Syllabus by the Court.

Where accident policy does not set out provision limiting indemnity, in boldface type, policy should be construed with limitation eliminated (Rev. St. Supp. 1931, 40--1109 (a) (i).

Evidence held to establish that accident and sickness policy was issued and delivered in Kansas, and therefore Kansas statute governing form was applicable (Rev. St. Supp. 1931 40--1109).

1 R.S.Supp. 1931, 40--1109 requires that any clause in an accident policy issued or delivered in this state which reduces the indemnity provided thereon under what it would be should the loss occur under ordinary circumstances shall be printed in boldface type, and with greater prominence than any other portion of the text of the policy; it further provides that:

"(i) A policy issued in violation of this section shall be held valid but shall be construed as provided in this section and when any provision in such a policy is in conflict with any provision of this section the rights, duties and obligations of the insurer, the policyholder and the beneficiary shall be governed by the provisions of this section."

Heldi, that in a case where a policy did not comply with this statute, it should be construed as though the restricting clause was not in the policy at all.

2. The pleadings and evidence in a suit on an accident and sickness insurance policy are examined, and it is held that the policy in question was issued and delivered in Kansas, and that the policy did not comply with R.S.Supp. 1931, 40--1109.

Appeal from District Court, Cowley County; O. P. Fuller, Judge.

Action by Frank Stewart against the Mutual Benefit Health & Accident Association. Judgment for the plaintiff, and the defendant appeals.

Albert Faulconer, Kirke W. Dale, and C. L. Swarts, all of Arkansas City, for appellant.

W. L. Cunningham, D. Arthur Walker, Fred G. Leach, and Wm. E. Cunningham, all of Arkansas City, for appellee.

SMITH J.

This was an action on a sickness and accident insurance policy. Judgment was for plaintiff. Defendant appeals.

The policy sued on contained a clause near the beginning of that document in which the company agreed to insure the insured "against loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means (suicide, sane or insane, is not covered) and against loss of time on account of disease contracted during the term of this policy, respectively, subject however, to all the provisions and limitations hereinafter contained."

This was followed by a number of provisions set out in paragraphs providing the payments that would be paid for specific injuries--what would be paid for total accidental disability; what would be paid for partial dissability; what would be paid for hospital expenses; and what would be paid for "confining" illness; and what would be paid for "nonconfining" illness.

Paragraph K provides that any accidental injury which resulted in "hernia, boils, carbuncles, felons, abscesses, ulcers, infection, septicaemia, ptomaine poisoning, cancer, diabetes, fits, peritonitis, apoplexy, sunstroke, freezing, hydrophobia, sprained or lame back" would be paid for as provided for in paragraphs H and I. These paragraphs are the ones which provide how much shall be paid for "confining" and "nonconfining" illness. The payments provided for in these sections are considerably less than that provided for in the paragraphs that state how much will be paid for an accidental injury;

Appellee in this case was injured by stepping on a piece of steel in his barnyard. What is commonly known as blood poisoning set in, and appellee was in the hospital for several days, under the care of a doctor for several weeks, and unable to work for some months.

Appellant contends that appellee is only entitled to be paid what the paragraphs providing what shall be paid for illness say will be paid. Appellee contends that he should be paid what the paragraph providing what shall be paid for accidental injury says will be paid.

The trial court held that appellee was entitled to be paid for an accidental injury. In other words, it construed the policy as though paragraph K was not in it.

The question presented by this appeal is whether that interpretation was correct. There are two grounds upon which appellee urges that the court below was correct. In urging the first ground, appellee quotes the following rule: "It is a well-settled rule that where a policy of insurance is so drawn as to require an interpretation, a construction most favorable to the insured will be adopted, for the reason that the company prepares the contract of insurance, thereby selecting its own language." Brown v. Accident Insurance Co., 114 Kan. 337, 338, 219 P. 505, 506.

He points out the fact that there are so many results set out in paragraph K that will entitle the appellee to draw only the smaller payments that they practically annul the insuring clause of the policy which has been quoted heretofore in this opinion. He claims the policy should be construed under the rule laid down in Pacific, etc., Co. v Williamsburgh, 158 Cal. 367, 111 P. 4. There the court said: "Therefore the courts endeavor to carry out the contracts as made by the parties, and, at the same time, prevent, if possible, the exceptions and conditions from wholly devouring the policy." 158 Cal. page 370, 111 P....