Winkler v. Standard Acc. Ins. Co.

• Citation: 236 S.W. 1065
• Decision Date: 03 December 1921
• Docket Number: No. 16711.,16711.
• Parties: WINKLER v. STANDARD ACC. INS. CO.
• Court: Missouri Court of Appeals

236 S.W. 1065

WINKLER v. STANDARD ACC. INS. CO.

No. 16711.

St. Louis Court of Appeals. Missouri.

December 3, 1921.

Rehearing Denied December 29, 1921.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Action by Suzzanna Winkler against the Standard Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. U. Hayden, of St. Louis, for appellant. Leonard, Sibley & McRoberts, of St. Louis, for respondent.

ALLEN, P. J.

This is an action on a combined accident and health policy issued by the defendant to plaintiff on September 23, 1916. The policy insured plaintiff "against Loss resulting directly, exclusively, and independently of all other causes," from bodily injury sustained during the life of the policy "solely through external, violent, and accidental means" (suicide excepted), and against loss resulting from bodily sickness or disease which might be contracted or begin during the life of the policy after 30 days from its date. Under the head of "Special Provisions," the policy contained the following clause:

"In any loss where the disability results, wholly or partly, directly or indirectly, from paralysis, insanity, neuritis, rheumatism, sciatica, rectal disease, tuberculosis, or any chronic infirmity, the limit of time for which indemnity will be paid shall be one month in any one policy year."

On February 13, 1917, the policy then being in full force, plaintiff was injured while at work as a car cleaner for the Terminal Railroad, Association in the city of St. Louis. The evidence shows that while plaintiff was at work in a passenger car the car was violently struck by an engine, whereby plaintiff was thrown with great force, her head hitting the edge of a doorway, causing a scalp wound and a fracture of the skull; that she became and remainded totally incapacitated suffering a paralysis of the left side of her body.

The policy in suit provided for a "monthly accident indemnity" of $25, payable in case of total disability for a period of not to emceed 48 consecutive months. Following plaintiff's injury she made demand upon the defendant for the payment of the monthly indemnity vouchsafed by the policy, and after she had filed with defendant "preliminary notice of Injury defendant paid her the first monthly installment, namely, $25. (In February 12, 1917, defendant wrote 1, plaintiff sending her "final proof forms" to be filled in by her and her attending physician and, to toe returned to defendant's office "upon termination of disability"; and on or about March 21, 1917, proofs of loss were fief in which plaintiff claimed that she was totally disabled, and from the accompanying statement of the attending physician it appeared that plaintiff was afflicted with "paralysis of left side of body." Plaintiff testified that two of defendant's physicians called upon her at different times and examined her some time in April and early in May, 1917. It appears that thereafter defendant sent to plaintiff a draft for $30, as being in full settlement of plaintiff's claim, which draft was, on May 28, 1917, returned to defendant through plaintiff's counsel. Repeated demands were made upon defendant for the payment of the installments of $25 per month, but defendant refused to pay anything beyond the amount tendered by it in full settlement, and disclaimed further liability on the policy, on the ground that plaintiff was able to return to work early in April, 1917. It further appears that plaintiff, on defendant's request, furnished further proofs of lost, as late as June 21, 1917.

Suit was filed on the policy on July 12, 1918, about 18 months after the accident. Plaintiff proceeded upon the theory that, by reason of her total and alleged permanent disability and defendant's denial of liability, the maximum liability under the policy had accrued, to wit, 48 payments of $25 each, or a total of $1,200; and consequently plaintiff, giving defendant credit for the credit of $25 paid, prayed judgment in the sum of $1,175. At the close of at the evidence in the case, and after the trial court had announced its ruling that plaintiff could recover only the Installments due at the commencement of the suit, plaintiff, by leave of court and with defendant's consent, amended the prayer of her petition so as to pray judgment for $425, with interest, together with damages and attorney's fees as for vexatious refusal to pay the loss. The jury returned a verdict for plaintiff for $425 and Interest, together with damages and attorney's fees totaling $753. From a judgment entered accordingly, the defendant prosecutes this appeal.

It is the contention of defendant, appellant here, that the evidence showed that plaintiff's disability resulted "wholly or partly, directly or indirectly, from paralysis," and that therefore under clause "c" of the policy, quoted above, defendant is not liable, except as stated in that clause; and that this is true even though the paralysis was the result of an accidental injury. In this connection many cases are cited by appellant wherein general rules of law have been announced for guidance in the construction of contracts of this character, but they have no direct bearing upon the precise point here involved. The evidence shows that the paralysis of the left side of plaintiff's body and her consequent disability was the result of the injuries received, as aforesaid, through external, violent, and accidental means. And we regard it as quite clear that appellant's contention cannot be sustained. What would he the effect of this clause "c" were the policy merely one of accident insurance we need not consider; but see in this connection: Summers v. Fidelity Mutual Aid Association, 84 Mo. App. 605; Belle v. Protective Association, 155 Mo. App. 629, 135 S. W. 497; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S. W. 592, 61 L. R. A. 459, 97 Am. St. Rep. 560; Greenlee v. Kansas City Casualty Co., 192 Mo. App. 303, 182 S. W. 138, and further authorities there cited; Anderson v. Mutual Benefit Health & Accident Ass'n, 231 S. W. 75.

The policy is, in fact, one insuring plaintiff against loss resulting through external, violent, and accidental means, and also against loss resulting from bodily sickness or disease. And obviously a rational construction of the policy is that clause "c" was intended to exempt defendant from liability for any disease or infirmity mentioned, in that clause, as for "sickness indemnity," where such disease or infirmity was not the result of an injury received through external, violent, and accidental means.

The foregoing disposes of the assignments of error relating to the ruling below on the demurrer to the evidence and to the giving and refusing of instructions, except in so far as the instructions had to do with the question of vexatious refusal to pay.

Error is assigned to the action of the trial court in excluding certain portions of the original and amended petitions filed by plaintiff in an action brought by her against the Terminal Railroad Association to recover damages for...