100 Mo. App. 602 | Mo. Ct. App. | 1903
Plaintiff’s suit is on an accident policy to recover for injuries received by birri during the life of said policy. The policy was issued on the 15th day of July, 1899, and the plaintiff was injured in March, 1900; proper proof of loss was made and the controversy at the trial arose as to defendant’s liability under the evidence.
The first defense is that it was provided in said policy that “it did not insure or cover injuries fatal or otherwise received while or in consequence of plaintiff being or having been under the influence of or affected by, or resulting directly or indirectly in whole or in part from intoxicants, anaesthetics, vertigo, sleepwalking, or any disease or bodily infirmity; and that whatever bodily injuries' were sustained by plaintiff were
The evidence tended to show that prior to the issue of the policy in controversy that plaintiff had been insured in another insurance company against accidents and that he had received indemnity from such company for accidents suffered, and that his policy for that reason had been cancelled; but it was shown that the
It is fully agreed that at the time plaintiff was injured he was confined in a hospital at Pittsburg, Kansas, on account of sickness known as la grippe ; that he was suffering, too, from a high fever and that he was mentally unconscious and had no knowledge as to how he became injured. His delirium was so great that at times he had to be restrained by force for fear of his doing injury to himself or to others. His nurse testified that on the morning of his injury she left the plaintiff in his bed in his room for a few moments; that when she returned he had left his bed', and that she rushed to the window, looked out and saw him falling. He fell a distance of about twenty feet. His injuries were serious and he did not return to consciousness until about four days thereafter.
lidien plaintiff was testifying he was asked if he was able to state any circumstances as to how or what caused him to get out of the window, to which he answered: “No, sir, I do not.” He was- also asked: “You were unconscious from the sickness from which you were suffering 1” Plig answer was: “Yes, sir.” The doctor in attendance said he was delirious.
Section three of the policy reads as follows:
“3. This insurance does not cover disappearances, nor any injury, fatal or otherwise, of which there is no visible mark upon the body, nor any such injury resulting from dueling or fighting, from exposure in war or in riot, from voluntary or unnecessary exposure to danger, medical or surgical treatment, except when amputation rendered necessary by any injury received within the period of this policy is made within ninety days from date of accident, nor injuries, fatal or otherwise, resulting from poison or anything else, con*607 sciously or unconsciously, accidentally or otherwise taken, administered, absorbed or inhaled, nor injuries fatal or otherwise received while or in consequence of being or having been under the influence of or affected by or resulting directly or indirectly in whole or in part from intoxicants, anaesthetics, narcotics, sunstroke, freezing, vertigo, sleepwalking, fits, hernia, orchitis, or any disease or bodily infirmity, nor any injury, fatal or otherwise, received while violating law, resisting arrest or fleeing from justice.”
At the close of plaintiff’s case the defendant interposed a demurrer to the evidence, which was overruled. The jury returned a verdict for plaintiff for $543.43. The defendant appealed.
The defendant’s contention is, that under the evidence, about which there is little or no dispute, the court should have peremptorily instructed the jury to find in its favor. The plaintiff contends that the plaintiff’s sickness was not the proximate cause of his injury.
In Lawrence v. Accident Ins. Co., L. R. 7 Q. B. D. 216, the facts were that the plaintiff while on a railroad platform was suddenly seized with a fit, which caused him to fall off the platform and onto the railway track. A locomotive engine passing at the time ran over his body, causing injuries from which he died. It was’held that the proximate cause of his injury was in being run upon by the train, and not the fit. And if a man while fording a river is seized with a fit and falls therein and is drowned, the proximate and immediate cause of his death was not the fit, but the drowning in the river. Winspear v. Ins. Co., 6 Q. B. D. 42. If a man while sick with a disease is riding upon a car and is suddenly thrown against one of the seats and is injured, the proximate and immediate cause of his injury is the being thrown against the seat, and nót the disease. Aetna Ins. Co. v. Hicks, 56 S. W. 87. If a man, emaciated and weak, while riding in a carriage is suddenly overcome by his weakness and injects ,morphine into
The principle of these cases can be distinguished from the one at bar except that of Lawrence v. Ins. Co., in which it was held that the man who, while fording a river was seized with a fit and fell and was drowned did not owe his death proximately to the fit but to the drowning; this seems to be in point. According to the theory of the court, the fit only caused him to fall into the water, which of itself did not injure him directly, but it was the drowning that was the immediate and proximate cause of his injury and death. And it is contended in the case at bar that it was not the sickness of plaintiff that caused him to fall or jump out of the window that was the proximate cause of his injury, but the immediate cause was the fall itself. We must confess that we are not impressed with the ruling in that particular case. But we can appreciate the theory that if the individual is sick and that he merely suffers from an accident which happens to him while sick, but is not brought about as a result of such sickness, that the sickness is neither the proximate nor remote cause of his injury; and that in some instances like those cited the sickness may be the remote but not the direct and proximate cause of an injury.
But the question presented under the terms of the policy is not whether the plaintiff’s sickness was the proximate and immediate cause of his injury, but whether the injury was directly or indirectly caused by his disease? We have respectable authorities constru
It is contended by respondent that such a construction would practically nullify an accident policy, besides being contrary to all reason. There is some force in this position, but what are the courts to do in such cases ? We can only construe the contract as we find it. The parties had a right to so contract, as there is no law prohibiting such, and it-does not appear to be ultra vires. Until the Legislature places a limit upon the right of life insurance companies to, make contracts limiting their liability to the minimum the courts are bound to recognize them as they find them.
It is contended that as the policy in question provides that the appellant shall not be liable for injuries resulting directly or indirectly, in whole or in part, from intoxicants, anaesthetics, narcotics, sunstroke, freezing, vertigo, sleepwalking, fits, hernia, orchitis or any disease or bodily infirmity, the latter clause, “any dis
The defendant insists also that plaintiff can not recover on account of breach of warranty set out in its answer: that he had never made any claim against any other company for accident indemnity, and that no accident policy ever held by him had been cancelled. Yet, as the agent of the defendant knew at the time he prepared the application and delivered the policy that plaintiff had made claim against another accident company for indemnity and that an accident policy held by him had been so cancelled, the transaction amounted to a waiver of said warranty. Bush v. Ins. Co., 85 Mo. App. 155; James v. Ins. Co., 148 Mo. 1; Springfield Laundry Co. v. Ins. Co., 151 Mo. 90.
In view of what has already been said it is unnecessary to notice defendant’s second defense.
The cause is reversed.
