*1 mayWe by appellant. briefed points all of the We considered have defended appellant was well note that the record discloses ably points in this court. presented has trial. His counsel man- charge of to sustain the State introduced substantial evidence not authorized to disturb slaughter. In a situation we are judgment is affirmed. is error in case. The verdict unless there CC., Cooley Boliling-, concur. C., opinion Westhues, foregoing
PER CURIAM: The opinion judges All concur. adopted as the of the court.
Mary Company, Life Insurance Cleaver v. Central States Cullen (2d) 474. W. Corporation, Appellant. July 9, One, 1940.
Division *2 Jones, Goodson, Hocker, Gtadney Walter G. <&Grand and James Jones, Jr., appellant. C. *3 respondent.
Cullen, Edwards & Coil Waldo Storekman *4 HYDE, $10,000, is an action on an insurance C. This attorney’s damages delay including interest vexatious fee. Plaintiff total amount judgment verdict and had $11,500, appealed. and defendant has
By policy, agreed 6, 1928, issued October defendant plaintiff beneficiary proof of “immediately receipt due death of Cleaver, Thomas E. of Ten Thousand insured, the sum Dollars, on died the face amount hereof.” insured February 4, 1939, from of carbon “the result of the inhalation gas monoxide from the exhaust of Ms automobile while he was work ing thereon, and gas the inhalation of said was accidental ’’ intentional the part on paid plaintiff insured. Defendant *5 indebtedness), face amount of (with prior the deduction to filing the suit, prejudice this to claims or without the further defenses of either party. brought This in suit was on the double demnity agreement, forming a “supplementary stated to be to and part of” the policy, by company agreed addi which the the in accidental death sued for “in event of the tional amount ’ ‘1 ’ The ad provided: then The sured as hereinafter defined. in accidental death payable sum event of the
ditional in that proof such death company due if the receive due sured shall be in during paying period, before default occurred any and any allowance of total payment premium, before in disability benefits, not (stating requirements other permanent and indemnity . benefit controversy) .; provided . that this double directly result not death insured shall payable shall if infirmities, from, mental indirectly, wholly partly, physical or or or sui poison, ptomaines, disease, from from bacterial infections or italics.) (Our any attempt or or insane.” cide thereat while sane is a that “death carbon monoxide Defendant contends indemnity ben poison exception death from the double within says knowledge efit.” Defendant “it is a matter of now common poison,” was, therefore, that carbon monoxide is a and that it er jury; peremp roneous to about it that its submit issue to the but tory given. expert instruction should been Plaintiff had medical have testimony gas to show the nature carbon monoxide and its effects.
(The agreed except case tried this an statement of facts as to matter.) gas is testimony As shown carbon monoxide colorless, oxygen produced by odorless in combination of carbon complete gasoline combustion of in a motor. witness, Barnes,
Plaintiff’s Dr. testified: breathing combining “Carbon monoxide acts when with inhaled hemoglobin with making impossible the blood and hemoglobin oxygen carry oxygen same throughout combine with body. acts, words, pro- It by process asphyxiation, other duces the effect of An suffocation. individual cannot live without oxygen. hemoglobin normally oxygen. per- The carries If ...
son breathing drowns enveloped, apparatus are so far as the is lungs flooded; oxygen concerned—the head—with water. are get not quantities. does that, sufficient There is suffocation. And general, acts in a manner like as carbon monoxide in suffo- cation. . . . which, body Poisons are if substances taken into the injected body or gotten body into or other into the or —somehow structural body destroy cells part them or in whole and to — extent in sufficient some instances to cause death. The mo- carbon noxide gas is a which is inhaled and destructive to the tissues or the cells; is affinity absorbed because of the chemical hemoglobin blood, in the permanently may but so, dis- charged hemoglobin, from the may quantities be taken in ordi- narily large enough promote death, safely, under conditions where atmospheric pressure is increased on so individual that still oxygen there is blood, sufficient in the though even the carbon monox- ide present, producing resulting without death. . . . Death
554
anoxemia, lack
asphyxia,
monoxide is due to
from inhalation of carbon
It
.
.
.
poisonous
its
action.
oxygen
blood;
in the
not from
destroy tissue.”
gas.
doesn’t
poison.
poisonous
It
It
isn’t a
isn’t
no
offered
Defendant
testimony
to this.
was similar
Other medical
works
medical
testimony
dictionaries, encyclopedias, and
but cites
effect as
gas, and to its
referring
poisonous
as a
to carbon monoxide
says
a matter of such
this is
poisoning.
monoxide
Defendant
carbon
that,
testimony
inadmissible; and
knowledge
expert
common
poison.
from
law,
be held death
as a matter of
insured’s death should
(Pa.),
Life Ins. Co.
also relies
v. Scranton
Defendant
Urian
63
Fidelity
(Tex.),
v. Roach
21,
165 Atl.
Life Ins. Co.
and United
of carbon
says
from inhalation
(2d)
S. W.
723. Plaintiff
death
gas
poison,
from
asphyxiation
death from
and is not death
monoxide
is
v.
citing
136,
cited; Brock
J., 455-456,
1
133 and
and cases
C.
secs.
200;
(2d)
App.), 44 S. W.
(Mo.
American Central Life Ins. Co.
W.
Kingsley
(Mich.), 242 N.
v. American
Ins. Co.
Central Life
836;
Life Ins.
110,
1276;
see also note
A. L. R.
Hahn v. Home
and
opportunity
(Tenn.),
(2d)
Co.
84 W.
361. “The insurer has
S.
language
great
and de
have
of the contract selected with
care
exclusively
in
experts
legal
acting
liberation
and
in its
advisers
terests,
responsible
ambiguities
and it
found therein.
is,
meaning
.
.
.
It
therefore,
of a
well established that where the
policy provision
constructions,
susceptible
doubtful or
of different
the policy
strictly against
should
construed
the insurer and lib
erally in favor of
insured.”
Bond
v. Massachusetts
[Henderson
ing
Co.,
& Ins.
1,
337 Mo.
If
in
S. W.
had been
it
922.]
“asphyxiation”
tended to
gas
exception
include
from
within the
policy,
easily
it
clearly
could
no
have been so
stated as to leave
room for
wording
doubt or
construction.
in Lamar
[See
v. Iowa
Traveling
(Iowa),
State
Men’s Assn.
232 Mo. S. W. 6, 1934, premium July payment due Cleaver did not make of the made they properly quarterly thereafter, and those unless were due policy. premium provision him loan of the under the automatic provision invalid, statutes If this is under the Missouri nonforfeiture 4388-4397), (Secs. 5741-5744, as held R. S. 6 Mo. Stat. Ann. case, temporary Heuring
in the then Cleaver’s insurance became by pol (term) insurance in 1934 for face insured “the amount icy” death; as until his double and continued such after but the liability began. agreement terminated when extended insurance such Society Equitable (Mo. App.), Life 107 S. W. v. Assurance [Smith (2d) 191; (8th A.), Valenti v. Prudential Fed. Ins. Co. U. C. C. However, premium provision if is automatic loan 229.] by then premiums paid (advanced
valid all were defendant Cleaver) February 4, policy “which up became due under said death;” policy, the date of the insured’s and the includ whole ing indemnity agreement, double remained force. premium automatic “the of which provision,
This loan inclusion policy clauses or requested benefit in said had been the insured ’’ application therefor, his was, as follows: “Any premium years’ premiums hereon full have due after three paid remaining unpaid day grace been last be ad- on the will company against request vanced as a policy loan this if written insured, from appli- has been received at the Home Office when force, is policy policy cation made for this or while this is in without further action provided the insured and cash value policy pei’iod at the end of the premiums which such advanced will is at equal premium cover least to the such amount of and interest thereon, together any outstanding with indebtedness hereon company. premiums Subsequent will be advanced from time to time Any as fall due under like conditions. indebtedness created thus against charge will be first policy ranking to the priority any beneficiary claim of assignee. or If cash value or balance thereof be not pay sufficient to an premium entire it and interest shall pay be used to premium a semi-annual or quarterly if sufficient to do so. premium
“Such loans shall subject be to the same terms and con- ditions as loans, except cash assignment shall required. Request for premium may such loans be revoked affect action shall time such any at but
writing by the insured in- made hereunder. may previously any been loan that have any time at while payment premiums may sured resume without medical examination.” is force thus carried it neces- Is for decision: following presented is Thus, question funds, of his himself out sary premium each pay an insured to must at the time by borrowing company from the or time each policy to term in- his paid, prevent the commutation in order provided if statutory options other (or to one surance (other- or statutes? upon default) by operation of the nonforfeiture prevent the insured stated): Do the statutes wise nonforfeiture time when agreement insurer, in advance of the making an any has been reserve value is due and before may be neces- amounts as created, for such insurer to advance such time sary premium, unpaid by the left insured day charge loan any grace period, on the the same last against policy? definitely
It “that of our nonforfeiture provisions settled *8 every policy they are insurance mandatory; part statutes are that of they not; issued can- in mentioned therein or this State-whether abrogated, waived, away not be or kept any policjq out of contracted by any agreement by parties thereafter or made prior default; rights of the in- that, do not limit while solely sured for 5741 provided insurance as in Section extended (Mo. Ann., 5741, 4388) (Mo. p. Stat. sec. Section 5744 Stat. because Ann., 5744, p. 4395) permits a methods sec. choice between four for application upon premium of the or reserve cash value default of payment, parties to a freedom of contract between is limited that, any choice options; between these authorized and advance if agreement disposition default, made for of the reserve for statutory which authority found, cannot be it unenforceable and Heuring void.” Allen, 81, (2d) ex rel. v. 342 Mo. 112 W. [State 843.] In the Heuring (120 182) last S. W. l. c: case the Court of Appeals special held “the privilege loan clause automatic provides a method applying contemplated reserve 5741, Section and as provided method does not said clause fall purview any within the exceptions of of of the four Section 5744, isit void.” 5741,
Section (6 4388) R. S. 1929 provides: Mo. Stat. Ann. policies “No of insurance by any on life hereafter issued life in- company shall, surance to do in this authorized business state after payment upon it of three or more payments, annual forfeited or be become thereon, void non-payment premiums reason of but of shall subject be following commutation, rules of to-wit: The net value policy, premium when the and is becomes due
557 experience combined or upon the actuaries’ computed be shall paid, annum, and per per cent interest mortality four table of after unpaid portion net value the deducting of from three-fourths pol- on said past premium payments given on any account notes policy, company said secured icy any other indebtedness to the and canceled, balance shall shall then be notes indebtedness (extended temporary insurance single premium taken as net amounts of such insurance).” Section deals with (The rest-of the term, insurance, etc.) its 1879, 130), of the above word- original p. instead (Laws
In the act italicized, for indebted- ing the deduction authorized which we have deducting (%) was, “And from three-fourths ness as follows: after company, any or other to the such net value notes indebtedness premiums, payments on given past on account said issued canceled, insured, shall then the balance to the which indebtedness single temporary be taken as a net insurance.” shall original wording This remained the statute until 1903. [Sec. 1889, 5983, 1879, 5856, (the 7897, R. S. See. R. S. Sec. R. S. 1899 1899 indebtedness”), 1903, section read “or other evidence Laws p. changed The 1903 amendment this to authorize deduction 208.] “any given past premium payments *9 “Attending to that section as it policy read when the issued and died, when the insured it will be observed the that net value of the policy computed. be Then from three-fourths of such net value there is to away be taken All indebtedness? Not at all. —what? away There shall taken ‘any notes or other of evidence indebted- ness to the company, given on past account premium payments on of ’ policies. said residue, The any, if goes automatically then pur- to the temporary chase of or extended insurance. In the Smith case there was a loan made on strength the of the reserve policy. value of the Part of the loan was past premium on of account payments, part but it of was for present cash large. loan at If the whole of the loan was to -be deducted from the value, net then there was no purchasing power left to value, ergo, the net and no extended insurance in the But, Smith ease. on the other hand, only if part that of the loan made on past premium account of payments was to be deducted from 558 insurance, then there purchase of extended the before net value the purchase to the the statute under applied to be left a residuum
was alive event, policy the was insurance, and, that of extended mean- therefore, scope and case, the In that company liable. and the held nonforfeiting insurance was statute of our ing that clause of the statute that and this court decided stillest sense judgment deducted indebtedness the character of the mandato^; that was of purchase residue to the applying before net value from the limited to and was insurance must be looked or extended temporary or in- or other statute ‘to notes the clear words evidences pay- past premium given company, on account to the debtedness ’ *10 thereof) required be used for term premium, to insurance except in- past premium payments. for Now the debtedness statute authorizes only given for on “notes past deductions account of premium to policy,” “any for other indebtedness on said but also payments any by policy.” it make Does difference company secured said by policy,” when, company to the secured said “indebtedness how or says auto- nothing ? in the statute that so. The incurred There is agreement policy was an that provision loan this matic (after years’ premiums been money, pay any premium three to have day grace, by paid) unpaid on the last advanced “will subject Company against policy this . . . to the same as a loan assignment), (except terms as cash loans” which and conditions ‘‘ agreed company security policy to on sole likewise make this any years’premiums . . . paid.” time after three full have been any present Where is there conflict between this statute and policy provision? by pay Surely company an advancement against policy” a premium due from the insured “as a loan this security policy” company “on the sole this “indebtedness to the policy.” why secured said canWe see no reason it should not be as valid buy as cash loan made to to enable him insured or mortgage one; or, bygone an automobile off a days, on or house farm. saying There is no limitation in the statute agreement an for a purpose loan for cannot be made in advance money the time when the is to be furnished. policy It has been of our laws, insurance as indicated original language statute, construing this and the cases its meaning prior Amendment, to the 1903 permit deductions, reserve value insurance, only available for term in indebtedness past premium payments, curred kept had the policy in force. language Under the still broader Amendment, must saywe that there can be no deduction for indebtedness unless in sured authorized such indebtedness to be policy secured his after the obligation accrual of he to pay? say desired This would be to “any other indebtedness to company” recognized should be (and be deducted) except could agree indebtedness incurred under ments to make premiums advancements for which would continue policy in force. There is no present basis in statute for distinction, based the time when is incurred, indebtedness this case why well illustrates no such strained construction should attempted. Here insured rights, long had valuable as kept as he force, which he would lose whenever there awas default of payment of premium, rights because such would not be continued in the given term insurance him under the nonforfeiture statute. rights These keep were to the additional amount provided of insurance death, accidental and to continue his (after force all of the reserve value had pay premiums been used to under the auto matic loan agreement) by merely resuming payment of premiums thereafter. He keep could thus his written, in stead making application for reinstatement, requiring a new medical *11 than higher premium aat insurance taking’ out new examination, or company, accordance age. If the original his applicable to the rate day of each last agreement, on the premium loan the
with
automatic
the
against this
as a loan
legally advance
grace
could
period,
yet in
(but not
due
premium when
nec.essary
pay each
to
amount
became
on this
which
pTemium
any
was
there never
default),
any
“default
was never
there
paid”, and
“not
and was
“due”
of In
v.Co.
Commissioner
Ins.
Life
premium.”
Benefit
[Mutual
Sovereign Camp
v.
707;W.
Barthel
115 N.
surance, 151 Mich.
285;
James-Automatic
W.,
App.
93 S. W.
W.
Mo.
O.
Statutes, 5
LawMo.
Non Forfeiture
and the
Premium Loan Policies
prohibited
premium
were not
If
loans
these automatic
Rev. 331.]
reasonably'argued
loans did not
that such
loans,
how could
be
do so?
was sufficient to
as here the reserve
premiums
when
on the
paid
thus
that ever came due was
If each
and:
been
any of them ever have
could
day
grace period,
of the
how
last
statutory limita
any
been
to discover
in default? We have
unable
policy;
an insurance
nor
making
to
upon
tion
loans
be secured
time,
any
particular
any
be made
requirement
must
to
any
specified
specific period
or
order
way,
within
statute, upon default of
deductable,
present
nonforfeiture
under
purpose
longer any
upon
is no
limitation
premium;
there
_and
money
to make them deductable.
required
to be used
for which the
statutes
purpose
It
of the nonforfeiture
was not even the
only
buy
to
compel policyholders to
their reserve values
cer
to
use
default,
always pro
there was
types
tain
of insurance' after
because
taking
value instead of
further in
vision
cash surrender
of our
explaining
surance.
In
the reasons
enactment
nonforfeiture
Lodge
Court,
Banc, said,
Supreme
v.
statutes, this
en
Westerman
P.,
711-712-713,
670, l.
K. of
196 Mo.
.accidental no made was issue that there finally contends Defendant indemnity benefit pay the double refusal to on vexatious jury holding previous says: “In view Defendant policy. Ins. Life Heuring v. States Central Appeals Springfield Court premi 176, automatic that the (2d) 120 W. 731, S. Co., App. Mo. 5741, Section policy was contravention of this clause um loan refusing justified in unquestionably was 1929, appellant R. Mo. ground that on the indemnity of this benefit pay the double be of the insured’s death at the time not in force was that benefit long of a due -thereunder payment of default cause ” In correct. Camden position is defendant’s death. We think prior to Co., Casualty 340 Mo. York District v. New School ton Consolidated penalty (Sec. statutory we hold that W. 104 S. 4515) imposed where Ann. would 1929, 6 Mo. Stat. 5929, R. S. States Circuit supported a United contention defendant’s only question, on the Here decision Appeals’ decision. Court *13 plaintiff relied as provision, upon which State, held that the in this Certainly, force, void. this decision policy in keeping the create^ in force at legal as to what of insurance was question a debatable bind promptly paid the amount Defendant of insured’s death. time event, agreement an liable, under it would be thereby prejudiced. party of either would be no or defenses claims not to pay contemplated the statute is Vexatious refusal to reached, supported but must be from the final result deduced beneficiary by refusing rea showing obstructing a without probable sonable or cause or excuse. Consolidated [Camdenton Casualty Co., supra, District v. New York cases therein School that a basis for an honest We hold reasonable difference cited.] opinion, good faith, herein as a matter appeared of law. judgment The cause is remanded with directions to strike from the $260, damages, $1000, attorney’s fee; as items of and to judgment plaintiff, judg- enter a as of date of the new ment, $10,240, to bear interest from that until same date per Bradley paid per Dalton, GO., rate of six cent annum. concur. foregoing opinion Hyde, C.,
PER is adopted CURIAM: The opinion judges All as the the court. concur. notes on account of on said insured, issued to indebtedness to the evidence of present namely: company.” provision, The broader “And other indebtedness to the company policy” secured said was added 1923, 1923. p. [Laws 233.] original language effect Smith v. Mutual ruled Co., Benefit Life Ins. 173 935; Burridge Mo. 72 S. W. New v. Co., York 158, 109 Liebing Life Ins. 560; Mo. S. W. v. Mutual Co., Life Ins. Burridge case, 191 S. 250. In the W. Mo. court stated its language construction of the of the act and the effect amendment, as follows:
Notes
notes insured; not include and did issued policy ments on the ways. . arising . . in other of indebtedness evidences and case, presumably days in the Smith after the decision “Seven session, Forty-second Assembly, then in it,of General on -account sig- 1903, 208, 7897, p. supra). The supra (Laws amended Section 1 glance at a in Section amendment can be seen nificance of the body of law from that act set forth. It struck hereinbefore other statutory of the notes and upon restriction the character net from value before of indebtedness to be deducted evidence insurance, applying temporary it wrote purchase it to to-wit, providing that provision, a clause in lieu thereof broader only ‘any notes this net value not should be deducted from there on said issued to given past premium payments on account but, also, ‘any to the insured,’ other evidence of indebtedness if the had plain, then, suit company.’ It becomes of the amendment provisions the loan made under the been issued and 1903, But the Act present ease boneless contention. would retrospective of 1903 under settled rules law.” was Therefore, apparent provision still broader 5741 1923 Amendment to Section construed the cases cited Appeals Heuring and relied the Court of case. only cases cited which were decided after that Amendment were: Becker, (2d) 769; ex State rel. v. Mo. 73 W. Clark Metropolitan Co., Life Ins. Mo. S. W. Gooch v. policies of these eases construed before 704. Both issued the 1923 question Amendment, presented and neither considered the in this case. right questioned policyholder has ever of a one No borrow security. his moiiej^ the insurer on What from has been (and language invalid under the held questioned this non- statute) was, provision whether valid forfeiture could be made default, reserve (three-fourths after value deduction