117 Mo. App. 362 | Mo. Ct. App. | 1906
Action upon a policy of accident insurance. The petition is as follows:
“For his cause of action, the plaintiff states that heretofore, to-wit, on the 10th day of February, 1904, the probate court of Pettis county, Missouri duly appointed him administrator of the estate of John W. Driskell, deceased; that he qualified by giving the required bond as such administrator, and said probate court issued to him letters of administration on said estate, and that he is now the authorized acting admimstrator in charge of said estate with full power to sue in the courts of Missouri upon all obligations due said estate. Plaintiff states that the defendant is a corporation carrying on the business of accident insurance in the State of Missouri with the authority to sue and the liability to be sued under the laws of Missouri and' in the courts of Missouri.
“Plaintiff states that heretofore, to-wit, on the 29th day of October, 1902, the defendant by its agents in consideration of the premiums, statements and agreements mentioned in its policy Number 217918, issued and delivered its said policy of accident insurance to the said John W. Driskell, deceased, which said policy is marked exhibit ‘A’ attached to this petition and filled with the same as a part of the record. Plaintiff states that de
“And that by paragraph (c) of said policy it is provided that ‘If death should result solely from such injuries, within three months from the date of the accident, the company should pay the principal sum of two hundred dollars to the estate of the said deceased.’
“That it was provided by paragraph (e) of said policy that ‘the indemnity in said policy provided should be increased ten per cent on any claim accruing thereunder if the premiums thereon should be paid annually in advance, or on any claim originating after the policy should have been maintained in continous force without
“Plaintiff further states that the assured, John W. Driskell, deceased was, at the time of such insurance, employed as a laborer in the Missouri Pacific railway shops at Sedalia, Missouri, as fire-knocker and general laborer, of which facts and circumstances said defendant, through its agents, had notice, and that, heretofore, to-wit, on about the 12th day of January, 1904, the said insured while engaged in the performance of his duties was accidentally injured by scalding water falling and escaping from the engine about which he was at work, into the deceased’s right ear, from the effects of said accidental injury said assured thereafter died at the city of Sedalia, Missouri, on the 23rd day of January, 1904. That the deceased left surviving him his wife, Maude Driskell, and one child born since said deceased’s death and that his estate consisted of a small amount of wages due from said Missouri Pacific Railroad Company and the insurance policy upon which this suit is instituted. Plaintiff states that due notice of the injury and death of the deceased and the caused thereof was furnished to said insurance company and that proofs of the said death were also made and furnished to said company within the time as required under the provisions of said policy.
“Plaintiff states that he demanded of .said company the amount, due under said policy, to-wit, the sum of two hundred and twenty dollars which the defendant has refused and still refuses to pay. But the plaintiff states that the defendant claimed to be liable under said policy for only twenty dollars and tendered to the plaintiff said sum of twenty dollars in discharge of said supposed liability, which tender the plaintiff admits was made, but which the plaintiff refused and still refuses.
“Wherefore the defendant is and was’liable for the
Defendant demurred to this petition on the ground that it stated no cause of action. The demurrer was sustained. Plaintiff refused to plead further and appealed from the judgment entered in favor of defendant.
The first objection made to the petition is that it fails to allege in express terms that the death of the insured was produced by external, violent and accidental means and that, as defendant’s liability under the provisions of the policy pleaded is restricted to that incurred by reason of the death of the insured from a cause falling within the definition of these three adjective words combined, it follows that each of them is elemental to a proper cause of action and should be expressly pleaded. It is the fact, that the bodily injury received by plaintiff is of the character defined, that is' elemental and not the specific words used in the policy to describe the class of injuries against which defendant contracted to insure. If the facts alleged conclusively show the nature of the injury to have been one embraced within the class, there is no reason for holding the pleader to: a particular phraseology, for it is the substance and not the form that determines the sufficiency of an averment. Plaintiff alleged that the injury which resulted in the death of the insured was caused by the accidental falling of scalding water into his ear. That this was an external and violent injury cannot be gainsaid. The facts themselves disclose its nature without the aid of inference or conclusion and to require the pleader to add a tautological averment because it contains a certain verbal formula would be the arbitrary imposition upon him of a useless duty, for defendant was advised by the facts alleged to meet a cause of action based upon an injury resulting from an external and violent cause. We are aware that in Hester v. Fidelity Co., 69 Mo. App. 186, the conclud
The statement that the assured died “from the effects of said accidental injury” (eleven days thereafter) is, in effect, an averment that the injury was the direct and not a remote cause of death and should be accepted as the equivalent of an allegation that the death of the assured “resulted solely” from the injury; for, manifestly, the words of the pleading express an intent to present the injury as its producing or proximate cause, and, therefore, the defendant was notified to prepare to meet that issue.
In view of what may be developed upon trial, we deem it important at this time to state our construction of the words in the policy, “if death should result solely from such injuries within three months.” Considered in connection with the other provisions, it is clear that defendant undertook to insure the deceased against death resulting from bodily injuries received from an external, violent and accidental agency. If plaintiff’s injury was inflicted in the manner alleged, that is, by the chance injection of scalding water into his ear, it certainly was accidental, violent and external, and we need waste no words in defining these terms. The important question that may arise under certain possible phases of proof is this: What is meant by the term, “If death should result solely from such injuries?” We think the only reasonable interpretation to be placed upon this clause is to say that the injury must stand out as the predominant factor in the production of the result and not that it must have been so virulent in character as necessarily and inevitably to have produced that result regardless of all other conditions and circumstances. People differ, so widely in health, vitality and ability to resist disease and injury, that what may mean
In Freeman v. Accident Ass’n, 156 Mass. 351, the insured died of peritonitis, which the evidence tended to show was induced by a fall. Under a policy similar to the one before us, the court sustained a judgment, observing that “Where different forces and conditions concur in producing a result, it is often difficult to determine which is properly to be considered the cause and, in dealing with such cases, the maxim causa, próxima non remota spectatur is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is necessarily the proximate cause. It means that the law will not go farther back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence in view of existing circumstances and conditions. The law does not consider the cause of causes beyond seeking the efficient, predominant cause, which, following it no farther than those consequences, that might have been anticipated as not unlikely to result from it, has produced the effect.
When evidence is introduced that points to the injury as the sole active force that brings into operation death-producing agencies, the issue of proximate cause is one of fact for the jury and not of law for the court.
The words, “such injuries,” in the clause under consideration, refer to “bodily injuries caused solely and exclusively by external, violent and accidental means,” without regard to the extent of disablement that immediately followed the injury. Whether the insured was wholly or partially disabled at once by the accident was a matter that concerned the indemnity to be paid him for loss of time and is not at all determinative of the right to recover upon a death claim. The intervening results of the Injury are facts that should be received in evidence as bearing upon the solution of the principal issue of fact — the proximate cause of death — but, aside from this, they have no other importance.