*1 1082 Railway Association, a Cor- Mail Appellant, Farmer, L.
Jennie Respondent. (2d) 744. S. W. poration, 7, Opinion 1933. March Appeals. filed Louis Court St. denied, Rehearing 1933. March April 20, Court, by Supreme 1933. denied of Certiorari Writ Leahy, appellant. Saunders & Walther and J. L. London for *2 Holland, & Laahly respondent. Donnell for *3 by
SUTTON, an action on C. This issued defendant, insuring against plaintiff’s bodily injuries, husband re through sulting death, external, violent, in received and means. trial, plaintiff jury, with a resulted in a verdict for $3,000,
The for judgment accordingly. was entered From order the court and of ground granting trial, defendant on the in- a new that defendant’s ought in of a demurrer evidence struction the nature to the to have given, appeals. plaintiff been July died as of
The insured the result a sunstroke suffered on 11, 1930. At the time of his death insured was chief of clerk Railway City long Mail in Service of St. Louis. How he had shown, postal is not but had in this office he a clerk for been been forty years. about day that
Plaintiff testified on the the insured suffered sun- go he his home his stroke left to to work about seven o’clock in morning; go that this time work; was usual that he his left morning general that appearance that when he left home his far so perfectly right; as was was all health concerned that she next saw him afternoon; half four five when past about he came home in the very that when came home he face was black he nervous and his or purple; holding that he was to his throat and other hand one as head; his that a he said: “I have sunstroke. It seemed had though something caught hit I to the me down street. fence thing tree. thought was, enough first I home ‘Well, I am near ” if that I me should fall one will me and home.’ some know take Plaintiff further o’clock on the testified that about three insured died morning July 13, 1930.
Dr. testified, H. John in- plaintiff, Coats for that called to he see sured evening temperature July 11th, found him with a and convulsions, state; and in a that made semi-conscious he diagnosis a gave for sun- and him the treatment usual ; stroke that sunstroke his cause of death.
'Dr. plaintiff, R. B. H. follows: “Sun- testified, Gradwohl body. stroke is effect rays induced the human of the sun on physical It is regulatory force which the heat mechanism disturbs normally is, body, is a center the brain there which temperature controls production heat controlling loss, this with. I condition would the mechanism interfered say the death-dealing cause due to the detention effects are words, products in the body ought In other to be eliminated. throwing off prevents condition the individual poisonous through through .through kidneys, skin, substances his his bowels, brings his through lungs. physical agent It is a about this I sunstroke. do consider sunstroke disease brought ap- medical sense. I consider it a condition about plication physical agent, any tangible aof do not see because we evi- *4 dences people of disease in die of con- the dead bodies that this dition. It well physiology is called a than a disease disturbed rather gross in organic changes. physical sense of is a force Sunstroke applying physical really its centers, points effects to little two four at the brain, regulatory base of the which centers. are called physical applying The I By force heat. physical itself is the force bad, mean agency body some effects, outside that for human words, the health and life of the individual. In other a normal in- dividual down struck that a disease. Sun- agency is not stroke is not a disease.
July 11, 1930, clay, was temperature ranging eighty- a hot degrees morning degrees seven at seven in o’clock to 103 at four o’clock in the afternoon. support trial,
In granting a action defendant new court’s bodily defendant first contends that not sunstroke a disease and a injury, so that insured’s resulting death from sunstroke is not within coverage, of the on. sued That is a disease cases, not bodily injury appears a to have number of been held but these cases are out of with decisions in State and accord
1086 weight v. Standard Accident authority elsewhere. [Richards Casualty 107 Tex. Co., 622; Bryant Co.,
Ins. 58 Utah v. Continental & Steel 582, 673; Greenspon’s v. Sons Iron Kripplaben S. W. Co., City (Mo. Taylor v. Ice & Fuel App.), (2d) 752; 50 W. Co. S. yet Moran Peterson recently reported; v. this court decided and not yet reported; Morris Co., recently by this Const. decided court and (2d) 750; Kirk Mfg. Co., 449, 40 W. Van App. v. Dexter S. Mo. 631; (2d) Mining (Mo. App.), 49 W. S. Hume-Sinclair Coal Co. (2d) (Mo.), 56 W. Atlantic Tea S. Schulz v. Great & Pacific Co. Court, 164 W. 126; v. District 138 Minn. N. ex rel. State Rau 329; Baking Co., 261 Pa. Walsh v. 916; v. Horn & Lane Hardart Young Spinning (R. I.), v. Western Fur 1025; River Co. 103 Atl. (Neb.), Mfg. 164 N. W. niture & Co. 712.] court, Co., supra, Pacific Schulz v. Great Atlantic & Tea In definitely death responding that point expressly raised, ruled accident, sunstroke, resulting death prostration, from heat was though ruling, Compensation Act. This as defined our Workmen’s necessarily implies state, that express so the court does not terms disease, contradistinguished from of an death the result “accident,” therein, compensation as used act defines word suddenly happening unexpected to mean “an and unforeseen event objective symptoms producing . . . violently, at time “only injury,” “injury” violence to mean of an and defines the term physical body, disease or infection to the structure of the and such obviously an naturally Under this definition results therefrom.” body,” is is, physical injury, structure of the that “violence to the act, compensable under the and that disease an essential accident is, “vio- compensable only injury, from such when it results body.” physical to the structure of the lence physical external application That sunstroke results of an from the rays of the hardly of the heat questioned. action force can be of a indirectly is the action body as much upon directly sun sunstroke, blowing with wind. So that physical force as is the infliction, has all characteristics respect of its the manner injury. formerly pro- opinion medical appears It it was sense, pathological technical and fession in its the conclusion disease, but modern science seems to have arrived at injury, application disease, but an from the that it not a But, technically, it is not re- physical force. whatever it *5 popular mind. understand- garded popular In the a disease in the as injury. The ing personal word itself it is a kind of violent accounted injury a force. by of an sudden external It is a well carries the idea construing policies, that in terms should be established rule sense, ordinary, plain, popular and rather than their understood in Therefore, in sense. consonance wth a or scientific in technical rule, in construing suit, the here sunstroke must be under- stood an injury and not a disease.
Secondly, that, defendant contends conceding that the insured’s death yet resulted from injury, injury accidental the accidental through was not received means, accidental and the death is therefore not within coverage policy. the of the rules, two There are lines announcing extant authorities different unusual, The one holds that where an or unexpected, unforeseen in- jury or by death results doing by reason of the the insured of an act, intentional mischange, where slip, mishap no doing or occurs in itself, ensuing the act the injury death through or is not ac- caused cidental means. The other holds that where an unexpected, unusual, injury or unforeseen or death results from an intentional act of the insured, ensuing injury means, the by or death is caused accidental though mischance, even slip, mishap no or doing occurs in of the the act. Supreme
Our adopted overruling rule, Court has the first previous appellate adopting decisions courts the second rule. [Cald- Co., well Travelers’ Ins. 305 Mo. S. W. 907.] The very different rules well illustrated the facts of typical case, case, cited as follows: insured Caldwell The and others came building jumped out of a and a platform from four height. or jumped last, five feet in The insured and landed on his heavily jar, thereby suffering bodily injury feet and with a that, jumping which he died. The first if the act rule holds mischance, involuntary movement, slip, mishap, there was no or or turn, though resulting injury or strain of then body, unforeseen, unexpected, unintentional, the natural or not probable consequence jumping, of the act of therefore an yet injury, accidental jumping producing means—the act of — injury was intentional and therefore not an means. injury unexpected second rule holds that was the or since intended, unforeseen, result of the and not the natural means— jumping produced injury produced by such it, act —which accidental means. theory It obvious that the Caldwell case was decided on the surgical operation from which the death insured re- that the surgeon insured, intentional since the who sulted was the act insured, acting agent so performed operation was caused the death of insured was the means means which that the through agent, per- who in intentionally employed insured any just what intended to without forming he do operation did operation. occurring performance Such a case in the mishap producing where the means very from case different insured, is the action act of the but of extraneous death sunstroke cases cited forces, counsel An examination *6 sometimes overlooked discloses that courts have case present produc- treating as the means distinction, of insured the act this pro- means fact that the apparently oblivious of the ing the physical force action of an extraneous sunstroke was ducing the sun. of the heat —the be- distinction simple examples may illustrate serve to A few injury result- from act of insured tween by unintentionally shot is forces: insured from extraneous ing ambush, by assassin from intentionally down an struck another, or may by insect, or he bitten an may by be attacked breast or or he by injured struck flood, or he be by be or killed windstorm or force—as means—the extraneous lightning. In such each case so, ought resulting injury, being This it is accidental. well analogy by question without that where the insured to follow by he is by of sun stricken down the action struck means. accidental judicial many and “ac- definitions of “accidental” have read We ’’ definitions, though expressed variety means. These cidental unintentional, course, is, carry all that phraseologies, idea we part One definitions on the insured. unintentional way: ‘accidental not “The words means’ do have found runs unexpected simply shall or or un- mean that death be unintended ‘ac- foreseen, accidental, but that the cause of death shall be chance, by design, without happening coming cidental’ or means fortuitous, design An- is, opposed or intention.” casual or designed says: by caused act the insured not other “Death some him, by him, intentionally done a death accidental or not words, accidental death is an unmtended and un- means. In other designed arising done, from acts whereas death result arising unintentionally means from acts done.” Another is a result says: is, accidental —that an “It is not sufficient there unanticipated accidental, unusual and The means must be —result. “ is, involuntary, says: unintended.” Another ‘Accidental’ is chance, coming by design, casual, happening or withoiit fortuit- ous, taking place unintentionally, unexpectedly, or out usual says: Another “Accidental course.” the antithesis of inten- tional.” present
In ease officeon day the insured went his he using way, the usual time and the usual car stricken at the street transportation, as was custom. He worked his his at desk in the duties, morning pursuit his his usual walked to lunch a at hour, noon at the and returned to work at his desk restaurant in the afternoon, At conclusion of work afternoon. his in the he took car to the street ‘return to his home as was his custom. On disembarking car street he undertook to walk from the usually way as he did. While his street ear to home he day. persuaded unusually We are hot stricken. It was nothing uninten the insured did defendant’s that because view *7 ac his usual received, pursued but tional to cause sunstroke he the words, the during away from day not run tivities the other did —in possible if heat heat, application the were the of —therefore sunstroke, body, which ivas the forces to his means that caused the n part, This makes and not view intentional on accidental. sunstroke, rather producing the action the insured means the of the heat, oJ action of than the the sun’s which comes without the volition any being. mortal said, Moreover, already as policies prepared for are public according consumption to and their understood terms must be mind, upon the view of popular put the so that insurers their policies them, one purpose selling construction the for of and another purpose liability the defeating of befalls. There when disaster sunstroke, question is no regarded popular mind, an the is as injury means, resulting lightning from just as a stroke regarded. they is so companies The insurance sell know this when policies their premiums and Tf they collect the thereon. to desire coverage easily exclude from policies, sunstroke the their this can be express done in terms.
Many brought sunstroke cases been have to our counsel. attention It serve purpose would no An useful to review these eases detail. divergent of them examination shows that the courts have taken question views on the as the whether or is within to not sunstroke coverage policies insuring through against injuries ac- received means, cidental support but we think cases the better reasoned coverage view that is policies. sunstroke within such Co., Bryant Casualty Texas, W. v. 582, In 307 182 Continental S. unusually after- insured suffered a on warm sunstroke an August noon in walking upon while the streets of Houston accounts, ordinary occupation course of his a collector of died as from following. day Discussing sunstroke the means of injury in that case the court said: question might though
“The ex- place, be well rested at this posure to which subjected considered ‘the assured himself be as however, injury. mistake, means’ of his indulge as- It sumption. Exposure to only the cause of exposure any sense force kind external furnishes injury arising occasion as operation. of its In the result cases n underaccident insurance policies, negligence possible where part liability, of the assured does not the ef- question affect the major injury, ficient of a cause the vis which inflicts the necessarily heat; must, therefore, excessive and it be deemed and, injury. caused, If heat, ‘the means’ be it solar it is not operating naturally, agency; when not controlled human
1090 impossible under such circumstances it is with it idea to associate ‘voluntary employment,’ regard itsof or to not an accident an in- as jury shown, from it when suffered here in the sense that under conditions, noted, certain as declared in the above rule ’’ voluntarily employed a means will not so deemed. be also, supporting
See
this view: Richards v.
Accident
Standard
Co., Utah, 622;
58
Casualty
Bruden,
Ins.
Continental
Co. v.
178 Ark.
683; Higgins
Co.,
Casualty
v.
“Applying this rule policy, clearly to this it manifest that sun- stroke is ‘bodily injuries by covered the words accidental means.’ escape It is difficult to popular conception this conclusion unless the only words buyers ‘sunstroke’ is to be considered when the procure insurance, conception and a different and technical same word to be invoked when the company insurance seeks escape liability. “This rule of applying popular meaning to words found in in- policies surance is doubly strengthened when the additional rule is invoked that policies liberally should be construed favor of the insured and promote their beneficiaries so as to defeat purpose of insurance.”
We conclude that death within the coverage in suit here.
The Commissioner recommends that the order of the circuit court granting defendant new trial be reversed the cause remanded with directions to judgment said court to reinstate the entered jury. the verdict of the PER foregoing opinion CURIAM: The C., adopted Sutton, opinion court. The order granting of the circuit court defendant a new accordingly trial is reversed, and the cause remanded with directions to judgment said court to reinstate the entered on the verdict of jury. Becker, J., <//., McGullen, P. and Kane and concur.