195 Mo. App. 599 | Mo. Ct. App. | 1916
This is an action on a policy of accident insurance instituted before a justice of the peace. The statement there filed, after formal averments, sets out the issue of the policy about October 21, 1907, and its renewal from time to time, and that it was in force at the time of the accident, it being on consideration of the payment of stated monthly premiums. The obligations assumed by defendant, as contained in clauses A and B of the policy, which clauses are hereinafter set out in full, are averred, and it is averred that about August 2, 1912, the policy being in full force and effect, plaintiff had received bodily injuries effected directly and independently of all other causes through external, violent and accidental means, and which immediately, continuously and wholly, from the date of the accident, did disable and prevent the assured from performing every
There were no pleadings filed by defendant in the justice’s court or in the circuit court, to which latter court the case was appealed and tried before the court, a jury being waived.
It appears that defendant tendered plaintiff $150 as in full payment of all liability under this policy, being one-half of the principal sum of $300 for loss of one hand by severance at or above the wrist joint, which plaintiff declined to receive.
There was evidence of the accident and its effect and duration, as set out in the petition or statement, of the demand for payment, refusal to pay and of the value of the attorney’s services.
The policy sued on was given in evidence. It is recited in the policy that in consideration of the payment of the policy fee and of the premium and of tbe statements, etc., in the application being true, the defendant company insures plaintiff subject to the' provisions and conditions contained in and indorsed upon the policy.
The policy then proceeds as follows:
“Accident Indemnity for Total Disability.
“ (a) At the rate of thirty dollars per month against total loss of time not exceeding twenty-four consecutive months resulting from bodily injuries effected directly and independently of all other causes through External, Violent and Accidental means, and which immediately, continuously and wholly, from date of accident, disable and prevent, tbe assured from performing every duty pertaining to any business or occupation.
“Partial Disability.
“(b) Or, if such injuries shall immediately, wholly and continuously, from date of accident, disable and prevent the assured from performing one or more important daily duties pertaining to his occupation, or in event of like disability immediately following total disability, or in event of total disability not immediately following injury, but within fifteen days of date of injury, the Company will pay the assured for the period of such disabili
‘ ‘ Specific Total Losses.
“(c) In event of any one of the following specific total losses which shall result from bodily injuries as described in paragraph (a), within ninety days from date of accident, the Company will pay, in lieu of any other indemnity:
^ Life (Payable to Beneficiary), Three Hundred Dollars.....................The Principal Sum. Both Hands, by severance at or above the wrist joint..........................The Principal Sum. Both Feet, by severance at or above the ankle joint, ....................The Principal Sum. One Hand and One Foot, by severance at . or above the said joints, ............The Principal Sum. For Entire Sight of Both Eyes, if irreeoverloss J ably -lost............................The Principal Sum. of Either Hand, by severance at or above the wrist joint.......................One-half of the Principal Sum. Either Foot, by severance at or above the ankle joint, .........................One-half of the Prir cipal Sum. Entire Sight of One Eye, if irrecoverably lost, ................................One-third of the Principal Sum.”
No declarations of law were asked or given.
The trial court entered up judgment against the defendant and surety for $481.02 as follows:
“Principal under policy sued on, .......$335.60
Interest, ............................ 11.86
Damages for vexatious refusal to pay,.. 33.56
Attorney’s fee,...................... 100.00
$481.02”-'
From this, defendant filing a motion for new trial, has duly appealed to our court.
It is contended by plaintiff below, and again in our court, that he is entitled to compensation as provided in
The learned counsel for appellant argue that policies of accident insurance are, with policies of life insurance, exceptions to the rule that contracts of insurance are contracts of indemnity. We are unable to appreciate the force of this, either as a general principle or as applicable here. On the very face of the policy here involved and over clause A, which is the first clause providing for the payment of any sum, it is referred to as £ £ accident indemnity for total disability,” and throughout the policy, heading other clauses which are not here material and which we have not here quoted, it is referred to as a contract of indemnity. Thus, paragraph I) is headed, ££Double Indemnity,” paragraph E, ££Illness Indemnity,” paragraph I is headed, “Special Death Indemnity,” paragraph J is headed “Quarantine Indemnity.”
Looking at this contract as a whole, construing it as a whole, it is very apparent that the main idea of it is indemnity, and the main feature in it is indemnity for loss of time in consequence of injury. Thus, while the indemnity for injuries involving total loss of time, is -set out in the very first paragraph of the policy (paragraph “a”) as at the rate of $30 per month for not exceeding twenty-four consecutive months, which would give a total of $720, the sum payable for certain specific losses is $300. That is given for the loss of life, for the severance of both hands at or above the wrist, for the loss of both feet at or above the ankle joint, for the loss of one hand and one foot by severance at or above the joints, and the loss of entire sight of both.eyes, if irrecoverably lost.
Assuming that these clauses A and B are antagonistic to clause C, then the rule is, that the first is to gov
It is a rule of construction of all contracts that they must be so construed as to make a harmonious whole; but it is also a rule, particularly applicable to insurance contracts, that the interpretation most favorable to the insured is to be accepted. That is not from any prejudice against insurance companies, but because as is well known, the insurer prepares and dictates the terms of the policy and the insured has but little choice in its terms. He must take it or reject it as written by the insurer. Construing this policy on its face and having in mind what was probably most prominent in the mind of the insured, that is,-to provide for loss of time in case of his disability and secure some compensation that would be immediately available to him, it would seem that he was more intent on weekly indemnity than on providing a fund available on his death. If the insured is to be remitted to the provision in clause C to $300 in certain events, or to one-half, or one-third of that in others, then what becomes of the distinct contract to pay so much a month for so many months, when, as here, the latter would yield him $335.60, or might yield him twenty-four times $30, or $7201 In this view the contract would be one-sided, and so appellant’s construction would make it. In short, appellant’s contention would entirely eliminate the feature providing for weekly indemnity. That is not the way contracts of insurance are to be construed. To adopt any such would make this contract a delusion and a snare.
We see no cause to differ from the learned trial judge in holding that the refusal to pay was vexatious. That is a question of fact under the statute for the de
The judgment of the circuit court is affirmed.