137 Mo. App. 399 | Mo. Ct. App. | 1909
(after stating tbe facts). — It is insisted tbe verdict cannot stand because no affirmative proof in tbe meaning of tbe policy was furnished, and there was no evidence tbe company waived this proof. Defendant argues tbe whole indemnity for lost time was payable at tbe end of treatment, instead of weekly; and that tbe policy required proof of loss to be prepared and transmitted to tbe company after treatment bad terminated; or after tbe expiration of one hundred and four weeks or two years, which was tbe maximum period of liability for loss of time. We will not decide when indemnity for such loss was payable, because part of thq policy was omitted from tbe record, and tbe part presented suggests tbe omitted portion would bear on tbe question. That sufficient notice of tbe loss was given in fifteen days is conceded, but it is contended “affirmative proof” of loss was not made. Tbe document received by tbe company April 10th stated every particular of plaintiff’s accident and consequent disability, and was an adequate “affirmative proof,” if not prematurely delivered. Tbe policy is rather vague about what would-be timely delivery, being precise only in requiring tbe
The effect of the instructions on the issue of intoxication was to hold the company liable for indemnity at fifteen dollars a week, even though plaintiff was hurt while under the influence of intoxicating liquor, unless the injury was the result of his condition. This construction of the contract expunges an express proviso against liability for an injury received by the insured while under the influence of an intoxicant or narcotic. By virtue of said proviso, the company was as much exempt from liability for plaintiff’s loss of time, if the loss was due to an injury received while he was intoxicated, but not in, consequence of intoxication, as if the latter brought about the injury. Counsel argue that if the intention was to exclude liability for an injury received while plaintiff was intoxicated, regardless of a causal connection between his state and the injury, it was useless to insert the exemption for an injury resulting' from intoxication, as the first proviso would embrace the latter. So it would; but we take the purpose to have been to word the contract so no doubt could arise about the non-liability of defendant in either event. Again, it is said to be unreasonable to excuse defendant merely because plaintiff was intoxicated, if the accident
The judgment is reversed and the cause remanded.
