126 S.W.2d 181 | Mo. | 1939
Lead Opinion
Certiorari to review the ruling of the Kansas City Court of Appeals in Hansen v. Mutual Life Insurance Company of New York (relator here), 118 S.W.2d 505, an action by the beneficiary of an insurance policy providing for $1,000 ordinary or $2,000 accidental death benefits. Insurer made payment under the ordinary death benefit provisions and this action involves only the accidental death or double indemnity provisions. Insurer's motion for judgment on the pleadings and the opening statement for plaintiff was sustained, which judgment was reversed and the cause remanded by the Court of Appeals. *279
The contentions of the litigants with respect to double indemnity revolve around Section 1 and the "occupation" clause of Section 13 of the policy. They read, so far as thought material, (italics ours):
Section 1. "The Double Indemnity will be payable upon receipt of due proof that the insured died before the end of the endowment period as a direct result of bodily injury effected solely through external, violent and accidental means, independently and exclusively of all other causes . . .;provided that the Double Indemnity shall not be payable if deathresulted directly or indirectly from . . . [mentioning such acts as self-destruction, taking poison, etc.] from military or naval service in time of war, or from any act incident to war; . . . orfrom operating or riding in any kind of aircraft, whether as apassenger or otherwise, except as a fare-paying passenger in a licensed passenger aircraft . . ."
Section 13. "Occupation — This policy is free from restrictionsas to occupation except the restrictions as to military or naval service applying to Double Indemnity as provided in Section 1."
Insured's application and policy were dated December 12, 1932, and December 30, 1932, respectively. The application stated and at that time insured was a "trained nurse, employed as an assistant to a physician." Sometime after the issuance of the policy insured changed her occupation to that of "`stewardess on airplanes,'" which occupation required her to ride in aircraft, and while insured in the performance of her duties as stewardess was riding in an aircraft, but not "as a fare-paying passenger," the plane crashed, resulting in the death of insured.
Reading the policy as a whole, giving effect to that portion of Section 13 reading "this policy is free from restrictions as to occupation," and considering it in connection with the sole exception expressed in said section of "the restriction as to military or naval service applying to double indemnity as provided in Section 1," there being a total absence of any restriction with respect to occupation which required persons engaged therein "to operate or ride in any kind of aircraft;" the Court of Appeals held: ". . . the exclusion provisions of clause 1 [providing "that the double indemnity shall not be payable if death resulted directly or indirectly . . . from . . . riding in any kind of aircraft, whether as a passenger or otherwise, except as a fare-paying passenger . . ."] refer to those who operate or ride in aircraft other than those required to engage therein as a necessary part of the duties of his occupation, or, such duties as must be performed in order that the occupation itself be performed. Otherwise, the clause is a restriction, limitation or restraint as to occupation." (l.c. 507.)
Relator expressly disavows interposing any defense resting on insured's "occupation"; asserts its defense goes solely to the manner and cause of death, disregarding entirely insured's occupation, and *280 that since insured's death resulted directly or indirectly from riding in an airplane while not a fare-paying passenger, the beneficiary may not recover under the expressed double indemnity provisions of the policy.
Speaking to the quoted policy provisions the Court of Appeals, l.c. 507(1), states: "But we are of opinion that there is no ambiguity."
The opinion, l.c. 508, continues: "Under the terms of the policy if the insured had been a lawyer, doctor or merchant and were fortunate enough to have a free pass and if he were killed while riding in an airplane, not being a fare-paying passenger, etc., although it were customary for the lawyer, doctor or merchant, in connection with his profession or business to travel by airplane, no doubt there could be no recovery." We add: so, too, as respects a "trained nurse, employed as an assistant to a physician." And, after citing and quoting from the Dailey case, ubi infra, continues: "So, in the case at bar, defendant agreed: `This policy is free from any restrictions as to occupation' and, in effect, agreed that insured was privileged to enter the occupation of airplane stewardess without affecting the accident provisions of the policy . . ."; but held, since insured thereafter became an airplane stewardess and was required to ride in airplanes, "the restriction contained in clause 1, relating to riding in any kind of aircraft, cannot be relied upon by defendant." We are unable to perceive how said accident provisions remained unaffected if insured had met her death from riding in an airplane when not a "fare-paying passenger" while "a trained nurse, employed as an assistant to a physician," her beneficiary could not but after insured became a "stewardess on airplanes" could recover under said provisions.
Dailey v. Preferred Masonic Mut. Acc. Assn.,
Respondents' brief cites Brown v. Railway Passenger Assurance Co. (Banc),
Some authorities citing the Dailey and Brown cases have expanded their rulings. *282
[1] We are concerned with a conflict in rulings. Respondents, asserting the ruling is correct, contend that the precise issue presented has never been passed on here and error, if any, may not be reached on certiorari. We have said, on certiorari reviewing rulings of the Courts of Appeals: "The plain language of this policy and slip is without ambiguity, and there is no room for construction. In construing it contrary to that meaning, the Court of Appeals brought its decision into conflict with decisions of this court. Unequivocal language is to be given its plain meaning, though found in an insurance contract." [State ex rel. v. Trimble (Banc),
Prange v. International Life Ins. Co.,
Wendorf v. Missouri State Life Ins. Co.,
The Wendorf case, supra, was an action under an accident policy for death benefits, and the issue respecting liability turned on a clause *283
reading: "The insurance hereunder shall not cover injuries fatal or nonfatal . . . sustained by the insured . . . while in or on any vehicle or mechanical device for aerial navagation, or in falling therefrom or therewith or while operating or handling any such vehicle or device." That case held said clause ". . . not a forfeiture provision. . . . The clause rather states an excepted risk." 318 Mo. l.c. 370, 1 S.W.2d l.c. 102(6). And: "Obviously, the general purpose of the clause was to exempt the insurer from liability for accidents occurring in aeronautics because of the extraordinary hazards incident thereto. . . ." Ibid, 371(II) and 102(8). Consult Greenleaf v. St. Louis Ins. Co.,
In State ex rel. Mutual Benefit H. A. Assn. v. Trimble,
[2] The language here is: "riding in any kind of aircraft, whether as a passenger or otherwise, except as a fare-paying passenger in. . . ." If, as held in the Wendorf case, "while in or on any vehicle . . . for aerial navagation" states an excepted risk, "riding in any kind of aircraft" also states an excepted risk; a certain act or event which suspends liability for double indemnity. The phrase "whether as a passenger or otherwise" is unlimited in scope; but this broad exemption from liability is itself immediately restricted to permit coverage of "a fare-paying passenger." Considering the proviso as a whole and the language directly involved, the noncoverage of persons riding in aircraft while not fare-paying passengers is twice manifested — first, by explicit exclusion and, second, by implication through omission to include them in the expressed restriction to the exclusion clause. Insured was not a fare-paying passenger and her death was the result of an act or event which, during its pendency, suspended liability for double indemnity under the stated facts without regard to her occupation.
It follows that the opinion of the Court of Appeals and the record made pursuant thereto should be quashed. It is so ordered.Cooley and Westhues, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur. *284