Dunn v. Standard Life & Accident Insurance

REYNOLDS, P. J. (after stating the facts). — We do not think plaintiff made ont a case entitling her to go to the jury. A consideration of the policy here sued on satisfies ns that the defendant company, the insurer, is liable only in case of the death of the insured, when that death is the result of bodily injuries sustained “directly and independently of all other causes through external, accidental and violent means,” or from the causes set out in the tenth clause of the policy, which we have given in substance. Of these latter it is to be said that they also cover death from external, accidental means or causes. We do not think, construing the policy as a whole, that it promises to pay any sum when death results solely from disease. The policy provides that if the insured shall suffer from certain diseases named, among others angina pectoris, “and such disease or illness shall wholly and entirely disable and prevent the insured from performing any and all of the business of his occupation, the company will pay to him the weekly indemnity herein provided for the period of such disability during which he shall necessarily be confined to the house, for a period of not less than' seven days.” It also covers indemnity for certain specified injuries. The only provisions for payment of any amount in case of death are, first: when death is the result of external, accidental and violent means; and, second, in line with the idea of death by accident, “if sunstroke, freezing or hydrophobia accidentally suffered by the insured, or the involuntary and unconscious inhalation of gas or other poisonous vapor shall result directly, independently and exclusively of all other causes, in the death of the insured within ninety days from date of exposure or infection.” In that event “the company will pay the beneficiary hereinafter named the principal sum of this policy,” that is, $5000. There is no proof in the case that the death' here was the result of any of these causes, or of any external, accidental or' violent means. [470] In point of fact, while the petition states that the insured died from, angina pectoris, the agreed statement of facts upon which the cause was submitted to the jury is silent as to the' cause of death, nor was that shown by any extrinsic evidence, although plaintiff alleged in her petition that the insured died of angina pectoris. It was for the plaintiff to prove that the insured came to his death as a result of “bodily injuries effected directly and independently of all other causes, through external, accidental and violent means,” or from a cause specifically provided for by the tenth clause, and it is only when this occurs that the principal sum becomes payable. Our court in Goodes v. Order of United Commercial Travelers, 174 Mo. App. 330, loc. cit. 346, 156 S. W. 995, and in Wright v. Order of United Commercial Travelers, 188 Mo. App. 457, 174 S. W. 833, held that the burden was upon the party claiming under the terms of an insurance policy to show that the death1 resulted from causes within the terms of the policy. So the Supreme Court of the United States held in Travelers’ Insurance Co. v. McConkey, 127 U. S. 661, 8 Sup. Ct. 1360, 32 L. Ed. 308. That is the universally recognized rule where it is sought to enforce an obligation under accident insurance policies. Very clearly plaintiff has not sustained this burden. Is this policy or contract of insurance ambiguous? The learned trial court, in the instruction which it gave to the jury at the instance of plaintiff, told the jury: “That the plaintiff contends that under the proper construction and meaning qf the policy sued on, the defendant became liable thereunder for the death of the insured, . . . however caused, whereas the defendant contends that under the proper construction of the policy the defendant became liable for the death of . . . the insured, only in the event that such death was .caused through external, violent and accidental means.” With' this premise, this instruction proceeds: [471] “The court further instructs you that the contract as drawn is ambiguous as to what .was meant in this respect, and therefore it becomes a question of fact for the jury to determine what was meant and understood by the parties to the contract or policy.” The court then submitted to the jury the determination of what was meant by the policy, and told the jury that if it found that the parties to the contract meant that the policy should cover death however caused, plaintiff is entitled to recover, but if it found and believed that by the policy the parties intended that the policy should cover death caused only by external, violent and accidental means, the verdict should be for defendant. This instruction was error. In the first place, we do not think that there is any ambiguity in the policy in the respect referred to by the learned trial judge; on the contrary, we think it clearly and unmistakably provides for payment of the principal amount only on the contingency of death from “bodily injuries, effected directly and independently of all other causes, through external, accidental and violent means; ’ ’ or when death results from “sunstroke,, freezing or hydrophobia accidentally suffered by the insured, or the involuntary and unconscious inhalation of gas or other poisonous vapor.” We therefore hiold that under this policy defendant is not liable, as it does not appear that the death occurred through any such causes. It is true that defendant is liable for the payment of a weekly indemnity for loss of time consequent on sickness or disability from injuries for a period of not exceeding two hundred consecutive weeks, but no claim for this is before us. We are not unmindful of the rule that if there is an ambiguity, the insured is entitled to a construction of the policy which is most favorable to her.» But where the language used, looking at the whole policy and construing it in accordance with its. evident purpose, is unambiguous, there is no room for the application of this rule. [Smith et al. v. Phœnix & Continental Insurance [472] Companies, 181 Mo. App. 455, loc. cit. 458, 168 S. W. 831.] This instruction is further erroneous in that it tells the jury that if the parties to the policy “understood, meant and intended that the policy should cover death, however caused, then the plaintiff is entitled to recover.” There is not a word of extrinsic evidence to show what the parties intended; much less is there any evidence that defendant so intended, and we hold that the policy itself does not show any such intent. Construing the policy with the articles of association and the certificate of authority from the superintendent of insurance, authorizing defendant to do business in this state, it is impossible to hold that the defendant company ■ was authorized to do a general life insurance business, or that it attempted to do that. By those articles and by the license or certificate the defendant is authorized to do only accident insurance and provide for weekly indemnity for sickness or for temporary disability not resulting in death, and it is clear that by its policy here involved it did not undertake to do more than this. It is argued by,the learned counsel for respondent that the case was tried on the part of appellant on the theory that there were ambiguities in the contract. In support of this it is urged that appellant had itself introduced its charter and amendments and the certificate of authority to do business in this State, and the fact that a person of the age of the insured, if taking out an ordinary life policy, would have been required to pay a much larger premium. We do not understand that these matters were introduced in any sense as explaining ambiguities. They were introduced for the purpose of showing the power and authority of the corporation under its charter and under the certificate of authority to do business in this State and in further proof of the claim that this was not a life insurance policy. The evidence was admissible for these purposes. [473] The instruction -which' the learned trial court gave was error: the demurrer interposed by defendant to the evidence should have been sustained. The judgment of the circuit court is reversed.- Allen and Becker, jj., concur.