Summary
In State ex rel. Prudential Insurance Company v. Shain, 344 Mo. 623, 127 S.W.2d 675, 676, 677, the court said: "* * * in determining whether the language of a policy [of insurance] is ambiguous, since we have not previously considered the same or similar language, we may look to the decisions of other states."
Summary of this case from Kansas City Life Ins. Co. v. WellsOpinion
NOTE: Opinion filed at September Term, 1938, April 4, 1939; motion for rehearing filed; motion overruled at May Term, 1939, May 2, 1939.
1. CERTIORARI: Conflict. On certiorari to the Court of Appeals whether the decision of that court is correct on the merits is no proper concern of the Supreme Court.
Where the Supreme Court has not previously considered the language of the insurance policy under consideration, the sole issue is whether, in construing the policy, the opinion of the Court of Appeals conflicts with controlling decisions of the Supreme Court which hold that unambiguous language in a policy is not open to construction, but must be given its plain meaning and enforced as written.
2. INSURANCE: Ambiguous Policy. In deciding whether the language of an insurance policy is open to construction, as held by the Court of Appeals, the Supreme Court must determine whether the language of the policy is ambiguous.
Where there was no ambiguity, there was no room for construction.
Where the Supreme Court has not previously considered the same or similar language in a policy, it may look to the decisions of other states.
3. INSURANCE: Accidents. In deciding if the double indemnity provision of an insurance policy that accidental death benefit shall be payable upon receipt of proof that death of the insured occurred, "as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which . . . there is a visible contusion or wound on the exterior of the body, . . . provided that no accidental death benefit shall be payable if the death resulted . . . directly or indirectly from . . . disease in any form," the Court of Appeals had two questions to determine: Was the death of the injured from typhoid fever contracted from drinking water, which contained, without his knowledge, typhoid germs, the result, directly or indirectly of all other causes, of bodily injuries effected solely through external, violent and accidental means of which there was a visible contusion or wound upon the exterior of the body?
Where the insured, in suffering typhoid fever, had a swollen mouth and tongue and cracked and blackened lips, under those conditions the Supreme Court will not consider that question because on certiorari it will not substitute its judgment for that of respondent.
The second question to be decided by the Court of Appeals was: Does death from typhoid fever result directly or indirectly from disease in any form from which the policy excluded liability? If the provision was ambiguous in that respect the Court of Appeals had a right to construe it.
But where it was admitted that typhoid fever came from drinking water, and could not be contracted through a bruise or wound, a holding by the Court of Appeals that death from typhoid was due to an accidental injury was contrary to the exclusion clause in the policy, viewed in the light of common understanding as revealed in the common speech of men, and was contrary to the holding of the Supreme Court that the language of the policy must be given its plain and unambiguous meaning and is not open to construction.
OPINION QUASHED.
William C. Michaels, Kenneth E. Midgley, Boyle G. Clark, and Paul M. Peterson for relator; Ralph W. Hyatt, Michaels, Blackmar, Newkirk, Eager Swanson and Clark, Boggs, Peterson Becker, of counsel.
(1) The opinion of the Kansas City Court of Appeals should be quashed because it is directly in conflict with controlling decisions of this court in that it fails to enforce the contract as written by the parties, it fails to give common words their usual, natural and customary meaning, it enlarges under the guise of construction an unambiguous contract, and it substitutes new and different words for those used by the contracting parties. And hereunder: (a) Plain and unambiguous contracts, where the intention is clear, must be enforced as written. Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99. (b) Where a Court of Appeals gives such a contract a meaning not embraced within its terms, its opinion conflicts with such decisions. State ex rel. Life Ins. Co. v. Trimble, 306 Mo. 309, 267 S.W. 876; State ex rel. Mut. Benefit v. Trimble, 334 Mo. 920, 68 S.W.2d 685; State ex rel. Casualty Co. v. Cox, 322 Mo. 38, 14 S.W.2d 600. (c) Though facts are not identical, conflict exists if the contract as a matter of law requires the application of such rule. State ex rel. Kansas City So. Ry. Co. v. Shain, 105 S.W.2d 915. (d) On certiorari this court determines for itself whether the contract is unambiguous, in order to determine whether such conflict exists. State ex rel. Met. Life Ins. Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469; State ex rel. Ocean Acc. Guar., Corp., 108 S.W.2d 17. (e) Although the contract here plainly and clearly excludes liability, the opinion affixed liability by erroneously holding, contrary to the above decisions: That death resulting from typhoid fever is "death . . . as a result directly and independently of all other causes of bodily injuries, effected solely through external, violent and accidental means, of which . . . there is a visible contusion or wound on the exterior of the body." That the policy so providing is "insurance against accident" rather than insurance against death resulting solely from bodily injuries caused in a particular manner and excluding death resulting from disease. That diseases and diseased conditions and the symptoms thereof are "bodily injuries" caused solely by external, violent and accidental means. That death resulting from typhoid fever is not death resulting "directly or indirectly from disease in any form." (f) The words "bodily injuries" do not mean diseases and diseased conditions, and the opinion should be quashed for holding to the contrary, in conflict with the following decisions: Price v. Met. St. Ry. Co., 220 Mo. 435, 119 S.W. 932; Hall v. Coal Coke Co., 260 Mo. 351, 168 S.W. 927. (g) A contract cannot be "construed" by substituting words for words used, then construing the substituted words, and the opinion should be quashed from "construing" the contract in that manner contrary to the following decision. The opinion substitutes for the words "confusion or wound," the words "any lesion," then so construes the substituted words as to impose liability and permit recovery. Martin v. Travelers' Ins. Co., 310 Mo. 411, 276 S.W. 380. (h) "Death from accident" and "death from bodily injuries caused by accidental means" are not synonymous, and the opinion should be quashed because it construed those phrases as if they were synonymous. Caldwell v. Travelers' Ins. Co., 305 Mo. 619, 267 S.W. 907.
John J. Cosgrove and Carl L. Anderson for respondents.
(1) No case similar in fact or with like policy provisions has been decided by this court contrary to respondents' opinion. Therefore, unless the terms of the contract are so plain and unambiguous as to leave no room for doubt or uncertainty as to its meaning, there is no conflict with the decisions cited by petitioner. State ex rel. v. Allen, 85 S.W.2d 469; State ex rel. v. Hostetter, 108 S.W.2d 17. (2) The various terms of the exclusion clause are so general as to leave room for doubt and uncertainty as to their meaning. This is established by the necessity for construction of like terms and phrases by other decisions, as follows: Soukop v. Employer's Liability Co., 108 S.W.2d 86; State ex rel. v. Hostetter, 108 S.W.2d 17; Cameron v. Ins. Co., 275 S.W. 988; Hood v. Maryland Cas. Co., 92 N.E. 329; Aetna Life Ins. Co. v. Portland Gas Co., 229 F. 552; Vennen v. Lumber Co., 154 N.W. 640; Lewis v. Ocean Ins. Co., 120 N.E. 56; O'Connor v. Ins. Co., 232 S.W. 218, 208 Mo. App. 46; Buel v. Kansas City Life Ins. Co., 250 P. 635; Moore v. Fed. Cas. Co., 265 P. 207; Christ v. Pac. Mutual, 144 N.E. 161, 312 Ill. 525; Peoples v. Durand, 139 N.E. 78; Thompson v. Loyal Protective Assn., 132 N.W. 554; Robinson v. Masonic Protective Assn., 88 A. 531; Mutual Life Ins. Co. v. Schenkat, 62 F.2d 236. (a) There being no decision of this court construing these terms contrary to the construction made by respondents there can be no conflict. Because of the necessity for construction as shown by the foregoing authorities respondents' opinion does not conflict with the decisions cited in petitioner's brief. (3) The disease of which assured died having resulted from prior "bodily injuries" accidentally sustained the exclusion clause in the policy as to disease does not apply. Bellows v. Travelers' Ins., 203 S.W. 978; Anderson v. Mut. Ins. Co., 231 S.W. 35; Wheeler v. Fidelity Ins. Co., 298 Mo. 619; Beckerleg v. Ins. Co., 74 S.W. 917. (4) There can be no conflict with obiter. State ex rel. v. Higbee, 43 S.W.2d 825; Kennark v. Smith, 41 S.W.2d 381.
This is an original proceeding in certiorari to review for conflict the respondents' decision in the case of Mary Gasperino, Appellant, v. The Prudential Insurance Company of America, a Corporation, Respondent, 107 S.W.2d 819.
The plaintiff is the beneficiary in an insurance policy which contains a provision for "double indemnity" in case the insured's death was the result of an accident. The insured died of typhoid fever. Plaintiff has sued for the additional indemnity claiming the death was the result of accidental means and therefore covered by the policy. The facts are undisputed and judgment on the pleadings was rendered for the defendant. On appeal, the Kansas City Court of Appeals reversed the judgment of the trial court.
During the hot weather in July the insured found the tap water, which was piped to his home from the city waterworks in Lexington, warm and unpalatable so he drank the cool and refreshing water from an old, unused well in his backyard. Unknown to him there were typhoid germs in the well water. He soon took to his bed with typhoid fever. He suffered the usual effects of the disease such as diarrhea, passing blood, swollen mouth, lips and tongue, cracked and blackened lips, swelling in his abdomen and finally delirium. He died. The parties admit that he died solely of typhoid fever and that it is a specific, infectious disease and cannot be contracted through a bruise or wound, but can only be contracted by being taken into the alimentary canal with food or drink containing typhoid germs.
Plaintiff claims under the following provisions of the policy:
"The amount of Accidental Death Benefit specified . . . shall be payable . . . immediately upon receipt of due proof that the death of the Insured occurred . . . as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which . . . there is a visible contusion or wound on the exterior of the body, . . . provided, however, that no Accidental Death Benefit shall be payable if the death of the Insured resulted . . . directly or indirectly from . . . disease in any form."
In sustaining her claim under such provisions the respondents held that the taking of the germs was accidental, the germs were an external means producing violent injury resulting in death; the cracked lips constituted the visible contusion or wound on the exterior of the body; and that the provision excluding death from disease must be construed not to apply in this case because the disease followed or was incidental to accidental bodily injuries caused by the germs. Relator contends in so construing the policy the respondents gave to plain and unambiguous language an unusual and unnatural meaning.
On certiorari the question whether the decision of the Court of Appeals is correct on the merits is, of course, no proper concern of this Court. This Court has not previously considered the particular question decided by respondents. Therefore, the sole issue in this proceeding is whether, in construing the language of the policy, the Court of Appeals' opinion conflicts with the controlling decisions of this Court which hold that unambiguous language in an insurance policy is not open to construction, but must be given its plain meaning and be enforced as written. [2] In deciding this issue we have the right to, and we must, determine whether the language of the policy is ambiguous. [State ex rel. Metropolitan Life Insurance Co. v. Allen, 337 Mo. 525, 85 S.W.2d 469.] Where there is no ambiguity, there is no room for construction. Unequivocal language is to be given its plain meaning though found in an insurance contract. [State ex rel. New York Life Insurance Co. v. Trimble, 306 Mo. 295, 267 S.W. 876.] This is so even when considering a restrictive provision of a policy. [Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99.] Needless to say, we are confined to our own decisions in reviewing for conflict, but in determining whether the language of a policy is ambiguous, since we have not previously considered the same or similar language, we may look to the decisions of other states. This is for the reason that the rule is settled throughout the nation as well as in this State that the terms of a contract of insurance, like other contracts, ought to be taken, understood and given effect in their plain, ordinary and popular sense.
In deciding if the "double indemnity" provision of the policy covered this case, the respondents had two questions to determine. The first: Was the death of the insured from typhoid fever contracted by drinking water, which contained without his knowledge typhoid germs, the result, directly and independently of all other causes, of bodily injuries effected solely through external, violent and accidental means of which there was a visible contusion or wound on the exterior of the body? It would be impossible to reconcile all the cases which have considered whether death was the result of external, violent and accidental means. Taking each word separately, so many interpretations and so varied applications of them can be found in our various state jurisdictions and in England that one may piece together an interpretation of the whole so as to present almost any desired result. As applied to typhoid fever, where policies did not expressly exclude death from disease, we find cases holding that death from such cause was covered under a policy indemnifying for accidental death. One of them, strongly relied on by respondents, is Christ v. Pacific Mutual Life Insurance Company, 312 Ill. 525, 144 N.E. 161. Other cases have held death from typhoid to be an accident under Workmen's Compensation Acts. [John Rissman Sons v. Industrial Commission, 323 Ill. 459, 154 N.E. 203; Wasmuth-Endicott Co. v. Karst, 77 Ind. App. 279, 133 N.E. 609; Ames v. Lake Independence Lumber Company, 226 Mich. 83, 197 N.W. 499; Vennen v. New Dells Lumber Company, 161 Wis. 370, 154 N.W. 640.] Some cases have held death from typhoid or other disease to be accidental under policies whose purpose was to protect an employer from all tort liability because of accidents to his employees. [Hood Sons v. Maryland Casualty Company, 206 Mass. 223, 92 N.E. 329, 30 L.R.A. (N.S.) 1192; Aetna Life Insurance Co. v. Portland Gas Coke Co., 229 F. 552, L.R.A. 1916D, 1027.] Death caused by poison in food or drink has been widely held to be an accident. [O'Connor v. National Life Insurance Co., 208 Mo. App. 46, 232 S.W. 218; Zurich General Accident Liability Insurance Co. Ltd. of Zurich, Switzerland, v. Flicklinger, 33 F.2d 853.] Under such conditions we cannot consider this first question because in certiorari we may not substitute our judgment for that of respondents. Therefore, we expressly do not pass on the conclusion that in the ordinary sense of the words contracting an infectious disease through the normal consumption of water (or food or air) infected with bacilli which cause a disease, is the suffering of bodily injuries from accidental means.
The second question presented to the respondents was: Does death from typhoid fever result directly or indirectly from disease in any form? This question does concern us because it calls for determination whether the clause excluding death from disease is ambiguous. If it is ambiguous, then the respondents had the right which they have exercised to construe it, and under their construction to determine whether it applied to the facts in this case. Such provision has been considered chiefly in only one class of cases. Those are cases where disease followed a violent external injury to the body. They have declared the rule where death results from disease which follows as a natural, though not as a necessary, consequence of an accidental physical injury (for illustration, from blood-poisoning infecting a break in the skin), then the death is within the terms of an accident policy because the death is the proximate result of the injury, and not of the disease as an independent cause. The disease is a mere link in the chain of causation between the accident and the death. Under such conditions an exclusion clause has been construed not to apply. [See 6 Cooley Briefs on Insurance (2 Ed.), 5346; 5 Couch on Insurance, sec. 1141.] Although the case of Cameron v. Massachusetts Protective Assn., 220 Mo. App. 780, 275 S.W. 988, is within the above rule the respondents hold that the construction applied there must be applied here despite the fact that the parties admitted that the typhoid came from drinking the water and the disease cannot be contracted through a bruise or wound. The decision in the Cameron case is not at all pertinent here. The facts in that case disclose that blood-poisoning followed the lancing of a pimple on insured's arm which brought on in rapid progression pneumonia which resulted in death. The decision is founded on the holding in Cary v. Preferred Accident Insurance Co., 127 Wis. 67, 106 N.W. 1055, where blood-poisoning followed an accidental injury causing an abrasion. There it was held that the proximate cause of death was the accidental injury which produced the abrasion through which the bacteria entered, causing the blood-poisoning. The disease resulted and sprang from the injury and was not the proximate cause of the death. In this case respondents say that taking the germs caused an injury which in turn resulted in the disease, therefore death was due to injury and not to disease, so was not within the exclusion clause. Would this result be reached if the clause was viewed in the light of common understanding as revealed in the common speech of men which is the test that must be applied? We think not. Common understanding would force the conclusion that typhoid fever, the disease, was the proximate, procuring cause of death. Any bodily injuries suffered were an incident of the disease. Respondents' construction fails to give effect to the plain words of the policy which exclude death which results from disease. To uphold such a construction would decree that all death from disease would be covered by the policy because a normal person would not intentionally expose himself to the bacteria which cause disease. Therefore, contracting disease would always be accidental. There would then be no difference between an accident and a health policy. [Burns v. Employers' Liability Assurance Corporation, Ltd., 234 Ohio St. 222, 16 N.E.2d 316; Chase v. Business Men's Assurance Co. of America, 51 F.2d 34.] In the latter case the identical question under practically the same policy provisions was presented for decision. The court, denying recovery on the policy, said that the ordinary man draws a clear distinction between bodily injury and disease and that under the exclusion clause the policy did not cover death resulting from typhoid fever, which was a disease not brought about by accidental bodily injuries. The above decision appears to be the only one at this writing which is entirely in point.
In giving the exclusion clause, such a construction as to hold death from typhoid fever was without its terms, the respondents caused conflict with our decisions that unambiguous language must be given its plain meaning and enforced as written. Respondents' opinion should be quashed. It is so ordered. All concur.