Columbia Paper Stock Co. v. Fidelity & Casualty Co.

78 S.W. 320, 104 Mo. App. 157, 1904 Mo. App. LEXIS 465

• Court: Missouri Court of Appeals
• Decided: January 19, 1904
• Status: Published

Opinion

REYBURN, J.

(after stating the facts as above).— 1. The assignments of error presented by appellant are subdivided but the argument on its behalf may be reduced to two principal contentions. The first of the general agreements, as they are termed in the policy, stipulated that the assured upon the occurrence of an accident should give immediate notice thereof with the fullest information obtainable at the time, to the home office of appellant at New York, or its duly authorized agent, etc. It appeared in evidence that the chief office of respondent was in the city of St. Louis, with a subordinate office at Kansas City, where the event occurred, in charge of a general or assistant general manager, neither of whom knew of the illness of Anna Nickel until suit against respondent was -brought by her May 31, 1900, in the Kansas City circuit court, which thereupon, without delay, notified appellant of the claim and action. It further appeared that Anna Nickel was sufferring from acute kidney disease or dropsy occasioned by the absorption of virus in handling infected rags or poisonous wall paper, the first stage of which on April 14,1900, developed in an attack of vomiting, in presence of the assistant forewoman of respondent, under whom Anna Nickel worked; at this the commencement of her illness the latter abandoned her employment and on April 24th, ensuing, this forewoman learned of the continued illness, and that the sufferer claimed her sickness ha.d been produced by handling infected paper and rags at respondent’s place of business. The duties of this forewoman were to direct employees where and how to work, but without power in her to engage or discharge them. The general manager and his assistant had general charge and superintendence of the business of respondent at Kansas City and alone were authorized to employ or discharge subordinates. Under this state of facts appellant insists that respondent failed to comply with the provision of the policy respecting notice. The demand of such notice under the qualifications presently defined, is reasonable and it is material and important to the insurer; the purpose manifestly is to advise appellant promptly of the existence of any claim, putting it upon inquiry, and so afford it full opportunity to investigate the facts attending the occurrence and to enable it to adjust and pay the loss or prepare to resist it, as it may conclude just or expedient.

It may be conceded, as asserted by appellant, that in construing and giving effect to this and similarly worded provisions of like contracts, it has been declared by authority entitled to respect and consideration, that the giving of notice, alike when the accident occurred, and when the claim therefor was made, constituted a condition precedent, which the employer was bound to perform in order to maintain an action on the policy, even in the absence of a forfeiture clause therein, as in the case of Underwood Veneer Co. v. London etc. Co., 100 Wis. 378, where it was further held, after announcement of above principle, that a notice of claim for damages after claim for damages had been made, and first advanced nine months after the accident did not satisfy the requirement that immediate notice should be given of the occurrence of the accident, but the doctrine of this line of decisions is opposed to the weight of authority, and the sounder opposing conclusions reached in other states as well as in this State. As indicated by an eminent commentator on the law of insurance, to give the word “immediate” in such contracts a literal significance in most cases would deprive the insured of indemnity, and policies of insurance would be converted into instruments of fraud. May, Insurance, vol. 2, (4 Ed.), sec. 462.

In McFarland v. Accident Assn., 124 Mo. 218, the legal translation of the word “immediate” as applied to notice was directly considered and it was held that this term could not be construed literally, without, in many cases, causing a forfeiture and that it was frequently impossible under the circumstances of the aceident to give immediate notice, and that this and similar words should be construed to mean within a reasonable time. The decision continued: “So though the time in which the notice shall'be given is fixed under the contract, if the circumstances of the accident are such as to make it impossible to comply with the condition, giving the notice within a reasonable time after it becomes possible, has been held sufficient.” This language is adopted as expressive of the true rule in the well considered case of Woodmen etc. Assn. v. Byers, 62 Neb. 673.

Provisions of this description also affecting the action of the assured, subsequent to the event, the subject of indemnity and consequently after the loss, if any, has ensued, and the liability measurably attached, have received in this State a construction of the utmost liberality toward the beneficiary to obviate a forfeiture. Our conclusion, therefore, is that if no time is specified, or notice is required to be given immediately, notice given with diligence and in a reasonable time, due regard being had to the attending circumstances, is á legal compliance with such condition. McFarland v. Accident, etc., Assn., supra; Mandell v. Casualty Co., 170 Mass. 173; Dezell v. Casualty Co., 75 S. W. 1102; Hoffman v. Accident Co., 56 Mo. App. 301; Anoka, etc., Co. v. Casualty Co., 30 L. R. A. 689; Trippe v. Provident, etc., Society, 140 N. Y. 23. Nor can the knowledge of the assistant forewoman of respondent of the original attack of sickness of the sufférer, its continuance, and its assigned cause be imputed to respondent. Respondent as employer and principal would not be charged with any knowledge of or notice to its forewoman, unless such knowledge or notice was in respect to a matter within the scope of her duties in respondent’s employ. It is obvious that so ordinary an occurrence as the illness and consequent absence of an employee imported no claim or liability under the policy, and it is equally apparent that the knowledge of the forewoman was not derived as the result or consequence of any notice sought to be given her by virtue of her service in respondent’s employ or as its representative. Knowledge of those in the control and the conduct and superintendence of respondent’s business at its premises at Kansas City, its general manager and assistant manager, if they had possessed the knowledge of the forewoman, especially that upon the continuation of her illness, Anna Nickel had claimed that her sickness was attributable to handling infected rags and poisonous paper in respondent’s employ, might have been asserted to have been the knowledge of the respondent, but not such knowledge on the part of an assistant forewoman, an employee of power and authority proven to have been so limited. A corporate principal is affected with notice to its agents to the same extent and in the same manner as an individual, and can only be charged with notice of those facts in the knowledge of its agents, within the scope of the business entrusted to them. Donaham v. Hahn, 127 Mo. 439; Hickman v. Green, 123 Mo. 165.

2. Appellant further puts forward the contention that a disease produced by a known cause can not be accidental, and, therefore, such a disease as acute kidney disease or dropsy produced by the absorption of poison, consequent on handling infected paper or rags in the course of employment, is not covered by the policy and the legal question is thus sharply presented whether the injuries consequent on such illness resulted from a cause against which the insurance was issued. In the construction of such contracts it is well established, that not only should they be given a fair and reasonable construction so as to give effect to the objects intended by the parties thereto, but any obscurity in the language employed in the contract is to be resolved against the insurer and to receive a broad and liberal interpretation in favor of the assured. Again borrowing from the eminent authority on the law of insurance above referred to; “No rule, in the interpretation of a policy, is more fully established, or more imperative and controlling, than that which declares that in all cases, it must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to- the indemnity, which in making the insurance, it was his object to secure. When the words are without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted. May, Insurance, vol. 1 (4 Ed.), sec. 174-5. This doctrine has obtained recognition and application in the recent decision by the Supreme Court of Missouri already adverted to-, Dezell v. Casualty Co., supra, wherein it was in substance held that a policy insuring against bodily injuries sustained through external, violent and accidental means, but in terms not covering injuries fatal or otherwise, resulting from poison or anything accidentally taken, administered, absorbed or inhaled, did not bar recovery from unintentional death resulting from medicine, though containing poison administered, bona fide, to alleviate physical suffering. The rule of construction that an uncertainty respecting the meaning of terms of an insurance contract must be determined in favor of that interpretation favoring the assured, even though otherwise intended by the insurer, has received the sanction of this court. Hoffman v. Accident Co., supra; Hale v. Ins. Co., 46 Mo. App. 509; Laforce v. Ins. Co., 43 Mo. App. 530. See also American Surety Co. v. Pauley, 170 U. S. 133; Trippe v. Provident, etc., Soc., supra.

As further illustrative of the tendency of the courts, especially in this State, toward the direction suggested, in rendering and giving effect to the language adopted in contracts of indemnity against death or injury by causes asserted as accidental, in Lovelace v. Travellers Protective Assn., 126 Mo. 104, the Supreme Court in defining the term accident, after a lengthy revision of the various definitions offered by authoritative lexicographers and accepted hy appellate courts, held that death, resulting from an affray provoked by the deceased in an effort to eject an intruder from a hotel office, was death by accident within the language of the mortuary certificate involved. An extensive array of decisions in England, as well as in America, submitted by respondent tend to negative the proposition laboriously sought to be sustained by appellant, that a disease superinduced by a recognized cause is not to be considered accidental.

In Isitt v. The Railway Passengers Assurance Company, 22 Queen’s Bench Division 504, the court held that where pneumonia supervened with fatal effect, as result of a cold, where deceased had fallen and dislocated his shoulder and his catching cold and its fatal results were attributable to the condition of health to which he had been reduced by the accident, the death of the assured was due to the effects of the injury caused by accident within the meaning of the policy.

In Travellers Ins. Co. v. Melick, 65 Fed. Rep. 178, the Federal Circuit Court of Appeals, Eighth Circuit, decided that where the insured accidentally inflicted a gun shot wound on himself which produced lockjaw, and eighteen days thereafter he was found with his throat cut and a scalpel in hand, having also been in the throes of tetanic spasms causing intense agony, the question of the proximate cause of his death was for the jury although the language of the policy insured against death, that should result from bodily injuries effected through external, violent and accidental means, alone, independent of all other causes and should not cover death by suicide, sane or insane.

In Peck v. Equitable, etc., Assn., 52 Hun (59 N. Y.) 255, the Supreme Court of New York held that death from embolism or thrombus, which evidence in the case inclined to prove as resulting from a broken arm, was within the terms of a policy covering injuries effected through external, violent and accidental means.

In Freeman v. Mercantile, etc., Assn., 156 Mass. 351, the Supreme Judicial Court of Massachusetts adjudged that peritonitis ensuing fatally from a fall, was embraced in the scope of a policy against bodily injuries effected through external, violent and accidental means, and that the ruling establishing such a significance was in accordance with the apparent purpose and intention of the parties, and made the contract a beneficent provision for the beneficiaries therein named.

In McCarthy v. Travellers, etc., Co., 8 Bissell 362, the United States Circuit. Court, Eastern Division of Wisconsin, held that death from rupture of a blood vessel sustained while exercising when the lungs of the deceased were in weak and diseased condition, warranted recovery under a policy restricted to injuries through external, violent or accidental means, and not extending to any bodily injury of which there should be no external or visible sign, nor to any injury happening directly or indirectly in consequence of disease.

In U. S., etc., Assn. v. Barry, 131 U. S. 100, the Federal Supreme Court decided that death from inflammation or stricture of the duodenum, resultant from a jump or downward step might properly be an accident effected through external violence and accidental means, although the benefits of the insurance should not extend to any injury of which there was no external and visible sign, nor to any injury happening directly or indirectly in consequence of disease.

In Young v. Accident, etc., Co., 6 Montreal Law Rep. 3, the Superior Court of Montreal declared that death from erysipelas consequent on a fall and bruising of right leg of assured was embraced within the language of a policy indemnifying against bodily injuries effected through external, accidental and violent means.

In Martin v. Travellers, etc., Co., 1 Foster & F. 505, the policy protected against any bodily injury resulting from any accident or violence, provided that the injury should be occasioned by any external or material cause operating on the person of the insured and a recovery was sustained where in lifting a heavy burden, the spine was injured.

In North America, etc., Co. v. Burroughs, 69 Pa. St. 43, the policy insured against death in consequence •of an accident in case death was caused solely by an accidental injury and the court held that an accidental strain terminating fatally was within the meaning of the policy.

Finally in the case of Fetter v. Fidelity, etc., Co., 174 Mo. 256, the Supreme Court of this State has declared that where the deceased, in a policy to compensate for death, independent of all other causes, by •accidental means in attempting to close a widow fell against a chair, causing a rupture of a kidney, from which rupture ensued a hemorrhage causing death, it was properly for the jury to decide whether the cancerous condition resulted from the rupture or whether the rupture would not have occurred had there not been •a weakened cancerous condition pre-existing.

Appellant has invoked and appealed to several cases as upholding the doctrine contended for, that a •disease produced by a known cause can not be a bodily injury accidentally suffered and therefore in conflict with the' foregoing authorities.

In the case of Bacon v. U. S., etc., Assn., 123 N. Y. 304, the Court of Appeals of New York, two of the judges dissenting, held that the deceased did not die from any accident within the range of the policy, but came to his death by disease within the provision of immunity of the contract from death caused wholly or in part by bodily infirmities or disease existing prior or subsequent to date of mortuary benefit certificate, when it was conceded the assured died from a malignant pustule produced by contact with putrid animal matter, •and which was denominated by the deciding judge as plainly a disease as smallpox or typhoid fever; and the policy in this case is distinguishable from the case before ns as excepting liability from any bodily injury happening directly or indirectly in consequence of disease or death, caused by disease.

In Dozier v. Fidelity, etc., Co., 46 Fed. Rep. 446, the United States Circuit Court of the Western Division of Missouri, after assenting to the proposition that a disease produced by a known cause could not be considered as accidental, merely decided that sun prostration, i. e. commonly called sun-stroke, incurred by decedent in the current course of his business, was not embraced in bounds of a contract of assurance against, bodily injuries sustained through external, violent and accidental means and excluding any disease or bodily infirmity.

In Sinclair v. Maritime, etc., Co., 3 Ellis & Ellis 478, the Court of Queen’s Bench merely held that the term accident necessarily involved some violence, casualty or vis major, and that death from sun-stroke must be considered to have arisen from a natural cause and not from accident happening to deceased upon any ocean, sea, river, or lake within the legal meaning of the policy.

In Southard v. Railways, etc., Co., 34 Conn. 574, it was held under a policy against death by violent and accidental means, that a death though violent must be accidental as well, and the contract in terms embraced only cases where the elements of force and accident concurred in effecting the injury and that Jin jury to an insured injured internally by jumping from a railroad and running a considerable distance was not caused by accidental means.

In Feder v. Iowa, etc., Assn., 107 Iowa 538, the death of an insured was considered not accidental by the Supreme Court, consequent on rupture of an artery in reaching to close a window.

In so far as these latter cases are opposed to the rulings hereinbefore relied on, we must dissent from such conclusions and adhere to what we deem the sounder reasoning and weight of authority.

If, for example, in lieu of producing the more gradual and protracted infirmities of acute kidney disease or dropsical affection, the infected material submitted to defendant’s workwoman had emitted poisonous gases or fumes producing her instantaneous death, or resulting in immediate and violent convulsions, under numberless authorities the occurrence would, in legal contemplation and within the interpretation of policies insuring against accidents, be confidently pronounced accidental, yet such consequences would be disease produced by known causes.

In conclusion after full consideration, upon a fair and legal construction of the terms of this policy, which were for indemnity against loss from common law or statutory liability for damages on account of bodily injuries, fatal or non-fatal, accidentally suffered, the injury sustained by respondent’s employee upon its premises in handling the infected rags and wall paper fell fairly within the true meaning and intent; the judgment below was rendered for the right party and is affirmed.

Bland, P. J., and Goode, J., concur.