GOODE, J.
(after stating the facts). — 1. The appeal in this case was allowed more than sixty days before our March term, 1904; but was not. perfected until the October term, 1904; the court below having granted until March 14th for the filing of the bill of exceptions, a day subsequent to the beginning of our March term. We therefore overruled the plaintiffs motion to dismiss the appeal and are reproached for that ruling, in the brief of his counsel, on the ground that it was inconsistent with the decisions in Kirkwood v. Cairns, 40 Mo. App. 631, and Sosman v. Conlon, 59 Mo. App. 313. It was held in those cases that the statutory regulation in regard to the term of the appellate court after judgment at which an appeal must be perfected, is mandatory, and the time allowed for filing the papers necessary to perfect the' appeal in the office of the clerk of the appellate court runs from the date of the judgment and not from the date the bill of exceptions is filed. But it was not ruled that the time prescribed for perfecting an appeal is so imperative that no obstacle to complying with it will excuse an appellant. On the contrary it was conceded there could be a valid excuse for noncompliance. In the present instance such an excuse ex[518] isted; for neither a complete transcript of the record, nor sufficient abstracts of it, could have been filed in this court fifteen days before the March term, 1904, as the bill of exceptions could not be obtained from the stenographer of the circuit court in time. The statute was construed, as the-plaintiff’s counsel say, in the cases cited. But we call attention to later decisions of the Supreme Court holding that, when time after judgment is granted for filling a bill of exceptions, the date it is filed will be treated as the date of the judgment appealed from, in determing whether or not the appellant perfected his appeal to the term of the appellate court ensuing sixty days after the appeal was taken. Cunningham v. Roush, 141 Mo. 640, 43 S. W. 161; Land & Inv. Co. v. Martin, 125 Mo. 117, 28 S. W. 434. It is our duty to conform to the Supreme Court’s interpretation of the law, instead of following the prior decisions of this court. Those Supreme Court cases have never been overruled and stand, therefore, as expounding the intention of the statute. At the October term, 1901, the Supreme Court adopted a rule that an appeal to that court must be perfected, to the extent of filing a certificate of judgment, in sixty days after it is granted, instead of sixty days after the bill of exceptions is filed. We have adopted no such rule of practice, but have followed the decisions of the Supreme Court. It is impossible in many cases, in which time after the judgment term is given for filing a bill of exceptions, for an appeal to be perfected to the term of this court coming on sixty days after the appeal is allowed. The present appeal was perfected in time according to the rule of practice we have adhered to since the Supreme Court decisions mentioned. Therefore, it would be unjust to hold this appellant is in default.
2. (a) It is asserted that the petition stated no cause of action against the Continental Casualty Company. The petition charged that the policy was issued by the Railroad Officials and Employees Association, with [519] averments regarding other matters essential to the case, and then averred that the Casualty Company, prior to the accident and for a valuable consideration, had assumed liability to the plaintiff fob the amount due by the terms of the policy and, therefore, was liable with its codefendant, the Railway Officials and Employees Accident Association. The only attack made on the petition was by objecting to the reception of evidence. Surely it stated a case good against that objection. Young v. Iron Co., 103 Mo. 324, 15 S. W. 771. The petition averred the Casualty Company had bound itself, for a consideration, to' discharge the liability of the association to plaintiff, provided plaintiff’s injury Avas covered by the policy. Hence the inaccurate expression in the instruction for the plaintiff, that, “if the Casualty Company issued the policy,” etc., was harmless.
(b) It is said the petition alleged the' Casualty Company assumed and agreed to pay any liability to plaintiff, and that this allegation remained unproved. The proof was that the Casualty Company succeeded to the liability of the Railway Officials and Employees Accident Association on the policy. The essence of the case stated is that the Casualty Company made itself ansAverable on the policy; and this was established. At most, there was a variance between the petition and the proof as to the mode in which the Casualty Company became bound; not a total failure to prove the allegation in its entire scope and meaning. No effort was made to take advantage of the variance in the statutory way; therefore, it AAms cured by verdict. Mellor v. Railroad, 105 Mo. 455, 16 S. W. 849.
(c) It is argued that the allegation of an assumption by the Casualty Company, of the obligations of the Accident Association, shoAved an agreement within the Statute of Frauds — an undertaking by a party to answer for the debts of another. The petition contains no averment that the Casualty Company’s assumption was verbal ; and if a writing was essential to the validity of the [520] assumption, it would be presumed, in support of tbe petition, to have been written. Van Idour v. Webb & Aylor, 60 Mo. App. 523. Besides, the Statute of Frauds was not pleaded as a defense. Gist v. Eubank, 29 Mo. 248.
3. The policy says all statements in tbe notice of tbe accident, or tbe proofs of loss, shall be conclusive against tbe claimant as to the truth of tbe matters stated. In bis statement concerning tbe accident, tbe plaintiff said be quit work November 15th, eight days after the accident occurred; and it is insisted that by virtue of tbe terms of tbe policy just mentioned, this answer compels tbe ruling that plaintiff was not immediately and totally disabled. Tbe answer may have been given artlessly, tbe plaintiff meaning that be laid off from bis employment as brakeman on tbe date stated. Tbe jury might well have believed that was bis meaning, as tbe facts made it probable. In tbe reports of tbe physicians who attended the plaintiff, which reports tbe defendant demanded as part of tbe proofs of loss, tbe physicians answered affirmatively tbe question propounded by tbe company, whether plaintiff’s injury immediately, continuously and totally disabled him from tbe prosecution of any and every kind of business. Tbe plaintiff, himself was not asked tbe same question, but merely when be quit work; and bis answer to tbe latter inquiry, however conclusive it may be as to tbe fact stated, cannot be stretched into an explicit denial that be was immediately and totally disabled, so binding as to preclude attention to other evidence bearing on tbe issue. Tbe answer is one circumstance to be weighed in determining when, if ever, be was wholly unable to work or do business. Such statements by the insured must be fairly treated in connection with tbe other facts; particularly tbe other facts stated in tbe proofs of loss. No strained construction ought to be adopted. Proofs of loss are exacted to enable tbe insurance company to determine whether tbe facts of an accident were such that it ought [521] to indemnify the insured. We apprehend that the purpose of binding the insured by the representations contained in the proofs, is to compel him to abide by the facts on which the company decides the question of its responsibility, so that it cannot be thrown into costs by a judgment against it given on proof of different facts. At any rate, that is one purpose and the one relevant to the point in hand. Now the plaintiff’s answer that he quit work on November 15th, could not have led the Casualty Company to believe there was no ground to claim immediate and total disability, when it had before it the statements of the physicians, given in answer to a direct question, that total disability existed from the time the injury was received. • The proofs of loss, taken as a whole, were consistent with the belief that plaintiff was immediately and totally disabled to perform work or business, and were not bo-und to- produce a belief to the contrary in the minds of the defendant’s officers.
4. We are pointed to the clause at the foot of plaintiff’s statement regarding the accident that he warranted what he said to be true and agreed to forfeit all rights under the policy if it was false. The argument is that if he was .totally disabled on November 7th, and falsely said he was able to work until the 15th, a forfeiture arose by virtue of the warranty. What is said in the preceding paragraph applies here. The plaintiff said he quit work on the 15th, the date when he ceased to- go with his train. He did not say he was able to work until then. We doubt if this warranty, given after the injury, rests on a consideraion; but if it does, its manifest purpose was to keep down fraudulent representations, designed to impose on the company and procure an unmerited indemnity. It was never intended to provide that an erroneous statement, innocently made by a claimant against his own interest, should forfeit his rights.
5. Certain facts in proof are pointed to as decisive against the averment that the plaintiff was immediately [522] and totally disabled and as demonstrating that a verdict for the defendant should have been directed. These facts are that the plaintiff accompanied his train on two runs subsequent to the accident and before going to the hospital, and that after he went to the hospital, he occasionally visited his farm, gave instructions to the man in charge and, on one occasion, lent a hand in the performance of a trivial task. The argument regarding the two train trips he took is this: The policy excludes liability on the part of the defendant if the plaintiff, after receiving' the injury, was able to perform any work, labor, business or service or any part thereof; it was part of plaintiff’s duties as brakeman to go with his train ;he went with it on two runs after the accident; therefore, he was neither immediately nor totally disabled. The first and third of the refused instructions requested by the defendant, if analyzed, will be found to rest on reasoning like the above. Looking at the question in the light of experience and from a practical point óf view, one would say the argument that the plaintiff’s disability was not total, merely because he could accompany his train, is specious. The evidence shows, without contradiction, that the plaintiff did no work on the trip and that all his duties were performed by Neal, whom he hired as a substitute. Plaintiff’s service for the railroad company during the eight days after the accident, before he formally laid off from work, was nominal. One might sit on a train if stricken with palsy, but be entirely disabled to act as brakeman. It is a fair inference from the facts that the plaintiff hesitated to request a furlough from train work until November 15th, because he was unaware of the severity of his injury and expected to be fit for duty in a few days. The wish to prove always equal to his part and fear of discommoding his employer, might, and doubtless sometimes does, influence a workman to postpone asking sick leave when he needs fit and is wholly unfit for service in any real sense. The fact that a person sticks to his post is not [523] always and necessarily conclusive that he was able for duty. In peace and war men have been known to do so when dying, and historic instances of the kind will be called to mind by the reader. No one would say that in such cases the sufferers were not totally disabled for duty, though in fact they persisted in the performance of duty.
Similar reflections are pertinent, from a practical standpoint, to the contention put forward regarding what plaintiff did at his farm while under leave of absence from railway work. He went to the farm now and then and gave instructions, as he did when in railroad service. Once when his farm hands were assorting strawberries, he sat with them at the table and assisted. These circumstances were made the basis of a request that if the jury believed plaintiff was able to perform any duties or labor on his farm during the time for which he claimed indemity, the verdict should be for defendant. At most he should be refused redress only for the time he was able to do duty on the farm, not entirely. But we apprehend that no farmer would treat seriously the assignment that such acts oh the part of plaintiff showed beyond dispute that he was not totally disabled to perform farm work.
The plaintiff, despite his injury, possibly may have been able to work as brakeman, farmer or in some other occupation, and this brings up the legal question of what is meant by immediate and total disability, and the accompanying clauses in contracts like the one before us. A lack of breadth and precision of statement is noticeable in judicial opinions treating the subject, due in a measure to the necessity of attending in each case to the particular wording of the instrument construed, but partly, we think, to not keeping in mind the essential purpose of contracts of accident insurance. 4 Joyce, Insurance, 3021. We have lingered over the present case and the authorities bearing on it, in the hope of detecting a criterion of what constitutes total disability which will [524] realize the main purpose for which the insurance agreement was made, without nullifying any of its terms or clashing with common sense. The primary object of an agreement exerts a potent infiluenee on the meaning to be attached to- its several terms, because it is presumed, unless the contrary appears, that the parties intended every term to- aid, not to frustrate,the attainment of their object. This rule is to be applied in subordination to the one that the language of a clause will not be wrested from its true meaning in order to- make it consist with other clauses. But if the language used is susceptible of an interpretation consonant to the general intention of the agreement, and a literal interpretation would defeat the intention, the former will be preferred. The first inquiry, therefore, on this branch of the case, relates to-the purpose for which the policy of insurance was taken by the plaintiff and, presumably, issued by the defendant. The- purpose was to provide indemnity for the plaintiff if he should sustain loss of time in consequence of an accidental injury — that is, be prevented by such an injury from using his time so as to derive income from it. In other words, the agreement contemplated an indemnity to the plaintiff if, by an accidental injury, his ability to earn money should be suspended. Our opinion is that the event on the occurrence of which the parties understood the right to indemnity for loss of time should accrue, was a temporary destruction of plaintiff’s power to earn money by personal exertions. Experience teaches that in most instances, the incentive influencing men to take accident insurance, is to provide means of support during periods of idleness, enforced by injury or illness, when their earnings sto-p. Therefore, generally speaking, an insured party ought to- be compensated when his income from personal exertions ceases because of the occurrence of the misfortune insured against. Accepting this as the essential intention of the agreement in hand, we will inquire if the several stipulations can be construed so as to- give effect to it. All the stipula[525] tions cannot be, if taken literally, as defendant’s counsel insist they should be. The policy reads that the plaintiff, to become entitled to indemnity for loss of time, must be disabled by external, violent and accidentia! means “from doing or performing any work, labor, business or service, or any part thereof.” Under that language, in its extreme significance, the plaintiff could obtain nothing for an injury so severe as to prevent him from following any business for which nature or experience had fitted him, if it would not hinder him in the performance of some other work or business for which he had neither aptitude nor training. Such an interpretation of the contract looks to be incompatible with its purpose to provide indemnity for loss of time. It might be contended plausibly that, as the plaintiff was insured as a brakeman and by a railway accident association, the disability stipulated related tó his duties as brakeman and was immediate and total if it prevented him from pursuing that employment. We have found cases wherein indemnity was granted the insured because he Avas accidentally disabled to follow his usual vocation, though the language of the policy did not' thus restrict the disability to be indemnified. Gordon v. Casualty Co., 71 S. W. (Tenn. Ch.) 98; Neil v. United Friends, 78 Hun 255; Pennington v. Ins. Co., 85 Iowa 469; Benevolent Association v. Nancarrow, 71 Pac. 423. On the contrary, authorities, and perhaps the most of them, hold that policies employing broad language like the one in hand, do not agree to indemnify if an injury leaves the insured fit to do anything else than his regular employment; and especially if he actually does something else. 4 Joyce, Insurance, sec. 3032; 2 Bacon, Benevolent Association (3 Ed.), sec. 395a.; Hutchinson v. Supreme Tent etc., Assu., 68 Hun 355, 22 N. Y. Sup. 801; Same Order v. King, 79 Ill. App. 145; Lyon v. Baltimore, etc., Assn., 46 Iowa 631; Railroad Co. v. Post, 122 Pa. St. 597; Albert v. Chosen Friends, 34 Fed. 721. Many policies agree to pay indemnity Avhen an accidental hurt compels [526] cessation from the regular employment of the insured; and, of course, such instruments are easier to understand than this one, which contains sweeping language regarding the disability contemplated. It should be enforced according to its meaning, fairly interpreted. But to interpret it fairly, or even rationally, some influence must be allowed, not only to the purpose for which it was written, but to the plaintiff’s qualifications for work and business, his experience, previous pursuits and natural aptitudes. It never could have been the understanding of the parties that the plaintiff should get nothing from the company, if accidentally disabled to do anything he knew how to do, because, perchance, there were occupations which he might have worked at if he had understood them. ' When the language of the policy is the broadest, it is used with reference to the lot in life of the insured, his vocation and capacity. If this truth is not recognized in enforcing these contracts, absurd results will ensue. We suppose no court would tolerate the proposition that, if the plaintiff was totally unfitted for his accustomed employment, he should be refused redress, because the injury would not have hindered him from sewing as a tailor, practicing as a lawyer or physician, serving as a bank president or dictating as an author. There are remarks in the opinion in Lyon v. Assn. 46 Iowa, 631, inconsistent with these views; but in point of fact that plaintiff was a carpenter and was able, after the accident, to do any work of his trade except roofing. Decisions cited below support what we have said. The rule observed in allowing damages for breach of a contract suggests a principle to guide in affixing a meaning to the words “total disability” in accident policies. That rule is that such damages shall be awarded as may be supposed to have been in the contemplation of both parties when they made the contract, as the probable result of a breach of it. Hadley v. Baxendale, 9 Exch. 341. The reasoning which supports that doctrine is applicable here. We may say that if the plaintiff was disabled to [527] do such work as, considering his ordinary employment, qualifications for affairs and station in life, could have been expected of him, he was totally disabled within the meaning of the policy. McMahon v. Chosen Friends, 54 Mo. App. 468; Hutchinson v. Knights Maccabees, 68 Hun. 355; Walcot v. Accident Assn., 8 N. Y. Supp. 263; Gordon v. Casalty Co., 54 S. W. 98. Those decisions maintain the theory that the capacity, experience and usual pursuits of the- insured, are to be considered in order to ascertain the degree of disability following an accidentia! injury, for which policies like the one in hand provide indemnity. The only work it is asserted the plaintiff could or ought to have done during any of the period for which he demands indemnity was as brakeman or farmer. We grant that if he was able to work as brakeman during the week subsequent to the accident, he was neither immediately nor totally disabled within the meaning of the policy. That is the only time during which it is contended he was not disabled in that capacity. Nor is he entitled to indemnity for any part of the time he was under treatment, when he was able to exert himself in his farming business so efficiently that it cannot be said fairly, his time was lost.
Plaintiff’s ability to put in his time at either train work or farming was for the jury to pass on unless there are conclusive facts. The facts supposed to be conclusive against his claim of total and immediate disability have been stated. They are, going with his train on two runs, giving directions about his farm and performing one trivial act of labor. The contention that these incidents must defeat him is based on the term of the policy, requiring, as the condition of indemnity, disability for work, labor, service or business “or any part thereof.” The evidence goes to show that though plaintiff received wages from the railroad company for the week from the seventh to the fifteenth of November, he was not able to earn wages by his own labor, but only by hiring a substitute to labor for him. It may be that his injury did [528] not hinder him. from working and that the employment of a substitute was unnecessary. But if bis condition was sucb that be could not perform bis train duties, and either was forced to get a substitute or notify tbe railway company and let it get one, be was totally disabled for work as brakeman, unless merely going on runs was sufficient, as a performance of part of bis duty, to demonstrate that bis disability was not total. Tbe attention be gave to farming while off duty as brakeman was no more than be gave when on duty, seems to have yielded no extra income and surely cannot be held to disprove loss of time or total disability as a matter of law. Tbe construction of tbe policy for which tbe defendant contends would nullify it as an insurance contract. Tbe indemnity is not payable if the insured suffered a fatal accident, and comparatively few accidents which are not fatal, render a person utterly helpless. But was tbe disability sucb that plaintiff’s earning power was destroyed? That we regard as the true test of total disability. That an injured party may be able to do chores or casual business acts does not prevent a recovery on an accident policy, according to well considered decisions. Walcot v. Assn., 8 N. Y. Supp. 268; Sawyer v. Id., 8 Am. L. Reg. n. s. 233; Mutual Benevolent Association v. Nancarrow, 71 Pac. 423; Thayer v. Standard Co., 68 N. H. 577; Hooper v. Acc. Death Co., 5 Hurlst. & N. 545; Hohn v. Casualty Co., 115 Mich. 79; Turner v. Fidelity Co., 112, Mich. 425; Lobdill v. Laboring Men’s etc. Assn. 69 Minn. 14; Young v. Ins. Co., 80 Me. 245; Neafie v. Manufacturing Co., 55 Hun. Ill. On the other band a party badly injured, but still able to carry on business or work, so that bis time is not lost, is denied relief as for total disability. Knapp v. Acc. Assn., 6 N. Y. Supp. 57; U. S., etc., Assn. v. Millard, 43 Ill. App. 148. An examination of tbe cases we have cited will develop in tbe reader’s mind tbe rules according to which the courts deny and grant recoveries in cases of this character. We think the underlying principle that ought to dominate tbe decision [529] of the present case, in view of the language of the policy, is that the plaintiff is entitled to indemnity for disability due to the injury, provided loss of earning power ensued immediately after the injury and was total. In truth, the defendant put that interpretation on the contract by interrogating the physicians as to whether the injury immediately, continuously and totally disabled the plaintiff from the prosecution of any and every kind of labor and business. The use of the word “prosecution” indicates that the defendant understood ability to do casual acts of work or business which yielded no income, would not deprive plaintiff of the right to indemnity. It was remarked in some of the cases cited above, that total disability does not mean absolute helplessness, death, insanity, or other states which preclude all mental and physical activity. Generally speaking the law treats loss of time synonymous with loss of those earnings which accrue'from employing time in labor or business.
As far as plaintiff’s ability for train work is concerned, “immediate . disability” and “total disability” have the same force. It is conceded that plaintiff was unable to perform the duties of brakeman after he went to the hospital on November 15th, and if he was able between that date and the date of the accident, he was neither immediately nor totally disabled. We have sufficiently discussed total disability. The word “immediately” is held to mean within a reasonable o>r practicable time, when employed in a stipulation requiring a party to perform some act. Time is consumed in doing any act, however diligent the doer may be. But total disability may follow an injury instantaneously. Therefore, “immediately” in stipulations relating to disability following an accident, signifies presently, or on the happening of the accident. The word is introduced to prevent uncertainty as to the cause of the disability. If an interval elapses, some obscure ailment may supervene [530] and produce physical or mental enfeeblement, which will be attributed to the accident, and an unjust liability fall on the insurance company. If eight days passed before the plaintiff was unfit for work or business, he was not immediately disabled within the meaning of the policy. Preferred, etc., Co. v. Jones, 60 Ill. App. 106; Williams v. Acc. Assn., 91 Ga. 698; Merrill v. Id., 91 Wis. 829.
6. We will now examine the instructions. No fault is found by the defendant with the one given for the plaintiff, except that it proceeded on the assumption that the Casualty Company issued the policy. This mistake has been considered and held not to have prejudiced the defendant. The second instruction requested by the defendant was given as asked, and in a form too favorable to defendant. It denied the plaintiff a recovery if he was able, after the accident, to perform any of his duties as brakeman. Defendant’s first instruction, as given, told the jury that if plaintiff, from November 7th to November 15, 1901, continued in the service of the railroad company and performed the duties of brakeman, they must find for the defendant. The defendant has no cause to complain of that charge. It is the law that if the plaintiff was able to’ perform the duties of brakeman for eight days after the accident, his case must fail. But the complaint is that the court struck out “or any part of the duties.” This point comes up, too, in considering the first three of the refused instructions, of which the first asserted the proposition that if the plaintiff was able to go on his runs until November 15th, he could not recover; the second, that if he was able at any time, while injured, to do any work or perform any duty on his farm, he could not recover, and the third, that if he went on his runs as brakeman until November 15th, and was paid wages during that time, he could not recover. His receipt of wages does not cut him off from indemnity; for the evidence tends to show he was compelled to hire some one else to work in his place — was disabled to earn wages and only did so by proxy. Our [531] view concerning the vice of these instructions has been indicated. They denied plaintiff relief if he performed the least act as a brakeman, though so disabled as to lose entirely the value of his time. We hold that he was entitled to indemnity if his disability was such that he was unable to earn anything by his own work. The instructions did not express that idea and hence were properly refused. They proceeded on the extreme theory that doing anything showed, ipso facto, that he was not totally disabled; an incorrect interpretation of the contract according to the adjudged cases. The instruction submitting the defense of work or labor on plaintiff’s farm contained the same fault. He was to be refused relief if able to do any farm work or duty. If plaintiff could have made a hand on his farm while he was unfit for railroad work, the case would be different. But there was no evidence that he was able to perform farm duties so as to make good, in any measure, what he lost as brakeman.
7. Complaint is made that the court, during the argument, amended the first instruction asked by the defendant without allowing defendant’s counsel sufficient time to argue the case after the change. Counsel saved no exception, so far as the record discloses, to the time allowed them for argument after the instruction was altered. On the hearing of the motion for new trial, oral evidence was received as to the time given to argue after 'the instruction was altered. This testimony shows no ground for reversing the judgment. If the defendant’s counsel wished to save a point in regard to the time allowed for argument, they should have objected and excepted when the ruling was made.
We have thus gone over the various points raised on the appeal and conclude there was no reversible error committed at the trial of the cause. The judgment is, therefore, affirmed.
All concur.