Mossop v. Continental Casualty Co. , 137 Mo. App. 399 ( 1909 )

GOODE, J.

(after stating tbe facts). — It is insisted tbe verdict cannot stand because no affirmative proof in tbe meaning of tbe policy was furnished, and there was no evidence tbe company waived this proof. Defendant argues tbe whole indemnity for lost time was payable at tbe end of treatment, instead of weekly; and that tbe policy required proof of loss to be prepared and transmitted to tbe company after treatment bad terminated; or after tbe expiration of one hundred and four weeks or two years, which was tbe maximum period of liability for loss of time. We will not decide when indemnity for such loss was payable, because part of thq policy was omitted from tbe record, and tbe part presented suggests tbe omitted portion would bear on tbe question. That sufficient notice of tbe loss was given in fifteen days is conceded, but it is contended “affirmative proof” of loss was not made. Tbe document received by tbe company April 10th stated every particular of plaintiff’s accident and consequent disability, and was an adequate “affirmative proof,” if not prematurely delivered. Tbe policy is rather vague about what would-be timely delivery, being precise only in requiring tbe proof to be furnished within thirty days after the end of the liability period. This condition means it cannot be furnished after said thirty days, but not necessarily that it cannot be furnished before. If no indemnity was payable until the patient recovered, proof made thirty days after recovery would be in time; but proof made sooner in a complete form and forecasting accurately what future time the insured would lose, might satisfy a condition expressed as this one is. The natural construction of the contract is that indemnity was payable weekly, and, if so, proof of loss of time ought to precede the demand for payment. So far as we can determine from the portion of the policy in the record, it is our opinion the company received good and timely proof of loss.

The effect of the instructions on the issue of intoxication was to hold the company liable for indemnity at fifteen dollars a week, even though plaintiff was hurt while under the influence of intoxicating liquor, unless the injury was the result of his condition. This construction of the contract expunges an express proviso against liability for an injury received by the insured while under the influence of an intoxicant or narcotic. By virtue of said proviso, the company was as much exempt from liability for plaintiff’s loss of time, if the loss was due to an injury received while he was intoxicated, but not in, consequence of intoxication, as if the latter brought about the injury. Counsel argue that if the intention was to exclude liability for an injury received while plaintiff was intoxicated, regardless of a causal connection between his state and the injury, it was useless to insert the exemption for an injury resulting' from intoxication, as the first proviso would embrace the latter. So it would; but we take the purpose to have been to word the contract so no doubt could arise about the non-liability of defendant in either event. Again, it is said to be unreasonable to excuse defendant merely because plaintiff was intoxicated, if the accident would have happened any how. An' illustration is brought forward of this kind: suppose he had been hurt while intoxicated and on a street car in a collision of the car with another, would defendant be exempt? We answer that any insurance company has the right to refuse to insure men against accidental injury while they are intoxicated, and there are good reasons why they should refuse to do so; to-wit, when a man is drunk he is less able to take care of himself, is more quarrelsome and hence more likely to get hurt than when he is sober; and if hurt, he may believe and testify his conduct had nothing to do with the accident, and obtain a verdict on that theory when, in truth, intoxication led to the injury. Instances will occur where it is extremely difficult to determine what influence a state of intoxication had in bringing about an accident. We need not speculate on the reasons for the terms of this contract; suffice to say they are not against public policy, must be supported according to their reasonable meaning and there is no' doubt cast on their meaning by the language used or pertinent authorities. The courts uniformly hold in construing a policy like the one in suit, that if the insured is injured while in an excepted state, or doing an excepted act, the company is not liable. [Shader v. Railroad, etc., Co., 66 N. Y. 441; 23 A. R. 65; Standard, etc., Co. v. Jones, 94 Ala. 434; Culley v. Acc. Insurance Co., 96 N. Y. S. 282; Campbell v. Insurance Co., 109 Ky. 661; 3 Joyce, Insurance, sec. 2612; 2 May, Insurance, sec. 531.]

The judgment is reversed and the cause remanded.

All concur.