STATE EX REL. HEALTH ACC. ASSN. v. SHAIN, Mo., Judgment, Law, casemine.com

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Winger, Reeder, Barker Hazard and James T. Blair, Jr., for petitioner. The opinion of the Kansas City Court of Appeals is contrary to controlling decisions of this court in that it fails to give effect to all the provisions of the contract of insurance and in that it attempts to rewrite the contract for the parties and attempts to construe unambiguous language found in the contract. Mathews v. Modern Woodmen, 236 Mo. 342, 139 S.W. 151; State ex rel. Natl. Life Ins. Co. v. Allen, 256 S.W. 739; Wendorff v. Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523; State ex rel. Western Automobile Ins. Co. v. Trimble, 297 Mo. 664, 249 S.W. 902; Blanke Bros. Realty Co. v. Am. Surety Co., 297 Mo. 41, 247 S.W. 797; State ex rel. Am. Fire Ins. Co. v. Ellison, 269 Mo. 419, 190 S.W. 879. Ross Feaster, S.L. Trusty, E.E. Pugh, Jr., and John F. Cook for respondents. (1) The Supreme Court did not, in its prior opinion, construe the policy as a whole. Neither did it place any definite construction on additional provision (a) State ex rel. Gatewell v. Trimble, 62 S.W.2d 756; State ex rel. Kansas City v. Trimble, 20 S.W.2d 18; State ex rel. Agricultural Ins. Co. v. Allen, 254 S.W. 197; State ex rel. Met. Ins. Co. v. Dawes, 297 S.W. 953; Locke v. Trimble, 298 S.W. 787; State ex rel. Ry. Co. v. Allen, 240 S.W. 121; State ex rel. Noe v. Cox, 19 S.W.2d 699; State ex rel. Pub. Serv. Co. v. Becker, 66 S.W.2d 146. (2) Additional provision (A) should not be construed to forfeit indemnity for insured's disability occurring prior to the beginning of the regular treatments of a licensed physician or surgeon; otherwise, additional provision (A) would be, first, absolutely repugnant to the solemn promises unconditionally made by insurer under provisions (C), (D), (E), (G), etc., of the policy; and, second, would be ambiguous and reasonably susceptible of two meanings. (a) Additional provision (A) is repugnant to provisions (C), (D), (E), (G), etc., of the policy. State ex rel. v. Trimble, 267 S.W. 880; Mathews v. Modern Woodman of Am., 139 S.W. 156; State ex rel. Mills Lbr. Co. v. Trimble, 39 S.W.2d 355; State ex rel. Sec. Mut. Life Ins. Co. v. Allen, 267 S.W. 381; Wendorff v. Mo. State Life Ins. Co., 1 S.W.2d 99. (b) If additional provision (A) is susceptible of the construction placed upon it by relator, then it is ambiguous and susceptible of two meanings. State ex rel. Mills Lbr. Co. v. Trimble, 39 S.W.2d 355; Mathews v. Modern Woodmen of Am., 139 S.W. 151; Howell v. Life Ins. Co., 215 Mo. App. 692, 253 S.W. 411; State ex rel. v. Allen, 267 S.W. 379; Dolph v. Maryland Cas. Co., 261 S.W. 330; Bishop on Contracts (2 Ed.), p. 158, sec. 384.

Judges

COLLET, J.

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STATE OF MISSOURI at the Relation of MUTUAL BENEFIT HEALTH ACCIDENT ASSOCIATION, Relator, v. HOPKINS B. SHAIN, FRANCIS H. TRIMBLE and EWING C. BLAND, Judges of the Kansas City Court of Appeals, and FINIS E. MILLER.

CERTIORARI: Previous Ruling of the Supreme Court. Where the Supreme Court on certiorari quashed the opinion of the Court of Appeals and construed an insurance policy involved in respect to an alleged repugnancy, that construction was binding upon the Court of Appeals upon a reconsideration of the case.

An erroneous construction of the Supreme Court's opinion in the case was in conflict with that previous ruling.

COLLET, J.

Certiorari to the Kansas City Court of Appeals. Finis E. Miller obtained a judgment in the Circuit Court of Henry County against the Mutual Benefit Health Accident Association upon a policy of insurance covering loss by reason of accident or sickness under certain conditions specified in the insurance policy. On appeal to the Kansas City Court of Appeals that court affirmed the judgment. [Miller v. Mutual Benefit Health Accident Assn., 56 S.W.2d 795.] That opinion of the Court of Appeals was quashed by this court (Division Two) in State ex rel. v. Trimble, 334 Mo. 920, 68 S.W.2d 685. Upon reconsideration the Court of Appeals again affirmed the judgment (Miller v. Mutual Benefit Health Accident Assn., 80 S.W.2d 201). In those opinions the policy of insurance involved was discussed and other pertinent facts related. We will not repeat that discussion or again relate those facts. It is sufficient for the determination of the case before us to note that in its opinion now before us the Court of Appeals construed our former opinion to mean that there was no repugnancy between paragraphs H and I of the policy on the one hand and paragraph (a) of "Additional Provisions" on the other and that we did not construe paragraph (a) of the "Additional Provisions," leaving the latter burden to the Court of Appeals on reconsideration of the case and the policy of insurance as a whole. Our former opinion may be subject to that construction although it now occurs to us that it would be necessary to treat what we said concerning the proper meaning to be given paragraph (a) as obiter dictum in order to justify the conclusion reached by the Court of Appeals. But be that as it may, we are of the opinion that the meaning we assigned to paragraph (a) in determining there was no repugnancy between that paragraph and paragraphs H and I, is its proper meaning and provides in express terms that the insured must have actually been visited by a physician before he is entitled to any benefits.

It is suggested in effect that since this court has never construed a contractual provision identical with the one involved in this case the opinion of the Court of Appeals construing paragraph (a) cannot be in conflict with any previous decision of this court and therefore should stand. The difficulty with such a position lies in the fact that it was necessary for us to construe paragraph (a) when the case was formerly before us in order to determine the presence or lack of repugnancy between that provision and other provisions of the policy, and, that having been done, it was the duty of the Court of Appeals to follow our conclusion in their later consideration of the same subject.

It follows that the record and opinion of the Kansas City Court of Appeals must be quashed. It is so ordered. All concur.

STATE EX REL. HEALTH ACC. ASSN. v. SHAIN

STATE OF MISSOURI at the Relation of MUTUAL BENEFIT HEALTH ACCIDENT ASSOCIATION, Relator, v. HOPKINS B. SHAIN, FRANCIS H. TRIMBLE and EWING C. BLAND, Judges of the Kansas City Court of Appeals, and FINIS E. MILLER.

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