Opinion
July 30, 1935.
1. INSURANCE: Construction of Policy. Where an insurance policy is open to different constructions that most favorable to the insured must be adopted.
But where the language of a policy is plain and unambiguous, such language must be given its plain meaning.
2. INSURANCE: Construction of Policy by Court of Appeals. Where the Supreme Court has construed no insurance policy with a like or similar provision as one construed by the Court of Appeals, it cannot be said that its opinion conflicts with any controlling decision of the Supreme Court on a like or similar state of facts.
Where an employee's group policy of insurance defined total and permanent disability as when "he is permanently, continuously and wholly prevented from performing any work for compensation or profit," the evident purpose was to have disability benefits take the place of his earnings.
The language is not clear and plain but it does not mean that if an injured policyholder is able to do anything whatsoever for any compensation whatsoever, he is not totally disabled.
But a ruling of the Court of Appeals that the insured was brought within the provisions of the policy when he was no longer able to perform the usual, customary and substantial duties of his own occupation, and when in view of insured's age, experience and physical condition there was no work or occupation in which he could engage for profit, was not in conflict with any decision of the Supreme Court.
The language being ambiguous and open to construction, the policy is not subject to review by the Supreme Court.
3. INSURANCE: Construction of Policy by Court of Appeals: Evidence. Where the Supreme Court has not construed a policy containing ambiguous language like or similar to the one construed by the Court of Appeals, it will not consider the facts in the case in determining what would constitute a total disability within the meaning of the policy.
WRIT QUASHED.
Oliver Oliver, Fordyce, White, Mayne Williams, Fred M. Switzer, Jr., and Walter R. Mayne for relator; Leroy A. Lincoln of counsel.
(1) The terms of the policy providing for total and permanent disability benefits are plain and unambiguous. Under the provisions of the policy the insured clearly is not entitled to recover. Adams v. Met. Life Ins. Co., 74 S.W.2d 899. (2) The insured's own evidence in this case, as set out in the opinion of the Springfield Court of Appeals, shows clearly and unquestionably that, after the termination of the insurance and up to the date of the trial, he was actually engaged in work for compensation or profit, and that he was not prevented by his deafness from performing any work for compensation or profit. Parten v. Jefferson Standard Life Ins. Co., 117 S.E. 772, 30 Ga. App. 235; Life Casualty Co. v. Jones, 73 So. 566, 112 Miss. 506; Buckner v. Jefferson Standard Life Ins. Co., 90 S.E. 897, 172 N.C. 762; Lee v. New York Life Ins. Co., 125 S.E. 186, 188 N.C. 538; Whitton v. American Natl. Ins. Co., 87 S.E. 827, 17 Ga. App. 525; Thigpen v. Jefferson Standard Life Ins. Co., 168 S.E. 845; Pannone v. John Hancock Life Ins. Co., 157 A. 876; Katz v. Union Central Life Ins. Co., 44 S.W.2d 250; Nickolopulous v. Equitable Life Assur. Society, 166 A. 178; Met. Life Ins. Co. v. Foster, 67 F.2d 264; Met. Life Ins. Co. v. Wann, 28 S.W.2d 196; Duhaime v. Prudential Ins. Co., 167 A. 269; American Natl. Ins. Co. v. Briggs, 70 S.W.2d 491; Met. Life Ins. Co. v. Barela, 44 S.W.2d 494; Prudential Ins. Co. v. Wolfe, 52 F.2d 537; Herwig v. Business Men's Accident Assn., 234 S.W. 853; Hickman v. Aetna Life Ins. Co., 164 S.E. 878; Corsant v. Equitable Life Assur. Society, 211 N.W. 222, 51 A.L.R. 1035; Cato v. Aetna Life Ins. Co., 138 S.E. 787; Maresh v. Peoria Life Ins. Co., 299 P. 934, 133 Kan. 191; Met. Life Ins. Co. v. Dause, 76 S.W.2d 233. (3) The decision of the Springfield Court of Appeals in this cause is in conflict with the decisions of the Supreme Court of Missouri, in that it construes, or misconstrues, the plain and unambiguous language of the policy. State ex rel. Casualty Co. v. Cox, 322 Mo. 38; State ex rel. Mut. Benefit Health Accident Assn. v. Trimble, 68 S.W.2d 685; State ex rel. Life Ins. Co. v. Trimble, 306 Mo. 295; State ex rel. Automobile Ins. Co. v. Trimble, 297 Mo. 659; State ex rel. American Fire Ins. Co. v. Ellison, 269 Mo. 410; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Prange v. International Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523. (4) The judgment of a Court of Appeals will be quashed by the Supreme Court on certiorari where the decision of the Court of Appeals construes the plain and unambiguous language of a policy of insurance in such a way as to distort its meaning and write a new contract. State ex rel. Mut. Benefit Health Accident Assn. v. Trimble, 68 S.W.2d 685; State ex rel. Casualty Co. v. Cox, 322 Mo. 38; State ex rel. Life Ins. Co. v. Trimble, 306 Mo. 295; State ex rel. Automobile Ins. Co. v. Trimble, 297 Mo. 659.
Finch Finch and Rush H. Limbaugh for respondents.
(1) Points not considered nor discussed in opinion of the court are not considered on certiorari, and therefore the pleadings and instructions are not to be considered in this proceeding. State ex rel. Major v. Judges of St. Louis Court of Appeals, 310 Mo. 386, 276 S.W. 1026; State ex rel. Burton v. Allen, 312 Mo. 111, 278 S.W. 772. (a) The provisions of the policy providing for total and permanent disability benefits are ambiguous, and the best evidence of that fact is shown by decisions from almost every state in the Union and by the Federal Courts, finding it necessary to define the language of the total and permanent disability clauses and reaching varying results as to the meaning of same. Katz v. Union Central Life Ins. Co., 44 S.W.2d 250; Cole v. Met. Life Ins. Co., 170 A. 74; Bullock v. Mut. Life Ins. Co., 158 S.E. 185; Colovos v. Life Ins. Co., 28 P.2d 607; Aetna Life Ins. Co. v. Person, 67 S.W.2d 1097; Hays v. Life Ins. Co., 171 S.E. 824; Janney v. Life Ins. Co., 315 Pa. 200, 173 A. 819; Equitable Life Assur. Society v. Wiggins, 155 So. 327; Wood v. Life Ins. Co., 271 Ill. App. 103; Rezendes v. Life Ins. Co., 189 N.E. 826; Met. Life Ins. Co. v. McKee, 176 S.E. 118; Travelers' Ins. Co. v. Turner, 239 Ky. 291, 39 S.W.2d 216; Met. Life Ins. Co. v. Blue, 133 So. 707; Pannone v. John Hancock Life Ins. Co., 157 A. 876; Life Casualty Co. v. Jones, 112 Miss. 506, 73 So. 566; Met. Life Ins. Co. v. Foster, 67 F.2d 264; Clarkson v. N.Y. Life Ins. Co., 4 F. Supp. 791; United States v. Perry, 55 F.2d 819; Law v. United States, 290 F. 972; Nicolay v. United States, 51 F.2d 170. (2) The question of whether the evidence sustained a finding that respondent was totally and permanently disabled is not for consideration on certiorari. State ex rel. Brenner v. Trimble, 326 Mo. 702, 32 S.W.2d 760; State ex rel. Fichtner v. Haid, 324 Mo. 130, 22 S.W.2d 1045; State ex rel. John Hancock Mut. Life Ins. Co. v. Cox, 313 Mo. 384, 282 S.W. 46; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 396; State ex rel. Raleigh Inv. Co. v. Allen, 294 Mo. 214, 242 S.W. 77; State ex rel. Security Benefit Assn. v. Cox, 9 S.W.2d 953; State ex rel. Cox v. Trimble, 312 Mo. 222, 279 S.W. 60; State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, 262 S.W. 43; State ex rel. Brown v. Broaddus, 216 Mo. 336, 115 S.W. 1018. (a) Only when the Court of Appeals exceeds its jurisdiction by failing to follow a decision by the Supreme Court on the same or similar facts does the Supreme Court have the right to quash the opinion on certiorari, and the proceeding is limited to the sole question of whether there is a conflict, and the Supreme Court never has the right to correct errors of the Court of Appeals on certiorari except where there is such a conflict. State ex rel. Gillman v. Robertson, 264 Mo. 661, 175 S.W. 610; State ex rel. Mechanics American Natl. Bank v. Sturgis, 276 Mo. 549, 208 S.W. 458; Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072. (b) Cases from other jurisdictions cited by relator are not helpful in determining whether there is any conflict between the opinion of the Court of Appeals and any decision by the Supreme Court. State ex rel. Mechanics American Natl. Bank v. Sturgis, 276 Mo. 549, 208 S.W. 458. (c) The definition adopted by the court is the same as that recognized by relator, and even under relator's contention that the language of the policy is unambiguous there could be no error in expressing the recognized meaning in different terms, conveying that same meaning, and in relator's third assignment of errors it defines the language of the policy in harmony with the definition adopted by the Court of Appeals. (3) The opinion of the Court of Appeals is not in conflict with decisions of the Supreme Court holding that unambiguous language may not be construed for the reason that the language is ambiguous and relator's cases have no relation thereto. (4) The Court of Appeals can construe and define for itself an ambiguous provision of a policy where the Supreme Court has not previously passed upon and defined such provision. State ex rel. Am. Surety Co. v. Haid, 325 Mo. 949, 30 S.W.2d 100; State ex rel. Harrington v. Trimble, 326 Mo. 623, 31 S.W.2d 783; State ex rel. Caraker v. Becker, 62 S.W.2d 899; State ex rel. Security Mut. Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379; State ex rel. Raleigh Inv. Co. v. Allen, 294 Mo. 214, 242 S.W. 27; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 396; State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694; State ex rel. Wabash Ry. Co. v. Ellison, 204 S.W. 396. (a) The Supreme Court of this State never having been called upon to say whether or not the language with respect to total and permanent disability in this or similar policies is ambiguous or unambiguous, that question was an open question and the Springfield Court of Appeals had the right to construe the language in the policy in this case for itself, and the fact that the Springfield Court of Appeals in effect held it ambiguous and therefore open to construction could not create a conflict between the opinion of the Springfield Court of Appeals and prior controlling decisions of the Supreme Court. Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072; State ex rel. Mechanics American Natl. Bank v. Sturgis, 276 Mo. 549, 208 S.W. 458. (b) Not only did the Court of Appeals have the right to determine for itself what constituted total and permanent disability, but it adopted what is clearly the majority rule and the sound view of the meaning of the provision. Katz v. Union Central Life Ins. Co., 44 S.W.2d 250; Rickey v. N.Y. Life Ins. Co., 71 S.W.2d 88; Buis v. Life Ins. Co., 77 S.W.2d 127; Foglesong v. Modern Brotherhood, 121 Mo. App. 548, 97 S.W. 240; Wall v. Casualty Co., 111 Mo. App. 504, 86 S.W. 491; McMahon v. Supreme Council, 54 Mo. App. 468; Bullock v. Mut. Life Ins. Co., 158 S.E. 185; Ursaner v. Met. Life Ins. Co., 262 N.Y.S. 462; Medlinsky v. Met. Life Ins. Co., 263 N.Y.S. 179; McCutcheon v. Pac. Mut. Life Ins. Co., 153 S.C. 401, 151 S.E. 67; Mo. State Life Ins. Co. v. Copas, 265 Ill. App. 478; Aetna Life Ins. Co. v. Spencer, 32 S.W.2d 310; Hickman v. Aetna Life Ins. Co., 166 S.C. 316, 164 S.E. 878; Manuel v. Met. Life Ins. Co., 139 So. 548; New York Life Ins. Co. v. Torrence, 141 So. 547; Gresham v. Aetna Life Ins. Co., 156 S.E. 878; Mays v. Equitable Life Ins. Co., 246 N.W. 737; Henderson v. Continental Cas. Co., 239 Ky. 93, 39 S.W.2d 209; Pacific Mut. Life Ins. Co. v. McCrary, 161 Tenn. 389, 32 S.W.2d 1052; Winter Mut. Aid Assn. v. Reddin, 31 S.W.2d 1103; Taylor v. Insurance Co., 106 S.C. 356, 91 S.E. 326; Equitable Life Assur. Society v. Serio, 124 So. 485; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; Mutual Life Ins. Co. v. Marsh, 56 S.W.2d 433; 1 C.J., p. 463, sec. 163, p. 465, sec. 166.
Boyle Priest, Robert E. Moloney, George T. Priest and Harry O. Smith for National Lead Company, amicus curiae.
Certiorari to quash an opinion of the Springfield Court of Appeals in the case of Thomas E. Kane v. Metropolitan Life Insurance Company. The opinion in that case is reported in 73 S.W.2d 826. The action was one to recover total and permanent disability benefits under certificates of insurance issued by defendant to plaintiff as an employee of the St. Louis-San Francisco Railway Company under a group policy of insurance. The master policy issued to the railway company provided for the payment of total and permanent disability benefits to employees carrying insurance under the group policy. The main provisions relating to total and permanent disability were also set out in the certificates issued to plaintiff. Those provisions read as follows:
"`Total and Permanent Disability Benefits.
"`Any employee shall be considered as totally and permanently disabled who furnishes due proof that, as the result of bodily injury suffered or disease contracted while his insurance was in force and prior to his sixtieth birthday, he is permanently, continuously and wholly prevented thereby from performing any work for compensation or profit.
"`Upon receipt of due proof of such disability the Metropolitan Life Insurance Company will pay to such employee, in lieu of the payment at death of the said insurance on the life of such employee, equal monthly installments based on the amount of insurance in force on such employee at the date of receipt of proof of such disability, as shown in the following tables:'"
Plaintiff in the case under review obtained a judgment for $3196.02, which, on appeal, was affirmed by the Springfield Court of Appeals. Relator brings the case here by certiorari contending that the opinion of the Court of Appeals conflicts with prior controlling decisions of this court.
The language of the certificate is that an employee is permanently disabled when "he is permanently, continuously and wholly prevented thereby from performing any work for compensation or profit." The Court of Appeals construed this provision of the policy as follows:
"We think the narrow rule contended for by defendant, and seemingly supported by some foreign authorities, is not in harmony with the rule in Missouri, and in the majority of the states of this country. We shall not write at length setting out what various opinions have held under the different facts, but we have reached the conclusion, after reading many cases, that the general holdings under facts similar to these and under contracts worded similar to the one under consideration here, are, that the insured is totally and permanently disabled, so as to bring him within the provisions of the policy, when he is no longer able to perform the usual, customary and substantial duties of his own occupation, and when, in view of the insured's age, training, experience, education and physical condition there is no work or occupation in which he can engage for profit. And that these are questions of fact to be determined by the jury under proper instructions from the court. We think we are sustained in this conclusion by the holdings of the courts of this State and of other states, some of which cases are as follows: Wall v. Continental Casualty Company, 111 Mo. App. 504, 86 S.W. 491; Foglesong v. Modern Brotherhood, 121 Mo. App. 548, 97 S.W. 240; Katz v. Union Central Life Ins. Co. (Mo. App.), 44 S.W.2d 250; Hurt v. Equitable Life Assurance Society (Mo. App.), 53 S.W.2d 1101; Hardie v. Metropolitan Life Ins. Co. (Mo. App.), 7 S.W.2d 746; Medlinsky v. Metropolitan Life Ins. Co., 263 N.Y.S. 179; Manuel v. Metropolitan Life Insurance Co. (La. App.), 139 So. 548; McCutchen v. Pacific Mutual Life Ins. Co., 151 S.E. 67."
Relator claims that the disability provisions of the certificate are plain, unambiguous and not open to construction. Based on this claim, the contention is that the construction given such provisions by the Court of Appeals conflicts with decisions of this court which hold that plain and unambiguous language in an insurance policy is not open to construction but such language must be given its plain meaning. Without setting out the cases which relator cites in support of this contention, it may be stated that the uniform holding of this court is that where an insurance policy is open to different constructions, that most favorable to the insured must be adopted. But where the language of the policy is plain and unambiguous, such language must be given its plain meaning. So the question is, are the provisions of the certificate plain and unambiguous? If so, the province of the Court of Appeals was to give the language of the certificate its plain meaning and enforce it as written. On the other hand, if the language of the policy is ambiguous and open to different constructions, the Court of Appeals had authority to give the certificate any construction it thought proper, and be immune from certiorari, provided its opinion does not conflict with prior controlling decisions of this court on the same or a similar state of facts, or run counter to some established principle of law announced by this court.
No decision of this court has been cited and we have found none which construes an insurance policy with like or similar provisions to the one here in controversy, so it cannot be said that the opinion of the Court of Appeals conflicts with controlling decisions of this court on a like or similar state of facts. Our only province on certiorari being to determine questions of conflict, we have no authority to construe the policy in controversy for the purpose of determining whether the opinion of the Court of Appeals is right or wrong, but we do have a right to determine whether or not the language of the policy is plain and unambiguous for the purpose of deciding whether or not the Court of Appeals' opinion which construes the language of the policy violates controlling decisions of this court holding that unambiguous language in an insurance policy is not open to construction, but must be given its plain meaning and be enforced as written.
Is the language of the policy in controversy plain and unambiguous or is it ambiguous and for that reason open to construction? The language of the policy is that a policyholder is totally and permanently disabled when he is permanently, continuously and wholly prevented from performing any work for compensation or profit.
Evidently the purpose of one in carrying a policy of insurance providing for total and permanent disability benefits is to have such benefits take the place of his earnings and provide a livelihood for him in case he becomes totally and permanently disabled. While we do not intend to construe the language of the policy, we do say that the evident purpose of the parties in entering into such a contract aids in determining whether or not its language is clear and plain or ambiguous. If an able-bodied railroad engineer carrying such a policy should lose both legs and one arm and yet be able to sit on the street corner and sell peanuts, shoestrings or newspapers for which he would receive some compensation or profit, would he be totally disabled within the meaning of his policy? If the hearing and eyesight of a member of this court should become so defective that he would be unable to perform his official duties, but he would yet be able to mow his lawn or hoe his garden, and do like work for his neighbors for a small compensation, would he be totally disabled within the meaning of the policy in question? Does the language of the policy mean that if the insured is able to perform substantially the duties of his occupation he is not disabled? Or does it mean that if he is physically able to perform substantially any work for which he is equipped, he is not disabled? Such an insurance policy is nothing more nor less than a contract between the insurance company and the insured. When we keep in mind the evident purpose prompting the parties to enter into such a contract, we know it does not mean that if an injured policyholder is able to do anything whatsoever for any compensation whatsoever, he is not totally disabled. But what does it mean? What does performing work for compensation or profit mean? The language of the policy is not clear and plain. Its meaning cannot be determined except by an authoritative construction. If the case were here on appeal we would be authorized to construe the language of the policy and determine the policyholder's rights thereunder. But we have no right to do so on certiorari for the purpose of determining whether the opinion of the Court of Appeals is sound or unsound. In view of the fact that this court has not construed an insurance policy like or similar to the one here in controversy, and in view of the further fact that the language of the policy in question is ambiguous and, therefore, open to construction, the construction the Court of Appeals gave the policy is not subject to review by this court on certiorari.
Further contention is made that the evidence clearly showed the insured was actually engaged in work for compensation or profit, and that his disability did not prevent him from performing any work for compensation or profit.
In view of the fact that this court has not construed an insurance policy containing language like or similar to the one in question, it necessarily follows that we have not determined what would or would not constitute total disability within the meaning of such a policy, and we have no authority to do so for the first time on certiorari.
Our writ of certiorari heretofore issued should be quashed. It is so ordered. All concur.