author: PRITCHARD, Chief Judge.

text:
    BOONE COUNTY, Missouri, By and Through James BUTCHER, et al., Respondents, v. BLUE CROSS HOSPITAL SERVICE, INC., OF MISSOURI, Appellant.
    No. KCD 27062.
    Missouri Court of Appeals, Kansas City District.
    July 7, 1975.
    Motion for Rehearing and/or Transfer Denied Aug. 5, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Robert F. Sehlafly, Fortis M. Lawder, St. Louis; Keefe, Sehlafly, Griesedieck & Ferrell, St. Louis, of counsel, and B. Daniel Simon, Columbia; Welliver & Simon, Columbia, of counsel, for appellant.
    Robert C. Smith, Jr., David B. Rogers, Columbia, for respondents; Smith, Lewis & Rogers, Columbia, of counsel.
    Before SOMERVILLE, P. J., PRITCH-ARD, C. J., and SWOFFORD, J.
   PRITCHARD, Chief Judge.

The dispute is whether Boone County Hospital (BCH) is entitled to charge nonresidents of Boone County, Missouri, who are members of appellant Blue Cross, a “surcharge” or “pre-admission charge” of $5.20 per day in view of a provision in the agreement between BCH and Blue Cross, paragraph 3, that “Hospital agrees not to charge or collect from any Blue Cross participant any amount whatsoever for any hospital care included in certificates offered by Blue Cross except such payments, if any, as provided in the membership certificates. Hospital may charge directly to patients for hospital care not included in certificates offered by Blue Cross.”

The parties stipulated these pertinent facts: BCH is a public hospital established by Boone County, Missouri (at Columbia) under the provisions of §§ 205.160 to 205.-370 and § 205.378, RSMo 1969, V.A.M.S.; it is a general hospital of about 251 beds for patients, with operating rooms and all necessary or required supportive facilities such as X-ray equipment and laboratories; BCH is regularly used by both residents of Boone County as well as persons residing outside of Boone County; Blue Cross is a not-for-profit corporation under Missouri laws, having a corporate board of 204 persons as representatives of the public, hospitals and medical societies. Those persons elect a present 25 member board of trustees who are empowered to manage and direct the affairs of the corporation; Blue Cross, since 1936, has operated a hospital service plan for members who pay dues for benefits, with a total enrollment of members as of April 30, 1972, of 1,250,232, including members of group programs and direct pay members, to whom certificates and membership cards are issued which specify the terms and conditions of membership; Blue Cross solicits members and operates its hospital service plan in 84 counties and the City of St. Louis, and included is Boone County; member hospitals are 112 in number and the form of hospital service contract is uniform for each; BCH has been a member hospital since 1939, and subsequently 7 different contracts were made culminating in the current contract of July 1, 1968, under which Blue Cross pays BCH for standard benefits on a cost reimbursement basis, expressed as a per diem amount or on a basis of BCH’s billed charges, whichever is the lesser on an annual basis; ancillary benefits (those other than standard) are paid BCH on the basis of its charges to patients, subject to Blue Cross’ variations in different plans; on or about December 30, 1968, BCH’s board unanimously passed a resolution effective January 1, 1969: “ ‘That the out of county charges be increased to $5.20 per day effective January 1, 1969, and that this charge be reviewed annually’ ”; BCH after January 1, 1969, began to collect the $5.20 per day charge directly from out-of-county Blue Cross member patients; about May 27, 1969, Blue Cross began to withhold from its payments $5.20 per day for each member who was not a resident of Boone County; upon contracting each such member Blue Cross made a refund totalling $85,746.60 in 1,958 cases involving 16,483 hospital days as of January 9, 1973, and Blue Cross has withheld a like amount from payments due BCH under the service contract in order to make the refunds; [it was further stipulated that an additional amount, $19,630.10, was so withheld through August 31, 1973, to make a grand total of $105,334, which with interest added makes the amount of the judgment entered for BCH, $114,-726.67].

At trial Mr. James L. Dack, BCH’s administrator, testified that BCH has had a constantly increasing percentage of its patients from outside Boone County because of a large number of medical specialists practicing at BCH. The out-of-county patient percentages were these: 1972, 46%; 1971, 42%; 1970, 40%; and 1969, 34%. The census figures of BCH (97% occupancy in 1972) created problems, and it had to reduce pre-scheduled patients to 12 per day, other than emergency patients. At the time of trial, without the patients from outside the county, there would not be any pressure for additional space, but since out-of-county patients are admitted, 100 additional beds are needed. The votéis approved a bond issue for 64 beds, and the total bonded indebtedness is $4,430,000, for the present hospital facilities it is $1,240,000. The debt, interest and principal, is paid by a present special real estate tax of 13 cents per $100.00 valuation levied on Boone County real property; and for maintenance, another 20 cents tax is likewise levied for the budgeted $5,855,-000 annual maintenance cost (spent to within 1%), of which about ⅛ is used for the care of indigent patients. No out-of-county charge is made to medicare patients because the medicare formula for reimbursement covers that charge. According to Mr. Dack, a nonresident of Boone County would not be getting anything separate or different than a resident for the same illness or condition for the $5.20 extra daily charge. That charge is not additional for room, board and general nursing, “(T)his is a surcharge which has no relationship to any specific services rendered which is a part and parcel of the admission policies of the hospital and stands in the place of the local residents’ participation through property taxes.”

In 1972, pre-admission total charges for out-of-county patients was in the range of $150,000. These fees are separately funded and made available for hospital expansion, development of new equipment “and this type of thing.” No portion is used for maintenance of the hospital.

Mr. Jack Estes, BCH’s trustee since 1970, and its board chairman, made investigations concerning the hospital’s general admission policy in regard to out-of-county charges and found that they are uniformly applied to all out-of-county patients. These charges are funded for future expansion and improvement of the facilities. No hospital service whatsoever is rendered to an out-of-county patient for the $5.20 a day charge. “Q As a matter of fact isn’t it an additional charge for room, board and general nursing services? A No, it is a condition of his being able to be admitted to the hospital.” According to Mr. Howard B. Lang, Jr., who was BCH’s trustee from 1958 to 1970, and its chairman from 1960 to 1970, 30% of admissions to BCH were nonresidents, and the Board thought (and the people thought) that they should bear their proportionate parts of the costs.

Mr. James E. Baker, Blue Cross’ vice president in charge of hospital, felt that Article 3 of the agreement controlled the matter of out-of-county charges in its language, “Hospital agrees not to charge or collect from any Blue Cross participant any amount whatsoever for any hospital care included in certificates offered by Blue Cross * * After much correspondence with BCH prior to January 1, 1969, repeatedly enunciating Blue Cross’ position on BCH’s right to charge the out-of-county fees, the dispute culminated in Blue Cross’ deduction of those fees charged its members (as noticed in its letter to BCH of May 27, 1969) which continued deduction resulted in this suit being filed. During 1965, 1966, 1967 and 1968, no out-of-county charges were imposed on Blue Cross members by BCH.

BCH bases its claim that it is entitled to make an “out-of-county” charge under the provisions of § 205.270, RSMo 1969, relating to County Hospitals, and providing in part, “And said board [of hospital trustees] may extend the privileges and use of such hospital to persons residing outside of such county, upon such terms and conditions as said board may from time to time by its rules and regulations prescribe.” [Emphasis and brackets added.] BCH also contends that the out-of-county charge is a part of its general admission policy, permitted by paragraph 1 of the agreement, which it says is an exception to the provisions of paragraph 3, supra. Paragraph 1 of the agreement is: “Hospital agrees (subject to its general admission policy) to render hospital care in its hospital, as provided in the membership certificates held by, or hereafter offered to, participants, to all Blue Cross participants who apply to the Hospital in the manner specified in the Plan. * It is also argued by BCH that paragraph 3 does not apply to out-of-county charges because the nonresident is getting nothing more for the $5.20 per day than the Boone County resident, i. e., that the out-of-eounty charges are not for “hospital care.”

The dispositive issue is whether BCH, in 1964, adopted Blue Cross’ construction of the contract that out-of-county charges are for “hospital care” so as to bar BCH from making that charge to nonresident Blue Cross members. Certain other matters must first be noticed. BCH claims that the contract is not ambiguous; that judicial construction of it is not therefore necessary; and that absent ambiguity parol evidence (evidence of surrounding facts and circumstances) is not admissible to aid its construction. The provision of paragraph 3 of the contract, supra, is not on its face ambiguous. A latent ambiguity does, however, appear when it is sought to apply the words of the contract that no charges or collections shall be made to Blue Cross members except as provided in their membership certificates, to the subject matter of charges made to nonresident Blue Cross member patients of BCH. Prestigiacamo v. American Equitable Assur. Co., 240 Mo.App. 839, 221 S.W.2d 217, 221[3, 4] (1949). The evidence of the surrounding facts and circumstances to the execution, performance and treatment of the contract between BCH and Blue Cross is thus admissible. See the discussion of the rule permitting evidence of surrounding facts and circumstances in cases of latent ambiguity in Hardin v. Ray, 404 S.W.2d 764, 769, et seq. (Mo.App.1966); and also Leggett v. Missouri State Life Ins. Co., 342 S.W.2d 833, 852[14-18] (Mo.1960); 3 Corbin on Contracts, § 536, p. 25.

The record shows that the dispute between BCH and Blue Cross as to the propriety of the out-of-county charge existed since July, 1959. There were many conferences and much correspondence about the charge in which the positions of both parties were stated: BCH’s position was that the charge then imposed on out-of-eounty patients was because of their use of the hospital, and was “in lieu of payment of taxes”; Blue Cross’ position was that the charge was not permitted by the contract, but it was agreeable to it that the hospital charge a higher room rate for everyone and allow a discount therefrom to Boone County residents, as used by other county hospitals. The possibility of a declaratory judgment action was discussed, but was never pursued. In December, 1961, BCH advised Blue Cross that its board had decided to resume charging Boone County nonresidents the $1.50 per day charge beginning March 1, 1964. On March 10, 1964, Blue Cross again objected on the same ground that the charge violated the contract. During the ensuing correspondence the matter of seeking a declaratory judgment was again brought up. BCH sent Blue Cross a notice and schedule of increased charges which included “2. Out of county charge Each patient whose plastic identification charge shows an address outside of Boone County shall be charged $1.50 per day additional room charge.” Again Blue Cross, through its Mr. Baker objected and again proposed that BCH increase its basic rate by the amount of the out-of-county charge and then allow a discount to patients who were Boone County residents. Then, most significantly, BCH’s administrator, Mr. Back, wrote to Blue Cross on December 17, 1964, and agreed to adopt the discount method, stating that he found the suggestions in Mr. Baker’s letter acceptable, and that “We will make a slight modification in our procedure from this point forward.” Thereafter, a “completed form, including the $1.50 out of county charge in our room rates” was sent to Blue Cross by Mr. Byers, BCH’s business manager. During neither the 1961, nor the 1964 disputes did Blue Cross pay any extra out-of-county charge to BCH. During 1965, 1966, 1967 and 1968, BCH did not require the out-of-county charge to be paid by Blue Cross members and did not attempt to collect it from them.

The contract which was in effect from July 1, 1965, to June 30, 1968, contained paragraph 3 in identical language to that previous thereto. BCH’s board chairman, Mr. Lang, had executed that contract form for BCH, knowing Blue Cross’ position and construction of paragraph 3 that it considered out-of-county charges to Blue Cross members to be a violation of the contract. On July 1, 1968, BCH executed the same form for the following period of time, which form made no change in paragraph 3. Mr. Lang knew also that Blue Cross did not object to the discount method. [It should be parenthetically noted that it does not appear from the record that the “discount method” would result in any more revenue to BCH from out-of-county Blue Cross members. It would seem that the formula of reimbursement from Blue Cross to BCH encompasses largely a “cost” basis and not that of charges billed to Blue Cross patients, i. e., a per diem basis during a year, then an adjustment to cost or billed charges, whichever is lesser. In an exhibit covering 1965 through 1971, the costs were less than the billed charges.]

At BCH’s meeting in March, 1968, at which it authorized the execution of the new contract, it also directed Mr. Back to study the propriety of out-of-county charges. Then after executing the new contract, identical with the previous ones, BCH adopted on December 30, 1968, the resolution increasing out-of-county charges to $5.20 a day, effective January 1, 1969. Blue Cross again objected, reiterating its former unwavering position that the charges violated the contract. BCH continued to make the out-of-county charge; Blue Cross started deducting like amounts it had refunded to its members from reimbursements to BCH; and this litigation was begun.

The rule of adoption of an adverse party’s construction or interpretation of a contract provision, so as to bar the other party from an assertion to the contrary, has much countenance in the law. “As a general rule, the language of a contract, in case of ambiguity, should be interpreted in the sense that the promisor knew, or had reason to know, that the promisee understood it. So, while it has been held that a party is not bound to perform an act not within the terms of the contract, notwithstanding he knew that the other party understood that he would perform it, according to some cases, a party to a contract generally will be held to that meaning which he knew was in accordance with the understanding of other party, provided this can be done without making a new contract for the parties; * * * 17A C.J.S. Contracts § 295 i., pp. 67, 68. In Bowers Hydraulic Dredging Company v. United States, 211 U.S. 176, 29 S.Ct. 77, 53 L.Ed. 136 (1908), an excavation contractor was not entitled to extra payment for the removal of earth which had slid into a channel when it knew that the United States had construed a prior contract as not requiring that payment. Note Cresswell v. United States, 173 F.Supp. 805, 811[2][3], 146 Ct.Cl. 119 (1959), where the court said, “If one party to a contract knows the meaning that the other intended to convey by his words, then he is bound by that meaning. The same is true if he had reason to know what the other party intended (citing authority and cases).” “Moreover, plaintiff entered into an identical contract with the Government [the same situation with BCH and Blue Cross here]. * * * A previous contract already performed and already interpreted is strong evidence of the parties interpretation of the disputed contract (citing cases.).” See, for the same propositions, Perry and Wallis, Inc. v. United States, 427 F.2d 722, 725, 192 Ct.Cl. 310 (1970); City of Memphis, Tennessee v. Ford Motor Company; 304 F.2d 845, 849[8] (C.A.6th 1962); Jamesbury Corporation v. Worcester Valve Company, 443 F.2d 205, 210[7-10], Footnote 7 (C.A.1st 1971); Hamann v. Crouch, 211 Kan. 852, 508 P.2d 968, 974[4] (1973); and cases cited and quoted. The C.J.S. rule above quoted has found expression in this state. In Bruner v. Wheaton, 46 Mo. 363 (1870), the issue was whether plaintiff was entitled to specific performance of an alleged contract proposed and accepted in writing because of her words of acceptance. The facts were that plaintiff wrote an offer to defendant to purchase his property. He answered that he was willing to let plaintiff have the property for $3,000, “fifteen hundred dollars to be paid his agent immediately, and the balance in two years * * * ; and * * * if the plaintiff accepted the proposition, she should inform him of the fact, and he would send a deed or power of attorney to his agent and authorize him to arrange the whole affair.” Plaintiff wrote and stated she accepted defendant’s terms, “that she would pay to his agent the fifteen hundred dollars as soon as the deed was ready, * * *Defendant offered the defense to the suit “that ‘immediately’ meant that the money should be paid down at the time of acceptance, without waiting for the reception of the deed * * * The court rejected that defense and said, “But this is obviously not the sense in which the contracting parties at the time viewed the transaction. It is a just principle of construction, both morally and legally, that the promisor is bound according to the sense in which he apprehended that the promisee received his proposition.” The obvious impact of Bruner is that the defendant placed in the mind of plaintiff the conditions for the payment of the $1,500 down payment, to which she responded — that it would be paid when the deed was ready in the agent’s hands. See also Counts v. Medley, 163 Mo.App. 546, 146 S.W. 465 (1912), construing the words of a sale of business contract that the seller would not engage in competition with the buyer “at” Rogersville was held to mean at or near that place, and included Hendersonville, IV2 miles away, and at 146 S.W. 468[5], reiterating the rule of construction of Bruner, supra; and see Jarman v. Knights Templars’ & Masons’ Life Indemnity Co., 95 F. 70, 76 (Cir.Ct.W.D.Mo.1899).

What has happened here, under the undisputed evidence, BCH, in 1964, acceded to Blue Cross’ construction of the hospital service contract that it did not permit the out-of-county charges. In so doing, it waived the discretionary benefits conferred upon it by § 205.270, supra, although it could have insisted at the time that the statute controlled its right to make extra charges to nonresidents of Boone County, and that the contract did not bar those charges because they were not for “hospital care” — the position it here maintains. The statutory discretionary right clearly may be waived, 28 Am.Jur.2d Estoppel and Waiver, § 156, p. 838, “It is held that once a waiver of the provisions of a statute is made in a pending case, it is waived for the purposes of all further proceedings in the same action.” In 1962, but more conclusively in the latter part of 1964, BCH advised Blue Cross that it accepted the latter’s suggestion of the discount method of billings or charges to nonresident Blue Cross members, again on two occasions (1965 and 1968) re-executing the contract provisions containing the identical paragraph 3 provision. By this action, and allowing Blue Cross to execute the same type of contract without remonstrance, under the foregoing authority BCH has adopted Blue Cross’ pleaded and proved construction of the contract, and has raised an equitable estoppel against itself now to claim otherwise. 28 Am.Jur.2d Estoppel and Waiver, § 34, p. 639. Compare Johnson v. Neel 123 Colo. 377, 229 P.2d 939, 944[5-7] (Banc 1951), where a statute conferring a right to jury trial was held waived by failure to request a jury, giving rise to an equitable estoppel; Kallock v. Elward, 118 Me. 346, 108 A. 256, 8 A.L.R. 750 (1919), where a married woman was held to waive a statute providing that she could not be arrested, and she was held estopped from claiming the privilege of arrest by failing to reveal that she was a married woman when suit was begun against her; City of Chetopa v. Board of County Com’rs, 156 Kan. 290, 133 P.2d 174 (1943), where the city sought to recover under a statute money for the maintenance of streets which connected with a county highway system. The estop-pel arose because the city had received payments under a different statute from the county; 31 C.J.S. Estoppel § 61, pp. 386, 387; and Holmes v. Graves, 83 Ariz. 174, 318 P.2d 354, 357 (1957), where a defendant who protested or desired that items purchased be noted in detail on a sales pad, was estopped from demanding items of account in writing as provided by civil rule, the court saying, “Statutory provisions enacted for the benefit of individuals may be so far waived by those for whose benefit they were enacted that they are estopped to insist upon their protection. Mulhall v. Nashua Mfg. Co., 80 N.H. 194, 115 A. 449.”

There remains Blue Cross’ appeal from the denial by the trial court of its counterclaim which was for alleged “out-of-pocket” expenses occasioned by BCH’s claimed breach of the agreement. It is said by Blue Cross that the breach caused it additional expense in office work in contacting many nonresident of Boone County Blue Cross members to give them refunds for the “out-of-county” charge imposed by BCH upon them. It is unnecessary to rule whether Blue Cross was obligated to make those refunds. The issue turns upon Blue Cross’ proof of damages. The evidence from Blue Cross’ Mr. Olwig, manager of cost and budget accounting, was that he made a study of the additional work entailed in contacting and refunding to Blue Cross members, for 3 years, 1970, 1971 and 1972. The study resulted in an allocation of time spent by a regular employee in the claims office, Mrs. Carolyn Guiott, in handling the extra work of about 3 hours a day, over and above her regular duties. Her salary for the 3 year period was allocated on an hourly percentage basis resulting in a claimed $11,837 extra wages. Other costs, such as check writing, stenographer, and mailroom were likewise allocated. There is no showing that there were any additional actual costs incurred, other than Blue Cross’ use of its regular employees, in performing the tasks. All employees, including Mrs. Guiott, were full-time employees both before and after the work was performed. There was merely a readjustment of the work force, a “shuffling around” of employees, and no additional people were hired. Blue Cross cites no case that this arrangement amounts to out-of-pocket expenses for which it is legally entitled to reimbursement. To allow it on these facts would permit Blue Cross to realize a profit from the situation. 25 C.J.S. Damages § 71, p. 838. Dingman v. Elizabeth Arden Sales Corp., 284 S.W.2d 16, 18[2] (Mo.App.1955). See Kansas City Bridge Co. v. Kansas City Str. Steel Co., 317 S.W.2d 370, 376[2] (Mo.1958), disallowing as damages allocation of certain overhead expenses which did not increase or decrease on account of delay in a Leavenworth bridge job. “As noted, all of the items with which we are here dealing were fixed and, thus, plaintiff’s total overhead was exactly the same whether there had been any delay in the Leavenworth job and exactly the same during the period of delay and exactly the same thereafter.” (317 S.W.2d 377.) Blue Cross has shown no money damage to itself occasioned by doing the extra work with regular employees.

The judgment against Blue Cross on its counterclaim is affirmed. The judgment in favor of Boone County Hospital, et al., against Blue Cross, is reversed.

All concur.


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. James M. BOHANNON, Defendant-Appellant.
    No. 9559.
    Missouri Court of Appeals, Springfield District.
    July 10, 1975.
    Motion for Rehearing or Transfer Denied August 4, 1975.
    Application to Transfer Denied Oct. 13, 1975.
    Philip M. Moomaw, Public Defender, 25th Judicial Circuit, Rolla, for defendant-appellant.

      John C. Danforth, Atty. Gen., Ellen S. Roper, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   HOGAN, Judge.

A jury found defendant James Bohannon guilty of forcible rape as defined and denounced by § 559.260, RSMo 1969, V.A.M.S. The Second Offender Act, § 556.280, was found to be applicable and defendant’s punishment was assessed at imprisonment for a term of five years.

The prosecuting witness was an 18-year-old married woman who had moved to Waynesville, Missouri, on September 7, 1972. Her husband was in military service and was stationed at Fort Leonard Wood.

The prosecutrix testified that on September 14, 1972, at approximately 2:00 p. m. she was walking toward the bus station when a car pulled alongside her and stopped. A “guy” (defendant) got out of the car, “grabbed” the prosecutrix, and put her in the car between himself and the driver, identified as one Roy Rogers. The prosecutrix did not resist because she was frightened and “froze” when the defendant seized her and put her in the car.

After she got in the automobile, the pros-ecutrix repeatedly asked the two men where they were taking her, what they intended to do, and asked to be taken to Fort Leonard Wood. She received no response. The driver proceeded through the town of Waynesville, passed what is referred to as the “Crocker Bridge” and finally turned off onto a gravel road. They then traveled “[ajbout a five minute drive” along the gravel road and stopped. Defendant got out of the car, opened a fence gate and Rogers “backed the car in”. Defendant then closed the gate. The car was stopped in open country; prosecutrix testified that she saw no houses, “no people or no cars.”

Rogers then started “making advances”, as the prosecutrix put it, and she “just panicked.” Rogers slapped the prosecutrix and ordered her to remove her clothing. The prosecutrix refused to disrobe, and Rogers told her “if [she] wasn’t going to take it off, he was going to take it off for [her].” Prosecutrix finally removed her clothes, Rogers ordered her to lie down, and proceeded to have sexual intercourse with her, without her permission, she testified, and against her will.

After Rogers had finished he got out of the car, and while the prosecutrix was attempting to dress, defendant got in the car and told the prosecutrix to “take [her] clothes off.” The prosecutrix again disrobed, defendant pushed her down in the back seat and had sexual intercourse with her. Prosecutrix testified that the defendant did so against her will, and that she submitted because she was frightened. After defendant had had sexual intercourse with the prosecutrix, he got out of the car, conversed with Rogers, and Rogers again got in the back seat with the prosecutrix. Rogers again had sexual intercourse with the prosecutrix against her will. Meanwhile, the defendant started the car and drove back toward Waynesville.

Rogers and the defendant stopped under a bridge and the prosecutrix dressed. There were two men fishing there, but the prosecutrix remained in the car and made no outcry. Rogers and the defendant finally took the prosecutrix to a gas station at St. Robert, Missouri. There the prosecutrix contacted a friend who notified the military police at Fort Leonard Wood.

The prosecutrix was taken to the post hospital where she was examined by a gynecologist. Prosecutrix told this physician that she had been raped, and consequently he made what he called “a complete examination of her from head to foot.” His examination disclosed menstrual flow, which had started the day before, and a specimen of the vaginal fluid disclosed the presence of spermatozoa. There were no lesions of the external genitalia, none in the interior of the vagina, nor any bruises, scratches or cuts of any sort on prosecu-trix’s arms, face or any part of her body. The only signs of physical injury detected by the examining physican were tenderness of the abdomen and breasts, which the physician testified might have been incidental to the onset of menstruation.

James Cole, the chief of police at Waynesville, participated in the investigation of the crime charged. He testified that prosecutrix did not say to him that she was forced to have sexual intercourse, but said she was slapped. His observation of the clothing prosecutrix was wearing disclosed that it was not soiled or stained, and he observed no bruises or scratches on pros-ecutrix’s person. Chief Cole did say that the prosecutrix was very emotional, nearly incoherent, when he questioned her. Other facts will be noticed in the course of the opinion.

In this court the defendant challenges the sufficiency of the evidence to support the judgment of conviction on the ground that the prosecutrix should have been corroborated. There are a good many cases which hold that when the evidence of the prosecutrix is of a contradictory nature, or when applied to the admitted facts of the case her testimony is not convincing but leaves the mind of the court clouded with doubt, she must be corroborated, or the judgment cannot be sustained, State v. Akers, 328 S.W.2d 31, 33[2] (Mo.1959); State v. Nash, 272 S.W.2d 179, 183[1] (Mo.1954); State v. Tevis, 234 Mo. 276, 284, 136 S.W. 339, 341[6] (1911), but these rulings are, in our opinion, only specific applications of the more general principle that it is an appellate judicial function to determine whether evidence is substantial as a matter of law and warrants inferences sufficient for submission of the case to the jury. State v. Nash, supra, 272 S.W.2d at 183[2-4]; State v. Henke, 313 Mo. 615, 638-634, 285 S.W. 392, 397[5] (1926). When the record is considered as a whole, certain inconsistencies or improbabilities appear which arguably mitigate against the conclusion that the prosecutrix was forcibly raped. She did not resist or attempt to escape when she was “grabbed” initially; she did not cry out or attempt to escape when the automobile was stopped under the Crocker Bridge; the examining physician found no visible signs of physical abuse or violence upon the prosecu-trix’s body; her clothing was neither torn nor soiled. Moreover, the prosecutrix testified that Rogers and the defendant stopped at the gas station in St. Robert long enough to be seen and to have their vehicle license number copied.

The other side of the coin is that the prosecutrix was, to a degree, corroborated. Her testimony that she had been raped three times was clear and unequivocal. Her assertion that she had submitted because she was frightened was corroborated by the Waynesville Chief of Police, who found that the prosecutrix “wasn’t coherent” when he attempted to question her. Given the prosecutrix’s immaturity (she was 18 years of age) and the fact that she v/as only 5 feet tall and weighed only 95 pounds, we cannot say that her testimony, taken with that of the examining physician and the Waynesville Chief of Police, was insufficient to permit reasonable minds to find defendant guilty beyond a reasonable doubt The evidence of defendant’s guilt was substantial, and the effect of such inconsistencies or improbabilities as appeared in the evidence was a question for the jury. State v. Cox, 478 S.W.2d 339, 341(3, 4] (Mo.1972); State v. Nash, supra, 272 S.W.2d at 183[3]; State v. Hadley, 249 S.W.2d 857, 861[4] (Mo.1952).

The defendant’s principal assignment of error is directed to the instructions given and refused. The State’s main or principal instruction authorized a conviction if the jury found beyond a reasonable doubt that defendant “did . . . feloniously make an assault upon [the prosecutrix], a female person over the age of sixteen years, and did then and there wilfully, forcibly and feloniously rape, ravish and carnally know [the prosecutrix]”.

The defendant asserts that this instruction is “fatally defective” because it does not in terms submit the commission of the proscribed act “without the consent” or “against the will” of the prosecutrix.

The defendant further complains of the trial court’s refusal to give his tendered Instruction D-A, which in substance advised the jury that if it found and believed beyond a reasonable doubt that defendant “inserted his sexual organ into the sexual organ [had carnal knowledge] of [prosecu-trix]” and that defendant “did so against [prosecutrix’s] will and after he caused her to submit by threats which caused her to fear physical violence to herself”, it would find him guilty, but if the jury did not find and believe that defendant had carnal knowledge of the prosecutrix as hypothesized, then it would find the defendant not guilty. The defendant also tendered Instruction D-B, generally and abstractly advising the jury that consent is a defense to the crime charged unless the consent is procured by violence or threats of violence. He also maintains this instruction should have been given.

We note that this case was tried before the effective date of Rule 20.02, which requires the use of Missouri Approved Criminal Instructions, now acronym-ieally referred to as MAB-CR. An extended discussion of the law under the former practice is obviously unnecessary, but we shall, at least, address the defendant’s contentions directly. To begin with, there is no doubt the elements of “forcible rape” as defined and denounced by § 559.260 are 1) carnal knowledge of a woman; 2) by force, and 3) without her consent. State v. Garrett, 494 S.W.2d 386, 338[2] (Mo.1973); State v. Deckard, 426 S.W.2d 88, 90[1] (Mo.1968). Nevertheless we find no authority for the proposition that prior to the promulgation of MAI-CR 6.40 it was necessary to submit the prosecutrix’s want of consent by using the phrase “against her will” or “without her consent”. The statute proscribes “rape ... by forcibly ravishing any woman of the age of sixteen years or upward” (our emphasis). The State’s principal instruction submitted the offense charged in the language of the statute, and the word “ravish” implies force and means to have carnal knowledge of a woman by force and against her will. State v. Abron, 492 S.W.2d 387, 389[5, 6] (Mo.App.1973); 75 C.J.S. Rape § 1, p. 463 (1952). The State’s verdict-directing instruction was not, in our opinion, “fatally defective” for the reason assigned. State v. Miller, 191 Mo. 587, 596, 90 S.W. 767, 770 (Mo.1905).

The meritorious question on this appeal is whether or not the trial court erred in refusing defendant’s tendered instruction D-A. The State brushes this question aside by saying that because its main or principal instruction correctly declared the law, there was no need to give Instruction D-A. We cannot agree. As we have held, the State’s main instruction covered the essential elements of the crime charged, but the defendant had a right to present these matters conversely or affirmatively from his own standpoint. There was evidence in this case, as we have noted, which tended to negative the want of consent which is an essential element of the State’s case. The defendant was entitled to argue the inconsistencies of the State’s case to the jury, State v. Hadley, supra, 249 S.W.2d at 861[5], and to offer a factual affirmative converse of the State’s principal instruction. State v. McWilliams, 331 S.W.2d 610, 613[6, 7] (Mo.1960); State v. Chevlin, 284 S.W.2d 563, 567[11, 12] (Mo.1955); State v. Fraley, 342 Mo. 442, 446, 116 S.W.2d 17, 20[2-4] (1938). It was not error to refuse defendant’s tendered instruction D-B, which is at best abstract and cautionary, but Instruction D-A should have been given. For the error noted, the judgment is reversed and the cause is remanded.

All concur except FLANIGAN, J., not participating because not a member of the court when the cause was submitted.

On Alternative Motion for Rehearing or Transfer to the Supreme Court

The State has filed a vigorous alternative motion for a rehearing or for a transfer of the appeal to the Supreme Court, assuring this court that “[njeedless to say, since the appellant’s requested instruction was MAI— CR 6.40, it did not submit the negative of any of the essential elements of the state’s case, including* consent. On the contrary, it submitted the affirmative of each of the elements of the state’s case, only in slightly different language than Instruction S-lG.” Citing no authority, the State confidently asserts that “[i]f the appellant had wanted to present the issue of lack of consent ‘conversely or affirmatively from his own standpoint,’ he should have submitted an instruction which stated that the jury must acquit ‘unless it found that the prose-cutrix had not consented’ or ‘if it found that she had consented.’ ”

The argument ignores the law as it it existed at the time this case was tried, and in addition positively misstates the record. As noted in the principal opinion, the ease was tried before the effective date of Rule 20.02, and the use of MAI-CR was not mandatory. As the State concedes, our courts have for many years held that a criminal defendant is entitled to an instruction correctly stating the converse of the instruction upon which the State asks his conviction. State v. Rutherford, 152 Mo. 124, 184, 53 S.W. 417, 420 (1899). We are aware of no precedent antedating Rule 20.-02 which held that a criminal converse was required to be in any particular form, so long as it clearly submitted the converse of the facts and issues upon which the conviction was authorized. It was, of course, held in State v. Fraley, supra, 342 Mo. at 446, 116 S.W.2d at 20, that the practice of concluding the State’s main instruction with the words “and unless you so find you will acquit” was not a sufficient reason to refuse a correct, separate converse tendered by the defendant, but the later holdings were uniform to the effect that it was reversible error to refuse a factual converse of the State’s main instruction, unless the State’s instruction clearly submitted the converse of the facts and issues upon which the conviction was authorized. State v. McWilliams, supra, 331 S.W.2d at 613; State v. Taylor, 356 Mo. 1216, 1221, 205 S.W.2d 734, 787[8, 9] (1947); State v. Ledbetter, 332 Mo. 225, 228, 58 S.W.2d 453, 454[3] (1933).

In this case, the State’s main instruction, No. S-l-G, was as follows:

“The Court instructs the jury that if you find and believe from the evidence in this case, beyond a reasonable doubt, that in Pulaski County, Missouri, on the 14th day of September, 1972, the defendant, James M. Bohannon, then and there being, did then and there feloniously make an assault upon one Maria Sucher, a female person over the age of sixteen years, and did then and there wilfully, forcibly and feloniously rape, ravish and carnally know the said Maria Sucher, you will find the defendant guilty, as charged. ‘WILFULLY’, as used in this instruction, means intentionally. ‘FELO-NIOUSLY’, as used in this instruction, means wickedly and against the admonition of the law; that is, unlawfully.”

The other instructions cover the presumption of innocence and the credibility of the witnesses.

Instruction D-A, which the State says can in no event be considered eonver-sive, reads as follows:

“If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about September 14, 1972, in the County of Pulaski, State of Missouri, the defendant inserted his sexual organ into the sexual organ of Maria Sucher, and
Second, that he did so against her will and after he caused her to submit by threats which caused her to fear physical violence to herself,
then you will find the defendant guilty of rape.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, you must find the defendant not guilty of that offense.” (our emphasis)

Granted, the instruction is literally MAI-CR 6.40, but it does not follow that, judged by standards prevailing before MAI-CR 6.40 was promulgated, the instruction cannot be considered a converse. Instruction D-A hypothesizes the facts necessary to conviction much more directly and clearly than the State’s main instruction, and directly advises the jury that unless they find the facts to be as hypothesized, they will acquit. Unlike the bare statement “and unless you so find you will acquit”, Instruction D-A particularly and specifically converses every element of the State’s case. State v. Dougherty, 287 Mo. 82, 90, 228 S.W. 786, 788[7] (1921). The State’s motion for rehearing or to transfer to the Supreme Court is wholly devoid of merit, and is denied.

All concur.

      . All references to statutes and rules are to RSMo 1969, V.A.M.S., and V.A.M.R., except where otherwise specifically noted.


author: FLANIGAN, Judge.

text:
    H. Elvin KEARBEY, Plaintiff-Respondent, v. The RELIABLE LIFE INSURANCE COMPANY OF WEBSTER GROVES, MISSOURI, Defendant-Appellant.
    No. 9844.
    Missouri Court of Appeals, Springfield District.
    July 15, 1975.

      G. H. Terando, J. Lee Purcell, Hyde, Purcell, Wilhoit & Edmundson, Poplar Bluff, for defendant-appellant.
    Ernie J. Richardson, Poplar Bluff, for plaintiff-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action by H. Elvin Kearbey for the “accidental death benefit” contained in an insurance policy issued by defendant-appellant on the life of Thelma Kearbey. Plaintiff is the beneficiary named in the policy. The trial court entered judgment in favor of plaintiff in the amount of $1,500 (the amount of the accidental death benefit) but found in favor of defendant on the issue of additional damages for vexatious refusal to pay.

Defendant appeals from that judgment.

Defendant’s answer admitted issuance of the policy but denied that plaintiff was entitled to the accidental death benefit. The answer further alleged “that the actual .cause of the death of Thelma Kearbey is undetermined and the plaintiff has furnished no proof that the death of Thelma Kearbey occurred in such a manner as to entitle plaintiff to coverage under the accidental death benefit of the policy.”

No oral testimony was introduced. The parties stipulated that four exhibits “shall constitute the evidence to be offered in this cause by plaintiff and defendant.” The four exhibits are the death certificate, the autopsy report, the coroner’s report, and the insurance policy.

Entries on the death certificate include: Thelma Kearbey died on October 7, 1972, divorced; her death was eaused_by “the added effect of alcohol and butabarbital in the blood”; the autopsy evidence was considered in determining the cause of death; “Accident, Suicide, Homicide, or Undetermined: Undetermined”; “Date of Injury: October 7, 1972.”

The essence of the coroner’s report: “I find the cause and place of death to be as follows: Mrs. Thelma Marie Kearbey was D.O.A. at the Doctors Hospital and the results of extensive lab analysis with the autopsy conclude death was due the added effects of alcohol and butabarbital in the body. It is undetermined whether this overdose was accidentally administered or whether it was suicide.”

The autopsy report consists of 16 pages and includes a Summary, an “Autopsy Protocol” (which includes detailed findings with respect to the examination, internal and external, of various portions of the anatomy), a “Microscopic Description” (which contains microscopic findings with respect to certain portions of the anatomy, including some of those contained in the “Autopsy Protocol”), a Diagnosis, a Comment by the pathologist, and laboratory reports pertaining to blood taken from Thelma Kearbey.

The Summary, after describing Thelma Kearbey as “ex-wife of Elvin Kearbey” (respondent), states: “Thelma Kearbey consumed one-fourth pint of whiskey between 7:30 or 8 p. m., 10-6-72. Mr. Kearbey stated that he fell asleep on the couch and awoke cold so he proceeded to go to bed with his ex-wife Thelma Kearbey. Upon going to bed he stated that she felt cold, so he felt her stomach, and he could not find evidence of breathing. He immediately called the ambulance. Elvin Kearbey stated that this occurred about midnight, and he also stated that approximately two weeks ago the same thing happened and they got her to the Doctors Hospital, but this time, in time to save her life.”

The Autopsy Protocol stated there was no evidence of trauma “in the face, scalp, hands, or rest of the skin.”

The Diagnosis included: “blood ethyl alcohol 0.281 percent; barbiturate blood 0.9 mg/100 ml of Butabarbital.”

The pathologist’s Comment contains the following: “No natural disease sufficient to cause death was found. No evidence of mechanical trauma was found.

Blood ethyl alcohol was 0.281 percent. In general a stupor or coma will be observed with levels of 0.250 to 0.350 percent. Barbiturate blood level was 0.9 mg/100 ml of Butabarbital. Coma due to Butabarbital in general occurs with levels between 2 and 3 mg per 100 ml. The dose to produce sleep (hypnotic effect) in general has blood levels between 0.5 to 1.5 mg per 100 ml.

“From these findings it is my conclusion that death was due to the added effects of alcohol and Butabarbital. Alcohol at the level of .281 percent and Butabarbital at the level of 0.9 mg. percent. Most likely a coma developed first and then this was followed by slowing of breathing and later on by stopping of breathing and death.”

He stated that the possibilities were suicide, an accidental self-administered overdose, or an accidental or deliberate overdose administered by another person.

The Laboratory Reports contained the following: “Blood contained 0.251 (sic) percent ethyl alcohol by weight as determined by gas chromatography. . . . The analysis of the blood gave the following results: Barbiturate: 0.9 mg/100 ml — Bu-tabarbital”

The “accidental death benefit,” on which this action is based, reads: “As a part of the policy proceeds, the Company agrees to pay an accidental death benefit equal to the face amount of the policy, upon receipt of due proof that the death of the insured, (1) resulted directly and independently of all other causes from the accidental bodily injury, which, except in the case of drowning, is evidenced by a visible contusion or wound on the exterior of the body, or is visibly manifest on an autopsy if such injury is internal, and (2) occurred within 90 days from the date of such injury, and (3) occurred prior to the termination of this agreement.”

Since the exhibits do not show “a visible contusion or wound on the exterior of the body,” plaintiff, to be entitled to the accidental death benefit, has the burden of proof to show:

1. The death of Thelma Kearbey directly and independently from all other causes resulted from a bodily injury.

2. The bodily injury, if internal, was visibly manifest on the autopsy.

3. The bodily injury was accidental.

4. The death occurred within 90 days from the date of such injury.

5. The death occurred prior to the termination of the agreement.

Thelma Kearbey’s death occurred prior to the termination of the agreement. The death occurred within 90 days “from the date of such injury” if, in fact, the evidence supports affirmative findings with respect to the first three of the listed elements of plaintiff’s cause of action. Thus the outcome of this appeal hinges upon whether the evidence shows the existence of the first three elements.

It is the duty of this court to interpret the insurance policy and to enforce it as it is written and not to remake it. Brugioni v. Maryland Cas. Co., 382 S.W.2d 707, 710[2] (Mo.1964). This court may not create an ambiguity where none is present so as to construe the policy liberally, Gabel v. Bird, 422 S.W.2d 341, 343[2] (Mo.1967), and may resort to construction, in the usual sense, of the policy only when its language, in its ordinary meaning, is indefinite, ambiguous or equivocal. State Dept. of P. H. & W. v. Hanover Ins. Co., 431 S.W.2d 141, 143[1] (Mo.1968); 44 C.J.S. Insurance § 290, p. 1139.

I. Did the death of Thelma Kear-bey directly result from a bodily injury?

The policy contains no definition of the term “bodily injury,” nor indeed of any words or terms.

The term “bodily injury” is defined, in Black’s Law Dictionary, Rev. 4th Ed., 1968, as follows: “Any physical or corporeal injury; not necessarily restricted to injury to the trunk or main part of the body as distinguished from the head or limbs; a physical injury only; a cut, bruise, or wound; a localized abnormal condition of the living body; injury caused by external violence.”

In 44 Am.Jur.2d Insurance §§ 1223, p. 72, it is said: “The term ‘bodily injury’ is often used in describing the coverage of accident insurance policies or provisions. It is difficult, however, to lay down an accurate and definite general rule as to what constitutes ‘bodily injury’ within the meaning of accident policies, or life policies with accident features, and the determination of the question depends upon the facts of the case.

It should be noted that the policy, in addition to requiring a “bodily injury,” requires (except in case of drowning) that the same be “evidenced by a visible contusion or wound on the exterior of the body, or is visibly manifest on an autopsy if such injury is internal.” The presence of a “contusion or wound” is required if the injury is an external one but no such requirement exists with respect to an internal injury (the requirement that the latter be “visibly manifest on an autopsy” will be discussed later).

A factually similar case is Malanga v. Royal Indemnity Co., 101 Ariz. 588, 422 P.2d 704 (banc 1967). There the insured Ellis died from an overingestion of barbiturates and alcohol. The policy insured against “loss, resulting directly and independently of all other causes, from accidental bodily injury sustained during the term of the policy. . . . ” The insurer argued that the death of Ellis did not result from “accidental bodily injury and that unless there was a cut, bruise or a rupture of some part of the body, there has been no bodily injury within the meaning of the policy.”

At p. 707 the court said: “We cannot agree with this contention. If the Company had intended to limit the words ‘bodily injury’ to injuries which were traumatic in nature, it might easily have done so by simply inserting such a provision in the policy. At best, the fact that such limiting provision is not present makes it uncertain whether the phrase ‘bodily injury’ is so limited. When the language of such a policy is unclear this Court has been and continues to be guided by the general rule ‘ * * * that policies of this nature are construed in favor of the injured when any ambiguity appears therein.’ Dickerson v. Hartford Accident and Indemnity Company, 56 Ariz. 70, at 76; 105 P.2d 517, 519. Another principle often applied in these cases and applied to this Court in the Dickerson case is that the undefined words of an accident insurance policy will be defined in the common sense terms of the average layman rather than in the terms of a highly technical medical definition.

“Applying the above principles of the Dickerson opinion to the facts of the case presently before us we find that when the central nervous system of Jack Ellis was dulled to the point where automatic breathing and heartbeat were not sufficiently stimulated, so as to sustain life, the deceased incurred a ‘bodily injury’ within the meaning of the policy. In the sense in which the term ‘bodily injury’ is ordinarily used and understood, we think it is impossible to conclude otherwise. When a body is so affected that its normal functions are interfered with to the point where death results, the body has been injured.”

In Metropolitan Life Ins. Co. v. Main, 383 F.2d 952 (5th Cir.) (1967), the synergistic effect of alcohol and barbiturates resulted in damage to the cells and tissues of the body and caused the insured’s death. The court held that an injury occurred within the insured’s body.

The death certificate of Thelma Kearbey gave her date of death as October 7, 1972. In a separate item on that certificate, the same date is inserted as “date of injury.”

This court concludes that the death of Thelma Kearbey directly resulted from a bodily injury. That injury consisted of the physical reaction induced by “the added effect of alcohol and Butabarbital in the blood.” The evidence supports the conclusion that the bodily injury was an internal one.

II. Was the bodily injury “visibly manifest on an autopsy?”

Webster’s Third New International Dictionary (1971) contains the following definitions:

Autopsy: Post-mortem examination.

Visible: Capable of being seen; perceptible by vision.

Visibly: In a visible manner.

Manifest: Capable of being readily and instantly perceived by the senses and especially by the sight; not hidden or concealed; open to view.

The presence and respective amounts of alcohol and butabarbital in the blood of Thelma Kearbey were ascertained by laboratory analysis, the particulars of which are set forth in the Laboratory Reports. Those reports are an integral part of the autopsy report which, it will be recalled, was an exhibit introduced into evidence by the defendant as well as by the plaintiff. Although it is true that the presence and amounts of the two synergistic agents in the blood of Thelma Kearbey were not detectable by naked eye, without laboratory equipment, the fact is that the utilization of the latter produced unmistakable, definitive and ocularly observable findings and a firm diagnosis of cause of death. This court takes notice of the fact that for many years laboratory analysis has been a common procedure in, and frequently the decisive portion of, an autopsy.

The primary purpose of an autopsy is to ascertain the cause of death. If that quest required the use of modern laboratory tools and data, examined and confirmed by the human eye, as was the situation here, it may properly be said that this internal bodily injury was visibly manifest on autopsy.

Neither the death certificate nor the autopsy report leaves to speculation or conjecture the answer to the basic question “What was the cause of the death of Thelma Kearbey?” That answer is dear; that answer is provided by laboratory analysis; that analysis was an integral part of the autopsy; the human eye, with modern equipment, perused and interpreted the data on which the analysis was predicated.

The question under consideration must receive an affirmative answer.

III. Was the bodily injury “accidental?”

Although the instant policy contains an exclusion pertaining to suicide, defendant’s answer did not plead that provision as an affirmative defense nor did defendant in the trial court or in this court rely upon same. There is, of course, nothing in this record to support any finding, or even suspicion, that Thelma Kearbey was insane, although suicide while insane is an accidental death. Brunswick v. Standard Acc. Ins. Co., 278 Mo. 154, 213 S.W. 45, 47[3] (banc 1919); Sommer v. Metropolitan Life Ins., 449 S.W.2d 644, 645 (Mo. banc 1970).

With respect to suicide while sane, § 376.-620 RSMo 1969, V.A.M.S. severely restricts, with regard to actions on life insurance policies, the defense of suicide. That statute has been held applicable to policies of accident insurance, Logan v. Fidelity & Cas. Co., 146 Mo. 114, 47 S.W. 948 (1898), although that holding has been criticized.

But the statute plays no role in this case. Referring to the statute, then § 6945, our Supreme Court has said: “The above section has nothing to do with the manner or cause of death. It leaves the parties perfectly free to contract in an accident policy touching the cause of death. If they see fit to contract that there shall be no liability except for a death resulting from an accidental injury, then the proof must shown such a cause of death, before any recovery can be had on the contract. In other words, if the proof, even where aided in a proper case, by the presumption against suicide, yet shows suicide by assured while sane, the plaintiff has simply failed to meet the burden expressly assumed in the insurance contract of proving the death of assured by accident.” Brunswick, supra at p. 47.

It must be kept in mind that the plaintiff, in carrying his burden of proof on the element under consideration, need show only that the bodily injury was accidental. This policy does not contain the term “accidental means” frequently found in double indemnity provisions of life insurance policies or accident insurance policies, as stated in White v. Smith, 440 S.W.2d 497, 506 (Mo.App.1969).

The distinction between a policy insuring against accidental injury and a policy insuring against injury by accidental means is exemplified by the situation in Murphy v. Western & Southern Life Ins. Co., 262 S.W.2d 340 (Mo.App.1953). There the policy provided for payment on death caused by accidental means. The insured died by reason of an overdose of paraldehyde, which had been prescribed by his physician. The court denied recovery, stating that the insured knew he was taking paraldehyde and the only thing unexpected was the result.

At p. 342 the court said:

“An accident, in common parlance, and as defined in Webster’s New International Dictionary, Second Edition, is:

‘1. a. An event that takes place without one’s foresight or expectation; and undesigned, sudden, and unexpected event, b. Hence, often, an undesigned and unforeseen occurrence of an afflic-tive or unfortunate character; a mishap resulting in injury to a person or damage to a thing; a casualty; as, to die by an accident.’

“Under the above definition, which merely requires the element of unexpectedness, a result may be accidental (although it proceeded from an intentional act) under the terms of a policy insuring against accidental death, if one can say that the result was an unusual or unexpected consequence of such intentional conduct. However, when we consider a policy which requires as a prerequisite to liability that the injury or death must be caused by ‘accidental means’, a new element of unexpectedness is introduced. In such a case we no longer look to the result, viz., the injury or death, in determining whether the loss is covered, but must look to the means. Caldwell v. Travelers Insurance Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56. The policy in such a case provides a restricted form of insurance, rather than straight accident insurance, and requires that there be an element of unexpectedness in the means which produces the result.” (Emphasis added.)

In 45 C.J.S. Insurance § 753b, p. 778, it is said: “If death or injury is the unexpected or unintentional result of some act, although voluntarily done by deceased or the person injured, it is an accidental death or injury.”

In Applebury v. John Hancock Mutual Life Insurance Co., 379 S.W.2d 867, 870 (Mo.App.1964) the court quoted with approval the following language from 45 CJ.S. Insurance § 753b, pages 779, 780: “If the death or injury, although unforeseen or unexpected, results directly from insured’s voluntary act, unaccompanied by anything unexpected, unusual, or unforeseen, it is not death or injury by accidental means, although the result may be such as to constitute an accidental injury.” (Emphasis added.) And in Camp v. John Hancock Mut. Life Ins. Co., 165 S.W.2d 277, 280 (Mo.App.1942) it is said: “So it is that even though, as not infrequently happens, an unusual or unexpected result may occur by reason of the doing by the insured of an intentional act, nevertheless, if there has been no mischance, slip, or mishap in the doing of the act itself, the resulting death, though itself accidental in the sense of being unintended and unexpected, is not caused through accidental means as that term is employed in the policy.” (Emphasis added.)

The defendant in its brief makes the following assertion “In order to have proven that the manner in which the insured died was an accident, the respondent was obligated to show that the act by the insured which preceded the injury was something unforeseen, unexpected, unusual in its occurrence, and did in fact produce the injury.” In support of that assertion defendant cites Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907 (banc 1924).

As our Supreme Court stated, in Farmers Insurance Exchange v. Peters, 502 S.W.2d 319, 323 (Mo.1973), since the decision in Caldwell, Missouri has followed a line of cases which hold that “where an unusual or unexpected result occurs by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not e.nough that the result may be unusual, unexpected, or unforeseen.”

There is no evidence in this case to show that when Thelma Kearbey was ingesting the alcohol and the drugs, a “mischance, slip, or mishap” occurred during that process. Thus, if the instant policy conditioned coverage upon death “by accidental means,” plaintiff’s case would fail.

But the policy is not couched in terms of “accidental means.” Plaintiff makes a case, the other elements of her cause of action having been established, if the injury, as distinguished from the me'ans by which the injury was accomplished, was accidental. The distinction is that between cause and effect. Although Thelma Kear-bey may have intentionally consumed the fatal combination, the injury, that is the effect, was accidental if it was not intended.

In Farmers Insurance Exchange v. Peters, supra, recovery upon an automobile accidental death indemnity was denied because, although the driver did not intend to cause his death, he did intentionally act in such a manner as to cause the result and there was no showing of any causative mischance, slip, or mishap “which reasonably could be said to have converted the ‘intentional act’ into one which legally under the law of this state, could be called an ‘accidental act.’ ” But in that case the policy afforded coverage “if death resulted directly from bodily injuries ‘caused by accident.’ ”

In the case at bar, though there was no showing of accidental means, or accidental causes, there was a showing of accidental result if the plaintiff is entitled to the benefit of the presumption against suicide.

There are several reasons underlying the presumption against suicide. They include the facts that love of life is the strongest instinct of human beings, that the ordinary person has a fear of death and a fear of the pain which might be suffered in the act of self-extermination, and that some religions teach that sanctions are imposed upon those who end their own lives. Self-destruction is contrary to the general conduct of mankind. Perringer v. Metropolitan Life Ins. Co., 241 Mo.App. 521, 244 S.W.2d 607, 614 (1951).

But the presumption against suicide does not carry with it the further presumption that death was accidental. Laessig v. Travelers’ Protective Association, 169 Mo. 272, 279, 69 S.W. 469 (1902); Perringer v. Metropolitan Life Ins. Co., supra, 244 S.W.2d 607, 614.

When a plaintiff “has put in evidence circumstances which prove that the death was either accidental or suicidal, the unreasonableness of the theory of suicide must receive due consideration in weighing it against the more reasonable and natural theory of accident.” Reynolds v. Maryland Cas. Co., 274 Mo. 88, 201 S.W. 1128, 1132[4] (banc 1918).

“The presumption against suicide is a rule of law deduced from convenience and necessity ... it arises in a case whenever the cause of death is in issue and the evidence discloses a state of facts consistent with either accident or suicide. . It is to be invoked, or automatically rises, to be exact, when there is no convincing evidence for or against suicide, and in such case, perforce this presumption alone, a finding in favor of accidental death will be upheld ... If the evidence in favor of suicide is wholly circumstantial, then it ought to be such and of such weight as to negative every reasonable inference of death by accident . . . Obviously the presumption against suicide cannot continue to exist in the face of evidence showing suicide.” Brunswick v. Standard Accident Ins. Co., 278 Mo. 154, 213 S.W. 45, 50[9] (banc 1919). See also Gilpin v. Aetna Life Ins. Co., 234 Mo.App. 566, 132 S.W.2d 686, 692[2-6] (1939).

A review of the evidence justifies the following conclusions: The death of Thelma Kearbey was caused by the synergistic effects of alcohol and butabarbital. Early in the evening she had voluntarily consumed some whiskey. Her death occurred at approximately 12:45 a.m. on October 7, 1972. There was no evidence that the butabarbital was caused to be introduced into her body by the act, negligent or intentional, of another person. There is certainly no basis for inferring that plaintiff was in any way responsible for his former wife’s ingestion of the alcohol and drug. No suicide note or other evidence of an intent toward self-destruction is shown. If, and it is a reasonable inference, Thelma Kearbey voluntarily consumed the alcohol and drug which combined to cause her death, there is no showing that she intended such a result. Nor is there any evidence that she intended to take an overdose of either or both of the fatal agents.

Although the Autopsy Report quotes the plaintiff “that approximately two weeks ago the same thing happened and they got her to the Doctors Hospital, but this time in time to save her life,” that episode, standing alone, does not support the inference that Thelma Kearbey intended to take her own life. Even if it be assumed that the prior occurrence involved consumption of alcohol and drug, it does not follow that Thelma Kearbey had suicidal intentions. Indeed, the high level of alcohol in her blood on the fatal occasion might indicate that the consumption, of the drug was the unthinking act of an intoxicated person. There is no showing that Thelma Kearbey was cognizant of the deadly combination of the things which she ingested.

The entry on the death certificate to the effect “Accident, Suicide, Homicide or Undetermined: Undetermined.” is not controlling. “Whether the death was accidental, suicidal or homicidal would not be within the personal knowledge of the physician and his statement with respect thereto would be merely his opinion, his ‘probable’ conclusion, and not a statement of fact.” Callahan v. Conn. Gen. Life Ins. Co., 357 Mo. 187, 207 S.W.2d 279, 286[5] (1947).

In short, as stated in Brunswick v. Standard Accident Ins. Co., supra, 213 S.W. 45, 50, “There is no convincing evidence for or against suicide and in such case the presumption of suicide will uphold a finding in favor of accidental death.” In Hendrix v. Metropolitan Life Ins. Co., 250 S.W.2d 518, 520[1] (Mo.1952) it is said: “The presumption against suicide is so strong that unless the evidence negatives every reasonable inference of death by accident, a finding of death by accident will be justified.

The parties have stipulated that “the only question involved” is whether the policy afforded the accidental benefit “under the facts and circumstances in this case.” There is no claim by defendant that the exhibits were not furnished to defendant prior to the filing of this action.

This court concludes that the evidence, aided by the presumption against suicide, supports the finding that the bodily injury was “accidental.”

The judgment is affirmed.

All concur.

      . Oddly enough, one of appellant’s “points relied on” is that the trial court erred in finding for respondent “on the issue of vexatious delay.” As indicated, the trial court found in favor of appellant on that issue. Thus the propriety of that finding is not an issue on this appeal.

      . Defendant makes no contention with regard to a lack of insurable interest in plaintiff. In Bowers v. Missouri Mut. Ass’n, 333 Mo. 492, 62 S.W.2d 1058, at p. 1064 (1933) it is said: “The divorce subsequent to the issuance of the policy did not destroy its validity . . .. The general rule is that ‘a policy of life insurance, or a designation of beneficiary, valid in its inception, remains so, although the insurable interest, or relationship of the beneficiary, has ceased, unless it is otherwise stipulated in the contract.’ ”

      . The reason for the use of the article “the” instead of “an” is not apparent.

      . No accidental death benefit will be payable if death of the insured results directly or indirectly from, or is caused by or contributed to by, ... (1) suicide or any attempt at suicide, whether sane or insane.

      . Section 376.620 is as follows: “In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown to the satisfaction of the court or jury trying the cause, that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.”

      . See dissenting opinion of Judge Donnelly, in Sommer v. Metropolitan Life Ins. Co., 449 S.W.2d 644, 648 (Mo. banc 1970).

      . Typically providing benefits for death resulting from “bodily injuries effected directly and independently of all other causes through external, violent, and accidental means.” Callahan v. Conn. Gen. Life Ins. Co., 357 Mo. 187, 190, 207 S.W.2d 279, 281 (1947).

      . Likewise typically providing benefits for death “from bodily injuries, effected directly and independently of all other causes, through external, violent and accidental means alone . . . ” Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 623, 267 S.W. 907 (banc 1924).

      . Although not cited in the briefs, candor compels the concession that in Commercial Ins. Co. of Newark, N. J. v. Orr, 379 F.2d 865 (1967) (8th Cir.), a case based on Missouri law, an insuring clause which provided for payment of loss, including death, “resulting directly and independently of all other causes from accidental bodily injury” was construed to require the proof of “accidental means.” But recovery was allowed.

      . Of course, if Thelma Kearbey accidentally consumed them, the outcome is the same.


author: SHANGLER, Judge.

text:
    Janice (Honn) STORM, Plaintiff-Respondent, v. FORD MOTOR COMPANY and Broadway Motors, Inc., Defendants-Appellants.
    No. KCD 26863.
    Missouri Court of Appeals, Kansas City District.
    Aug. 4, 1975.
    Motion for Rehearing and/or Transfer Denied Sept. 2, 1975.
    Application to Transfer Denied Oct. 13, 1975.

      Fred J. Wilkins, Shughart, Thomson & Kilroy, Kansas City, for defendant-appellant Ford Motor Co.
    James H. Ottman, Shook, Hardy & Bacon, Kansas City, for defendant-appellant Broadway Motors, Inc.
    Before WASSERSTROM, P. J„ and SHANGLER and DIXON, JJ.
   SHANGLER, Judge.

This claim arises from a collision between a tractor-trailer and an automobile alleged to have been defectively manufactured by the defendant Ford Motor Company and sold to plaintiff by the defendant Broadway Motors.

The plaintiff Janice Storm was operating her 1967 Ford Mustang easterly on Interstate 70 at about 70 miles per hour. As she approached Sweet Springs, Missouri, she moved her car into the left lane in order to pass a tractor-trailer. As she did so, she noticed that her vehicle had drifted to the right, and attempted to correct this position by turning the wheels to the left. At this point, so she testified, her Mustang suddenly fishtailed and started to swerve around the road. As she turned the steering wheel to the right and then to the left, the car responded to the direction but remained out of control and suddenly veered across the road and lodged its nose under the truck at an angle of about 45°. Engaged in this position, the Mustang was dragged down the highway for about 1000 feet.

The driver of the tractor-trailer heard a loud noise and then saw the Mustang on the median strip out of control. Another witness, driving behind the tractor-trailer, saw the Mustang catch the left shoulder of the highway. These witnesses both testified that the Mustang reeled across the highway from the left and nosed under the trailer, so that the right side of the car came into collision with the front of the left rear wheels of the truck. The highway patrolman found two skid marks created by the Mustang, measured at 1020 feet.

The plaintiff had purchased the Mustang as a new car although it had been a demonstrator for Broadway Motors and driven 80 miles in that use. Since the purchase in July of 1967, the plaintiff had driven the Mustang about 3100 miles, all without any steering difficulty. Other than for regular service, the Mustang had never required maintenance or repairs.

The plaintiff had judgment for personal injury and property damage on a theory of strict tort liability. It was the trial contention that the casualty occurred when the right rear wheel bearing gave way.

The appellants assign four points of error for reversal, among them that appellants were prejudiced by the exclusion from evidence of Exhibit 6 proffered by defendant Ford. That exhibit was a wheel bearing, asserted by Ford as a component of the right rear axle assembly of the Mustang in place at the time of the casualty, the mechanical part which the plaintiff alleged was defective and caused her injury. The court allowed the exhibit for purposes of demonstration only, but not as real evidence on the theory that the wheel bearing had not been identified through an authentic chain of custody.

The petition of the plaintiff proceeded on a pleading of strict tort liability in that the Mustang was rendered dangerous because of a defect in the wheel bearing, and the proof was that the right rear wheel bearing gave way, causing the automobile to go out of control. Thus, the condition of that mechanical element of the right rear axle assembly became the focus of the proof.

The expert witness for the plaintiff, Cecil France, testified that the collision was caused when the right rear wheel bearing gave way, so that the wheel thus detached from the pinion assembly was no longer subject to steering control. Both France and the expert for Ford, Hugh Daley, agreed that if the right rear axle was laterally displaced during the forward operation of the Mustang, the wheel and axle would start wobbling. Daley added that the wobbling of the axle would be accentuated by the fishtailing which the plaintiff described and that the movement of the axle shaft would cause the wheel bearing to discolor and probably rupture.

It was the trial contention of the defendants that the wheel was not displaced until after the Mustang collided with the truck and was dragged sideways. They contend that the wheel bearing, offered as Exhibit 6, was palpably free of any distortion or discoloration, and therefore was persuasive evidence that the axle was not out of place before the Mustang lodged under the truck. They contend algo that the bearing was sufficiently identified to allow the jury to decide whether the proffered exhibit was in fact in place in the Mustang at the time of the casualty, and that they were prejudiced by the refusal of the court.

Whether proffered Exhibit 6 was identified, prima facie, as the wheel bearing component of the right rear axle assembly of the Mustang on the date of the casualty rests on this evidence of custody: On the day of the collision, December 22, 1967, the car was towed from the scene to the Hall Motor Company in Sweet Springs, Missouri, where it was inspected several days later by Cecil France. France, an employee of Auto Damage Appraisers, had received this assignment from the Automobile Club Inter-Insurance Exchange, collision carrier for the plaintiff. France noticed that the right rear axle was out against the fender, concluded something was amiss, and received permission from the Auto Club to remove the rear axle and housing. France photographed the Mustang and observed as a Hall mechanic removed the axle, tire and wheel on December 27, 1967. France then took these parts to his Columbia office where he cleaned them, and then had them photographed. A short time later, France returned the parts to the Auto Club, and at their direction, marked the axle with his initials. The other parts were not marked. The parts were then kept by the Auto Club until late 1968.

On the motion of defendant Ford for production and inspection, the court ordered the plaintiff to produce all the parts of the Mustang, the subject of the pending action, still in her actual or constructive possession. On December 6, 1968, a clerk from the law firm representing Ford took possession of the right rear axle assembly and gave a signed receipt for “the following parts of the automobile which [plaintiff] owned and was operating on the date of the casualty of December 22, 1967: right rear axle assembly with bearing”. Nine months later, on September 22, 1969, the párts were returned by Ford’s counsel to Carl Crick, Auto Club claims manager, whose signed receipt acknowledged the return of the same parts as had been relinquished. These parts remained in the custody of the Auto Club until they were given over to counsel for plaintiff for the trial.

The contention of the plaintiff that the chain of custody of the wheel bearing does not permit prima facie identification rests upon the inability of her expert, France, to identify proffered Exhibit 6 as the bearing taken from the damaged Mustang. Although he had inscribed his initials upon the axle, the bearing and other parts then on the axle were not identified with his mark. The plaintiff also points to the testimony of Carl Crick, Auto Club claims manager that although he signed the receipt which acknowledged that Ford had returned the same parts taken, Crick actually never personally examined them, the parts were wrapped when he received them from France. Finally, the plaintiff urges an inference that while the parts were in the custody of Ford, they were mailed to Dear-born for inspection. These factors, plaintiff contends, render the chain of custody incomplete and deprive the exhibit of eviden-tiary value.

The admissibility of any evidence, whether circumstantial, testimonial or demonstrative — that is, proof which appeals directly to the senses of the trier of fact— depends on relevancy, materiality and whether by proper foundation the evidence has been identified and connected with the issue. Jones on Evidence, § 15.2 [Sixth Edition]. When demonstrative evidence is offered, an adequate foundation for admission requires authentication that the object offered is the object involved in the controversy and remains in a condition substantially unchanged. “A foundation of this sort will commonly entail testimonially tracing the chain of custody of the item with sufficient completeness to render it improbable that thé original item has either been exchanged with another or has been contaminated or tampered with.” McCormick on Evidence, p. 527-8 [2d ed. 1972]; State v. Lemon, 504 S.W.2d 676, 684[15, 16] (Mo.App.1973).

The chain of custody doctrine as a principle of proof relates equally to civil and criminal proceedings. The criminal decisions of our state have postulated the rule that a chain of evidence is sufficiently traced where the circumstances show a “reasonable assurance that the [object] was the same and in the same condition.” State v. Smith, 222 S.W. 455, 458[5] (Mo.1920); State v. Nolan, 499 S.W.2d 240, 251[10, 11] (Mo.App.1974). This test does not require an account for “[the] hand to hand custody of the evidence from the time it is obtained to the time it is admitted into evidence, nor does it need to be continually watched.” State v. Day, 506 S.W.2d 497, 502[11] (Mo.App.1974).

The rule in civil cases is no more elaborate. As in criminal cases, a complete chain of evidence must trace the possession of the object sought to be admitted. If one link in the chain is missing, the object cannot be received. Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698, 712[4] (Mo.1969); see, also, 29 Am.Jur.2d, Evidence, § 774 [cited in Wehrkamp ]. A complete chain of custody, however, is not a requirement of a perfect chain of custody. Thus, in Connor v. Wabash R.R., 149 Mo.App. 675, 129 S.W. 777 (1910) [where the plaintiff attributed her failure to see the approaching train to a growth of weeds at the crossing] the defendant railroad caused the weeds to be cut a few days after the casualty. A number of them were gathered and tied by the county surveyor who was making measurements of the scene for the plaintiff. At the trial the surveyor testified that the weeds appeared to be those he had gathered, tied and tagged and that he recognized the handwriting on the identification card as his own. As against the contention that foundation for the evidence was not sufficient because it did not appear that the witness had retained custody of the evidence, the court determined that a prima facie identification had been made. In Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743 (1953), the decedent had committed suicide while under treatment at the defendant hospital. She had been found dead with a yellow and pink string around her neck. At the trial, four torn nightgowns were offered in evidence by the plaintiff who testified they had been given him by a member of the hospital staff, and at the time — as well as at the trial — the identifying tags of the hospital were fastened to the garments. The defendants claimed that there were only two nightgowns, the yellow ones. Their witnesses did not see or know of the pink nightgowns, and the two nightgowns of which they knew were not in the torn condition they appeared at the trial. The court sustained the identification of the evidence and received them as exhibits. And, in Bean v. Riddle, 428 S.W.2d 709 (Mo.1968), the court contending with blood alcohol specimen concluded that admissibility did not depend upon the preclusion of every possibility of doubt as to the identity of the specimen. It was sufficient that the evidence showed custody of the specimen from the time of withdrawal until the analysis, thus reasonably assuring the reliability of the tests. The court determined that the discrepancy between the label notation made by the sheriff that Dr. Smith had drawn the blood, rather than Dr. Simpson as all the other evidence showed, was a matter for the jury.

It is the sense of these decisions that where an unbroken chain of custody is shown, the object will not be excluded merely because the evidence as to the succession of custody was conflicting or the identification less than positive.

The evidence before the trial court was of an unbroken chain of custody of the wheel bearing in this sequence:

Prom: Hall Motor Company which took the damaged Mustang in tow on the day of the casualty, December 22, 1967 and then on December 27, 1967 at the direction of the Auto Club, collision carrier for the plaintiff, removed the axle assembly and wheel bearing and transmitted them.
To: Cecil Prance to the Auto Club who photographed the parts, marked the axle, and within days delivered the
To: The Auto Club, which retained custody of the parts until December 6,1968, when pursuant to the court order for inspection the parts were transmitted
To: A law clerk for the defendant Ford Motor Company by a signed acknowledgment by the clerk that he had received the axle assembly and bearing, parts installed in the Mustang at the time of the casualty. Nine months later, on September 22, 1969, counsel for Ford Motor Company returned the parts
To: Carl Crick, claims manager for Auto Club, who by receipt acknowledged return of the same parts as had been relinquished. The Auto Club retained custody of the parts until they gave them over
To: Counsel for plaintiff for the trial commenced on June 11, 1973.

This concatenated sequence of custody shows a prima facie identification of the bearing which dispels the contention of the plaintiff that the inability of her expert, France, to identify that part as taken from the damaged Mustang and that the receipt signed by Crick for the Auto Club that the parts returned by Ford were those relinquished under the court order, given without his inspection, as a matter of law excluded the bearing as an admissible exhibit. The self-contradiction between the acknowledgment of the receipt given by Crick and his testimony that despite the signature he never saw the parts raised a disputed issue for the jury. Stallman v. Robinson, supra, 260 S.W.2d l.c. 749[7, 8], Other evidentiary discrepancies in the chain of custody — properly for the jury — also bear on the ultimate inference of the authenticity of Exhibit 6 as the wheel bearing taken from the damaged Mustang: the failure of expert France to identify the part; the retention by Ford of the parts for over nine months despite the order of the court that they were not to be kept more than thirty days; the fact that the receipt had been drafted by counsel for defendant Ford and the intimation that the parts had been shipped out for further inspection while in the custody of Ford.

The exclusion of evidence will not be accounted reversible error in the absence of an abuse of discretion by the trial court. Bine v. Sterling Drug, Inc., 422 S.W.2d 623, 631[8] (Mo.1968). Such an abuse appears. Accordingly, the cause is reversed and remanded.

All concur.