171 S.W. 580 (Mo.App. 1914), Aetna Life Ins. Co. v. Kansas City Electric Light Co.

Citation:171 S.W. 580, 184 Mo.App. 718
Opinion Judge:TRIMBLE, J.
Party Name:AETNA LIFE INS. CO., Respondent, v. KANSAS CITY ELECTRIC LIGHT CO., a Corporation, CONSOLIDATED ELECTRIC LIGHT AND POWER CO., a Corporation, UNITED ELECTRIC LIGHT CO., a Corporation, STANDARD ELECTRIC LIGHT COMPANY, of Argentine, Kansas, a Corporation, KANSAS RAILWAY & LIGHT CO., a Corporation, Appellants
Attorney:John H. Lucas for appellants. C. A. Lawler and C. S. Palmer for respondent.
Case Date:December 07, 1914
Court:Court of Appeals of Missouri
 
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Page 580

171 S.W. 580 (Mo.App. 1914)

184 Mo.App. 718

AETNA LIFE INS. CO., Respondent,

v.

KANSAS CITY ELECTRIC LIGHT CO., a Corporation, CONSOLIDATED ELECTRIC LIGHT AND POWER CO., a Corporation, UNITED ELECTRIC LIGHT CO., a Corporation, STANDARD ELECTRIC LIGHT COMPANY, of Argentine, Kansas, a Corporation, KANSAS RAILWAY & LIGHT CO., a Corporation, Appellants

Court of Appeals of Missouri, Kansas City

December 7, 1914

Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.

Judgment affirmed.

John H. Lucas for appellants.

(1) The court erred in applying cancellation clause "K" in rendering judgment herein. The companies going out of business were entitled to cancel the policy without the application of "customary short rates," and instruction number 1 should have been given. LaForce v. Insurance Co., 43 Mo.App. 530; Mathews v. Woodmen, 236 Mo. 342-434. (2) The court erred in allowing interest. There was no sufficient proof of demand. McDonald v. Loewen, 145 Mo.App. 59.

C. A. Lawler and C. S. Palmer for respondent.

(1) The fact of its own existence and occupation being peculiarly within the knowledge of each of the appellants, such a fact, as expiring charter or retiring from business, if it existed should have been pleaded and proved at the trial. Kitchen v. Railroad, 59 Mo. 514; State ex rel. v. Schar, 50 Mo. 393; State v. Schatt, 128 Mo.App. 622. (2) No such question was raised in the trial court, and it will not be considered here. Sec. 2081, R. S. 1909.

OPINION

[184 Mo.App. 720] TRIMBLE, J.

Plaintiff issued to the defendants a policy of indemnity insurance which covered a term of three years. At the expiration of twenty-seven and one-half months the policy was canceled by the assured, which right was accorded defendants by the policy. Plaintiff claimed a balance due on the premium earned during the time the policy continued in force, and brought this suit to recover $ 1843.70 as such balance.

The answer admitted the issuance of the policy to the defendants, although the name of one of the defendants does not appear in the policy as shown in the record. The answer further set up that under a special agreement made at the time the policy was issued and accepted, the premium to be paid in case of cancellation was that actually earned at the time it was canceled; and that when the policy was canceled, defendants paid the premium due for the time said policy was actually in force. This agreement was embodied in a "Special Cancellation Privilege"...

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