314 F.2d 230 (8th Cir. 1963), 17092, Doza v. American Nat. Ins. Co.

Docket Nº17092.
Citation314 F.2d 230
Party NameMarshall G. DOZA and Mary E. Doza, Appellants, v. AMERICAN NATIONAL INSURANCE COMPANY, an Insurance Corporation, Appellee.
Case DateMarch 08, 1963
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 230

314 F.2d 230 (8th Cir. 1963)

Marshall G. DOZA and Mary E. Doza, Appellants,

v.

AMERICAN NATIONAL INSURANCE COMPANY, an Insurance Corporation, Appellee.

No. 17092.

United States Court of Appeals, Eighth Circuit.

March 8, 1963

Page 231

William R. Kirby, St. Louis, Mo., and Thurman Nixon & Blackwell, Hillsboro, Mo., on the brief, for appellants.

Lon Hocker, St. Louis, Mo., and Goodwin, MacGreevy, and Donald J. Stohr, St. Louis, Mo., on the brief, for appellee.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

PER CURIAM.

On motion for summary judgment the District Court sans memorandum opinion, entered judgment in favor of appellee and against appellants on the following tersely stated claim made in the complaint filed in the case at bar:

'That they (appellants) are the beneficiaries of an insurance policy purchased on the life of their daughter, Rose DeClue (who) died as a result of an accident; that at the time of the death the plaintiffs' rights under said policy accrued, and they thereby became entitled to $50,000.00 as the face amount of the policy, together with the amount of $15,000.00 as penalty and attorney fees for vexatious refusal to pay.

'Wherefore, plaintiffs pray judgment in the amount of $65,000.00 and for their costs herein expended.'

To that claim, appellee filed a general denial. By its motion for summary judgment, subsequently filed, appellee recognized that 'the complaint (was) based upon a claim founded upon an alleged life insurance policy issued by (it) to the plaintiffs' (appellants') assured.' It further stated therein: 'The fact is that no such policy was ever issued by the defendant nor delivered to the plaintiffs' alleged insured, Rose DeClue.' It was also alleged in that motion:

'The relevant facts are disclosed by the answers to plaintiffs' interrogatories answered under oath by the Regional Director of Agencies of defendant, a copy of which is attached hereto in support hereof.

Page 232

These facts demonstrate that the policy application was never acted upon by the defendant pending receipt of a physical examination to be taken by the applicant.

'The application for the insurance, a copy of which is attached hereto and incorporated herein, demonstrates that the policy could not in any event take effect until the completion of a medical examination (if required); that a physical examination was required, and that the plaintiffs were so informed by the agent soliciting the policy, as appears from the sworn answers to the interrogatories. (Emphasis added)

'There appears to be no dispute as to the basic facts in the case, and there is no substantial issue as to the facts, and under them plaintiffs are not entitled to recover more than the return of premium tendered to them by deposit in court.' (Emphasis added.)

From the record here, it appears that the basic issue raised by appellee's motion for summary judgment was whether or not a 'policy was ever issued or delivered by (appellee) to Rose DeClue or ever became effective because the policy for which application was made was contingent upon and could not take effect until the completion of a medical examination, to which the proposed insured, Rose DeClue, never submitted * * *.' As to that matter, appellee contends there was no genuine issue of material fact existing, and that it sustained the burden of...

To continue reading

Request your trial
24 practice notes
  • 315 F.2d 818 (8th Cir. 1963), 17103, Hutcheson v. Frito-Lay, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 17 Abril 1963
    ...another case presented at the same term of court has in general reaffirmed this approach. Doza v. American Nat'l Ins. Co., 8 Cir., 1963, 314 F.2d 230. c. The Supreme Court of Arkansas has enunciated for that state the rule that a release, to be effective, must be supported by consideration ......
  • 53 F.R.D. 416 (D.Neb. 1971), Civ. 1751 L, Becker v. Koza
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • 10 Septiembre 1971
    ...evidence contained in the affidavit. Neff v. World Publishing Company, 349 F.2d 235 (C.A.8th Cir. 1965); Doza v. American Nat. Ins. Co., 314 F.2d 230 (C.A.8th Cir. 1963); Walling v. Fairmont Creamery Company, 139 F.2d 318 (C.A.8th Cir. 1943). Inadmissible evidence does not comply with Rule ......
  • 233 A.2d 126 (Me. 1967), Steeves v. Irwin
    • United States
    • Maine Supreme Judicial Court of Maine
    • 15 Septiembre 1967
    ...asserted.' Sprague v. Vogt et al., (8th Cir., 1945), 150 F.2d 795; Doza v. American National Insurance Company, (8th Cir., 1963), 314 F.2d 230; Barron and Holtzoff, Federal Practice and Procedure, Vol. 3, § 1237. The defendant's affidavit must be disregarded for failure to comply with the r......
  • 299 So.2d 289 (Ala. 1974), SC 566, Land Title Co. of Alabama v. State ex rel. Porter
    • United States
    • Alabama Supreme Court of Alabama
    • 8 Agosto 1974
    ...furnishing no basis for summary judgment. In support of this argument, appellant cites Doza v. American National Ins. Co., (8th Cir.), 314 F.2d 230, and Union Insurance Soc. of Canton, LTD v. William Gluckin & Co., (2nd Cir.), 353 F.2d 946. The threshold and primary issue presented is, ......
  • Request a trial to view additional results
24 cases
  • 315 F.2d 818 (8th Cir. 1963), 17103, Hutcheson v. Frito-Lay, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • 17 Abril 1963
    ...another case presented at the same term of court has in general reaffirmed this approach. Doza v. American Nat'l Ins. Co., 8 Cir., 1963, 314 F.2d 230. c. The Supreme Court of Arkansas has enunciated for that state the rule that a release, to be effective, must be supported by consideration ......
  • 53 F.R.D. 416 (D.Neb. 1971), Civ. 1751 L, Becker v. Koza
    • United States
    • Federal Cases United States District Courts 8th Circuit District of Nebraska
    • 10 Septiembre 1971
    ...evidence contained in the affidavit. Neff v. World Publishing Company, 349 F.2d 235 (C.A.8th Cir. 1965); Doza v. American Nat. Ins. Co., 314 F.2d 230 (C.A.8th Cir. 1963); Walling v. Fairmont Creamery Company, 139 F.2d 318 (C.A.8th Cir. 1943). Inadmissible evidence does not comply with Rule ......
  • 233 A.2d 126 (Me. 1967), Steeves v. Irwin
    • United States
    • Maine Supreme Judicial Court of Maine
    • 15 Septiembre 1967
    ...asserted.' Sprague v. Vogt et al., (8th Cir., 1945), 150 F.2d 795; Doza v. American National Insurance Company, (8th Cir., 1963), 314 F.2d 230; Barron and Holtzoff, Federal Practice and Procedure, Vol. 3, § 1237. The defendant's affidavit must be disregarded for failure to comply with the r......
  • 299 So.2d 289 (Ala. 1974), SC 566, Land Title Co. of Alabama v. State ex rel. Porter
    • United States
    • Alabama Supreme Court of Alabama
    • 8 Agosto 1974
    ...furnishing no basis for summary judgment. In support of this argument, appellant cites Doza v. American National Ins. Co., (8th Cir.), 314 F.2d 230, and Union Insurance Soc. of Canton, LTD v. William Gluckin & Co., (2nd Cir.), 353 F.2d 946. The threshold and primary issue presented is, ......
  • Request a trial to view additional results