Gorman v. Fidelity & Casualty Co. of New York

• Decision Date: 19 February 1932
• Docket Number: No. 9224.,9224.
• Citation: 55 F.2d 4
• Parties: GORMAN v. FIDELITY & CASUALTY CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

55 F.2d 4 (1932)

GORMAN v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 9224.

Circuit Court of Appeals, Eighth Circuit.

January 14, 1932.

Rehearing Denied February 19, 1932.

Henry H. Oberschelp and Henry E. Haas, both of St. Louis, Mo., for appellant.

Wayne Ely, of St. Louis, Mo., for appellee.

Before VAN VALKENBURGH, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, as plaintiff brought this action against the appellee upon an accident insurance policy issued by the appellee. The parties will be referred to as they were designated in the lower court. The defendant issued an accident insurance policy on February 1, 1925, to John P. Gorman, insuring him against accidental injury or accidental death for a period of one year from that date. On February 1, 1926, this policy was renewed and the insurance thereby extended to February 1, 1927. On December 31, 1926, one month before the expiration of the renewed policy, the insured fell upon the front steps of his home and suffered a fracture of the left fibula, a dislocated ankle, and a fracture of the astragalus or proximal bone of his left foot. He was immediately taken to a hospital in St. Louis, Mo., where, on January 22, 1927, his leg was placed in a plaster of paris cast. When he later left the hospital, he was still wearing this cast. Instead of returning to his home at 3216 Greer avenue, St. Louis, Mo., he moved to a room in the Missouri Hotel at Eleventh and Locust streets in St. Louis, which was about two blocks distant from his place of business. His leg was kept in the cast until the latter part of March or the first of April, 1927, and he remained at the Missouri Hotel, but conferred with his business associates at his room in the hotel. On January 26, 1927, insured made application for renewal of his policy, but the insurance company declined to renew it at that time, and the policy, according to its terms, expired February 1, 1927. On April 14, 1927, Mr. Gorman fell asleep while smoking a cigarette in bed in his room at the hotel. The bed caught fire, and he received burns from which he died the following day. Some time in March, 1927, Mr. Gorman made a claim against the insurance company for the injuries sustained when he broke his leg, and the company at that time paid him $549.99 indemnity, and $112.50 operation fee, or a total of $662.48.

The policy named Leonora Gorman, insured's wife, as beneficiary, and after Mr. Gorman's death she brought this suit to recover the indemnity provided in the policy for death resulting from bodily injury through accidental means, and recovered judgment for $8,603.69. It was on that trial the theory of the plaintiff that when the insured offered to renew this policy and pay the premium, there was an absolute legal obligation on the part of the company to renew it. This court on appeal, however, held that the company was only obligated to renew it under conditions named, one of which was that the insured should be in "sound condition, mentally and physically," and that it appeared without dispute that the insured was not in such condition at the time he applied for a renewal of the policy, and hence the insurance company was not required to renew it. 38 F.(2d) 590, 591.

On this trial, plaintiff abandoned her previous theory, but contended that by the terms of the policy, the insured having had an accident on the 31st of December, 1926, while the policy was in full force and effect, and then within twenty-six weeks thereafter having had another accident from which he died, plaintiff was entitled to recover whether the policy had been renewed or not. The lower court did not adopt plaintiff's theory as to the construction of the policy, but directed a verdict for the defendant on all the issues.

There is no dispute as to the material facts, and there is in the final analysis but one question presented, viz.: Does article 3 of the policy, properly construed, mean that in the event the insured suffered an accident during the life of the policy, and after the policy expired but within twenty-six weeks from his first accident, is killed as the result of another accident, the insurance company was obligated to pay the principal sum of the policy to the beneficiary? This article is as follows: "Death. Article 3. If the Assured suffers total accident-disability, and if, during the period of disability, the Assured suffers death as the direct result of the bodily injury causing the said disability; or, if within twenty-six weeks from the date of the accident, irrespective of disability, the Assured suffers death as the direct result of a bodily injury, the Company will pay the Beneficiary the Principal Sum, and in addition the Weekly Indemnity for that part of the period between the date of the accident and the date of death for which...