Baehr v. Union Casualty & Surety Company

• Decision Date: 16 November 1908
• Citation: 113 S.W. 689,133 Mo.App. 541
• Parties: FLORENCE BAEHR, Appellant, v. UNION CASUALTY & SURETY COMPANY et al., Respondents
• Court: Kansas Court of Appeals

113 S.W. 689

133 Mo.App. 541

FLORENCE BAEHR, Appellant, v. UNION CASUALTY & SURETY COMPANY et al., Respondents

Court of Appeals of Missouri, Kansas City

November 16, 1908

Appeal from Jackson Circuit Court.--Hon. James H. Slover, Judge.

Judgment affirmed.

E. W Shannon and C. W. Chase, for appellant, submitted argument.

I. P Dana, Hunt C. Moore and W. R. Thurmond, for respondents submitted argument.

OPINION

ELLISON, J.

This action is based on a policy of accident insurance, issued to plaintiff's husband, in her favor. There was a verdict for plaintiff in the trial court, which was afterwards set aside on defendants' motion and a new trial granted. Plaintiff thereupon appealed from that order.

It appears that the defendant Union Casualty & Surety Company issued the policy in June, 1903, and that afterwards the defendant Maryland Casualty Company assumed the former company's obligations after the 31st of December, 1903. Plaintiff's deceased husband received an injury on the 15th of July, 1903, and another injury on the 15th of February, 1904. He died from the effect of one or the other or both of these injuries, on the 18th of April, 1904. The policy insured deceased: "Against bodily injuries, sustained through external, violent and accidental means, as follows: If death shall result within ninety days from such injuries, independently of all other causes, the company will pay," etc.

The petition charges the death to have been caused by both accidents, and so the evidence in plaintiff's behalf tended to show. So far as the Maryland company is concerned, the proximate cause of the death must have existed after the time when that company's liability began, that is, after December 31, 1903. If there is an intention to hold that company liable the petition should only charge those things upon which a liability can be based. It need not, of course, plead the evidence. It would therefore be well to omit all reference to the July injury. If the injury in July was the proximate cause, that would be matter of defense. And if the injury in February was the proximate cause of the death, then both companies are liable. But if the injury in July was the proximate cause of death then neither is liable, since death did not occur within ninety days, which is a condition of the policy. And the Maryland company would not be liable for the additional reason, already stated, that it only assumed obligations...