Berry v. Detroit Casualty Co.

• Decision Date: 10 January 1928
• Docket Number: No. 19958.,19958.
• Parties: BERRY v. DETROIT CASUALTY CO.
• Court: Missouri Court of Appeals

300 S.W. 1026

BERRY v. DETROIT CASUALTY CO.

No. 19958.

St. Louis Court of Appeals. Missouri.

January 10, 1928.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Ora Berry against the Detroit Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lloyd L. Adams, of St. Louis, for appellant.

Harvey V. Tucker, of St. Louis, for respondent.

SUTTON, C.

This is an action on an insurance policy, insuring Andrew Jackson against death or disability resulting from bodily injury sustained through accidental means, in the sum of $500, made payable to plaintiff as beneficiary. Jackson's occupation at the time of the issuance of the policy was that of section man in the service of a railroad company, and he was insured as such. The policy provides that, in the event the insured is injured, after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, the company will pay only such portion of the insurance provided in the policy as the premium paid would have purchased at the rate fixed by the company for such more hazardous occupation. During the life of the policy, the insured, while pursuing his occupation as a section man, sustained bodily injuries through accidental means, resulting in his death. Plaintiff made proof of death as required in the policy, in which she stated that the insured's occupation at the time of insuring and also at the time of his death was laborer on railroad, and that the act in which he was engaged at the time he met his death was laborer on tracks. The proof of loss was made out by a notary public, and was signed and sworn to before him by the plaintiff. After some negotiations looking to a settlement of the policy, the defendant paid plaintiff $300, and procured her signature to a compromise or release agreement, acknowledging receipt of said sum in full settlement and discharge of any and all claims made or to be made by plaintiff and all liability of the defendant under said policy. This suit is for the balance of $200 due on the policy.

The trial, which was had before the court without a jury, resulted in a judgment in favor of plaintiff for $232, the balance due on the policy, with interest, and for $50 attorney's fee, and $23.20 damages for vexatious refusal to pay, aggregating $305.20. From this judgment defendant appeals.

Error Is assigned by defendant here upon the refusal of its demurrer to the evidence. As grounds of this assignment it is urged (1) that the compromise or release agreement signed by the plaintiff is binding and conclusive, and (2) that the plaintiff is estopped to question the conclusiveness of such agreement for not having tendered a return of the money she received under it.

Concerning the execution of the release agreement, and the facts leading up to it, plaintiff testified that after the death of the insured she made demand on the defendant for the amount of the policy, and also made proof of death; that the company sent her by mail from Detroit a check for $100; that she did not think that was what the premium called for, and took the check to the office of the defendant's district manager in St. Louis, and left it there; that the manager told her to go back home and he would see about it; that two or three days later the manager came out to her house and told her the company was not going to pay her any more than $100, because the insured's death was not accidental; that when he left he told her to come to the office the next day; that when she went to the office the next day the manager told her that he was going to pay her $300; that he produced what he said was a receipt for $300, and told her to sign the receipt and take the $300, until he could get further conference with the company in Detroit; that he told her that the insured had changed his occupation, and that she was therefore entitled to only $100 on the policy; that he also told her that the insured's death was not accidental; that he told her to sign the receipt and take the $300, and that he would have a further conference with the company in Detroit about the other $200; that she understood the remaining $200 would be paid as soon as the manager heard from the company; that it was her understanding that the paper she signed was a receipt...