Berry v. Detroit Casualty Co., No. 19958.

CourtMissouri Court of Appeals
Writing for the CourtSutton
Citation300 S.W. 1026
PartiesBERRY v. DETROIT CASUALTY CO.
Decision Date10 January 1928
Docket NumberNo. 19958.
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."

[300 S.W. 1027]

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...

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14 practice notes
  • Prudential Ins. Co. of Am. v. Goldsmith, No. 20443.
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 1945
    ...740; Forsythe v. Rerzat, 27 S.W. (2d) 695; Holman v. Metropolitan, 231 Mo. App. 230, 98 S.W. (2d) 343; Berry v. Detroit Casualty Co., 300 S.W. 1026; Hammer v. Insurance Co., 172 Mo. App. 241, 157 S.W. 1041; Steel v. Metropolitan Insurance Co., 145 S.E. 787, 61 A.L.R. 824; American Central L......
  • Fowler v. Missouri Mut. Ass'n, No. 5519.
    • United States
    • Court of Appeal of Missouri (US)
    • October 7, 1935
    ...by the defendant for this amount, would be void, even in the absence of fraud. In the case of Berry v. Detroit Casualty Co. (Mo. App.) 300 S. W. 1026, loc. cit. 1028, the court "It is settled law that the payment of a part of an indebtedness unquestionably due is no consideration for t......
  • Noble v. Missouri Ins. Co., No. 27239.
    • United States
    • Court of Appeal of Missouri (US)
    • September 16, 1947
    ...229 Mo.App. 222, 77 S.W. 2d 140; Schreiber v. Central Mut. Ins. Ass'n., Mo.App., 108 S.W.2d 1052; Berry v. Detroit Casualty Co., Mo.App., 300 S.W. 1026; Mills v. American Mut. Ass'n, Mo. App., 151 S.W.2d 459; Robinson v. Benefit Ass'n of Railway Employees, Mo.App., 183 S.W.2d The insured's ......
  • Foster v. Aetna Life Insurance Co., No. 38522.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ...to beneficiaries of life and accident insurance policies. Occidental Ins. Co. v. Eiler, 125 Fed. (2d) 229; Berry v. Detroit Casualty Co., 300 S.W. 1026; Head v. N.Y. Life Ins. Co., 241 Mo. 403, 147 S.W. 827; Crowder v. Continental Cas. Co., 115 Mo. App. 535, 91 S.W. 1016; Biddlecom v. Gener......
  • Request a trial to view additional results
14 cases
  • Prudential Ins. Co. of Am. v. Goldsmith, No. 20443.
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 1945
    ...740; Forsythe v. Rerzat, 27 S.W. (2d) 695; Holman v. Metropolitan, 231 Mo. App. 230, 98 S.W. (2d) 343; Berry v. Detroit Casualty Co., 300 S.W. 1026; Hammer v. Insurance Co., 172 Mo. App. 241, 157 S.W. 1041; Steel v. Metropolitan Insurance Co., 145 S.E. 787, 61 A.L.R. 824; American Central L......
  • Fowler v. Missouri Mut. Ass'n, No. 5519.
    • United States
    • Court of Appeal of Missouri (US)
    • October 7, 1935
    ...by the defendant for this amount, would be void, even in the absence of fraud. In the case of Berry v. Detroit Casualty Co. (Mo. App.) 300 S. W. 1026, loc. cit. 1028, the court "It is settled law that the payment of a part of an indebtedness unquestionably due is no consideration for t......
  • Noble v. Missouri Ins. Co., No. 27239.
    • United States
    • Court of Appeal of Missouri (US)
    • September 16, 1947
    ...229 Mo.App. 222, 77 S.W. 2d 140; Schreiber v. Central Mut. Ins. Ass'n., Mo.App., 108 S.W.2d 1052; Berry v. Detroit Casualty Co., Mo.App., 300 S.W. 1026; Mills v. American Mut. Ass'n, Mo. App., 151 S.W.2d 459; Robinson v. Benefit Ass'n of Railway Employees, Mo.App., 183 S.W.2d The insured's ......
  • Foster v. Aetna Life Insurance Co., No. 38522.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ...to beneficiaries of life and accident insurance policies. Occidental Ins. Co. v. Eiler, 125 Fed. (2d) 229; Berry v. Detroit Casualty Co., 300 S.W. 1026; Head v. N.Y. Life Ins. Co., 241 Mo. 403, 147 S.W. 827; Crowder v. Continental Cas. Co., 115 Mo. App. 535, 91 S.W. 1016; Biddlecom v. Gener......
  • Request a trial to view additional results

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