Bowman v. Northern Accident Co.

• Decision Date: 16 April 1907
• Citation: 101 S.W. 691,124 Mo. App. 477
• Parties: BOWMAN et al. v. NORTHERN ACCIDENT CO.
• Court: Missouri Court of Appeals

101 S.W. 691

124 Mo. A. 477

BOWMAN et al. v. NORTHERN ACCIDENT CO.

St. Louis Court of Appeals. Missouri.

April 16, 1907.

Rehearing Denied April 30, 1907.

1. INSURANCE—CAUSE OF DEATH—SUFFICIENCY OF EVIDENCE.

In an action on a policy of life and accident insurance, evidence examined, and held sufficient to show that the death of the insured was due to accident.

2. SAME — APPLICATION — ACCEPTANCE — DELIVERY OF POLICY.

Where an application for a policy of life and accident insurance contained, in effect, a direction to the applicant to designate to whom the policy should be sent, and the space opposite the words "send policy to" was filled in with the name of the company's agent, the mailing of the policy to such agent, to be delivered to insured, was sufficient acceptance of the application to make the contract binding, even though the policy had not been delivered to the insured at the time of his death.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by George W. Bowman and others against the Northern Accident Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. G. Shepard, for appellant. Ward & Collins, for respondents.

GOODE, J.

In August, 1904, Charles Bowman, deceased, made application to an agent of the defendant company, at Hayti, in Pemiscot county, for a policy of life and accident insurance. Gunter, the agent to whom the application was made, was general manager of the company for 21 counties in Missouri, and had subagents working under him. Some time prior to the application by Bowman, Gunter had taken into partnership J. H. Gillette, and thereafter the firm was Gunter & Gillette. The defendant company had done business with the firm without protest after being notified of the partnership, though Gillette never received a formal appointment to represent the company. The deceased applied for a policy of insurance with an indemnity payable to his parents, the plaintiffs, in case of his accidental death —$500 to each parent. He paid $2 on the advance premium of $3.50; the agents, to whom this entire premium went, agreeing to wait for the balance until the policy came, as was their custom. The application was forwarded by Gunter & Gillette to the home office of the company at Menominee, Mich. It was accepted by the secretary of the company, and a policy was written and signed in conformity to it and mailed to Gunter, at Hayti. The policy reached the post office at Hayti on Saturday, and was taken out by Gunter on Sunday, on which day Bowman, the insured, lost his life by drowning. Gillette insisted that the policy be turned over to plaintiffs; but Gunter refused to do this, saying he would keep it and get "boodle money" from the company for not delivering it. A few days afterwards a telegram came from the home office directing that the policy be not delivered. The company having refused to pay the indemnity stipulated to be paid in case of accidental death, this action was brought, setting up the foregoing facts, and praying the specific performance of the contract of insurance, that the defendant be ordered to issue and deliver the policy to plaintiffs, and that plaintiffs have judgment for the sum of $1,000. On the hearing the court found the facts in favor of plaintiffs for the sum of $1,000. This appeal was prosecuted by the company.

It is said there is no proof the insured lost his life by accident. The burden of proving not only that Charles Bowman was dead, but that his death was due to an accident, was incumbent on the plaintiffs, and we think was sustained. It was proved he had gone fishing in a lake with some companions, and two or three witnesses swore, without objection, that while engaged in fishing he was drowned. It is true they were not eye-witnesses of the drowning, but, nevertheless, their testimony was to be weighed. A physician, who was summoned and reached the place of the drowning in half an hour after it happened, swore he found Bowman dead, and that water ran out of his lungs. The idea of defendant's counsel is that the evidence...