Brady v. The Bankers Casualty Company of Minneapolis

• Decision Date: 08 December 1923
• Docket Number: 24,796
• Citation: 114 Kan. 865,220 P. 1033
• Parties: MINNIE M. BRADY, Appellee, v. THE BANKERS CASUALTY COMPANY OF MINNEAPOLIS, MINNESOTA, Appellant
• Court: Kansas Supreme Court

220 P. 1033

114 Kan. 865

MINNIE M. BRADY, Appellee, v. THE BANKERS CASUALTY COMPANY OF MINNEAPOLIS, MINNESOTA, Appellant

No. 24,796

Supreme Court of Kansas

December 8, 1923

Decided July, 1923.

Appeal from Harper district court; GEORGE L. HAY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

ACCIDENT INSURANCE--Mistake in Date of Policy--Premium Paid in Time to Renew Policy--Policy in Force at Death of Insured. An application for an accident insurance policy was made on July 15, 1918, and the premium for two years was paid at that time. A policy was thereafter delivered, but it recited that it was effective from and after June 30, 1918. When the application was made and the premium paid, the agent of the insurer stated to the applicant that the policy would insure for two years from the date of the application. The policy provided for insurance for additional years on payment of annual premiums before June 30th of each year. A premium for an additional year after the first two years was paid and accepted, and the policy was continued for an additional year. The insured was accidentally injured on July 6, 1921 and died on the following day. Held, That the policy was effective and in force on the date of the death of the insured.

John Madden, John Madden, jr., Louis Nadel, J. T. Rogers, all of Wichita, and Dennis Madden, of Topeka, for the appellant.

S. S. Alexander, of Kingman, for the appellee.

OPINION

MARSHALL, J.:

The plaintiff recovered judgment for $ 1,380.16 on a policy of accident insurance issued to John Brady, the husband of the plaintiff. The defendant appeals.

The petition alleged that the policy was made and executed on July 16, 1918, for a period of two years, for which a premium of $ 76 was paid; that shortly thereafter the policy was delivered; that it recited it became effective June 30, 1918; and that the agent of the defendant had represented that the policy would insure John Brady for two full years from July 15, 1918, the date of his application. The policy provided for its annual renewal on payment of the premium therefor. The petition also alleged that before the expiration of the first two years of the life of the policy, John Brady paid the premiums for a third year. The petition prayed that the policy be reformed so as to make the date of its expiration occur on July 15. John Brady was accidently injured on July 6, 1921, and died on the following day. The answer alleged that the policy by its terms expired on June 30, 1921, and that the premium for the succeeding year had not at that time been paid. There was evidence which tended to prove the allegations of the petition.

The policy contained the following:

"In consideration of the payment of seventy-six and no/100 dollars and of the application, a copy of which is endorsed hereon and made a part hereof, does hereby insure John Brady, hereinafter called the insured, residing in Norwich, State of Kansas, by occupation a farmer, subject to all conditions and limitations hereinafter contained, from 12 o'clock noon, of the date of this policy, until 12 o'clock midnight of the last day of June, 1920, standard time, where the insured resides when the policy is issued, and for such further periods stated in the renewal agreements as the premium paid will maintain this policy in force, against: . . ."

The application for insurance contained the following:

"Do you agree . . . that premium must be paid to the secretary or agent delivering receipt, otherwise such payment is not binding on the Company, and that insurance is not effective until this application is accepted by the secretary and first premium actually paid? Yes."

We quote from the abstract of the defendant as follows:

"The defendant complains of the following erroneous instruction no other instruction having been given to take its place.

"If you find and believe from the evidence that it was agreed between the plaintiff's decedent, John Brady, and the duly authorized agent of the defendant, who solicited said insurance and who received the premium thereon that the said sum of $ 76 was in payment of the premium for two years, then I say to you the payment by the plaintiff's decedent and the receipt thereof by the defendant Company would keep said policy in force for a period of two years from the date of the acceptance of John Brady's application for said insurance (and such date is presumed to be the date of the issuance of said policy) and in such case said policy would remain in effect by reason of the payment of said $ 76 until the 16th day of July, 1920, and if you further find that the said John Brady in the year 1920 and while said policy of insurance was in effect as herein instructed paid to the defendant or its duly authorized agent the annual premium on said policy of insurance in the sum of $ 36 for the purpose of renewing said policy for another year and that such premium was accepted by said defendant or its duly authorized agents for the renewal thereof, then I say to you that said policy of insurance would remain in effect for a period of one year after the expiration of the period of time for which said policy of insurance was paid for at the time of its issuance as hereinbefore instructed. So if you find and believe from the evidence that the policy of insurance by a renewal was in force and effect as herein instructed at the time of the death of John Brady and that said John Brady lost his life by receiving accidental injuries which were visible and external on his body and were caused directly and exclusively of all other causes from bodily injuries sustained during the life of said policy, then I say to you that the plaintiff would be...