Callahan v. Connecticut Gen. Life Ins. Co.
| Decision Date | 07 April 1947 |
| Docket Number | 20729 |
| Citation | 201 S.W.2d 406 |
| Parties | CALLAHAN v. CONNECTICUT GEN. LIFE INS. CO |
| Court | Kansas Court of Appeals |
Not to be published in State Reports.
Robert F. Sevier, of Liberty, and White & Hall, of Kansas City, for appellant.
Michaels Blackmar, Newkirk, Eager & Swanson and Robert E. Coleberd all of Kansas City, and B. M. Anderson, of Hartford, Conn for respondent.
Plaintiff appellant here, individually and as guardian for her minor daughter Norma L. Callahan, brought suit against the defendant on its certain policy #534246, issued January 2 1939, insuring Neel L. Callahan in the sum of $ 2500 against loss of life through external, violent, and accidental means, and agreed therein to pay the amount due in the event of such loss to the plaintiff, his wife, as primary beneficiary, and to Norma L. Callahan, his daughter, as contingent beneficiary.
The petition further alleges that while said policy was in effect, to-wit: December 25, 1944, said insured died as a direct result of bodily injuries received about December 12, 1944, and effected through external, violent and accidental means, to-wit: frost bite; that due notice of the claim was given to defendant and payment refused. It was further alleged that the insured had fully performed all terms and conditions of the insurance agreement, and that the refusal to pay by the defendant was willful, vexatious and without reasonable cause or excuse. The prayer was for $ 2500 on the policy, together with interest at 6 per cent per annum from December 26, 1944, plus $ 500 reasonable attorneys' fees, and costs.
The answer sets forth many defenses which we believe unnecessary here to set forth, except a constitutional point hereinafter more fully considered. The reply was a general denial as to all new matter.
The case was submitted to a jury on various instructions, including, among other things, the claim for penalties for vexatious delay, and the form which was provided for a verdict if for plaintiff, set forth designated spaces for allowance of the principal amount under the policy, for interest, for attorneys' fees, and for the total. The verdict for plaintiff was returned on such form allowing $ 2500 on the policy, $ 75 interest, $ 500 attorneys' fees, total $ 3075. Judgment was entered accordingly.
Thereafter, and within statutory periods the defendant (respondent) filed a motion to set aside the verdict and judgment, and prayed for a judgment in its favor, and filed its alternative motion for a new trial. The court thereafter overruled the defendant's motion for judgment, but sustained its motion to set aside the verdict and judgment, and for a new trial on numbered grounds set forth, which did not include the constitutional point mentioned. Thereupon the plaintiff took this appeal. Respondent has also filed a motion for judgment in this court.
Among the various defenses set forth in defendant's answer is that Section 6040, R.S.Mo.1939, Mo.R.S.A., Sec. 5929 R.S.Mo.1929, the penalty statute providing for recovery of reasonable attorneys' fees on an insurance policy where payment has been vexatiously refused, is unconstitutional as in contravention of the Fourteenth Amendment to the Constitution of the United States in that it seeks to deprive defendant of its property without due process of law and equal protection of the laws, and constitutes...
To continue reading
Request your trial