Dayton v. Travelers Insurance Company
| Decision Date | 04 March 1924 |
| Docket Number | 23900 |
| Citation | 259 S.W. 448,303 Mo. 1 |
| Parties | LYDIA M. DAYTON, Executrix of Estate of WILLIAM H. DAYTON, Appellant, v. TRAVELERS INSURANCE COMPANY |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court; Hon. Benjamin J Klene, Judge.
Affirmed.
Bates Williams & Baron for appellant.
(1) No delivery was necessary. When the company issued the policy upon Dayton's order, the meeting of minds occurred and the contract of insurance was effected. Baldwin v Choueau Ins. Co., 56 Mo. 151; Keim v. Home Mutual Fire & Marine Ins. Co., 42 Mo. 38, 41; Edwards v. Business Men's Accident Assn., 205 Mo.App. 102, 108; Pierce v. Insurance Company, 174 Mo.App. 383; State v. Robertson, 191 S.W. 992; 1 Cyc. 239. This case it to be distinguished from the cases where the application and the policy provided that the policy shall not take effect until the written contract of insurance is delivered to the insured. Edwards v. Business Men's Accident Assn., 205 Mo.App. 102, 111. (2) Delivery by the agent Rae of the policy to Jacobs at Dayton's office, with instructions that he deliver the same to Dayton, was a delivery to Dayton. Pierce v. Insurance Co., 174 Mo.App. 383; Appleman v. Appleman, 140 Mo. 309, 313; Peters v. Berkemeier, 184 Mo. 402; Connecticut Indemnity Assn. v. Grogan's Admr., 21 Ky. L. 717; Marysville Merc. Co., v. Home Ins. Co., 21 Idaho 337, 389; Prosser Power Co. v. United States Fid. & Guar. Co., 73 Wash. 304. (3) Non-delivery is an affirmative defense and the burden of proof thereof is on the defendant. Lafferty's Admx. v. Casualty Co., 287 Mo. 555; Prindle v. Fidelity & Casualty Co., 233 S.W. 255. (4) The defendant is estopped from claiming that the policy is not in force because of the provision contained in the policy, and by the fact that at the time of the delivery of the policy it sent a bill for the premium to its agent, and at the time the agent delivered the policy to Dayton he also delivered the bill for the premium, and by the identification card which state that Dayton was insured under the policy. Prindle v. Fidelity & Cas. Co., 233 S.W. 255; Berryman v. Southern Surety Co., 285 Mo. 379, 393; Fowler v. Surety Co., 88 Kan. 455; Weber v. Ancient Order of Pyramids, 104 Mo.App. 729, 732; Wells v. Metropolitan Life Ins. Co., 19 A.D. 18, 163 N.Y. 572; Prosser Power Co. v. United States Fid. & Guar. Co., 73 Wash. 304. (5) The court erred in giving the instruction whereby the jury was instructed that though they find that the application and policy came into the possession of Dayton they must in addition find that in some manner after coming into the possession of the policy and application Dayton must have communicated his acceptance of the policy on the terms set forth in the application to the defendant. Cases supra. (6) Dayton did not have to communicate his acceptance of the policy on the terms set forth in the application or sign and return the application. Prindle v. Fidelity & Cas. Co., 233 S.W. 252; Insurance Company v. Webster, 6 Wall. 129. (7) The representations inserted in the application appended to the policy not upon information given by Dayton, but resulting from the assumptions of the agent, could not in any way affect the policy. Those statements are the statements of the insurer and the insurer is estopped to claim them as warranties. Ormsby v. Insurance Co., 105 Mo.App. 143; Combs v. Hannibal Savings & Ins. Co., 43 Mo. 148; Ayres v. Insurance Co., 66 Mo.App. 288; Pearl Life Assurance Company v. Johnson, 2 King's Bench Law Rep. (1909) 288; Pearl Life Assurance Co. v. Greenhalgh, 2 King's Bench Law Rep. (1909) 288; Wells v. Metropolitan L. Ins. Co., 19 A.D. 18, 46 N.Y.S. 80, 163 N.Y. 572. (8) When the company accepted Dayton as a risk, they accepted him according to his application and the representations made at the time. The formal application was not necessary. Beswick v. National Casuality Co. 206 Mo.App. 67, 73. (d) The insured has the right to rely on the presumption that the policy is issued in accordance with his application and is not obliged to read it to see that it conforms therewith. German-American Ins. Co. v. Darrin, 80 Kan. 578, 581; McElroy v. British Amer. Assur. Co., 94 F. 990, 1000, 36 C. C. A. 615. (10) Dayton was not obliged to pay the premium on the policy, since credit was extended to him. Edwards v. Business Men's Accident Assn., 205 Mo.App. 102, 1047; Berryman v. Southern Surety Co., 285 Mo. 379, 393. (11) The court should have admitted the policy in evidence exclusive of the written application appended thereto.
Jones, Hocker, Sullivan & Angert for respondent.
(1) The negotiations had never reached the point of a complete contract of insurance. State ex rel. v. Robertson, 191 S.W. 991; Insurance Co. v. Salisbury, 279 Mo. 54; Lungstras v. Insurance Co., 48 Mo. 204, 69 Am. St. 143, note; Horton v. Insurance Co., 151 Mo. 619; Myers v. Insurance Co., 27 Pa. St. 268; Perry v. Insurance Co., 67 N.H. 291; Payne v. Insurance Co., 51 F. 693; Equitable Life Assurance Co. v. McElroy, 83 F. 642; Milwaukee Insurance Co. v. Graham, 181 Ill. 158; Busher v. N. Y. Life Ins. Co., 72 N.H. 551; 32 C. J. 1103; Providence Savings Life Association v. Elliott, 93 S.W. 659; New v. Insurance Co., 171 Ind. 33; Lucas v. Western Union Telegraph Co., 6 L. R. A. (N. S.) 1016; Scottish American Mortgage Co. v. Davis, 96 Tex. 104; Bowman v. Accident Company, 124 Mo.App. 481. (2) There is no estoppel. Taylor v. Zepp, 14 Mo. 482; Pollard v. Ward, 233 S.W. 17.
The plaintiff, as executrix of the estate of her deceased husband, William H. Dayton, brought this suit against the defendant on an accident insurance policy, whereby the defendant insured the life of said William H. Dayton in the sum of $ 7500 "against loss resulting from bodily injuries, effected directly and independently of all other causes through external, violent and accidental means." On a trial in the Circuit Court of the City of St. Louis, March 23, 1922, a jury returned a verdict for the defendant, and the plaintiff appealed.
The evidence shows that William H. Dayton, January 6, 1920, had a conversation with E. D. Rae, district agent for the Travelers Insurance Company, regarding a policy in the said company. Rae went to his office and the next day wrote a policy for $ 7500, filled out an aplication, made out a bill for $ 12.50, for the premium, covering a period of six months, filled out an identification card, enclosed them all in an envolope, including a note to Dayton asking him to sign and return the application blank, took the envelope containing all those papers to Dayton's office and handed them to a Mr. Jacobs in charge of the office, asking him to deliver them to Dayton. Rae did not see Dayton then, nor have any communication with him after that. There was no evidence that Dayton ever got possession of the policy or other papers. The particular facts in relation to that will be noticed more fully below. Jacobs never delivered them to Dayton. An important question is presented as to whether the minds of the parties ever met upon a contract.
Dayton died January 17th, eleven days after his conversation with Rae. The evidence showed that, with some companions at the Statler Hotel, he had been drinking heavily for several days before his death, and was drunk at least a part of that time. The expert evidence is conflicting as to the cause of his death. The plaintiff introduced expert evidence to show that his death was caused by wood-alcohol poisoning; the defendant's expert evidence tended to show that he died from alcoholism. The significance of these particulars is in the claim that if he died from the effects of wood alcohol the death was accidental, because he could not have intended to take it; whereas, if he died from alcoholism it was not accidental, but the result of his intentional debauch.
There was evidence also to show that Dayton had been drunk on previous occasions at different times. He was fifty-six years of age at the time of his death.
Two principal issues were presented to the jury: One, regarding the facts which would determine whether there was a contract; the other, relating to the cause of death. A great many errors are assigned by appellant in the instruction given by the court on both these principal issues.
I. The first question presented is whether there was a contract. As stated, Rae, the agent, and Dayton, the applicant, had a preliminary talk January 6th, in relation to the proposed insurance. Later, in pursuance of that conversation the agent filled out a policy, an application, an identification card, and with a letter, took them to be delivered to Dayton, with no further communication between the two. These two transactions are what is presented by the record for determining this point. We must determine whether either of these, or both together, resulted in a contract.
It is the claim of the appellant that a contract ensued from that first conversation. It is thus stated in appellant's brief:
"When respondent's agent, Rae, solicited Dayton for an accident insurance policy and Dayton ordered an accident insurance policy from Rae, and Rae, who had authority to countersign policies, agreed to give him one, the contract of insurance was effected, particularly so when Rae's action was subsequently ratified by the issuance of a policy by the respondent, countersigned by Rae."
This is reiterated later, as follows:
"We repeat that when respondent's agent agreed to issue a policy unto Dayton, upon Dayton's oral offer to take one, the contract was consummated."
Rae was introduced as a witness for the plaintiff. His testimony is all there is regarding that conversation. He said:
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