Edney v. Fidelity and Guaranty Life Insurance Company
| Citation | 348 F.2d 136 |
| Decision Date | 15 July 1965 |
| Docket Number | No. 17682.,17682. |
| Parties | Mary F. EDNEY, Individually and as Executrix of the Estate of Edwin Edney, Deceased, Appellant, v. FIDELITY AND GUARANTY LIFE INSURANCE COMPANY, a Corporation of Baltimore, Maryland, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Henry G. Morris, St. Louis, Mo., and Walter D. McQuie, Montgomery City, Mo., for appellant.
George E. Lee, of Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, Mo., for appellee.
Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.
The motion of appellee to dismiss the appeal for lack of a final decision as basis for jurisdiction here under 28 U.S.C.A. § 1291 is granted and the appeal will be dismissed.
The action (filed in state court and removed on diversity) was one brought by a widow, individually and as executrix of her husband's estate, against an insurance company to recover judgment for $15,000, representing the amount of term life-insurance for which the husband had made application to the company, but as to which it had not issued a policy at the time of his death.
Right to recover the $15,000 was claimed on three different bases, which were made the subject of separate counts in the petition (complaint).
Count I alleged that the application for insurance, the medical-examination report showing insurability, the premium payment made, and the receipt issued therefor gave rise to a contract of insurance, and that the company was liable on this basis for the $15,000 in breach.
Count II alleged that acts and conduct of the company, in its handling of the matter and its communication to the husband in relation thereto, had reasonably induced him to believe and rely upon the fact that the application had been accepted and the insurance was being issued; that such reliance had operated to his detriment, in that the policy had been required to be taken out by him as part of the security for a loan and, except for the company's acts and conduct, he would and could before his death have obtained other insurance elsewhere; that the company thus was estopped to assert that the application had not been approved and that the insurance as applied for was not in force; and that it was liable for the $15,000 on this basis.
Count III alleged that the company had been guilty of "careless, negligent and wrongful conduct" in failing to act upon the application within a reasonable time the husband died 49 days after making the application and similarly to give notice of its action; that it thereby had been guilty of violation of the duty which it owed the husband as an applicant to so act...
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