Eicks v. Fidelity & Casualty Co.

• Decision Date: 08 June 1923
• Docket Number: No. 23474.,23474.
• Citation: Eicks v. Fidelity & Casualty Co., 300 Mo. 279, 253 S.W. 1029 (Mo. 1923)
• Court: Missouri Supreme Court
• Parties: EICKS v. FIDELITY & CASUALTY CO. OF NEW YORK

253 S.W. 1029

300 Mo. 279

EICKS v. FIDELITY & CASUALTY CO. OF NEW YORK

No. 23474.

Supreme Court of Missouri, Division No. 1.

June 8, 1923.

Motion for Rehearing Denied July 31, 1923.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Action by Alfred A. Eicks, as administrator of the estate of Henry A. Eicks, deceased, against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.

Henry G. Trieseler and Frederick H. Bacon, both of St. Louis, for respondent.

LINDSAY, C.

Plaintiff's suit is based upon an alleged semiannual renewal made on March 5, 1920, by defendant of a certain policy of accident insurance, extending and continuing said policy in force from March 7, 1920, to September 7, 1920, and upon provisions therein that, if, while said policy or the certificates of renewal of the same were in force, the insured, Henry A. Ricks, should come to his death through accidental means, and resulting directly, independently, and exclusively of all other causes, the defendant should pay to his estate the sum of $8,000. The petition charging that on the 31st day of May, 1920, while said policy and the certificate of renewal thereof were in force, said Henry A. Eicks came to his death through accidental means resulting directly, independently, and exclusively of all other causes by an accidental blow on the head, resulting in a fractured skull, from which he died within 24 hours thereafter. The petition alleged compliance by deceased and plaintiff within conditions of the policy, and set forth the facts as to the giving of notice of the death of the assured, and the making and delivery to defendant of proofs of his death. The answer was a general denial, followed by a special denial that defendant had entered into any contract or agreement with Henry A. Ricks renewing or continuing in force said policy to any time beyond March 7, 1920. The parties waived a jury, and submitted the cause to the court upon an agreed statement of facts, which also defined the issues involved, and stipulated that no point was made as to the sufficiency of the pleadings to raise every question of law involved in the case. In the statement Henry A. Eicks is referred to as the insured and the defendant is referred to as the company. The portions necessary to an understanding of the issues are set out.

Paragraph 2: "At all times hereinafter referred to the defendant maintained an office in the city of St. Louis, the representatives of the company at which had all the powers possessed by the company with respect to executing and delivering policies of insurance, such as that hereinafter referred to, as well as with respect to extending time for payment of premiums and granting credit for the payment of premiums on such policies."

Paragraph 3: "On March 7, 1918, the company by its St. Louis office issued and delivered to the insured its policy No. 4532626, a true copy of which is attached hereto, marked `Exhibit A.' A copy of the application of the insured for this policy is attached hereto, marked `Exhibit B.' The premium on this policy was $20 for each term of six months, as therein appears. The insured had been the holder of a similar policy issued by the company, dated October 16, 1908, and Exhibit A was issued to take the place of this prior policy, and the latter was surrendered by the insured to the company for cancellation when Exhibit A was issued and delivered."

Paragraph 4: "The insured paid the semiannual premium on the policy identified as Exhibit A from the date of its issuance up to and including the premium payable September 7, 1919. The insured was customarily slow in making his payments. He usually paid after the date fixed for payment by the contract, and sometimes paid some considerable time after this date. On one or more occasions he made his payment in installments. On one occasion he waited almost until the next succeeding premium was payable before making payment of the preceding one. He never at any time formally signified his acceptance of any of the renewal certificates hereinafter referred to, except by paying, the premium called for in the respective renewal certificates in the manner and to the extent hereinafter stated." The last three transactions between the issured and the company with respect to this insurance are severally and respectively set out in paragraphs 5, 6, and 7 of the statement, but, except for the dates, they are identical in character and terms used. Paragraphs 5 and 6 recite the transactions for the six-month periods, beginning March 7, 1919, and beginning September 7, 1919. Paragraph 7 in like terms recites the last transaction for the six-month period directly in issue, beginning March 7, 1920, as follows:

Paragraph 7: "On March 5, 1920, the St. Louis office of the company, by a representative having authority in the premises, sent by mail to the insured, in St. Louis a letter, a copy of which is hereunto attached, marked `Exhibit C.' Inclosed with this letter was a renewal certificate duly executed by the proper officers of the company, and a copy of which is hereto attached, marked `Exhibit H.' This letter and document were sent by the company to the insured, without any previous directions or request from him, and without having actually received the premium referred to in the renewal certificate. The intention of the company at the time in sending this letter and document was to give the insured credit for the premium falling due March 7, 1920, if the insured elected to continue the policy in force. This communication and the inclosed document were duly received by the insured through the mails. At no time after the receipt of this communication did the insured answer this communication or communicate with the company or any representative thereof in any way respecting this insurance or the premium payable March 7. 1920. This premium was never paid to the company or any of its representatives by the insured or by any other person, in whole or in part. This renewal certificate was found after the death of the insured in his safe, among his valuable papers."

Paragraph 8: "The insured died May 31, 1920, from the effects of being struck by a heavy push broom or mop in the hands of Charles E. Osterman. Srid Osterman and the insured each had places of business in the city of St. Louis which abutted upon the same alley, in close contiguity to each other. In January, 1920, some differences arose between Osterman and the insured, out of which arose hard feelings between them. The insured was a blacksmith by trade, and was a large, muscular, strong man, of an irritable and gruff disposition. His disposition in that respect was known to Osterman. When Osterman struck the insured with the push broom or mop, he had no intention of killing him, but merely intended to defend himself. With this preliminary explanation the parties-to this cause insert herein the testimony of one John W. Grundorf at the coroner's inquest held on the body of the insured, and agreed that this testimony correctly relates the circumstances attending the death of the insured."

This testimony is as follows:

"Q. What do you know about the injury received by Henry A. Hicks? A. Yesterday morning I called up Mr. Osterman and told him I wanted to see him about some business; he is in the real estate business, and I wanted to go over and have a talk with him, so I called him on the phone, and I said, `I will be over there in a little while.' So I went over and talked about this matter that I wanted to go over with him, and during that conversation Mr. Hicks, came out of his back gate, and he accused Mr. Osterman of taking his garbage box, and Mr. Osterman says, `Mr. Hicks, I haven't got your garbage box.' `You have got your garbage box.' Mr. Osterman said, `I haven't got your garbage box; I don't know where it is.' Mr. Eicks says, `You wanted the wood, and you knocked it apart;' and Mr. Osterman says, `If you can find that wood you can have it; I don't know where your garbage box is;' and Mr. Hicks all the time was coming kind of close to Mr. Osterman. I was standing there at the time, and then Hicks turned to him again, and he says, `You have been interfering too much with this business back here of mine, and if you don't quit that damn business I'm going to break your head for you.' Hicks kind of walked away for a minute, and then he walked back again, and Mr. Osterman says, `You aren't going to break anybody's head;' and then with that Eicks came much closer, and he says, `If you don't quit interfering with my business I'll break your darn head for you;' and with that Osterman picks up the broom, and it was done so quick. The broom was laying there when Eicks came to Osterman. I stood right there, side by side with Osterman, kind of facing east, but I seen Mr. Osterman made a move to hit towards Hicks, but I didn't see the blow struck, and as I turned around Eicks fell, and the broom flew out of Mr. Osterman's hands, and he run to Eicks and lifted up his head, and he says, `Oh, Mr. Eicks, are you bad hurt!' and he says `You stay here;' and there was a lady came out with a pillow, and we put the pillow under his head while he ran for the doctor. When Dr. Passler came he examined his pulse, and be says be would be all right; he thought he would be all right; and with that Mr. Osterman says, `Let's carry him inside of the yard,' and they picked him up and carried him in the Yard, and laid him on a seat, and they got him a glass of water, and he drank the water, and that seemed to kind of revive him."

Further testimony of this witness is set out at some length, but it does not show that Hicks actually struck Osterman, but that he was making some moves with his hands, appeared very angry, and at or just before Osterman struck him was moving somewhat quickly toward the latter. The broom or mop was...