La Fon v. Continental Cas. Co.

• Decision Date: 20 May 1953
• Docket Number: No. 7139,7139
• Citation: 241 Mo.App. 802,259 S.W.2d 425
• Parties: LA FON v. CONTINENTAL CAS. CO.
• Court: Missouri Court of Appeals

Page 425

259 S.W.2d 425

241 Mo.App. 802

LA FON v. CONTINENTAL CAS. CO.

No. 7139.

Springfield Court of Appeals, Missouri.

May 20, 1953.

Web A. Welker, of Portageville (C. C. Cox, of Chicago, Ill., of counsel), for appellant.

Blanton & Blanton, of Sikeston, for respondent.

BLAIR, Judge.

William M. LaFon was killed on August 18, 1950. His wife, the respondent, as plaintiff, was appointed as administratrix of his estate. She filed her petition in the Circuit Court of Scott County, against appellant, then defendant, on August 13, 1951, alleging that, on April 15, 1950, the defendant issued and delivered to plaintiff's husband a described policy of insurance whereby defendant insured the life of the said William M. LaFon in the sum of $1,000 against accidental death, and defendant had failed and refused to pay the same, although such death was by accident, and while defendant's policy of insurance was in full force and effect and covered such death.

Defendant filed its answer and motion for costs on September 1, 1951. The trial court rendered a judgment for plaintiff on June 9, 1952, in the sum of $1,000, and defendant has appealed to this Court.

The facts in this case are not in dispute. Defendant and plaintiff filed a statement of such agreed facts on March 18, 1952, as authorized by Section 512.120, RSMo 1949, V.A.M.S. The allegations of the petition, denied by the answer, need not be set out.

Defendant's liability under its policy of insurance depends to no extent on its cost of $1.40 per annum to insured; but we should keep in mind that the insurance company had the right to limit its liability by contract at that price, as much as it would if its liability was unlimited and cost insured much more. Plaintiff should be required to prove that the death of insured came within the provisions of the policy.

The stipulation as to the facts, with a copy of the insurance policy issued to insured, was as follows:

'Stipulation of Facts.

'It is hereby stipulated and agreed by and between plaintiff and her attorneys Bloodworth & Bloodworth and Blanton & Blanton, and defendant Continental Casualty Company, a corporation, and Web A. Welker, its attorney, that the following facts shall be taken as conceded in this cause and that the court may decide this cause upon this stipulation of fact, subject, however, to the rights of either party hereto to appeal.

'1st. Plaintiff, Mary L. LaFon is the duly qualified and acting Administratrix of the estate of William M. LaFon and was at the time of the death of the said William M. LaFon, his lawful wife.

'2nd. The defendant, continental Casualty Company is an insurance corporation duly organized and existing under and by virtue of the laws of the State of Illinois and is duly authorized and admitted to do and transact business in the State of Missouri according to law '3rd. That the defendant, Continental Casualty Company issued its policy No. 430-9302 to the deceased William M. LaFon effective on April 15, 1950, and that the expiration date thereof was April 15, 1951; and that whatever liability, if any, is predicated on said policy.

'4th. That the photostat copy instruced (introduced) in evidence and marked as Plaintiff's Exhibit 2 is a true and correct copy of said policy.

'5th. That the required premium for said policy was duly paid by the plaintiff or someone in his behalf and was duly received by the defendant company.

'6th. It is stipulated and agreed that the insured William M. LaFon met his death on the 18th day of August, 1950.

'7th. That he met his death while returning from his employment as a dragline operator in a 1950 Studebaker pick up truck then owned by him.

'8th. That at the time of the collision in which he met his death the insured William M. LaFon was using the said pick up truck for the purpose of his own transportation from the place where he had been working to his place of lodging.

'9th. That at the time of the collision in which William M. LaFon met his death he was not carrying any passenger or passengers for hire.

'10th. That the said William M. LaFon was driving said pick up truck at the time of his death.

'11th. It is stipulated and agreed that the defendant had due notice of the death of the insured.

'12th. It is stipulated and agreed that either party to the above and foregoing stipulation may offer additional testimony not inconsistent with the facts above stipulated.'

'(Filed March 18, 1952)'

The main contention is whether or not defendant was liable on its policy of insurance under the facts agreed upon and set out in such stipulation. Defendant bases its claim of non-liability on certain paragraphs of the stipulation. An examination of plaintiff's (defendant's) brief in this Court, reveals that it is relying on the facts stipulated in the agreed statement of facts. In its brief, appellant says that the policy of insurance did not cover 'accident occurring while riding as a passenger or otherwise in or on any aircraft, motorcycle, or farm machinery'. There is no controversy about that.

Defendant is liable under such policy of insurance only if the fatal accident occurred in the manner provided in the policy. In determining the liability of defendant, under Part III of the policy, we are governed by the statute above cited. In Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 917, Judge Hays said:

'* * * a true admission, which, in the correct sense, is a formal act, done in the course of judicial proceedings, which waives or dispenses with the production of evidence, by conceding for the purposes of litigation that the proposition of fact alleged by the oppenent is true. * * *'

No more formal admission of the facts in a case could be made than is found in the case before us. Plaintiff recognizes the binding effect of such statement, for she says:

'The respondent adopts the Statement of Facts as set out in the Appellant's Brief as covering the facts upon which the Court based its decision. The agreed statement of Facts is quite short and appears at pages 10 and 11 of the typewritten Transcript.'

Paragraphs 7, 8, 9 and 10 of the Agreed Statement of Facts advises us that at the time of the collision and his fatal injury, insured was driving alone in his 1950 Studebaker pick-up truck, in going from his home to his place of employment. If he was protected by the insurance policy, it must have been under Paragraph (a) of Section C, Part III, thereof. That paragraph of the policy protected the insured against injury to the extent therein specified, and was as follows '(a) and while riding as a passenger or a driver in a private pleasure type (1) automobile or (2) animal-drawn vehicle;'

All of the cases cited by plaintiff permitted a recovery under the policy, because there was a coverage in the policy which conflicted with some other coverage, creating an ambiguity, or the accident itself was such as might have been expected under the coverage of the policy. Paragraphs (b), (c) and (d), of Section C, Part III, cannot be considered as protecting insured at all. Paragraph (b) requires that the vehicle used at the time of the fatal injury must have been used in the transport of merchandise. Paragraph (c) requires that the fatal accident occurred on a public street. Paragraph (d) covered insured only when he was riding a bicycle.

Plaintiff cites Hoover v. National Casualty Co., 236 Mo.App. 1093, 162 S.W.2d 363, by the Kansas City Court of Appeals. Plaintiff has also cited Stewart v. North American Accident Insurance Co., 33 S.W.2d 1005, by the St. Louis Court of Appeals, and Mackay v. Commonwealth Casualty Co., 224 Mo.App. 1100, 34 S.W.2d 564, by this Court. In all those cases, except possibly the Mackay case, there was an ambiguity between the policy and the clause under which insured, or someone for his estate, sought a recovery.

Plaintiff also cites Aetna Life Ins. Co. of Hartford, Conn. v. Bidwell, 192 Tenn. 627, 241 S.W.2d 591, 595, where the Tennessee Supreme Court held, that a pick-up truck used for the pleasure of a fishing trip was a passenger automobile under the policy. It found ambiguity in such policy. We have carefully studied the cases of Smith v. Maryland Casualty Co., 63 N.D. 99, 246 N.W. 451, by the North Dakota Supreme Court. Conyard v. Life & Casualty Ins. Co., 204 N.C. 506, 168 S.E. 835; Fidelity & Casualty Co. of New York v. Martin, 9 Cir., 66 F.2d 438; Poncino v....