Gilmore v. Ozark Mut. Ass'n

• Citation: 21 S.W.2d 633
• Decision Date: 11 November 1929
• Docket Number: No. 16714.,16714.
• Parties: GILMORE v. OZARK MUT. ASS'N.
• Court: Court of Appeal of Missouri (US)

21 S.W.2d 633

GILMORE v. OZARK MUT. ASS'N.

No. 16714.

Kansas City Court of Appeals. Missouri.

November 11, 1929.

Appeal from Circuit Court, Howard County; A. W. Walker, Judge.

"Not to be officially reported."

Action by Dora Belle Gilmore against the Ozark Mutual Association. Judgment for plaintiff, and defendant appeals. Reversed in part, and in part reversed and remanded, with directions.

Kay & Starling, of Eldon, for appellant.

Luman Spry, of Fayette, for respondent.

BARNETT, C.

In this case the petition in the first count prays that a settlement and release be set aside, and the second count prays judgment for $100 and interest for temporary disability covered by an insurance policy issued by the defendant. The first count of the petition alleges the incorporation of the defendant, the issuance of the insurance policy providing for the payment of $100 should the insured suffer by accident a flesh wound of the major types such as to compel the insured to refrain from ordinary labor for a period of 30 days, the fact that plaintiff suffered such an injury, and that she had performed all of the conditions of the contract upon her part. The first count then proceeds as follows:

"The defendant has with wrongful and fraudulent intent denied all liability on said contract on its part; and has with wrongful and fraudulent intent failed and refused to pay to the plaintiff the indemnity due under the contract aforesaid, for the loss of time she suffered.

"Plaintiff states that on or about the 3rd day of January, 1929, defendant's agents, servants and employés visited plaintiff at her residence, in the County of Howard and State of Missouri, and with wrongful and fraudulent intent represented to her, that she was not entitled to any indemnity, whatsoever, under her certificate of insurance that she was not entitled to the sum of one hundred dollars ($100) stipulated in said certificate of insurance, but that the association, in order to avoid further trouble, would make her a present of fifty dollars ($50) just to get rid of the matter; that said agents, servants and employés of the defendant refused to discuss the matter with plaintiff's attorney with the wrongful and fraudulent intent of thereby keeping the plaintiff in the dark as to her contractual rights under the certificate of insurance aforesaid; plaintiff says that relying solely upon said representations of defendant's agents, servants and employés while thus engaged in the defendant's business, and within the scope of the defendant's business, that the plaintiff was deceived thereby, and not understanding the correct interpretation of said contract of insurance, she was induced to accept fifty dollars in settlement of her claim; and at said time the defendant's agents, servants, and employés well knew that plaintiff was ignorant of the import of said contract of insurance as evidenced by said certificate of insurance, and they further knew that plaintiff in agreeing to accept said money, relied solely upon their representations made to her by them.

"Plaintiff further states that she has no adequate remedy at law, and wherefore plaintiff prays that said pretended settlement be set aside and for naught held, and plaintiff hereby tenders into court the said fifty dollars, to her paid by the defendant; and prays for such further orders, judgments and decrees against the defendant as may seem meet and just, and for the costs of this suit."

The answer denies that the compromise and settlement referred to in the petition was procured by fraud upon the part of defendant or any of its agents or employés, and avers that said settlement was made in good faith and in an honest effort to adjust the disputed claim of plaintiff, and that no advantage was taken of plaintiff in said settlement. The answer also denies that plaintiff suffered a flesh wound of the major type which compelled her to refrain from ordinary labor for a period of 30 days, and also alleges that whatever claim plaintiff had or...