Lacy v. American Central Life Ins. Co.
| Citation | 115 S.W.2d 193,232 Mo.App. 1132 |
| Parties | NELLIE F. LACY, RESPONDENT, v. AMERICAN CENTRAL LIFE INSURANCE CO., APPELLANT |
| Decision Date | 31 January 1938 |
| Court | Kansas Court of Appeals |
Original Opinion of January 31, 1938, Reported at: 232 Mo.App. 1132.
Motion overruled.
ON MOTION FOR REHEARING.
The plaintiff's motion for rehearing consists mostly of criticism of the court's opinion as erroneous in its holdings adverse to her contention upon issues raised presented, argued, and submitted in the briefs and of the claim that such opinion conflicts with sundry opinions of both the Supreme Court and the other appellate courts of the State (including opinions of this court) and with Section 5729, Revised Statutes of 1929.
Rule 20 of this court provides that motions for rehearing must be accompanied by a brief statement of the reasons for a reconsideration and must be founded on papers showing clearly that some question decisive of the case and duly presented by counsel in their briefs has been overlooked by the court or that the decision is in conflict with an express statute or a controlling decision to which the attention of the court was not called.
The motion does not direct our attention to any matter presented in her brief that was overlooked by the court in its opinion. The mere fact that such matters were not determined in accordance with the plaintiff's contentions but were determined adversely to her contentions does not mean that they were overlooked, even though not specifically mentioned. The motion, for the most part, is but a mere repetition of the plaintiff's previous arguments in her brief.
The opinions of the Supreme Court with which our opinion is alleged to be in conflict--to-wit, the cases of Heald v Aetna Life Insurance Company of Hartford, Conn. (Mo.), 104 S.W.2d 379; Henderson v. Massachusetts Bonding & Insurance Company, 337 Mo. 1, 84 S.W.2d 922; Prange v. International Life Insurance Company of St. Louis, 329 Mo. 651, 46 S.W.2d 523; Scotten v. Metropolitan Life Insurance Company, 336 Mo. 724, 81 S.W.2d 313; Halsey v. American Central Life Insurance Company, 258 Mo. 659, 167 S.W. 951; Gooch v. Metropolitan Life Insurance Company, 333 Mo. 191, 61 S.W.2d 704--and Section 5729, Revised Statutes of 1929, were called to our attention in the briefs. We are unable to find wherein our opinion may be said to conflict with the opinions in any of such cases or with the statute mentioned. The Supreme Court in those cases based its decisions upon the facts before it, as did this court in its opinion in this case; and we endeavored to apply the principles enunciated in those cases so far as we could do so under the facts in this case. Neither do we find wherein there is any conflict between our opinion and the other opinions of the various courts of appeals cited. They were determined in each instance upon the particular facts involved, just as we have determined this case. We have not conflicted with any of them.
The motion directs attention to the case of Dobson v American Central Life Insurance Company, 112 S.W.2d 148, decided by this court, and complains that the opinion herein does not follow the opinion in that case in holding that, in the policy in question, the insurance for which the first premium paid was term insurance for the year which it covered. So far as that is concerned, we are not bound to follow it; however, there are distinguishing facts in both cases. In holding that the first premium was clearly for insurance for a term expiring January 3, 1931, and that such date became the anniversary date for the payment of the premiums thereafter, we took into consideration all the provisions of the policy and the application therefor, including the recital in the policy in question that the insurance was granted in consideration of a premium of $ 86.84 for a period terminating January 3, 1931, and a premium of like amount on January 3 annually thereafter, and the provision found in the policy that the first year's insurance is term insurance, purchased by the whole or part of the premiums paid for the first year. It will be noticed that in the Dobson Case no reference is made to any provision in the policy in that case such as the provision in this case--that the first year's...
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Lacy v. American Central Life Ins. Co.
...v. AMERICAN CENTRAL LIFE INSURANCE CO., APPELLANT Court of Appeals of Missouri, Kansas CityJanuary 31, 1938 Rehearing Denied 232 Mo.App. 1132 at 1148. from Cass Circuit Court.--Hon. Leslie A. Bruce, Judge. REVERSED. Judgment reversed. Leslie M. Crouch and L. M. Crouch, Jr., for respondent. ......
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Magers v. Kansas City Life Ins. Co.
...effect thereof is not to alter the meaning of a contract that is otherwise plain and unambiguous". Speaking further of the policy in the Lacy case, supra, said: "The same rule must be applied in this case as in the Prange case. The first premium purchased term insurance, which expired Janua......