Lafferty's Adm'R v. Kansas City Casualty Co.

• Decision Date: 04 March 1919
• Docket Number: No. 15211.,15211.
• Citation: 209 S.W. 942
• Parties: LAFFERTY'S ADM'R v. KANSAS CITY CASUALTY CO.
• Court: Missouri Court of Appeals

209 S.W. 942

LAFFERTY'S ADM'R v. KANSAS CITY CASUALTY CO.

No. 15211.

St. Louis Court of Appeals. Missouri.

Argued and Submitted February 6, 1919.

Opinion Filed March 4, 1919.

On Motion for Rehearing, March 20, 1919.

Appeal from Louisiana Court of Common Pleas; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Mollie Lafferty-against the Kansas City Casualty Company to recover on an accident policy for the death of Hugh L. Lafferty. The trial was had before a court and jury, resulting in a directed verdict in favor of defendant, and from an order granting a new trial the defendant appealed. Pending the appeal plaintiff's death was suggested, and her administrator duly entered his appearance. Judgment granting " new trial affirmed, and the cause remanded for further proceedings, and on rehearing certified to the Supreme Court.

McCune, Caldwell & Downing and H. M. Noble, all of Kansas City, for appellant.

Pearson & Pearson, of Louisiana, for respondent.

REYNOLDS, P. J.

One Mollie L. Lafferty, mother of Hugh L. Lafferty; deceased, brought her action against the defendant company on a policy of insurance, of date January 9th, 1914, under and by which defendant, among other things, promised to pay plaintiff the sum of $400, on the death of the insured, resulting solely and directly from bodily injury sustained during the life of the policy. It is alleged that while the policy was in force Hugh L. Lafferty was killed by being run into and struck by a train of cars on the Chicago, Burlington & Quincy Railroad Company's track. Averring that Hugh L. Lafferty had performed all the terms and conditions of the contract of insurance on his part but that defendant denies all liability on the contract, and has failed and refused to pay plaintiff the indemnity due her, and that prompt and timely notice of the death of Hugh L. Lafferty had been given the defendant and blanks for proof of death requested of it but refused, plaintiff prays for judgment for $400, with interest at 6 per cent from April 19th, 1914, and costs.

The answer, after a general denial of all the averments of the petition and a special denial that Hugh L. Lafferty had performed all the terms and conditions of the contract, or that the insurance contract was ever executed or went into effect, it is set up that in the application for the policy which accompanied it, there was a statement to the effect that Lafferty understood and agreed that the statements made were material representations to induce the issue of the policy; that he warranted them to be full and complete and true; "that the insurance hereby applied for will not be in force until the payment in advance of the premium and the delivery of the policy to me while I am in good health and free from all injury;" and that the advance premium of $1.60 must be paid in advance without notice. It is further averred in the answer that no premium or" payment for the insurance was made while Lafferty was in good health and free from injury, no premium or payment made thereon prior to the death of Lafferty, and that there was no consideration for the contract. It is further pleaded that if the contract of insurance sued upon was ever executed and put into effect, it was rescinded prior to the death of Lafferty by mutual oral agreement of the parties thereto. This answer was verified by an agent of the defendant company.

It does not appear that a reply was filed, but the cause went to trial before the court and a jury, resulting in a directed verdict in favor of defendant. Plaintiff filed a motion for a new trial, which was sustained, and from this action defendant appealed. Pending the appeal, plaintiff died, and her death being suggested, her administrator duly entered his appearance.

At the trial plaintiff introduced the policy and application in evidence and it was admitted that Hugh L. Lafferty came to his death from injuries received by being run into by a train on a railroad at Louisiana, Mo., he being there on a visit, his home being at Moberly. This occurred about 4 o'clock on the morning of January 18th, 1914.

Plaintiff introduced and read in evidence the deposition of Miss Ada C. Sheldon, a stenographer and cashier of defendant at Kansas City, who testified, in effect, that one Joseph Burton was the agent of the defendant at Moberly; that he sent into the home office at Kansas City an application of Lafferty for insurance in the amount of $400; that the company had written a policy, duly signed by the proper officers, on the application and sent it to Burton for delivery. This occurred about January 9th, 1914. About that date she made out a blank receipt book for Lafferty as insured with defendant and an identification card, doing this in the usual course of business of defendant on receipt and approval of an application for a policy. Hearing nothing to the contrary from the local agent, she mailed these to Lafferty on January 20th. The book contained no acknowledgment of a receipt of any premium but was a book in blank furnished for Lafferty's convenience, in the usual course of defendant's business, she not having received any notice that the policy had not been delivered to and accepted by Lafferty, or that he had not paid anything, and having no knowledge of his death having occurred on the 18th.

On this evidence plaintiff rested.

Defendant interposed a demurrer, which was overruled. It then introduced in evidence the deposition of Joseph Burton, who deposed to the effect that he was the agent of defendant at Moberly and had solicited Lafferty to take out accident insurance with the defendant company, and that Lafferty had made application for insurance amounting to $400. This occurred about January 9th, 1914, Lafferty agreeing that he would take the policy and pay for it upon the following Saturday, which was January 10th, 1914. He did not, however, take the policy on that date, but on the 15th Burton submitted it to him for his inspection and approval, Lafferty agreeing to pay for the policy the afternoon of that day, if he took it, neither of which he then did; that the policy was left with Lafferty, because he stated he would ' like to look over it a little more fully before accepting and paying for it. This took place about January 15th. On the 17th following, Lafferty agreed with Burton to either return the policy to him or pay for it, promising to pay or leave the policy for Burton after supper on the evening of the 17th. About 7 o'clock that evening Burton called at Lafferty's place of business in Moberly for the money or the policy, whichever Lafferty had left there, but got neither. Burton did not see Lafferty after that date. About 11 o'clock in the morning of January 19th, Burton...