Lafferty v. Kansas City Casualty Co.
Decision Date | 05 March 1921 |
Docket Number | No. 21837.,21837. |
Citation | 229 S.W. 750,287 Mo. 555 |
Parties | LAFFERTY v. KANSAS CITY CASUALTY CO. |
Court | Missouri Supreme Court |
Appeal from Louisiana Court of Common Pleas; Edgar B. Woolfolk, Judge.
Action by Mollie M. Lafferty against the Kansas City Casualty Company. From order granting new trial after directed verdict for defendant, defendant appealed to the St. Louis Court of Appeals, which affirmed the judgment. 209 S. W. 942. Case certified to the Supreme Court by the St. Louis Court of Appeals. Affirmed.
This suit originated in the court of common pleas of Pike county, brought by the plaintiff to recover the sum of $400 on an insurance policy issued by the defendant to Hugh L. Lafferty for the use of Mollie M. Lafferty, his mother. At the trial, the court, at the conclusion of the evidence, directed a verdict for the defendant, and, upon a motion for a new trial being filed, the court sustained the same, and in due time and proper form the defendant appealed the cause to the St. Louis Court of Appeals, which in due course affirmed the judgment of the lower court, but upon motion for a rehearing (209 S. W. 942) that court transferred the cause to this court, because it deemed its ruling was in conflict with the Springfield Court of Appeals in the case of Gilmore v. Modern Brotherhood of America, 186 Mo. App. 445, 171 S. W. 629.
McCune, Caldwell & Downing and H. M. Noble, all of Kansas City, for appellant.
Pearson & Pearson, of Louisiana, Mo., for respondent.
WOODSON, P. J. (after stating the facts as above).
While the cause was pending in the Court of Appeals, Reynolds, P. J., in a very careful and ably prepared opinion in which all the judges concurred, said:
"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.
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