Lafferty v. Kansas City Casualty Co.

• Decision Date: 09 April 1921
• Parties: MOLLIE M. LAFFERTY v. KANSAS CITY CASUALTY COMPANY, Appellant
• Court: Missouri Supreme Court

229 S.W. 750

287 Mo. 555

MOLLIE M. LAFFERTY v. KANSAS CITY CASUALTY COMPANY, Appellant

Supreme Court of Missouri, First Division

April 9, 1921

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

Affirmed.

McCune Caldwell & Downing and H. M. Noble for appellant.

(1) No contract of insurance was ever consummated. The application clearly provided when and under what conditions the insurance was to take effect. The policy was never accepted by the applicant, nor were the conditions precedent performed. (a) Lafferty never accepted the policy sued upon. As he never became liable for any premium, there is correlatively no liability on the part of the defendant. Kilcullen v. Met Life Ins. Co., 108 Mo.App. 61; Piedmont Life Ins. Co. v. Ewing, 92 U.S. 377, 23 L.Ed. 610. (b) The premium was not paid while Lafferty was in good health and free from injury and therefore by his own agreement the insurance applied for never became in force. 1 Joyce on The Law of Insurance, p. 315; Kilcullen v. Met Life. Ins. Co., 108 Mo.App. 61; Piedmont Life Ins. Co. v. Ewing, 92 U.S. 377, 23 L.Ed. 610; Stephens v. Met. Life Ins. Co., 190 Mo.App. 673; Cravens v. New York Life Ins. Co., 148 Mo. 583; Whiting v. Life Ins. Co., 129 Mass. 240; Gordon v. Prudential Ins. Co., 231 Pa. 404. (c) The policy was never delivered so no contract of insurance was ever made. Wood v. Mutual Life Ins. Co., 32 N.Y. 619; 1 Joyce on Law of Insurance, p. 265; Equitable Life Assur. Co. v. Mueller, 99 Ill.App. 460; Misselhorn v. Mutual Reserve Life Assn., 30 Mo.App. 589; 1 Cooley's Brief on Law of Insurance, p. 448; Kilcullen v. Life Ins. Co., 108 Mo.App. 69; Poplin v. Brown, 205 S.W. 411; Gordon v. Life Ins. Co., 231 Pa. 404; Markey v. Ins. Co., 103 Mass. 78; Rey v. Life Assur. Society, 44 N.Y.S. 745. (2) The deposition of Joseph Burton was admissible in evidence. 4 Jones on Evid. sec. 775, pp. 645-6; Clark v. Thias, 173 Mo. 628; Wagner v. Binder, 187 S.W. 1128.

Pearson & Pearson for respondent.

(1) One of the grounds on which the court sustained the motion for new trial was, that the verdict was against the weight of the evidence; and, this is not a ground upon which the appellate court may interfere. Miners & Merchants Bk. v. Rogers, 123 Mo.App. 569; Fink v. McCue, 123 Mo.App. 316; Karnis v. Winn, 126 Mo.App. 712; Jones v. Oliver, 129 Mo.App. 86; Crow v. Crow, 124 Mo.App. 125; Clarkson v. Garvey, 179 Mo.App. 18; Cornell v. Ins. Co., 179 Mo.App. 426; Jiner v. Jiner, 182 Mo.App. 158. That the "verdict is against the evidence," or, "should have been against the plaintiff instead of defendant," are grounds for a new trial, substantially the same as saying that the verdict is against the weight of the evidence. State ex rel. v. Todd, 92 Mo.App. 1; Bird v. Vanderburg, 168 Mo.App. 118; Raifiscen v. Young, 183 Mo.App. 511; Watts v. Pierson, 170 Mo.App. 532. (2) There was abundant evidence in this case to carry it to the jury. The possession of the insurance policy by the insured, and the sending out by the home office, of the "Official Receipt Card" and "Identification Card" are sufficient evidence of a delivery of the policy to carry the question of delivery to the jury. Appellant urges that, the advanced premium of $ 1.60 was not paid, previous to the delivery of the policy. Respondent's reply, that under the provision and requirements of the application, to-wit: "the advanced premium of $ 1.60 must be paid in advance without notice," the Home Office would not, and did not approve an application for insurance, until it had received the $ 1.60 or waived the payment of same. At any rate, after approving the application, issuing the policy, and delivering same to the insured, it is prima-facie evidence of the payment, of the advanced premium. Without Burton's testimony, this evidence would be ample to justify and sustain a judgment. Whether or not Burton was telling the truth, in his testimony, was a question for the jury. And, the trial court recognizing the fact that it committed error in taking this case from the jury, did not abuse its discretion in granting respondent a new trial.

WOODSON, J. Graves, J., concurs in separate opinion.

OPINION

WOODSON, J.

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 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.

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:

"One Mollie M. Lafferty, mother of Hugh L. Lafferty, deceased brought her action against the defendant company on a policy of insurance, of date January 9, 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 six per cent from April 19, 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 issuance 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 was 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, Missouri, he being there on a visit, his home being at Moberly. This occurred about four o'clock on the morning of January 18, 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 9, 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 him 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...