McCarty v. United Ins. Co., 21855

CourtCourt of Appeal of Missouri (US)
Writing for the CourtBROADDUS
Citation259 S.W.2d 91
Docket NumberNo. 21855,21855
Decision Date01 June 1953

Page 91

259 S.W.2d 91
No. 21855.
Kansas City Court of Appeals, Missouri.
June 1, 1953.

Page 92

Richard H. Beeson, David P. Dabbs and Dean F. Arnold, Kansas City, for appellant.

William B. Teasdale, Kansas City, for respondent.


This is an action upon a policy of insurance issued by defendant to plaintiff, Mrs. Elizabeth McCarty. In the court below plaintiff had a verdict and judgment for the claimed indemnity of $62.50 and interest thereon in the sum of $7.70, plus a penalty of $6.25, and an attorney's fee of $200, or a total of $276.45. Defendant appeals.

The policy, styled 'Preferred Individual Hospital Expense Policy', insured plaintiff 'against financial loss due to hospital residence, hospital expense, surgical and other losses resulting from bodily injury sustained through accidental means * * *.' Under the schedule for 'Surgical Benefits' the amount payable for the fracture of an arm was $20. Under 'Part One' relating to 'Hospital Benefits' defendant agreed to pay insured, as a result of any one accident, the following: '(B) Use of operating room, not to exceed $10. (C) Anesthetics administered within a hospital, not exceeding $10. (D) X-Ray Examination, not to exceed $10. (F) Medicines, drugs, dressings, supplies, and any other necessary hospital expense, not to exceed $10. (G) Ambulance service to or from the hospital, not exceeding $5.'

Part 'Nine' of the 'General Provisions' of the policy provides: 'Any indemnity under this policy applies only while the insured is necessarily treated and confined as a patient in any hospital upon the advice of, and attended by, a legally qualified physician or surgeon other than himself, except as provided in parts four and five.'

Part 'Four' referred to in the preceding paragraph is entitled: 'Doctor Bills--Non-Disabling Injuries' and is as follows: 'If the insured suffers any injury sustained directly or exclusively of all other causes through accidental means which is not covered by hospitalization or surgical loss in any of the provisions of this policy but which shall require treatment by a legally qualified physician or surgeon, the Company will reimburse the insured in any amount not exceeding $5 * * *.'

Defendant admitted that it issued the policy and that plaintiff on January 6, 1950, suffered an injury through accidental means.

The undisputed facts are that when plaintiff fell in her home in Kansas City she sustained a severe injury to her right arm, to-wit: a comminuted fracture. Both bones in the forearm were 'broken and splintered.' Plaintiff immediately called her next door neighbor and told her that she had fallen and broken her arm. The neighbor called Dr. Valentine and told him what had happened and he 'ordered' that plaintiff be taken to 'Research Hospital for X-Rays, and to get there right away.' Whereupon the neighbor called a taxicab and plaintiff was rushed to the hospital. Upon reaching there plaintiff was taken to the X-Ray room which was on the fourth floor. An X-Ray was taken of her arm. She was given an anesthetic by a Dr....

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9 cases
  • Hopkins v. American Economy Ins. Co., WD
    • United States
    • Court of Appeal of Missouri (US)
    • February 21, 1995
    ...the rights of the insured, fret and harass him without rational cause, without escaping the penalty...." McCarty v. United Ins. Co., 259 S.W.2d 91, 94 Page 942 In Groves v. Great Eastern Casualty Co., 212 Mo.App. 316, 246 S.W. 1002 (1923), the plaintiff was thrown from a car and suffered a ......
  • Morris v. Reed
    • United States
    • Court of Appeal of Missouri (US)
    • May 6, 1974
    ...State Farm Mutual Auto. Ins. Co. v. Central Surety & Insurance Corp.,405 S.W.2d 530, 532 (Mo.App.1966); McCarty v. United Ins. Co., 259 S.W.2d 91, 94 (Mo.App.1953); Gabriel v. Farmers Mutual Fire Ins. Co., 108 S.W.2d 628, 631 (Mo.App.1937); Carroll v. Union Marine Ins. Co., 249 S.W. 691 (Mo......
  • State Farm Mut. Auto. Ins. Co. v. Central Sur. & Ins. Corp., 24448
    • United States
    • Court of Appeal of Missouri (US)
    • April 4, 1966
    ...denied liability for a stated reason, an insurer may not, later assert a different one. McCarty v. United Insurance Company (Mo.App.), 259 S.W.2d 91, 94; Carroll v. Union Marine Insurance Company (Mo.App.), 249 S.W. 691, 692; Ash Grove Lime & Portland Cement Company v. Southern Surety Compa......
  • Stone v. Waters, 25702
    • United States
    • Court of Appeal of Missouri (US)
    • June 5, 1972
    ...At least this is true if the original denial was made with full knowledge of the facts. McCarty v. United Insurance Company, Mo.App., 259 S.W.2d 91, 94.' The reason for the rule is clearly that the insured (garnisher) has acted on the asserted position of the insurer and incurred prejudice ......
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