McMahon v. Travelers' Ins. Co.

• Decision Date: 08 May 1889
• Citation: 42 N.W. 179,77 Iowa 229
• Parties: MCMAHON v. TRAVELERS' INS. CO.
• Court: Iowa Supreme Court

77 Iowa 229

42 N.W. 179

MCMAHON

v.TRAVELERS' INS. CO.

Supreme Court of Iowa.

May 8, 1889.

Appeal from district court, Des Moines county; CHARLES H. PHELPS, Judge.

Action to recover an amount alleged to be due on a policy of insurance issued by defendant. There was a trial by jury, and a verdict and judgment for plaintiff. The defendant appeals.Power & Huston, for appellant.

Dodge & Dodge and A. H. Stutsman, for appellee.

ROTHROCK, J.

On the 21st day of April, 1887, the defendant issued the policy in suit. The portions of that policy important for consideration on this appeal are as follows: “The Travelers' Insurance Company of Hartford, Conn., in consideration of the warranties in the application for this policy, and of an order (for moneys therein specified) on Chicago, Burlington & Quincy Railroad Company, does hereby insure (subject to conditions on back hereof, not waivable by agents) John McMahon, stone-mason, for the period or periods specified below, beginning at noon of the day this policy is dated, * * * against loss by travel, * * * resulting from bodily injuries effected during the term of this insurance, through external, violent, and accidental means, which shall, independent of all other causes, immediately or wholly disable him from transacting any and every kind of business pertaining to the occupation under which he is insured; or, if death shall result from such injuries alone, within ninety days will pay two thousand dollars to Maggie McMahon, wife. Express Agreement. The payments specified in the order are premiums for consecutive periods of two, two, three, and five months, and each shall apply only to its corresponding insurance period. All claims for injuries effected during any period for which its respective premium has not been actually paid shall be forfeited to the company. * * *” The order referred to in the policy was delivered to the defendant, and is as follows: “April 21st, 1887. Chicago, Burlington & Quincy Railroad Company, pay to the Travelers' Insurance Company of Hartford, Connecticut, or its authorized agent, the following sums out of my wages for the months specified: (1) Five dollars for May, 1887; (2) five dollars for June, 1887; (3) five dollars for July, 1887; (4) five dollars for August, 1887. These sums are premiums on an accident policy, issued to me by the said company, bearing the same date and number as this order. If the agreements and conditions of said policy are complied with, the first paymentmakes said policy good for two months, the second for four months, the third for seven months, and the fourth for twelve months respectively, from said date. [Signature] JOHN MCMAHON.”

The order was sent to the railroad company on the 21st day of May, 1887, with a statement called a deduction list, showing the amount owing by McMahon from his wages for May, and also the sums due from other employés of the company to defendant. The first payment of five dollars was received by defendant from the railroad company on the 11th day of June, 1887. The order was never formally accepted by the last-named company, but was retained by it as a voucher. On or before June 21, 1887, defendant sent to the railroad company a deduction list for that month which showed the sum of five dollars to be due from the wages of McMahon. This was returned to defendant, with the statement that McMahon was not employed by the railroad company. No further attempt was made by defendant to collect the sum due from McMahon, and nothing but the first payment of five dollars was ever made on the order or for the policy. The policy was not canceled by defendant, nor was the order returned to McMahon. It appears that McMahon was in fact employed by the railroad company during the month of June, although on a different division from that on which he was at work prior to May 23d. He drew all of his earnings for the month of June. On the 29th day of that month McMahon wrote to the general agent of defendant, as follows: “I have left John Smith's gang. You will please cancel my accident policy, as I don't care to keep it any longer.”

On the 18th day of July following he was run over by the cars of a railway train, and died within a few minutes from the injuries received. After his death, the plaintiff drew from the railroad company all wages due him. It is claimed by plaintiff that the policy was in force at the date of McMahon's death, and that defe...