Peterson v. The Commonwealth Casualty Company

• Decision Date: 16 March 1923
• Citation: 249 S.W. 148,212 Mo.App. 434
• Parties: RASMUS PETERSON, Respondent, v. THE COMMONWEALTH CASUALTY COMPANY, Appellant
• Court: Missouri Court of Appeals

249 S.W. 148

212 Mo.App. 434

RASMUS PETERSON, Respondent, v. THE COMMONWEALTH CASUALTY COMPANY, Appellant

Court of Appeals of Missouri, Springfield

March 16, 1923

Appeal from the Circuit Court of Laclede County.--Hon. L. B Woodside, Judge.

AFFIRMED.

Judgment affirmed.

C. Wm Freed and A. W. Curry for appellant.

It was insured's duty to examine the policy and if it did not contain the contract to take steps to correct. Aetna Life Ins. Co. v. A. Z. L. & S. Co., 169 Mo.App. 550, 154 S.W 827.

L. C. Mayfield for respondent.

(1) By retaining the premium of $ 21 after appellant knew that the policy did not conform to the terms of the contract made by its agent with respondent, appellant is estopped from setting up as a defense, that the contract made by its said agent is beyond the scope of the agent's authority and that the said contract of insurance is null and void. Manning v. Insurance Co., 170 Mo.App. 678; Rogers v. Fire Insurance Co., 157 Mo.App. 671. (2) The appellate court should not disturb the judgment of any court unless it believes that error was committed by such court against the appellant or plaintiff in error which materially affects the merits of the case. Sec. 1513, R. S. 1919. (3) In conclusion, we will say that the judgment of the trial court in reforming the policy and rendering judgment upon same as reformed, is clearly sustained in the decision written by Judge FARRINGTON, in the recent case of Horine v. The Royal Insurance Co., reported in 201 S.W. 958. Therefore, we respectfully submit the cause of our client to the court.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

--Plaintiff filed his petition in three counts. In the first he sought the equity side of the court and asked that an accident insurance contract be so reformed as to conform to the agreement he had with the soliciting agent. In the second count plaintiff sought recovery on the reformed contract. In the third count he sought recovery on the policy delivered to him; but this count was dismissed. A jury was waived on the law count, and the whole cause tried before the court. The court reformed the policy and found for plaintiff on the second count based upon the reformed contract. Unsuccessful in motions for new trial and in arrest, defendant appealed.

Plaintiff lost an eye by concentrated lye blowing into it while he was engaged in pouring the lye into a barrel of slop, and sued to recover for the loss of his eye and for loss of time while disabled from the accident. The policy which was delivered to plaintiff did not provide indemnity for the injury plaintiff received. The application plaintiff signed was for limited accident and sickness insurance. The application reads: "I hereby apply for Limited Accident and Sickness Insurance in the Commonwealth Casualty Company to be based upon the following representation of facts." Then follows questions and answers pertaining to plaintiff's occupation, etc.

Plaintiff contended that the agent who solicited and took his application represented that the company, under the policy he was offering, among other features, would pay plaintiff $ 1125 for the loss of an eye no matter where or how the loss occurred, and would pay him $ 50 per week for loss of time from such accident. The policy delivered contained this clause: "Commonwealth Casualty Company, hereinafter called the company, in consideration of the statements in the application herefor, a copy of which application is endorsed hereon and made a part of this contract, and the payment of the premium sixteen ($ 16) dollars hereby insures Rasmus Peterson, hereinafter called the insured, subject to the provisions and limitations herein contained, for the term of one year from noon, standard time, at the place where insured resides, of the day this policy is dated, against (1) the effects of bodily injuries caused directly, solely and independently of all other causes, by external, violent and accidental means, which bodily injuries or their effects shall not be caused wholly or in part, directly or indirectly, by any disease, defect or infirmity, and which shall from the date of the accident result in continuous disability and also against the effect of sickness as follows: Part I....For the loss of one eye $ 1,125 resulting within thirty days from date of accident solely from such injuries, and only when such injuries are sustained while actually riding as a passenger in a place regularly provided for the transportation of passengers only, within a railroad car, elevated, subway or interurban railroad car, street car or steamboat, provided by a common carrier for passenger service by reason of the material damage to any such car or steamboat; or for loss of time--fifty dollars ($ 50) per week."

The application was taken October 12, 1921, and the policy is dated October 19th, and was delivered in a few days thereafter. In a few days after the policy was delivered plaintiff lost his eye as stated. He alleges that the accident occurred on October 28th, but testified that the accident occurred a few days after the policy was delivered.

Defendant makes several assignments, which may be grouped as follows: That error was committed in overruling a demurrer to the amended petition; in not compelling plaintiff to make his petition more definite; in overruling a demurrer at the close of the case; in the admission of evidence, and in the refusal of a declaration of law.

Defendant did not file a demurrer to the amended petition. The record discloses that a combined general and special demurrer was filed to the original petition and sustained, and that thereupon plaintiff asked leave to amend, and amended the first count by interlineation. The record then recites that thereupon defendant filed its answer. When the trial was commenced defendant objected to the introduction of evidence on the ground that the petition was too indefinite and uncertain, but was overruled and excepted. In this state of the record we approve the sufficiency of the amended petition.

The assignment of substantial merit is the one based upon the demurrer at the close of the case. The agent who took plaintiff's application testified that he understood that he was selling plaintiff a policy that would give him $ 1125 for the accidental loss of an eye wherever the loss occurred or in whatever manner such loss occurred. Such is the effect of the agent's testimony. He was indefinite and uncertain in some matters, but was fairly definite as to what he understood about the policy he sold. On direct examination the agent testified as follows: "Q. Now if you offered to sell him an insurance policy state as near as you can if you represented or stated to him that it would cover all accidents or injuries that he might receive while he was there on his farm working, or around the place, or that if he lost an eye by accident or received any bodily injuries, and especially if he lost an eye by accident, if he would be paid the sum of $ 1125? A. That was my understanding. Q. Now, Mr. Shoemaker, go ahead and state, as near as you can, what you stated to Mr. Paterson. A. My statement to Mr. Peterson if he lost one eye he was to receive $ 1125. Q. Lost an eye how? A. By accident. Q. Where abouts? A. Anywhere, I suppose." This agent also testified that the contract or policy he sold defendant provided for a weekly indemnity of $ 25 while disabled from the accidental loss of an eye instead of $ 50 as testified to by plaintiff, and the court in rendering judgment took the agent's version of the agreement as to loss of time. Plaintiff and the agent practically agree in their evidence as to the policy sold and what plaintiff would receive for the loss of an eye, and disagree only in the feature relating to the loss of time. Plaintiff testified that he paid $ 21 for the policy he purchased from the agent. The agent makes no denial of this. The $ 21 payment is not mentioned except by plaintiff. The policy delivered, as shown supra, recites that the premium was $ 16.

Defendant introduced no evidence except the policy which was delivered, and relied upon that and upon the admission by plaintiff that he read the policy or had it read after receiving it and laid it by, and had made no complaint about it prior to his injury.

The judgment of reformation recites the finding of facts as follows: "The court further finds that on the 12th day of October, 1921, the duly authorized agent, with power to make a contract of insurance for defendant, entered into a contract with the plaintiff to furnish him a policy of insurance which policy was to be so written as to insure plaintiff against certain injuries received by external violent and accidental means wherever he might receive the same. Among said injuries against which plaintiff was to be insured was the loss of an eye in which case defendant agreed to pay the plaintiff the sum of $ 1125 and defendant further agreed that as an additional indemnity, if plaintiff should become ...