United Zinc Cos. v. General Accident Assurance Corp.

• Decision Date: 14 May 1907
• Citation: 125 Mo. App. 41,102 S.W. 605
• Parties: UNITED ZINC COS. v. GENERAL ACCIDENT ASSURANCE CORPORATION.
• Court: Missouri Court of Appeals

102 S.W. 605

125 Mo. A. 41

UNITED ZINC COS. v. GENERAL ACCIDENT ASSURANCE CORPORATION.

St. Louis Court of Appeals. Missouri.

May 14, 1907.

1. INSURANCE — INDEMNITY — POLICY—LIMITATION OF LIABILITY.

In a suit on an indemnity policy, which on its face undertook to insure plaintiff for the benefit of the employés whose names were attached, the insurance did not inure to the benefit of an employé whose name was not included on the schedule of names attached when the policy was written.

2. SAME—ACTION ON POLICY—EVIDENCE—ADMISSIBILITY.

In an action on an indemnity policy which undertook to insure plaintiff for the benefit of employés whose names were attached to the policy, where the petition simply declares on the policy itself, averring that in the list of employés mentioned in the schedule attached to the policy was the name of C., for whose death plaintiff seeks to recover, and that he was killed while covered by the terms of the insurance contract, when in fact his name was not in the schedule, plaintiff could not prove a subsequent agreement on the part of defendant's agent to copy the list of plaintiff's employés and attach it to the policy.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by the United Zinc Companies against the General Accident Assurance Corporation. From a judgment for defendant, plaintiff appeals. Affirmed.

H. H. Bloss, for appellant.

GOODE, J.

This plaintiff, the United Zinc Companies, a corporation, sues as the trustee of an express trust on an insurance policy issued to it by the defendant for the benefit of certain of plaintiff's employés. The first paragraphs of the policy are as follows: "General Accident Assurance Corporation, Ltd., of Perth, Scotland. United States Offices, Philadelphia, Pa. In consideration of the statements, warranties and agreements in the schedule endorsed hereon and made a part hereof, which statement the assured makes on the acceptance of this policy and warrants to be true, and in further consideration of payment of premium proportionately as set forth in said schedule, does hereby insure United Zinc Cos. (hereinafter called the assured), as trustee for the employés hereto attached, signed by the authorized agent, subject to the provisions, conditions and limitations herein contained and endorsed hereon, from 12 o'clock noon, standard time, of the time this contract is dated until 12 o'clock noon, standard time, on the first day of June, 1905, and for such further periods, stated in the renewal receipts, as the payment of the premium in said schedule will maintain this policy and insurance in force, to wit." Then follow clauses providing the indemnities to be paid for various losses, among others, $200 for loss of life of each employé insured. The policy was issued May 1, 1905, and had attached to it, when issued, a list of names of the employés insured. Said list did not include Ernest Clark, to recover indemnity for whose death is the purpose of the present action. On May 1st Clark was not in the employ of plaintiff, and was not, of course, subject to the policy. He had been in plaintiff's service several times, and, as we gather from the evidence, was in its service a few weeks immediately following the date of the policy, but quit work for a while, resumed it early in June, and in two or three days thereafter, to wit, June 9th, was accidentally killed. It is the theory of the plaintiff that, inasmuch as the men in plaintiff's employ were changed now and then, the policy was intended to insure from month to month such as happened to be working for plaintiff during a given month, and were willing to contribute of their wages to pay for the insurance, the cost of which was 25 cents a week. Clark's name...