Wright v. Great Eastern Casualty Co.
| Citation | 206 S.W. 428 |
| Decision Date | 11 November 1918 |
| Docket Number | No. 12986.,12986. |
| Parties | WRIGHT v. GREAT EASTERN CASUALTY CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Nodaway County; G. R. Ellison, Special Judge.
"Not to be officially published."
Action by Lena J. Wright against the Great Eastern Casualty Company, resulting in verdict for plaintiff. From an order granting new trial, she appeals. Affirmed.
Ellis G. Cook, of Maryville, for appellant J. H. Sayler and F. P. Robinson, both of Maryville, for respondent.
ELLISON, P. Z.
Plaintiff's action is based on an accident policy of insurance. On trial in the circuit court a verdict was returned for her which the court set aside and granted a new trial. She thereupon appealed, and asks that that order be reversed, and the cause remanded, with directions to reinstate the verdict and render judgment thereon.
Plaintiff is the mother of B. G. Wright, who was killed in an automobile accident. He had taken out an accident policy with defendant company, insuring him for one year from the 15th of December, 1913, in which plaintiff was the beneficiary. The date of the accident was the 3d of September, 1915. The policy, on its face, had therefore expired; but plaintiff claims it I ad been verbally renewed for another year, and, as the renewal had not expired, defendant was liable.
The facts necessary to understand are these: Defendant issued the policy just referred to, dated the 15th of December, 1913, and it covered such an accident as befell deceased. But on the expiration of the year (December 15, 1914), on deceased's written application, it issued a new policy for another year, which would expire the 15th of December, 1915. The latter policy did not cover the character of accident which killed deceased. So that, unless there was a valid verbal extension of the first policy, deceased had no insurance at the time of his death which would cover the cause of such death. These policies contained a provision that they might be renewed by a certificate in writing to that effect.
One William Miller was defendants soliciting agent, who took applications, collected premiums, and countersigned and delivered policies; and there was evidence in plaintiff's behalf tending to show that in December, 1914, a few days before the 1913 policy expired, he called on deceased and asked him to renew that policy; that deceased assented, and paid him $5, being one-half the premium, and in about two months afterwards sent him a check for the remaining 85.
So it is readily seen why plaintiff contends for a verbal renewal of the first policy, and why defendant insists there was no renewal, but that there was an independent written policy issued in lieu of it, and under which there is no liability.
It is' claimed by defendant that, conceding deceased, some time in the first part of December, 1914, made verbal application for a renewal of the 1913 policy then about to expire, and made part payment of the premium, yet it was conclusively shown that this application was but the verbal request for the written issuance of a new policy on the day the first One expired and in lieu of it.
We are compelled to adopt defendant's view. This latter or second policy had indorsed thereon in unmistakable language in two paragraphs that it was in lieu of the first policy. They read:
"Date, Dec. 15, 1914."
(1) "In consideration of this policy being issued in lieu of one of prior date of this company, it shall be considered in regard to increases under section A as being one year old at date of issue; but increases shall in no case ever amount in the aggregate to more than 50 per cent. of the original sums provided in column headed in first year of policy.
"Form No. 1. T. H. D. Secretary."
(2) "In consideration of this policy being issued in lieu of one of prior date of the company, the insurance for illness, subject otherwise to all the conditions, limitations, and clauses of this policy, will be in immediate effect from the date above stated.
"Form No. 3. T. H. D....To continue reading
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