Zach v. Fidelity & Casualty Co.

• Decision Date: 31 December 1923
• Docket Number: No. 23523.,23523.
• Citation: 257 S.W. 124,302 Mo. 1
• Court: Missouri Supreme Court
• Parties: ZACH v. FIDELITY & CASUALTY CO. OF NEW YORK.

257 S.W. 124

302 Mo. 1

ZACH v. FIDELITY & CASUALTY CO. OF NEW YORK.

No. 23523.

Supreme Court of Missouri, Division No. 1.

December 31, 1923.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

Action by Blanche G. Zach against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant appeals. Case transferred to St. Louis Court of Appeals.

Jones, Hecker, Sullivan & Angert, of St. Louis, for appellant.

Watts, Gentry & Lee, of St. Louis, for respondent.

RAGLAND, J.

This is an action on a policy of insurance Issued by defendant to Max W. Zach. The original policy was dated December 15, 1909. In accordance with its terms, defendant insured Zach in the principal sum of $7,500 against bodily injury sustained during the term of one year from its date, through accidental means and resulting directly, independently, and exclusively of all other causes, in death. The policy contained no express provision for its renewal, but it was treated by both the company and the assured as renewable annually upon naymeat in advance of the stipulated premium and by virtue of such renewals was in force at the date of Zach's death.

Defendant Is, and at all the times herein referred to was, a New York corporation, engaged in writing life and accident insurance, and licensed to transact its business in the state of Missouri. At the time of the Issuance of the policy Zach was a citizen of this state and resided in the city of St. Louis. Soon afterward he moved to Roxbury, Mass., which continued to be his place of domicile until his death. However, he spent a portion of each year—all the winter months from fall to spring—in St. Louis, where he conducted an orchestra and engaged in other musical activities. He died there while so employed, February 3, 1921.

In the witnessing clause of the original policy, immediately preceding the signatures of defendant's president and secretary, this language is found:

"But the policy shall not be binding upon the company until countersigned by a duly authorized representative of the company."

Immediately following the signatures of defendant's executive officers, this appears:

"Counersigned by Gilmour & Coolidge, general agents at Boston, Mass.

                          "W. D. Rich, Attorney in Fact."
                

Unless the foregoing notation constituted evidence of where the policy was countersigned, there was none.

In the schedule of warranties annexed to the policy, and by reference made a part thereof, the following statement of the assured is found:

"E. My residence P. O. address is 4328 Washington boulevard, city of St. Louis, county of ___, state of Missouri."

Following the statements of the assured, denominated warranties, this language occurs:

"This policy is dated the 15th day of December, 1909, at noon, standard time, at the place of the assured's address written above."

On December 15, 1915, a rider was attached to the policy of which the following is a copy:

                           "Date: December 15th, 1915
                

"Statement E of the assured's application for this policy is hereby amended to read as follows:

"E. My residence P. O. address is 36 Atherton street, city of Roxbury, county of Suffolk; state of Mass.

"And the copy of the application set forth on this policy is hereby amended in like manner. "This rider is indorsed on and forms a part of accident policy No. 4301006 issued to Max W. Zach, Leo Weidham.

                                  "Max W. Zach, Assured
                  "Witness: J. J. M."
                

The evidence discloses in no way where the renewals were made, or the terms or conditions, if any, upon which they were made. The renewal receipts, if any, were not offered in evidence, nor were they in any way referred to therein.

With respect to the cause of Zach's death, the petition alleged:

"Plaintiff further states that on or about the 19th day of January, 1921, in the city of St. Louis, in the office of a dentist in the Metropolitan building, in said city, to which dentist the said Max W. Zach had gone for the purpose of having a tooth extracted, the said Max W. Zach sustained a bodily injury through accidental means, to wit, at said time, by reason of the extraction of said tooth by said dentist, an accidental and unavoidable injury was inflicted upon the tissues adjacent to said tooth in the extraction thereof, consisting of such laceration and tearing of said tissues as is the usual result of the pulling of such a tooth from its socket in the usual and customary manner by a skilled dentist, such laceration and tearing usually being followed by no ill results, and said injury being so caused by such extraction of said tooth, and bacteria entered the wound thus made by the extraction of said tooth into said adjacent tissues, and that infection was thereby caused, which caused the said Max W. Zach to be afflicted with...