Zips v. Mutual Benefit Health & Accident Ass'n., 26250.
| Decision Date | 07 December 1943 |
| Docket Number | No. 26250.,26250. |
| Court | Missouri Court of Appeals |
| Parties | ZIPS v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N. |
Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.
"Not to be reported in State Reports."
Action by Frieda Zips, also known as Ferda Zips, against Mutual Benefit Health & Accident Association to recover death benefits under a health and accident policy. A judgment for plaintiff was reversed by the St. Louis Court of Appeals, 169 S.W.2d 62, with directions to the Circuit Court to enter up a new judgment in favor of plaintiff in conformity with the opinion, and on review by the Supreme Court on certiorari, the record and judgment of the St. Louis Court of Appeals were quashed, 174 S.W.2d 859.
Judgment for plaintiff reversed, and cause remanded in conformity with mandate of Supreme Court.
Moser, Marsalek & Dearing and Theo J. Krauss, all of St. Louis, for appellant.
B. T. Mattingly and Fred Berthold, both of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action by plaintiff beneficiary to recover the indemnity for loss of life as provided by a policy of insurance issued by defendant, Mutual Benefit Health and Accident Association, to plaintiff's husband, August Zips, whose death on August 28, 1941, is alleged to have resulted, directly and independently of all other causes, from bodily injuries sustained through purely accidental means within the contemplation of the policy.
Issue was joined between the parties upon the two essential elements of liability under the policy, that is, as to whether the insured's death had resulted, directly and independently of all other causes, from bodily injuries sustained through purely accidental means; and if so, whether such bodily injuries, independently and exclusively of disease and all other causes, had immediately, continuously, and wholly disabled the insured from the date of the accident, which was August 8, 1941.
Tried to a jury, a verdict was returned in favor of plaintiff, and against defendant, for the aggregate amount of $2,610.30, comprising the total death benefit with interest, together with an allowance of damages and an attorney's fee by way of vexatious refusal to pay. Judgment was entered in accordance with the verdict; and defendant's appeal to this court has followed in the usual course.
Following the argument and submission of the case in this court, an opinion was handed down disallowing all of defendant's assignments of error except as to the excessiveness of the award of interest, which was found to have been excessive in the amount of $26. As a matter of fact, plaintiff herself had conceded the excess in the verdict; and to the end that the matter might be corrected, the judgment was reversed and the cause remanded, with directions to the circuit court to enter up a new judgment in favor of plaintiff, and against defendant, in conformity with the result of our opinion. Zips v. Mutual Ben. Health & Accident...
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