124 Mo. App. 477 | Mo. Ct. App. | 1907
In August, 1904, Charles Bowman, deceased, made application to an agent of the defendant company at Hayti, in Pemiscot county, for a policy of life and accident insurance. Gunter, the agent to whom the application was made, was general manager of the company for twenty-one counties in Missouri and had subagents working under him. Sometime prior to the application by Bowman, Gunter had taken into partnership J. H. Gillette, and thereafter the firm was Gunter & Gillette. The defendant company had done business with the firm without protest after being notified of the partnership, though Gillette never- received a formal appointment to represent the company. The deceased applied for a policy of insurance with an indemnity payable to his parents, the plaintiffs, in case of his accidental death; $500 to each parent. He paid two dollars on the advance premium of $3.50, the agents, to whom this entire premium went, agreeing to wait for the balance until the policy came, as was their custom. The application was forwarded by Gunter & Gillette to the home office of the company at Menominee, Michigan. It was accepted by the secretary of the company and a policy was written and signed in conformity to it and mailed to Gunter at Hayti. The policy reached the post-office at Hayti on Saturday, and it was taken out by Gunter on Sundhy, on which day Bowman, the insured, lost his life by drowning. Gillette insisted that the policy be turned over to plaintiffs; but Gunter refused to do this, saying he would keep it and get “boodle money” from the company for not delivering it. A few days afterwards a telegram came from the home office directing that the policy be not delivered. The company having refused to pay the indemnity stipulated to be paid in
It is said there is no proof the insured lost his life by accident. The burden of proving not only that Charles Bowman was dead, but that his death was due to an accident, was incumbent on the plaintiffs, and we think this was sustained. It was proved he had gone fishing in a lake with some companions, and two or three witnesses swore, without objection, that while engaged in fishing he was drowned. It is true they were not eyewitnesses of the drowning, but nevertheless their testimony was to be weighed. A physician who was summoned and reached the place of the drowning in half an hour after it happened, swore he found Bowman dead and that water ran out of his lungs. The idea of defendant’s counsel is that the evidence falls' short of proving an accidental death because it fails to show Bowman did not commit suicide. Certainly the court was justified in finding the drowning was accidental, for the deceased was proved to have been in good health and cheerful spirits and to have gone On a pleasure trip, blot a circumstance pointing to suicide was given in evidence. We overrule the exception based on the theory that the .evidence did not support the finding of the court that the death of the insured was due to accident. It is earnestly insisted'that no contract of insurance had been completed at the time of the death of the insured, because the policy had not been delivered. In support of this point we are cited to several cases denying a recovery of insurance money where, at the time of the loss, there had been no delivery of the policy,
The application having been made on one of the company’s regular blanks, the paragraph just mentioned constituted a stipulation by the insured that the contract should not be binding on the company until the application was received, and accepted by the secretary, at--the «home office. The evidence shows the secretary accepted the application and drew and mailed a policy
Other points are raised in the brief which we have examined, but as they present no plausible grounds for reversal they will not be discussed.
The judgment is affirmed.
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