*1 APPEAL REPORTS. 204 MISSOURI Indemnity v. Western Co. Drucker '-appeal by granting the without The trial court appeal requiring of relieved bond, giving" necessity The discretion a bond. such judg- require appeal as its not, bond, court to an contemplated by the statute ment dictates. bond to or barrier intended to be as a burden used fully necessary only appeal, required when an it is litigation. protect party’s rights in 'We the adverse opinion to the sheriff was void. are of the order foregoing", the Commis- of the above and view judgment that the be reversed sioner recommends to the circuit court with directions the cause remanded likewise set nonsuit and aside to set aside proceedings upon for further sheriff, order said opinion. inconsistent with this opinion foregoing PER CURIAM: The Barnes, judg- adopted opinion the court. as the C., accordingly reversed' is, ment the circuit court aside the cause remanded directions set with upon sheriff, the order nonsuit, likewise opinion. proceedings not inconsistent with the further Reynolds, Becker, JJ., J., concur. P. Allen Appellant, IN DRUCKER, WESTERN JULIUS H. DALLAS, TEXAS, OF COMPANY DEMNITY Respondent. Appeals. Opinion July 16, Filed Louis
St. Policy: Action on and Health Insurance: Accident 1. INSURANCE: Misrepresentation Defense of Failure to Return Premiums: Regardless accident and of whether a combination Available. policy in fell of section suit health insurance brought in suits Statutes Revised upon misrepresentation polices based shall life no trial, deposit at or before the the defendant valid shall unless plaintiff, premium, such benefit of received on in court for MAECH TEEM,
polices, held inasmuch as the insurer nor neither its answer at the trial into plaintiff, or offered offered plaintiff, premiums received, for the benefit had *2 misrepresentation the defense of was not available to the insurer. Assignment 2. MOTION FOE. NEW TRIAL: toas Errors in Instruc- Assignment tions: General Sufficient. The for a new trial motion merely assigning improper as error instructions jury request defendant, at the' is sufficient to allow appellate court to review the matter. Conflicting 3. CONTRACTS: Clauses: First Clause Governs. Where conflict, governs two clauses of a contract are in the first rather than the last. 4. INSURANCE: Accident and Health Insurance: Construction: Con- flicting Furthermore, Provisions: Construed in Favor of Insured.- language capable when interpretations, an insurance of two adopted the one must which is be favorable most to the assured the language because used is that of the insurer. Repugant 5. -: -: -: Clauses: Clause Favorable to Likewise, repugant Insured BeWill Effect. Given when or inconsis- appear tent statements pr or clauses in a that statement given clause will be effect which most favorable assured. Liability: Subsequent 6. -: --: -: Unconditional Pro- Exempting viso Insurer Ineffectual. Where a accident combination plaintiff against bodily injury and health which insured the through means, disability or loss effected accidental also from illiness, disease or and undertook then to so insure for a period fifty-two exceeding weeks, stating the insurer “does hereby insure, “thereby providing for unconditional immediate an liability disability; subsequent provid- in the event of and a clause liable, agreed ed that insurer not to be as it to be in the first clause, for illness contracted within fifteen from the date of policy,' repugant provision. held to the first n 7. -: Pay -: Attorney’s Vexatious Refusal to Loss: Fees: Question Jury. insured, petition, for Where the in his asks damages attorney’s fees because of vexatious refusal of loss, tending insurer to and at the trial introduced evidence allegations, to substantiate such he had no to a directed ver- dict, because vexatious refusal defendant’s jury. the loss one Appeal tlie Circuit City Louis. St.
—Hon. Hennings, Thomas G. Judge.
Reversed remanded. APPEAL REPORTS. 204 MISSOURI appel Drucker, for
James J. J. H. O’Donohoe lant. misrepresentations anis affirma The defense of following be must available, one, and,
tive proven by evidence em answer, averred namely: (a) That the in instructions, braced representations; (b) that he knew them sured made false (c) misrepresenta made; that said be false when actually tions made a matter contrib so concerned (d) loss; to the the insurer know uted did not representations (e); were false; and that if it had same, known not have issued the would pleadings, proof Neither the defendant’s nor instructions requirements. meet those Huís v. S. W. (Mo. App.) (Mo. App.) Beck v. Ins. 207 S. W. *3 App. v. 248; Hicks Ins. 196 Mo. Co., 163; Bruck v. Ins. App. App. 194 Mo. 529; Ins. 191 Co., Co., Schuler v. Mo. App. 52; Clarkson Mo. Co., 624; v. Ins. 190 Buchholz App. 683; v. Co., Ins. 177 Roedel v. Ins. 176 C'o., Mo. App. App. 584; Mo. Ins. Co., 130; Coscarella 175 Mo. v. App. Lynch Association, Conner v. 171.Mo. 364; Ins. v. App. App. 150 Mo. Co., 461; Co., Salts v. 140 Mo. Ins. 142; ty v. Ins. 189 Williams Mo. Harms Co., 70; Casual v. App.
Co., Mo.
Ins.
241;
172
Keller v.
198
Co., Mo.
Legion
v.
1.71
440;
Co.,
375;
Jenkins
Ins.
Kern
Mo.
v.
of
Mo.
Honor,
471;
167
Ins. Co.,
Schuermann v.
165 Mo.
041;
v. Ins. Co.,
Ashford
98 Mo.
505. The mis
App.
representation
is not available
to defendant for
deposit
the further reason
it failed
court premiums
poli
the benefit of
received
cy.
R.
1909; Thassler
Sec. 6940
Co.,
S.-
v. Ins.
67 Mo.
App.
Floyd
App.
505;
Ins.
72sMo.
C'o.,
455;
v.
Lavin
App.
Herzog
434;
101
Co.,
v. Ins.
Mo.
v.
Broth
Mfodern
App.
Thomp
110 Mo.
1. c.
America,
erhood
334;
Neighbors
Royal
App.
son v.
America, 154 Mo.
10!9l;
App.
Legion
165
Co.,
v. Ins.
233;
Welsh
Kern v.
Agent’s knowledge
imputable
520 204 APPEAL MISSOURI REPORTS. respond
Clarence T. Case Victor J. Miller ent. deposit required
An is not premium "policy in court the it received on a health poli ground where defends action on the that the cyholder guilty procurement fraud policyholder because the is not re entitled to cover back the Vining under such circumstances. App. v. Franklin Insurance Co., Mo. 1. 89 c. 323; Heilman v. National 108 Mr. Council, Etc., App. 1. Company 305; c. Aetna Lifei Insurance v. Hoyt App. 111. Paul, 431; 10 v. 336-, 8 Mass. Gilliman, Agawam v. Friesmuth Fire Mutual Insurance 10 Fay 1. 592; Cush. v. c. Prudential Life Insurance N, Company, App. Supp. 80 Div. 350, 683; 80 T. Hime ly Company, v. South Carolina Insurance Mill. Const. I (S. 0.) (2) 154, Am. 12 Dec. or re ,in fusing specifically pointed of instructions not out subject the motion for new trial are not review appeal. City Disinfecting Mfg. Kansas & v.Co. Bates County, Wynne Wagoner Undertaking 300; v.
Company,
Lampe
274 Mo.
Railways
593;
v. United
Company, 202
Dairy
438;
Company
S.
St.
Louis
Company,
v. Northwestern Bottle
281;W.
S.
Seitz
n Pelligreen,
v.
388; Nitchman v. United
Railways Company,
491;
203. W.
State
Dinkel
v.
kamp,
Chicago
770';
Heller
S. W.
v.
A.& R.- Co.,
court,
5'07.
mere
S. W.
fact that the trial
may
way
in some
criticise the acts and conduct of an
attorney the trial
a case, such
criticism not
of.
amounting
way
a comment on
evidence or the issues
ground
in the case,
involved
does not constitute
reversal. State
Teeter,
c. Farrar
BIGGS, is a suit C. This based a combina plain tion accident health which insured the against bodily injury or through loss tiff effected acci against disability means, dental also from disease The schedule of or illness. indemnities set forth in the
MARCH TERM, 1920. policy provides payment principal for sum of by of for loss of life reason of either of the $1500 specified, weekly causes above further for a acci- and indemnity weekly indemnity dent of $25, and a illness provision payment There is further for the a $25. (cid:127) hospital expenses, per exceeding week. $12.50 petition alleges
The is in the usual form, and plaintiff April May ill from 2, 1916, 8, 1916, was thus entitling plaintiff weekly illness to the sum as a of $125 insured, indemnity; and was confined further hospital April 1916, and a for four weeks from policy under sum was entitled the terms hospital indemnity. of $50 admitting
The is- defendant’s answer' after allegations policy suance of in suit, all other denies plaintiff’s 'petition. answer further contains a misrepresentation plea plaintiff by at the made the- policy time of the of the that he issuance to the effect mentally physically, in sound condition and was previous year did have, he nor had he within a policy, any the issuance local constitutional and that he had not disease, medical attention received years previous within two to the issuance of the representations alleged by These are defendant by have been false and known to such part at the and were a time, the consideration by contract, was issued de- contract representations. relying truth fendant of such up further is set A con- provision a in- tained the effect that the demnity did cover illness con- days tracted fifteen from noon of the said within indemnity issued; the illness plaintiff’s petition mentioned was contracted fifteen from said time. reply general awas matter denial new up in
set defendant’s answer.
Upon jury, a trial a before there verdict for a judgment, defendant followed appealed, has REPORTS. APPEAL (cid:127)532 204 MISSOURI *6 Indemnity Co. Drueker v. Western in the court’s that inhered contends error Plaintiff the de- interpose in defendant action the to permitting in representation fense procuring fraudulent did in the fact the defendant view of policy, that to in offer return either answer or at the trial to its paid We plaintiff premium this and the well point think sound plaintiff position taken, and this regardless particular of whether in suit 6040, falls section in 1909, Statutes of which suits Revised brought upon misrep- life no based on policies, defense resentation shall valid, unless the defendant shall, at or in trial, deposit before the for the benefit court received on such plaintiff policies.
By attempt- its answer its defendant by proof and ed to the plaintiff this procured show had through represen- false fraudulent warranties and void ah initio. rendered tations, which the contract by answer nor at trial, Neither its did the defend- offer to or to into plaintiff ant offer th,e benefit re- the premium had ceived.
Defendant thait representations these- claimed al- leged have been made were by of such a character as to avoid the policy, that, therefore, never created against risk liability In in defendant. a position itself to make put order such a to a suit on the it should have policy, offered to return the received premiums should kept good, by have offer its but answer, only the amount court for the benefit of the tendering It could not make such defense and at plaintiff. premium. same time on to the hold In the Harland v. Insurance case of Court Kansas City 180 W. the_ this rule a. fire suit insur Appeals applying c. “This rule 203, says: l. does not arise, ance 6040’, force of section however, by Revised Statutes only applies life, since that statute not to companies. out of It arises the very fire 523* TERM, 1920. MARCH Drucker Western' a con insist things.
nature of- cannot A the same time at tract had no whatever existence except on right it has no hold on to property re Even with did exist. the contract theory ma no away section 0940 took companies, to life gard (Kern enactment prior to its enjoyed terial they In other 488). v. Insurance require something them to words, statute do did do its passage.” did not have to before they ease, supra, the statute the Kern referring prescribes “Section says: our'Supreme *7 in courts always the rule that has obtained same avoided only that the contract can equity, is, shall avoid it that the to terms; seeking party that received under the contract. benefits he has refund the no material was en statute takes that away The competent for the adoption. is to its still It joyed prior after the insured but not life company, during the the bill set aside con his a death, to bring equity fraud, procured it was by tract the on ground But 652). v. Ins. (Schuermann Co., 165 the com require such a a court of case equity would had received under pany benefit refund it. ’’ contract. from hold likewise. jurisdictions
Cases other [Met ropolitan Moore, (Tex.) Life Insurance 79 W. Co. v. S. Freedman, 219; Life Insurance Metropolitan Co. v. Schroyer, Ins. Co. 114; 159 Mich. Life Commercial Neb. v. Ins. 654; Ind. Schoneman 404.] the defense of foregoing It follows from the to the defendant not available misrepresentation was premiums, as it and as long held the absence of to the jury. have so should declared misrepresentation evidence tender, such offer ¡ was not admissible. not cover provided .did policy from noon of fifteen days illness contracted instructed the court issued, dis- the illness which if they believed jury contracted within fifteen
abled plaintiff 204 MISSOURI APPEAL REPORTS. noon, March 11, then was not entitled to recover. provision
Plaintiff asserts that this rea- void being repugnant insuring son of to the and other specifies giving clauses of the contract, error instruction referred to. point is not before
Defendant claims us for properly preserve review', because did not merely assigned it, in that his motion for a trial new improper as jury error the instructions request at the of defendant, in which'is to be claimed sufficient us to allow to x^eview matter. This is xio
longer a debatable under the late decisions of Supreme [Wampler en banc. v. Railroad, Reynolds, rel. v. 190 S. State ex W. et al., 782.] March dated at its be- says
ginning hereby the defendant does insure plaintiff agaixxst (1) bodily injury through accident; against disability from disease or illness, and indemnity that as the latter it will $25' per period,'not exceeding for a 52. weeks. Fol- week lowing number ixx there is other found body a clause the effect that *8 contract not cover illness does contracted fifteen days policy from noon of the the is issued. Toward followixxgstipulatioxi: the end the contaixxs coxitract the “In the made the consideration of as- warranties subject provi- hereon, sured endorsed payment ixx sions above of the advance of the premium policy of $20, has issued this for beginning a months, term six at twelve xioon, o’clock standard at residence time, addx’ess, the- assured’s day 1916.” the 11th March provisions will be that under above noted It 11, the defendaxxtunder- 1916, the contract March dated against disability ill- insure then took to period exceeding at the weeks, 52 rate ness for a - says per the contract week; of $25 de- hereby part first insure.” “does fendant 525 MARCH TERM, mention is made no there- of the liability limiting after of defendant contained (cid:127) anywise. along body agree- Then further in the proviso exempts ment is the the defendant from liability any days for illness contracted within fifteen provides from the date The first clause liability for an unconditional immediate in the .event of disability by reason of' illness. The second clause re- ferred to the defendant shall liable be agreed as it in the first for clause illness con- tracted within fifteen from the date of ' n repugnant is provision. and we think, first A well established rule of construction of contracts to the effect that where clauses of a two contract aro governs in conflict, the first rather than the last. Mr. 381) (2 page Blackstone Blackstone’s Commentaries, says: totally “If repugnant there clauses so be two re-, they together, cannot stand the first will be rejected.” ceived and the last Fidelity
In the Aid case of Summers Mutual Association, 84 ap 606, where plied for January December 30th ánd issued 4th, and following, occurred death November 27th and where provided that it must be in force twelve prior months death before the insurer lia would be acceptance premium held, ble, was: of a year notwithstanding rendered the insurer one liable provision; provided the fact insurance makes no other since difference, apportioned.”
The case of Bean v. Aetna Life Insurance Com point pany, 111 186, Tenn. on the 104, S. W. subsequently ap That case was involved. Casualty proved in Blackman v. Tenn. in Laurenzi Tenn. v. Insurance W. Employers’ in the case of and also
644, 176 S. Corp. Fed. Morrow, [See Assur. *9 Company, App. Baseball O’Connor v. also, 1167.] c. l. 192, 181 REPORTS, 204 MISSOURI APPEAL it is an established
Furthermore, rule of construc language tion, that, when the an capable interpretations, is adopted two one- must be most
which is favorable to the assured, because language [Hoffman used that of insurer. App. Company, Ins. Burnett 349.] repugnant or state- Likewise when Inconsistent appear or ments clauses that statement given clause will be effect is most favorable to [Wood Insurance, 60-62.] the assured. sections erred referred instruction alleged defense should disre- and the havo been to, garded. plaintiff a di- Counsel assert was entitled to clearly This cannot be true because rected verdict. petition for dam- the fact his asked ages attorney’s fees, because refusal of vexatious plaintiff in- the loss. the trial At defendant allega- tending to substantiate such troduced evidence ' deprived clearly ato This tions. of defendant’s (cid:127)because verdict, directed jury. refusal loss one vexatious judgment reversed should be It follows remanded. and the cause opinion foregoing PER CURIAM: The Biggs, opinion judg- adopted the court. as the
is C., accordingly reversed and the' circuit court ment Reynolds, J., Allen Becker, P. remanded. cause JJ., concur.