*1 CASES DETERMINED.

BY THE LOUIS, ST. CITY AND SPRINGFIELD NANSAS Appeals Courts AT THE TERM 1924. OCTOBER ANNIE v. Respondent, CONTINENTAL WEISMAN,

LIFE COMPANY, INSURANCE Corporation, Appellant.* Appeals. Opinion

St. Louis Court of Filed October Application 1. INSURANCE: LIFE INSURANCE: Part of Contract Policy: Together: Construction: Construed Both Given Effect Where, by policy, When Possible. the terms part itself, for insurance forms a of the contract the two instru- together determining ments must be construed parties, given effect, the intention of the and both should be if possible, by any reasonable construction. CONTRACTS: Construction: “Or” be Read as “And” and Necessary Vice Versa When to Harmonize Provisions. It is also a interpretation may rule of contracts that word “or” be read “and,” necessity versa, harmonizing pro- as vice as may require, in visions to effectuate the order evident intention parts from all of the instrument. Policy 3. INSURANCE: Life Insurance: Construction: Word “Or” in Construed as “And.” Where the. an insurance expressly policy, provided which was made a if not be force insured should when the health clause provided not take effect unless the first paid ap- had been thereon delivered to the Cyc, p. 745; *(1) (2) Contracts, Insurance, Life 13 C. Section p. Insurance, Cyc., 489; (3) Life (13) 216 MISSOURI APPEAL v. Continental Life Ins. Co. ap- plicant thirty days thereof, unless within date plicant delivery, its held health the time of conjunctive must “and” were be construed as if word *2 disjunctive clause, “or” in to substituted for the in said order application, a with establish sense consistent the clause from, plain tlie intent of consonant with whole instrument. n i. -:--: Jury Policy: Waiver: Condition as to Good Health: requirement an Question. Whether insurance w.aived delivered, good was be in health the insured when premium, by delivering accepting with knowl- question health, held, edge good insured was not jury case, determine, waiver, to if an issue was for the court.

not the -: Office in Ab- -:--: Delivered at Assured’s an Further Assent Assured. Consummated Without Where sence: conformity application, with the was delivered insurance office, absence, was in his when delivered at assured’s contract any further the as- without assent consummated

sured. Theory: on Erroneous Evi- Action Tried PRACTICE: 6. APPELLATE Tending Liability: Show Case Not Re- Plaintiff Adduced dence Outright for New Trial. Reversed and Remanded Where But versed theory life the erroneous insurance was tried on a case irrespective binding, was in of whether the assured was appears policy was and it the time health tending prove adduced at trial evidence there knowledge company, the assured insurance accepted premium, outright, be hut the judgment reversed same assured should for a new trial. for remanded reversed Insurance, p. (5) Cyc, p. Insurance, Cyc, Life 25 (4) 25 Life Appeals Errors, Anno); (6) & C. Section 1201. (1926 City of St. Appeal Court Louis. the Circuit Judge. Hugo Grimm, —Hon. J. and remanded.

Reversed Rogers appellant. Bevelle S. C. Charles G. TEEM, OCTOBEE Life v. Continental Ins. Co. Bishop & Claiborne and Rowland L. Johnston for respondent.

BEUEEE, an action a life C. This is insur- policy, plain- ance issued the defendant on the life of plaintiff tiff’s husband, Weisman, Samuel which beneficiary. judgment named as There was verdict and policy, for the full amount of the to- gether per damages, with ten cent for vexatious refusal pay eight attorney’s hundred dollars appealed. and defendant has fees, petition is in conventional form. The de- in its admitted fendant, answer, the execution of the policy and the death the insured, but denied that it delivered the to Samuel Weisman, or that Sam- *3 paid any person uel or defendant, Weisman for it, premium eighteen thirty- of two hundred dollars and petition. four mentioned in the cents pleaded day The defendant further that on the 8th April, application of made 1920, assured a written for insurance to the then defendant, known as Pioneer -Company ap- Life Insurance of America, and that said plication following stipulation: contained the hereby agree company

“I . . . shall in- liability application approved cur no until this has been policy actually and issued thereon and premium required me and delivered to the first therein paid company during my to the lifetime and while in good delivery company’s agent .health that to the and delivery (Italics ours.) shall construed to me.” not be alleged day on 14th The answer also that of April, approved application defendant said and policy of insurance; that executed on its said and date, amongst policy that said contained, others, follow- ing provisions: policy This shall

“Insurance Takes Effect. paid the first hereon has been take effect unless thirty policy applicant and this within delivered APPEAL 216 MISSOURI v. Continental Life Ins. Co. applicant days (30) hereof, date from unless ours.) delivery.” (Italics good its at the time health of therefor constitute “This and contract.” entire alleged execu- that after the further The answer delivery and and before the thereof, tion of said May, day seri- the assured became on of the 6th hemorrhage; ously cerebral ill afflicted with his death on the 21st affliction caused illness and said good May, not in health that the assured day of 1920; May, May, day day of 1920 until the 21st 6th fatally seriously afflicted; but was plaintiff assured was said affliction and that the knew of wronging, but health, knowledge defrauding cheating defendant caused kept infirmity from defendant and illness to be said day May, agents; the de- that on 13th its provisions relying through agent, its fendant, thereof, effect said effective not become unless would said to de- undertook the assured was while agent; through its to the assured liver said agent agent informed said city Louis of St. out of that the assured assured agent, acting for the assured and business; said representations plaintiff, induced de- said through agent, leave said fendant, its agent paid pre- agent that thereafter said policy; statements of the the said mium on said *4 plaintiff agent assured were false and the said purpose they of deceiv- made for that were 'untrue; policy ing relation to defendant in said policy securing delivery that said thereof; plain- effect and that in force and was never of insurance any thereunder. entitled to benefits tiff never became - alleged was that answer further The plain- prosecute reason that estopped her claim for to stated proofs defendant, furnished her of death, in tiff TERM, OCTOBER y. Continental Lite Ins. Co. assured was sick and afflicted and after day May, day 6th until death on the 21st May, according’ 1920; to said that, admission to policy in defendant, was not force and of effect at delivery the time of its to the assured, if delivered, application account of the terms -thereof and of the was a thereof. reply put up

The in issue the matter set new answer. briefly

The facts in case are as follows: On April 8, 1920, the assured made a written company, the defendant then known as the Pioneer Life Company ques- Insurance of America, for the stipulation tion. up The contained the set May by the answer. The was issued 10, 1920-, forty-five the defendant insurance hundred provisions alleged and contained the dollars, the an- May agent, swer. 13, 1920, On defendant’s Herman L. place went to the Weiss, assured’s and de- business policy Heyman agent livered the Weisman, assured’s signed by clerk, received from him check, eighteen for the first assured, of two hundred thirty-four ques- dollars and due on the cents, tion. appears, according ad-

It further evidence May 13, 1920, plaintiff, duced defend- when, on agent, appeared Herman L. Weiss, ant’s at deceased’s place to deliver the he was business told Mr. Heyman Weisman, delivered, C. before the feeling at home not assured well. This evidence was contradicted Mr. testified Weiss, who Heyman G. him, Weisman informed at the time assured was out of city on business. tending adduced evidence defendant to show

that on had bath- fallen, assured against room of his radi- home, and struck his head 216 M. A.—2 *5 APPEAL 216 MISSOURI v. Continental Life Ins. Co. hemorrhage and cerebral and that caused

ator, death on this May 21,1920. gave a court

At the conclusion of trial jury to peremptory to the own motion instruction its charged plaintiff. instruction the court for said find jury, inter as follows: alia, you further in this the court instructs “And case provision hereinbefore which has this you policy shall take been read to means paid been has effect unless thirty days applicant within from the. to the delivered days thirty say, from thereof; date that is to thirty days then from date after its if delivered applicant while in it must applicant within it Here was delivered health. thirty days binding’ date, after and therefore it is its irrespective applicant the defendant, whether ” or not. ... health at time judg- a reversal defendant ask of the Counsel giving of said instruction. ment herein because of expressed theory of said court, as instruc- provisions conflict that there was a between the tion, policy; that, therefore, prevailed provision in the over provision application; obscure susceptible ambiguous being* understood and that, therefore, different senses that construc- two adopted. the assured favorable to must be tion most bring cannot ourselves to We subscribe to holding judge. theory of the learned trial a It rule in the construction in- fundamental contracts, cluding insurance, contracts must court give instrument under consideration reasonable adopt interpretation the construction is con- object plain apparent with the sonant intent of the parties By the whole instrument. terms insurance forms part of the itself. The contract two instruments must, OCTOBER, TERM, 1924.

Weisman v. Continental Life Ins. Co. *6 of together therefore, he considered both determining the intention possible given any reasonable should be if effect, not construction. The in the should clause wholly repugnant, be rest construed as policy, intention manifest unless irreconcilable with the parties of the consideraton ascertained as the whole instrument. interpretation used well may

Another rule of be may “and” here, which is that “or” read as the word be pro- harmonizing necessity and vive versa as the may require evi- visions in effectuate the order to parts parties gathered dent intention of the all as (2 [Bishop Ed.), sec. the instrument. on Contracts Story (9 Ed.), 2 383; 1 495; Parsons sec. Contracts Statutory on Contracts, 774; secs. 2 773, Sutherland on p. 5002; sec. 6 Construction, 397; Words Phrases, & Interpretation Endlich on James 303; sec. Statutes, Ky. Fidelity Guaranty Auditor, etc., v. U. & Co., S. 299; Kennedy 275; Bettman v. S. Harness, 26 E. l. c. 272, v. 73 Pac. Haskell,

v. l. c. 914; Mason Dayton, 153 Fed. l. c. 269; Grand Thomas v. Junction, 13 c. l. State Colo. v. 98 Pac. Hooker, 964, l. 972.] c. difficulty grows

It bewill observed entire out of the use of word “or” instead of “and” in the question. apparent clause of the in It is that in application, expressly the clause in the which made a parties policy, intended that the in be force in the event the assured was not health at the time the was delivered considering him. the clause in connec- application, giving tion with the clause in the it a interpre- reasonable rather than critical or technical it to us that the tation, word “or” is obvious parties copulative clause in its was used disjunctive in its sense. If we read the word “or,” the said clause “and” we will establish as APPEAL MISSOURI Weisman v. Continental Life Ins. Co. with the consistent clause in the

a sense adopt the construction that is, think, we consonant will plain parties from the intent of the with clause in the whole instrument. We hold conjunctive were as if the “and” must construed word disjunctive clause, “or” in said substituted giving’ peremptory re- instruction versible error. the evi- Learned counsel \contend knowledge that that the defendant,

dence discloses insured was not thereby accepted premium, and it waived g*ood A answer to as to health. sufficient the condition *7 question if it be that of contention is the waiver, this jury to and in this was for a determine case, an issue the court. not urged by that there

It counsel defendant is meeting there- and, of no the minds of the was support policy. delivery of this In no fore, valid argue not issued counsel was contention conformity application; nowas ac- that there to the ceptance therefore, the assured, that, the and thereof binding. is based contention became This never premise. that The herein discloses record on false application. conformity the issued was consum- was delivered the contract when Therefore, any further assent on mated without Casualty Fidelity Co., [Prindle v. S. assured. 252, cited.] W. and cases urged, by defendant,-

It is further counsel for the proofs of death furnished show that cerebral death of the assured hemor- cause of was May rhage, affliction from that he suffered from this day on 21, 1920; until the death proofs unex- were death uncontradicted plained should reversed that, case therefore, this remanding. without on was tried of the fact that case view this theory binding irrespec-

erroneous TERM,

OCTOBER Mo. v. Pac. R. R. Co. Garrett assured was in health at the whether the tive inasmuch as there time prove tending at trial evidence adduced knowledge that the assured was the defendant, accepted policy and in premium, think this case be re- we do outright, reversed same should he versed hut a new the commissioner so trial; for and remanded recommends. opinion of is Bruere, C.,

PER CURIAM:—The judgment opinion adopted the court. as the accordingly city Louis of St. circuit court Allen, a new for trial. reversed, and the cause remanded concur. Danes, JJ., P. Becker and GARRETT, L. L. AND SARAH GARRETT JAMES Respondents, ROAD RAIL MISSOURI PACIFIC v. Appellant.* COMPANY, Opinion Appeals. November

St. Louis Court of Filed Crossing by Negligence: Train: Pedestrian: Killed 1. RAILROADS: Headlights: Ring Bum Bell or Sound Evidence: Failure Whistle brought Question Jury. damages In an action for parents rail- minor son to recover defendant of an unmarried statutory penalty causing death of the road go jury son, and held sufficient to reviewed evidence *8 by public question killed the train a as to whether deceased headlight burning rung crossing, or or bell whether sounded, could and whether the deceased have seen or whistle looked listened. had he train heard the Crossing by ACT: Killed at BY Pedestrian: WRONGFUL DEATH Proper to have Exercised Care. Presumed absence Train: pedestrian public contrary, proof killed a train proper presumed crossing to have exercised care for his will safety. Negligence: Train: RAILROADS: Pedestrian: Killed Whether Crossing Trespasser on Deceased Public Track: Evidence: Question Jury. parents In an action to recover the *(1) (1926 pp. 1104, Railroads, Cyc, p. Anno), 1105, 1111; (2) 1099 Railroads, Death, (3.) Cyc, p. (1926 17 C. Section Anno);