*1 ,355 bowels; that she is with her-back had trouble slie has accident had she never that night, that up frequently at' get compelled to the accident. before trouble first she was saw that when he Dr. Robertson testified pain complained of temporary condition; she that unconscious she,had breathing; pain back considerable and side and trips ear; that he six or long inch the left made a cut an over then; since had at his various times been office to see side, right possibly thought was severe strain there bones; spinal ligaments they to the tear of the where attach spine; tearing joined ligaments ivas where the ribs loose than she was at that she has more nervous the accident time; injuries might permanent permanent; that her become right ribs; pain that be discovered soreness in the he could say injury permanent right tempo- whether the to her rib rary. verdict $1000. case The trial court did dis- anything- indicating
cover pas- the verdict was "the result of prejudice indulge sion or and refused to disturb it. We must soundly that the trial court its exercised discretion in doing. plaintiff’s injuries touching The evidence does not 'Con- us that vince the verdict is excessive. trial court be and should is affirmed. Wil- 0.,
liams, concurs. CURIAM,.- 0., PER —The foregoing opinion hereby Frank, adopted opinion All Trimble, court. concur, except P. J., absent. Williams, Edna Respondent, v. National Life and Accident In Appellant.* surance Company, City Appeals. January
Kansas Court 35C *2 Death, 1174, 3; *Corpus Juris-Cyc. 17CJ, 18, p. References: section n. Insurance, 141, 74; 32CJ, 1065, 8; 31, p. p. 1179, section sec n. n. section 95; 38; 37CJ, 265, 1152, 406, 1234, Insurance, p. p. n. section Life
tion section n. 48; 294, 46; p. 383, 546, 313, p. 559, p. 61; 46, n. section n. section n. n. 51; Trial, 38Cye, p. 1546, 1886, Pleading, 31Cyc, p. 533, p. n. n. appellant. B.W. Norris for respondent. brief for
No upon FRANK, action issued C.—This is an insurance 19'25, upon on by defendant November life of Alfred Wood plaintiff, who named upon his $82, payable in tlie sum jury, beneficiary. a verdict returned policy as . appealed thereon defendant after petition is in three counts. recovery $82, principal named in sum The first count seeks statutory of death based relying State, left State about insured, resident the facts that continually away remained for more than August 1918, and has tidings whereabouts, of his years, with no seven consecutive date paid all due on of in- 1925, amounting up December, departure August, 1918, sured’s $74.80. to the sum of premium $74.80, paid by- count
The second seeks theory August. 1918, on that 'the facts and surrounding departure and absence from November State shows he died before *3 $74.80, premiums paid third count of the seeks 1, alleging grounds August as
plaintiff 1918, therefor in- that before and November, sured died that she demanded of de- payment policy; face fendant the of the of the that defendant refused pay agreed promised to but- at time same that and with her that pay policy premiums she all for period would due on the of seven years, time, at end of that if insured had the not returned' or been pay heard would from defendant then her face of policy the the and premiums all paid during return to her said period; paid plaintiff premiums during seven-year period that said said and pay than demanded that policy the face the' and of return premiums paid to her the so but defendant so do. refused to every allegation The answer denies each and in each count of the answering petition. Further each petition, count of said the answer alleges: plaintiff (1) keep that did perform or all the conditions policy; (2) plaintiff proof said did of that not. make alleged required by (3) death of insured policy; as the policy had lapsed thereon; premiums non-payment reason of required (4) liability imposed no premiums defendant unless all made, proof paid (5) and due of loss policy pro- and that said vided would that defendant not he liable insured was at time during policy military life of said or naval service of the service; United alleged and States died said and at 1he time of insured, death he was in service naval service government of the United Stales died by and reason thereof.
The answer is not policy execution of the verified. is therefore controversy admitted. There is over the facts in the case. Alfred insured, Wood, awas brother of and had made his home years age. with her They since he was seven lived in St. Joseph, Missouri. In August, government insured learned that was not old military camps. was advertising day at He laborers and Hall, Virginia, went Lee enough to enlist as a soldier. He. to camp at soldier’s employment day laborer around as secured received camp, plaintiff soldier’s place. After went to the up to October a week regularly or twice from him once letters to written Letters him after that never date. She heard unclaimed. Hall, Virginia, were returned him at Lee Hall, was Lee the insured at Anderson, acquaintance of George an and saw October, 1918, during August, September, Virginia, during He time. saw occasions there on two different insured 15, 1918. last time about. October him the “ñu” soldier’s in the fall epidemic of was an There and were died that time thousand soldiers and several brother, being from her con- Not able hear buried there. died, November, 3938, so notified defendant he had cluded payment proof policy and demanded offered to of loss under make superintendent which Defendant’s policy refused. positive proof of her brother’s plaintiff that there told pay premiums policy on the death, if she would continue time, end of insured had period years, and at the from, pay defendant would then the face returned paid by her the. seven- premiums to her the and return year period. Department, Washing! inquiring at War
Plaintiff" the. wrote brothei*, give department her no could information about her concerning pay continued to on the
him. She departure up from the date December ‡74.80. At amounted to payment and demanded offered to make *4 by her. Defendant denied lia- return of bility. is that its
Defendant’s first conten!ion demurrer the evidence should have been sustained. (sec. 1909) a We have statute in State R. S. which reads: this
1‘ go any person If shall in who have resided this State from and do years, pre- return to this seven successive shall be not State for he case, any in question, wherein his death shall come in sumed to be dead alive unless be made that he was within that time.” brought April 5, years This 1926. More than suit- filing disappearance elapsed suit, from insured’s until this sufficient, seven-year period presumption is while this create a it, death, particular died at during York period. New Life Insurance [Bonslett death, Co., 390 S. important, may The time 871.] W. by inconsistent with established facts and circumstances insured’s home, concealing his of his and the abandonment of desertion friends supra; Co., v. Insurance from them. bis whereabouts [Bonslett App. 728, 163 Mo. World, v. Woodmen Johnson Joseph, Missouri, in in his home St. that insured left are facts Hall, 'Virginia, to work at a soldier’s and went to Lee August, regularly him letters from once camp. His folks at home received A October, 1918. his saw him up friend of at the each week twice October, time in last camp on two different occasions—the soldier’s his not been seen nor friends have not from him He has 1918. shortly October, Letters sent to him at the after Thousands of returned unclaimed. soldiers died of time, were fall camp. in 1918 and were buried in trenches at “flu” justify finding that insured died about Novem- These facts would ber support
In of the demurrer to the evidence it contended that liable, defendant is not because the evidence discloses that insured military camp dead, in a located at Hall, Virginia, he died Lee Germany the time that the United was at war States with epidemic camp. “flu” at the provisions is based on This contention contained m the effect.
(1) . . . the death benefit hereunder shall be incontestible years for fall paid, except after two have been mili- for tary Avar; and naval in service time of
(2) Military or naval service time of Avar is a risk not covered policy. this policies War clauses in exempting1 insurance the insured lia- from bility in event insured’s death under stipulated clause, valid. It such is defendant’s contention that the “war ’’ exempts clause suit defendant from liability because stipulated occurred under circumstances in the “war ” clause. hinges Defendant’s proper interpretation contention on a policy. “AArarclauses” in read, “except These clauses “military and naval service time of Avar” and and naval service policy.” Avar is time of not covered Webster defines the word “service” applied as to the military to “military duty; be, performance naval duties of soldier.” stipulations will It be noted that the does exempt liability during the time may insured be in military or naval service but makes the except incontestable military or Webster, If, naval service in time war. as defined the word “serAr- ” ice, applied military, to the performance means the actual *5 soldier, a duties the defendant would not exempt be from liability policy under the unless insured’s death occurred while he in was the performance actual a of the duties of soldier. The evidence is in- enough sured Avás not old to enlist a soldier. employed He was as a 360 went Virginia. in He never
day
the State of
laborer at
aof
performed
duties
that he
the
and there is
evidence
to France
If the
camp was
Virginia
located.
where the
in the State
soldier
duty to
our
interpretation,
it is
open to
than one
war
more
clause
American
the
v.
adopt
most
the one
favorable
insurance.
[Reed
inter-'
the
218
correct rule for
Co.,
S.
The
Insurance
W.
Long
in
suit, is well stated
policies
characler in
pretation of
authority
248
923, and
the
S. W.
Joseph
Co.,
Life Insurance
v. St.
against appellant.
case we rule
contention
this
proof of loss
because
case was made
It
insisted that no
also
liability
required
policy.
Defendant’s denial
was
the
made as
Co.,
Metropolitan
Insurance
of loss.
v.
waived formal
[Liebel
The evidence demurrer the properly petition overruled. either was count given request, at It that instruction the is next insisted No. plaintiff' This instruction reads: is erroneous. jury they find the that if from the evidence
“The court instructs Novem- months of October or either that Alfred AVooddied the Company the told Edna ber, 1918, agent the Calvin, pay if policy, Edna she would Williams, named said Alfred premiums upon the the issued to the life seven-year period and, if said the AVoodover appear from, National Alfred did Wood only the Company, Life and Accident Insurance would not pay premiums paid of. which she her the face the also the seven-year period, they pay find she did such over said period, premiums verdict the over said their should eighty-six and the amount plaintiff in the sum’ of dollars of.the. any.” paid by her, against ignores only complaint lodged The instruction that it separate separate causes of stated in action counts of the petition general verdict favor of and authorizes premiums paid by plaintiff dur- amount named ing years following period insured’s disappearance. of seven petition three counts substance is heretofore set petition separate out. no doubt that the states of ac There is causes verdict, being petition counts, tion. three should have jury found count. instruction on each authorized to return sum amount of verdict one' for the and the although separate for each was-asked in counts. This was which error for must be reversed. 777; Bigelow 177 Palmer, al. v. W. v. Northern Mo. et S. [Flinton Louis, Sturgeon & Co., 510; R. R. 48 v. St. C. Mo. K. Northern R. R. 569; Joseph Co., Hannibal Co., & St. R. Mo. Ownes R. Mo. v. Ry. 394; Maloy Louis, Co., I. l. St. S. S. W. c. M. &
361 Dulle, 45 al. v. et ex Collins 406; State 41 Mo. rel. Fugate, v. Pitts Adm., Co., Mo. R. Joseph R. & St. Hannibal v. Clark, Mo. 202, c. l. instruction against the only point made passed upon the have We as a correct it approving ás othenvise not Avislito be understood do in evidence facts statement of the Maw The Novem- in October or insured died justify finding sufficient to iufer his to been authorized jury Avouldhave ber, 1918. LikeAvise proof of his arises on statutory presumption Avliich from the years, in AAhichcase seven successive the State for absence from 1925, because there November, or be October of his death Avould date period. end of the death until the is Avould, shoAvn,be en- under the facts If he died paid, Avithout con- thereafter all litled the return of to might promise If died in or return them. tract or to premium paid her, de- might to the return of not be entitled presume AA'liat proof touching We cannot pending issue. on the of a retrial of case. regard AvouldsIioav event Complaint instruction under consideration au- is also made at the $86, amount of the the sum of thorized verdict for the only $82. reversed AA'henthe face of the is As the case must be grounds, may this error be obviated in of a re-trial of on other event the case. agents provides,
The suit that all term includes (AAdiich superintendents superintendents) and assistant are not authorized discharge poAvcr make, have alter or waive contracts forfeitures. showing superintendent no evidence record
There authority of defendant had to make valid contract to return to premiums paid by disappearance. her after insured’s authority superin- evidencie does not Avhat the defendant’s sIioav tend ant had performing duties he Avas in behalf of defendant. Avhat promise alleged agent return oral binding on defendant unless authorized or ratified Casualty Co., it. App. Cloverleaf Mo. [Banks cases cited.] plaintiff’s Error instruction No. necessitates a reversal of the therefore,
judgment. is, reversed and cause remanded. Williams, C„ concurs. PER opinion foregoing CURIAM: —The hereby Frank, C., Trimble, adopted opinion concur, All except court. P. J., absent,