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to knit. He suffered some pain and discomfort during this time, and was in bed for a week or more; but his physician seemed to think this was because it was more comfortable there rather than because his injuries made it necessary. The petition alleged that he lost earnings to the amount of $15 per

where the plaintiff was injured by the sudden | being bound to his body to permit the bone and unexpected starting of a "blood mill" in a packing house. Plaintiff was not able to furnish affirmative evidence, or rather express positive evidence, of negligence in the construction or operation of the lever by which the mill was put in motion, and it was urged that plaintiff had failed in his proof. But the Supreme Court held other-week since the injury, and owed $100 for wise, and, on page 74 of 109 Mo., page 1151 medical attention. But no proof of the of 18 S. W. said: "But some catastrophes amount of such losses or expense was made, are of a nature such as carry, in a mere and plaintiff himself said that he worked statement of their occurrence, an implica- at his job after his fall, but had to hire help tion of some neglect. In such event the in mopping the floors. Plaintiff is a colored thing itself speaks,' as some judges have ex- man, and worked as a porter at a club. As pressed it, often in Latin, though the idea is no proof was made of these losses or exnone the less forcible or clear in our mother pense, it may be assumed that they were not tongue. Byrne v. Boadle (1863) 2 H. & C. of serious extent, or proof thereof would (Exch.) 725; Briggs v. Oliver (1866) 4 H. & have been forthcoming. No instructions on C. (Exch.) 407. Thus it was held, in Mooney the measure of damages or on any other v. Lumber Co. (1891) 154 Mass. 407 [28 N. E. feature of plaintiff's case were asked or giv352], that the starting, without apparent en in plaintiff's behalf. The jury were therecause, of the carriage of a sawing machine, fore left without guide in determining what when left at rest, with 'the lever locked elements to take into consideration in fixing which was used to start and stop it,' where the amount of damages. In view of all by the plaintiff was injured, constituted evi- the circumstances, and regarding plaintiff's dence to support a finding that there was injury and loss in the light most favorable negligence in the construction or condition to him, we think $2,000 is excessive. Under of the machine with reference to its reason- the most liberal allowance as compensation able safety. Donahue v. Brown (1891) 154 for plaintiff's damage his recovery ought not Mass. 21 [27 N. E. 675]. Many other illus- to exceed $1,500. If, therefore, within ten trations might be cited were it necessary. days of the announcement of this opinion, The principle that underlies them is that neg-plaintiff will enter a remittitur of $500, the ligence, like any ultimate fact in issue, may judgment will be affirmed; otherwise it be established as well by reasonable infer- will be reversed, and remanded for a new ences from other facts as by more direct trial. means of proof. Barnowsky v. Helson (1891) 89 Mich. 523 [50 N. W. 989, 15 L. R. A. 33]." [4] The Blanton Case was one between a servant and master, where the inference of negligence is harder to draw than in the case before us, which involves the care owed to a passenger by a common carrier. There was sufficient proof of negligence to go to the jury. And, of course, the question whether plaintiff was thrown off while standing on the platform, or was attempting to jump from the car while in motion, and fell on account of the unusual pull or weight put on the door, was a question for the jury, and not for us, to decide. Whether the door by coming loose caused plaintiff to fall out from the car, his momentum in doing so pulling the door shut after him, or whether his weight, in voluntarily swinging from the car, jerked the door loose, would be difficult to decide even by onlookers, and was therefore clearly a question for the jury.

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[5] As to the point that the verdict is excessive, there is this to be said: The plaintiff's injury was a fracture or a breaking of the little tip of the shoulder blade. There were no permanent injuries. At the time of the trial the fracture had healed. The

plaintiff was not allowed by his physician to use his arm for four or five weeks; it

So ordered. All concur.

PIERCE v. NEW YORK LIFE INS. CO.
(Kansas City Court of Appeals. Missouri.
Oct. 6, 1913. Rehearing De-
nied Nov. 3, 1913.)

1. INSURANCE (§ 136*) - CONSTRUCTION
POLICY-COMMENCEMENT OF RISK.

OF

While a binding contract of insurance may arise from the acceptance by the company of an application, without a policy being issued thereon, a provision that the contract shall not delivered is valid. become effective until the policy is issued and

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 219-230; Dec. Dig. § 136.*] 2. INSURANCE (§ 141*)-PROVISIONS OF POLICY-WAIVER BY COMPANY.

Such a provision is one for the benefit of the company which it may waive.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. § 141.*] 3. INSURANCE (§ 136*) - COMMENCEMENT OF RISK-DELIVERY OF POLICY-UNAUTHORIZED AGREEMENT BY AGENT.

cies to the applicant, who objected to them beWhere an agent tendered insurance policause of the beneficiary named therein, but, on the advice of the agent, paid the premiums to him under an agreement that he was to retain the money until new policies with another beneficiary were issued and the money returned to her if she did not accept the policies, but in

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 219-230; Dec. Dig. § 136.*]

4. INSURANCE (§ 141*)-PROVISIONS OF POLICY-COMMENCEMENT OF RISK-WAIVER.

sured knew that such an agreement was not | policy shall then relate back to and take binding on the company because of the restric-effect as of the date of this application. 2. tions upon the agent's authority, and that her right to recover the money would terminate if That any payment on account of the first it were paid to the company by the agent, the premium before delivery of the policy to me agreement was not one by which the applicant shall be binding on the company only in acreserved the right to reject the policy, but one cordance with the company's receipt therefor where she trusted the agent to retain the on the coupon receipt form duly filled out money. and detached from this application, which is the only authorized form of receipt for such payment. 3. That the agent taking this application has no authority to make, modify or discharge contracts, or to waive any of the company's rights or requirements." Gallaher's contract of employment also contained the following restrictions upon his authority as a soliciting agent: "It is agreed that said second party (Gallaher) shall have no authority for or on behalf of said first party to accept risks of any kind, to make, modify or discharge contracts, to extend the time for paying any premium, to bind the company by any statement, promise, or representation, to waive forfeitures or any of the company's rights or customary re

Where the company thereafter changed the plan proposed by the agent, and instead of canceling the former policies decided to have the beneficiary changed therein, and the insured signed an application to that effect, the company elected to treat the contract as in force, and could not after the death of insured take the opposite position.

[Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 75, 253-262; Dec. Dig. § 141.*1 5. INSURANCE (§ 586*)-CHANGE OF BENEFICIARY-INDORSEMENT ON POLICY. The fact that insured died before the change of the beneficiaries was indorsed on the policy did not defeat the right of the new beneficiary under the clause of the policy that the change should not become effective until it was indorsed on the policy; since under the circum-quirements, to name any extra premium for stances the former beneficiaries had acquired no vested interests therein.

[Ed. Note. For other cases, see Insurance, Cent. Dig. § 1470; Dec. Dig. § 586.*]

Appeal from Circuit Court, Atchison County; William C. Ellison, Judge.

extra risks or privileges, to receive any moneys due or to become due to said first party except upon applications obtained through or by him, and then only in exchange for the coupon receipt attached to the application corresponding in date and number with the application, or upon policies or renewal receipts signed by the president,

Action by Sallie D. Pierce, by her guardian, against the New York Life Insurance Company. Judgment for plaintiff, and de-a vice president, a secretary, or the treasfendant appeals. Affirmed.

Culver, Phillip & Spencer, of St. Joseph, for appellant. Hunt, Bailey & Hunt, of Rock Port, for respondent.

JOHNSON, J. This is an action on two policies of ordinary life insurance alleged to have been issued and delivered by defendant to Alice R. Pierce for the benefit of plaintiff, her minor daughter. The defenses of present concern are: First, that neither policy was delivered to the assured; and, second, that plaintiff was not the beneficiary of either policy. A trial of the issues thus raised resulted in a verdict for plaintiff on both policies. Defendant appealed and argues that the court should have peremptorily instructed the jury to find in its favor.

On April 22, 1911, Alice R. Pierce, a widow living on a farm near Rock Port, made written application to defendant for an ordinary life policy for $2,000. The application was procured by W. W. Gallaher, a soliciting agent employed by and operating through defendant's branch office at St. Joseph, and contained the following agreements: "1. That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy delivered to and received by me during my lifetime, and that unless otherwise agreed in writing, the

These

urer, sent to him by the first party for col-
lection." The application was forwarded
by Gallaher to defendant's home office in
New York through the St. Joseph office, with
the request that an additional policy of $3,000
be issued, though Mrs. Pierce had applied
for only one policy of $2,000. Defendant, in
response, issued and sent two endowment
policies to the St. Joseph office, instead of
policies on the ordinary life plan.
policies were returned without an effort be-
ing made to deliver them, and thereupon
defendant sent two policies for $2,000, and
$3,000, respectively, in which the estate of
the assured was named as the beneficiary.
Gallaher took these policies to Rock Port
and left them with Dr. W. R. Strickland,
who was the president of a bank, defendant's
examining physician at Rock Port, and Mrs.
Pierce's family physician. The instructions
to the doctor were to collect the premium on
one or both of the policies and to deliver
them, or the one on which she paid the pre-
mium.

The policies contained a multitude of provisions and agreements, among them the following: "7. Change of Beneficiary.-When the right of revocation has been reserved, or in case of the death of any beneficiary under either a revocable or irrevocable designation, the insured, if there be no existing assignment of the policy made as herein pro

sent to secure such policies, and my intention at the time was-my understanding was that those policies made payable to the estate would be canceled and entirely new policies would be made."

vided, may, while the policy is in force, des- | Sallie D., her daughter, and I had her conignate a new beneficiary, with or without reserving right of revocation, by filing written notice thereof at the home office of the company accompanied by the policy for suitable indorsement thereon. Such change shall take effect when indorsed on the policy by the company and not before. If any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured." The policies were not delivered by Dr. Strickland, and on June 13, 1911, Gallaher went to Rock Port, obtained the policies, and had an interview with Mrs. Pierce at Strickland's office in the bank. At first she declined to accept either policy. One of her objections was that she desired plaintiff, instead of her estate, to be her beneficiary,

Apparently Mrs. Pierce entertained some idea that defendant would not recognize the oral promises of the agent as binding upon it, and she asked Strickland if it would be safe for her to pay the premiums to Gallaher and allow him to retain the policies. Strickland answered that "Mr. Gallaher had been superintendent of schools here for a couple of years since I had lived in Rock Port, and that I had known him off and on, ever since; that I regarded him as personally responsito the New York Life; so that she would

ble and reliable; besides, he was under bond

were returned, he would cause them to be delivered to Mrs. Pierce. Accordingly, Gallaher went to Rock Port on June 26th and procured from Mrs. Pierce the following written application for a change of beneficiary in the two policies: "June 26, 1911. New York Life Insurance Co., 346-348 Broadway, N. Y. The beneficiary under the ac

and another was that she did not have moneither get her money back or the policies." ey enough in bank to pay the premiums on Thus reassured, Mrs. Pierce delivered to both policies. The first objection was reGallaher her check for $324.57, the amount moved on the agent's promise to return the of both premiums, and Gallaher returned to policies to the company for cancellation and St. Joseph with the money and the policies. to have new ones issued payable to plaintiff. The check was cashed and the proceeds paid The agent stated, however, that he could not over to defendant. The policies were not redo this without the payment of the premiums turned to the home office for cancellation, on both policies. To meet the second ob- but were kept by Gallaher almost two weeks. jection, Dr. Strickland, who heard parts of Defendant's manager at St. Joseph decided the conversation, offered to pay a debt he that, instead of returning them for cancelowed Mrs. Pierce, which would give her suf-lation, he would have Mrs. Pierce make apficient funds to pay the premiums. Thereup- plication for a change of beneficiaries, and, on it was agreed, so Gallaher and the doctor after such change had been indorsed on the testify, that Mrs. Pierce would pay the pre-existing policies at the home office and they miums at once, by check to Gallaher; that he would return the policies to defendant for cancellation; that new policies payable to plaintiff would be issued and delivered to Mrs. Pierce; and that she should have the option at that time of accepting either or both of the policies. In case she decided not to take either, Gallaher was to return her check, and, if she refused but one, the pre-companying policy No. 427,486-7, is hereby mium for that policy was to be refunded. We quote from Gallaher's testimony: "She took the ground that she didn't have the money in the bank, and just how the matter came to be referred to Dr. Strickland I couldn't say; but, at any rate, he assured Mrs. Pierce that he would protect the check for the amount; but in that conversation Mrs. Pierce said again and again that the boys didn't want her to take the insurance, and that she didn't know whether she would take it or not, and if she paid any money she wanted to be sure that she could accept one or the other, or neither of the policies, and that in case she accepted one the money advanced for the other should be returned, and if she accepted neither all the money should be returned, and that is the point where I possibly called Dr. Strickland and said, 'Mrs. Pierce, you don't know me, but Dr. Strickland does, and I think he will vouch for my honesty in doing that.' I assured Mrs. Pierce that the money was simply paid to me in trust until she had ac

changed in accordance with the change of beneficiary clause thereof, to Sallie D. Pierce, daughter, such change to take effect only when indorsed on said policy at the home office. The policy is not now assigned."

Mrs. Pierce died July 3d, one week after signing the above application. On July 5th, the St. Joseph manager, not knowing of her death, forwarded the application and policies to the home office, where they were received July 7th. On July 10th the change was indorsed on both policies and they were returned to St. Joseph. In the meantime, the St. Joseph office received news of the death of Mrs. Pierce, and the policies were sent back to the home office. Proofs of loss were made by plaintiff, but the claim was rejected by defendant. As soon as defendant learned of the death of Mrs. Pierce, it tendered $334.25 to the administrator of her estate and, after this suit was brought, made a similar tender into court.

[1] First we shall dispose of the questions discussed in connection with the first propo

tract of insurance had been entered into by defendant at the time of the death of Mrs. Pierce. The foundation of the argument is the stipulation in the written application "that the insurance hereby applied for shall not take effect unless the first premium is paid and the policy delivered to and received by me during my lifetime." While it is true that a binding contract of insurance may arise from the acceptance by the insurer of a proposition from the applicant and without the issuance of a policy, the policy not being the contract but only the written statement thereof, the courts of this state have uniformly recognized the right of the parties to an application for insurance to stipulate when and under what conditions the contract shall go into effect, and, where the application provides that the insurer shall not become liable as such until the payment of the initial premium and the delivery of the policy to the assured, such provision will be enforced, and no recovery will be allowed against the company if the death of the applicant occurs while such conditions remain unperformed. Kilcullen v. Insurance Co., 108 Mo. App. 61, 82 S. W. 966; Bell v. Insurance Co., 166 Mo. App. 390, 149 S. W. 33; Rhodus v. Life Ins. Co., 156 Mo. App. 281, 137 S. W. 907; Gallop v. Royal Neighbors, 167 Mo. App. 85, 150 S. W. 1118; Crohn v. Insurance Co., 170 Mo. App. 273, 156 S. W. 472.

[2] But a stipulation of this character, being primarily for the benefit of the company, may be waived by the company (Rhodus v. Life Ins. Co., supra), either by subsequent express agreement or by the conduct of the parties bespeaking a mutual intention to disregard it and to treat it as inoperative.

the assurance that he was a man in whom she could safely repose confidence.

These facts distinguish this case from those cited by defendant in support of the contention that "there was no contract of insurance if Mrs. Pierce reserved the right to accept or reject the policies when they were presented to her, and she died before she exercised that option." Dickerson v. Insurance Co. (Ky.) 52 S. W. 825; Rogers v. Insurance Co., 41 Conn. 97; Hubbard v. Insurance Co., 129 Iowa, 13, 105 N. W. 332; Watkins v. Bowers, 119 Mass. 383; Whiting v. Insurance Co., 129 Mass. 240, 37 Am. Rep. 317.

If Mrs. Pierce had paid the money to the agent under circumstances that would have led one in her place to believe that the acceptance of the money by the principal would be a ratification of the agent's promises, she, as well as the principal, would be bound to give effect to such promises; but, as we have said, the proof of defendant shows very clearly that in making the agreement giving her the option to refuse to take one or both of the policies she knew the agent was acting beyond the scope of his actual authority and dealt with him, after being reassured by Strickland, not as the representative of defendant, but as the party on whom she relied for the performance of the special promise. As was intimated by the judge at the trial, the circumstances under which she paid the premiums would have precluded her from maintaining an action against defendant for their recovery had she elected to reject the policies and Gallaher had refused to refund the money she had paid to him. A recovery in such case could have been successfully resisted on the ground that the application and policies afforded her no such option, that the promise of the agent was unauthorized and that she had actual knowledge of his lack of authority.

[3] Gallaher had no authority to sign, countersign, or issue policies. He was an agent employed by defendant to solicit insurance and collect premiums on policies issued and delivered pursuant to his efforts. [4] So far as defendant was concerned, the He had no authority to enter into contracts payment of the premium was unconditional with applicants different from that express- and not subject to the option agreement. ed in the printed applications and policies, When this payment was made the agent nor to waive performance of any of the had the policies in his possession, and the terms and conditions therein stated and im- only thing that prevented their actual delivposed. Mrs. Pierce was informed by the ery to Mrs. Pierce was her decision to have application of these restrictions on his au- the beneficiary changed before their delivery. thority and appears, from the testimony of At this time no contract of insurance had defendant's witnesses, to have understood been entered into, and therefore no one had them. Gallaher assured her in the conver- acquired any vested interest as a benesation just preceding the payment of the ficiary. The plan of the agent to return the premiums that he would hold the money in policies for cancellation and reissue was trust until the new policies were issued and feasible and could have been carried out she had exercised her option to reject one or without the infringement of any vested interboth of them, and she seems to have acted est and, until the new policies had been isin the belief that, if he should break this sued and delivered to Mrs. Pierce, the conagreement and turn the money over to the tract of insurance would not have become company, she would have no recourse against existent. But this plan was abandoned by the company, but would be compelled to take defendant for another, which treated the exboth policies. Consequently she made care- isting policies as having been already deful inquiries of Strickland (her physician in livered to Mrs. Pierce and accepted by her. whom she had great confidence) about Gal- Obviously the application for a change of

suance of a provision of an existing contract, | 3. INSURANCE (§ 668*)-LIFE INSURANCE-ACand, since defendant in requesting her to TIONS-JURY QUESTION. make such application elected to treat the that no misrepresentation in securing a life Under Rev. St. 1909, § 6937, providing contract as completed, it will not be heard policy shall render the policy void unless the (after she acted on the request and the loss matter misrepresented actually contributed to occurred) to take the opposite position and the event on which the policy was to become say that the contract still was inchoate at payable, "and whether it so contributed in any the time of her death. Clearly in treating tion whether the matter misrepresented concase shall be a question for the jury," the questhe policies as delivered defendant waived tributed to the event is a question for the jury strict compliance with the provisions for in every case, irrespective of the condition of actual delivery as a condition precedent to the evidence thereon. the creation of a valid contract of insur-Cent. Dig. 88 1556, 1732-1770; Dec. Dig. § [Ed. Note.-For other cases, see Insurance, The insurance went into force at the time Mrs. Pierce made written application to change the beneficiary.

ance.

[5] Passing to the second proposition of defendant, we think plaintiff is the beneficiary of the policies. The provision that a change of beneficiary shall not become operative until indorsed at the home office on the policy is for the protection of the company, and would be enforced were this an instance where beneficiary rights had vested prior to the application for a change. Here the parties had agreed on the change before the delivery of the policies, the payment of the premiums, and, of course, before a contract of insurance had been created. The creditors and heirs at law of the applicant had acquired no interest, and the change of beneficiary applied for by Mrs. Pierce was made merely for the purpose of correcting an error in the policies, to bring them into conformity with the proposal for insurance. That was not a technical change of beneficiaries within the meaning of the terms of the policies, but, in effect, was merely the designation of a beneficiary by the applicant for insurance in her proposal.

The judgment is affirmed. All concur.

668.*]

4. INSURANCE (§ 668*)—Life Insurance—ACTIONS-JURY QUESTION.

Evidence, in an action on a life policy, held to make it a jury question whether inapplication at the time the policy was issued. sured was in good health as represented in his [Ed. Note. For other cases, see Insurance, Cent. Dig. §§ 1556, 1732-1770; Dec. Dig. 668.*]

5. APPEAL AND ERROR (§ 1002*)-REVIEW-
CONFLICTING EVIDENCE.

ing of fact made on conflicting evidence.
The appellate court will not review a find-
[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 3935-3937; Dec. Dig. §
1002.*]

6. INSURANCE (§ 669*)-LIFE INSURANCE-IN-
STRUCTIONS-MISREPRESENTATIONS.

An instruction that, to avoid a policy for sured was in good health, any representation in a misrepresentation in the application that inprocuring the insurance must not only have been with respect to a matter which contributed to the event on which the policy was to become payable, but must have been made with knowledge of its falsity, was not erroneous to defendant's prejudice.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1556, 1771-1784; Dec. Dig. 669.*]

7. INSURANCE (§ 265*) - LIFE INSURANCE WARRANTIES.

Answers by insured, in his application for a life policy, that he was then in good health, etc., were not warranties, but were representa

ROEDEL v. JOHN HANCOCK MUT. LIFE tions.
INS. CO.

(St. Louis Court of Appeals. Missouri. July
16, 1913. Rehearing Denied Nov. 4, 1913.)
1. INSURANCE (§ 646*) - LIFE INSURANCE
BURDEN OF PROOF-EXISTING ILLNESS.

The burden was on a life insurance company to show that insured was ill from a progressive disease, when he took out the policy sued on and stated in his application that he was in good health.

[Ed. Note.-For other cases. see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. § 646.*]

2. INSURANCE (§ 291*) LIFE INSURANCE MISREPRESENTATIONS-EFFECT ON POLICY. Under Rev. St. 1909, § 6937, providing that no misrepresentations made in obtaining a life policy shall render the policy void unless the matter misrepresented actually contributed to the event on which the policy became payable, a misrepresentation in the application that insured was then in good health would not avoid the policy, unless he was then suffering from an infirmity which actually contributed to his death.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 681-690, 694-696; Dec. Dig. § 291.*]

[Ed. Note.-For other cases, see Insurance, Cent. Dig. § 560; Dec. Dig. § 265.*]

8. APPEAL AND ERROR (§ 302*)-REVIEW-REFUSAL OF INSTRUCTIONS.

Alleged error in refusing instructions cannot be reviewed, where the question was not raised in appellant's motion for new trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1744-1752; Dec. Dig. § 302.*]

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Catherine Roedel against the John Hancock Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Leahy, Saunders & Barth and Block & Sullivan, all of St. Louis, for appellant. H. A. Loevy and Bland & Cave, all of St. Louis, for respondent.

ALLEN, J. This is an action upon a policy of insurance issued by defendant upon the life of one William Roedel, deceased.

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