Graham v. Union Casualty & Surety Co.

97 S.W. 614, 120 Mo. App. 671, 1906 Mo. App. LEXIS 436

• Court: Missouri Court of Appeals
• Decided: November 13, 1906
• Status: Published

Opinion

GOODE, J.

(after stating the facts).

The question for decision is whether, when read in connection with the quoted terms of the policy, the release of the company by Graham in consideration of being paid $7.50 as one week’s indemnity for loss of time, discharged the company from liability to plaintiff, Graham having died after the execution of the release as a result of the injury. It would be unreasonable to hold that the deceased could discharge the company from an obligation it had contracted to pay plaintiff $500 in case of his death, within ninety days after the accident, in consequence of the injury. When the company paid the weekly indemnity without plaintiff’s knowledge or consent and before the ninety days had passed, it took the risk of paying her the stipulated indemnity of $500 if the accident caused death within- ninety days. Manifestly in executing this contract, it could not have been contemplated by either of the parties to it that the deceased could discharge a death indemnity which might accrue to his wife in consideration of a weekly indemnity paid to him. Moreover, if we attend to the terms of the policy, they enforce the same conclusion. Those paragraphs (A, B, O, and D), which provide for payment of an indemnity for death or other serious injuires like the loss of an eye, hand or foot, expressly stipulate that a payment of that sort shall terminate the policy and discharge the company; whereas the paragraph providing for a weekly benefit to the insured when disabled, contains no such proviso. But defendant relies on the ninth paragraph of the conditions printed On the back of the policy; a paragraph providing against claims based on a single accident, for more than one of the benefits insured against. It is unnecessary to construe this term of the policy further than to say that, in our judgment, it has no bearing on plaintiff’s case; though probably it was intended to prevent the insured from obtaining weekly indemnity for loss of earnings and also the indemnity provided for the loss of an eye, hand or foot. Be that as it may, it cannot be interpreted rationally to mean that, if the insured should collect a weekly benefit on account of an accident, without the consent of his wife, and Should execute a release to' the company, the release would prevent a recovery by her if the accident resulted in his death within ninety days. We are cited to Cunningham v. Union Casualty Co., 82 Mo. App. 607, as supporting defendant’s contention, but it does not. In so far as the decision bears on the present case, it supports the plaintiff’s position. The facts in the cited case were that after the insured received indemnity for loss of time and executed a discharge, he lost the sight of one eye as the result of the accident, and then clamed indemnity under another paragraph of the policy for the latter injury. In construing the policy according to its terms, which were not exactly like those of the one before us, the court held the release operated only as a bar to any claim to indemnity for loss of further time and not as a bar to indemnity for loss of an eye. It is worthy of remark, too, that the release before us contains the guaranty of the deceased against any further liability on the part of the company, to him or any other beneficiary named in the policy, on account of the injury. This term of the release does not look like the company understood that Mrs. Graham’s rights were affected by it; but rather that Graham was required to give a guaranty to answer over for any additional liability the company might be under to her, as the other beneficiary in the policy, in consequence of the injury. We have no doubt that this judgment was for the right party and it is affirmed.

All concur.