Fitzgerald v. Colorado Life Co. , 233 Mo. App. 235 ( 1938 )

ON MOTION FOR REHEARING. The defendant, appellant herein, filed its motion for rehearing wherein it is contended that the opinion handed down by this court at its April call, 1938, is in conflict with our various decisions of the supreme and appellate courts of this State.

Most of the opinions cited were cited in defendant's original brief, and received careful consideration by this court before our opinion was handed down. Other opinions are now cited of similar import as those cited in the original brief. In this opinion on rehearing we will not undertake a rediscussion of the cases that are again cited for our consideration. Neither will we undertake a general discussion of new cases cited which are of the same purport as cases considered by the court on the hearing of the case. However, we deem it advisable to call attention to same matters that clearly distinguish the case at bar from the cases cited.

In the case cited by defendant, Bennett v. Royal Mutual Life Ins. Co., 112 S.W.2d 134, and others of similar import, there is discussed the well-established rule that one dealing with an agent must make inquiry and discover scope of the agents authority. The above class of cases have no application when the scope of the agent's authority is shown by the written contract between the agent and the company's, as is shown in the case at bar. The question of apparent authority is not herein involved.

In this connection, we state that the defendant, by its brief herein, shows a misconception of the opinion handed down by the court. The defendant asserts that, "The Court has held, however, that although Shelton was without actual authority to make a contract of insurance for defendant, nevertheless, his knowledge, acts and conduct operated to estop the defendant to deny the issuance of a policy of insurance."

This court made no such declaration. We but held that Shelton's knowledge of the application for insurance and collection of advance premium was, under his written authority, imputed to defendant. Further, this court held that the company having such knowledge, that thereafter its acts and conduct, including delay and failure to return premium, etc., become facts to be considered by the jury in determining the question of estoppel.

There is distinction between the cases cited and the case at bar, in that in cases cited there were issues raised in the answers in said cases that were affirmative in character. In the case at bar the defendant's answer does not by any affirmative pleading or any alternative pleading raise a single issue. Not content with a general denial, the answer proceeds by specifically denying the existence of every fact in plaintiff's petition that is alleged as a cause of action. There is no allegation in defendant's answer that tends to controvert the fact that the allegation in plaintiff's petition, if true, places liability upon on the company. With this state of pleading, defendant throughout the trial urged objections to evidence offered in proof of the facts which, if true, place liability on defendant.

Defendant in effect denied by its answer that it was an insurance company authorized to do business in Missouri, and with an authorized agent in Missouri. However, upon request the defendant produced the written contract with its agent, and produced several forms of blanks used by the company in taking application for insurance, and also its blank form for medical examination report.

There are no admissions made in defendant's answer, and no affirmative allegation of any kind, that, if true, defeats or tends to defeat plaintiff's cause of action.

The defendant, specifically denying that any application was ever made or signed by alleged insured or that any premium was ever paid by him, in the progress of the trial seeks to bind the alleged insured by the express terms of an application, the existence of which it denies. Further, denying the payment of any premium, the defendant urges no liability, based upon provisions of application of which it denies the existence.

In our research we have found no reported case wherein the issues were joined as they are joined in the case at bar. There is no case cited by defendant wherein there is shown a joinder of issues that even bears close analogy to the issues as joined in the case at bar.

We conclude, for the reason stated, that there is not and cannot be conflict with any opinion of the Supreme Court or with any of the Courts of Appeal.

Rehearing denied. All concur.