McHoney v. German Insurance

ON MOTION FOE REHEARING.

Ellison, J.

On further consideration we are of the opinion that, though the motion to dismiss should have been sustained, yet as it appears from the record made at the trial after the motion was overruled that the policy of insurance is based on a written application made and signed by plaintiff, which application is by the policy made a part of the contract, thereby making the contract in legal effect an instrument signed by *221both, parties, we have concluded it would better subserve the ends of justice to remand the cause that plaintiff may have an opportunity to amend his petition so as to show the facts making the instrument sued upon to be a contract executed by both parties, and therefore not necessary to be filed, section 3560, Revised Statutes, 1879, as before stated, not covering such an instrument. The Mo. Pac. Railway Co. v. Atkinson, 17 Mo. App. 484, and cases cited.

The motion for rehearing will be overruled,

Judges Smith and Gill concurring.