SEPARATE CONCURRING OPINION. Practically the same question as is presented in this case was before this court in Kingsland v. Missouri State Life Insurance Company, 66 S.W.2d 959. In the Kingsland case the question was presented on the pleadings alone and this court affirmed the action of the circuit court in giving a judgment for defendant on the pleadings.
The pleadings in the case at bar are materially different in that herein is more particularly set out the provisions of the master policy and the policy being in evidence the plan of insurance is shown and it is shown by the record in this case that it was provided in the contract that the employee became a direct party to the contract by paying a consideration of sixty cents per month premium for each $1,000 insurance.
While the above facts, disclosed in the case at bar, do not necessarily after the interpretation that should be given to the clause of the contract that is in issue, still there is incorporated in the case at bar facts that were not presented in the Kingsland case that present new premises. In other words, the whole contract is before us.
In the Kingsland case, as presented by the pleadings therein, the contract involved was a contract wherein the two contracting parties, the employer and the insurance company, contracted for the benefit of a third party, the employee.
In so far as the facts were revealed in the Kingsland case, the insurance given to the employee was a mere gratuity. In that case, after the plaintiff received injury but before the six months had expired, the employer canceled the policy and this court held that as the employer had canceled the policy prior to the time a suit could be brought by the employee thereon, and, that as no cause of action had so accrued that suit could have been brought before the contract was canceled by the employer, that therefore no cause of action could so accrue after the cancellation of the contract as to sustain a suit on said contract. *Page 360
As before stated, in the Kingsland case we were only reviewing the action of the trial court in giving judgment for defendant on the pleadings and there is authority sustaining such action.
Further, and as before stated, the facts as pled in the Kingsland case were not so lucid as to the issues and merits of the plaintiff's cause of action as in the case at bar and further there are in this case facts shown in the record which added to the more complete pleading of facts giving to a court of review a better viewpoint from which to proceed to conclusions.
I have carefully read the opinion in this case written by my learned brother and conclude that in the former, Kingsland, case the writer followed the line of least resistance and reached a conclusion that is not justified in the light of the presentation and showing made in the case at bar, and I hereby express by concurrence with the opinion written by BLAND, J., herein.
In that the opinion in the Kingsland case, based upon a coverage clause identical with the coverage clause in this case, is to the effect that action is barred in event that the six months total disability has not accrued before termination of the policy, the same is in conflict with the opinion herein and is overruled by the opinion in this case and in this I also concur.