Renfro ex rel. Jenkins v. Metropolitan Life Ins. Company
| Citation | 129 S.W. 444,148 Mo.App. 258 |
| Parties | SAMUEL S. RENFRO, by SAMUEL A. JENKINS, His Next Friend, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Respondent |
| Decision Date | 19 April 1910 |
| Court | Court of Appeal of Missouri (US) |
March 14, 1910, Submitted on Briefs
Appeal from St. Louis City Circuit Court.--Hon. Jas. E. Withrow Judge.
REVERSED AND REMANDED (with directions).
STATEMENT.--Samuel S. Renfro is an infant under the age of 21 years and over the age of 18, and having no legally appointed guardian, a next friend, who is the nominal plaintiff, has been appointed by the court to serve in that capacity and as such has brought this suit. Using the word plaintiff hereafter, unless otherwise noted, we refer to the minor, who is the real party in interest. The suit was originally brought in a justice's court on a statement there filed and on an appeal to the circuit court the amended petition on which the case was tried was filed. In this amended petition it is set out that the defendant is a corporation incorporated under the laws of New York, engaged in business in this State, and that on the 14th of October, 1901, at the city of St. Louis the defendant, by its certain policy, insured the life of one Jessie Taylor, the mother of the plaintiff, and that while the plaintiff's name does not appear in the policy as the beneficiary, yet it is averred that it was understood and agreed by and between defendant, plaintiff and the insured that the plaintiff would be made beneficiary in the policy that it is provided in the policy as follows:
"In case of such prior death of the insured the company may pay the amount due under this policy to either the beneficiary named above or the executor or administrator, husband or wife, or any relative by blood of the insured, and the production of a receipt signed by either of them shall be conclusive evidence that all claims under this policy have been satisfied."
The petition then sets out that plaintiff is a relative by blood of the insured, being her only child and heir, and that ever since the issue of the policy he has been the owner thereof and the owner of the receipt book in which the premiums paid on the policy were recorded; that it is now and was at the time of the issue of the policy, the custom of the defendant to pay industrial insurance policies such as this to the husband or wife or any relative by blood of the insured; that the insured, Jessie Taylor, died about the 25th of April 1907, and at the time of her death all the conditions and provisions contained in the policy were duly complied with by her and within a short time after her death plaintiff applied to defendant for blanks upon which to make proof of the death of the insured, but the defendant failed, neglected and refused to furnish them and denied all liability on the policy, thereby waiving such proofs of death; that prior to the institution of the suit plaintiff demanded of defendant payment of the policy "but defendant vexatiously refused to pay said policy or any part thereof." Judgment is prayed for $ 195, less the unpaid premiums of 15 cents per week from the 14th day of May, 1906, to the date of the death of the insured, namely, 25th of April, 1907, with interest thereon from the filing of the suit, to-wit, 26th of August 1907, also 10 per cent of the face of the policy, less the unpaid premiums aforesaid, and a reasonable attorney's fee for vexatiously refusing to pay the policy. There was no written pleading on the part of the defendant, either before the justice or the circuit court.
The case was tried before the court, a jury having been waived, and the policy introduced, which was in the name of Jessie Taylor, the weekly premiums being 15 cents and the amount of insurance payable in the event of death after one year $ 195, after three years the above amount to be increased as provided in the policy. Opposite the entry, "name of beneficiary and relationship to the insured," is the word "Estate." The policy then provides in the ordinary way that in consideration of the statements in the printed and written application which are made warranties and of the payment of the premiums mentioned on or before each Monday, the Metropolitan Life Insurance Company agrees to pay as an endowment to the insured named above, on the anniversary of the policy next after she shall have passed the age of 79 years and upon the surrender of the policy and all receipt books, $ 270; or if the insured die prior to the date of the maturity of the endowment, to pay upon receipt of proofs of the death of the insured, made in the manner, to the extent and upon the blanks required herein and upon surrender of the policy and all receipt books, the amount stipulated in said schedule. Then follows this clause, which is called the "facility" clause:
"In case of such prior death of the insured the company may pay the amount due under this policy to either the beneficiary named above or to the executor or administrator, husband or wife, or any relative by blood of the insured, and the production of a receipt signed by either of them shall be conclusive evidence that all claims under this policy have been satisfied."
Another clause in the policy provides that the agents of the defendant company are not authorized and have no power to make, alter or discharge contracts, waive forfeitures or receive premiums on policies more than four weeks in arrears or to receipt for the same in the receipt book.
It was admitted at the trial that the premiums had not been paid on the policy from the 14th of May, 1906, to the date of the death of the insured, 25th of April, 1907, but that the reserve on the policy carried it by way of extended insurance beyond the death of the insured which it is admitted occurred on the 25th of April, and it was also admitted that the amount due on the policy, if there is any liability on the part of the defendant to this plaintiff, is the face of the policy less the unpaid premiums of 15 cents per week, commencing on the 14th day of May, 1906, and ending on the 25th day of April, 1907, with interest at 6 per cent per annum.
Plaintiff Renfro, being sworn, testified that Jessie Taylor was his mother; that he was present when the application for the policy was written. He was asked what was said between the agent and his mother with respect to whom would be the beneficiary of the policy at that time. This was objected to as an attempt to vary a written contract by parol evidence; objection overruled, defendant duly excepting. Witness answered that the agent said he (plaintiff) should be the beneficiary in the policy and that it would be paid over to him in case of the death of his mother. He testified that he had no brothers or sisters and that his father was not now living, being dead at the time the policy was taken out. At the time his mother died he (plaintiff) had possession of the premium receipt book and the policy and had possession of them until he had turned them over to his attorney for the purposes of this suit. On cross-examination he testified that he had never had any brothers or sisters and was the only child; was present at the time when his mother and the agent of the defendant had the conversation in regard to the policy and was then 14 years old; is now 20 years old; doesn't remember the day of the month that the conversation occurred but it was before the policy was delivered to his mother.
A witness, placed upon the stand in behalf of plaintiff, testified that he had been the agent of the defendant; he was asked to look at the policy in suit and state what, under its provisions, was the custom of the defendant company as to whom similar policies were paid in the year 1901. This was objected to and objection sustained.
The attorney for plaintiff, sworn on behalf of plaintiff, testified that as attorney for plaintiff he wrote the defendant a letter, a copy of which he produced. The letter is not in the record by reason, as counsel state, of the admissions following, namely, that is to say, that for the purposes of this case it is admitted that a demand was made on the defendant for payment under the policy, also that the request for blanks was made and refused because the defendant denied any liability in the case to plaintiff because plaintiff was not the designated beneficiary and not entitled to the payment of proceeds thereof. This was all the evidence in the case.
At the close of it plaintiff prayed the court to declare the law to be that under the pleadings, the law and the evidence plaintiff was entitled to recover. The court refused this, plaintiff duly excepting to the refusal, and at the instance of the defendant the court declared the law to be that under all the evidence in the case plaintiff is not entitled to recover against the defendant and the finding and judgment will therefore be in favor of the defendant. This was objected to by plaintiff and exception duly saved to it being given. Judgment was thereupon entered in favor of defendant, from which plaintiff of record, after filing a motion for new trial, perfected an appeal to this court.
Judgment reversed and cause remanded.
James J. O'Donohoe for appellant.
(1) Since the plaintiff was the son of insured and in possession of the policy and premium receipt book, the judgment should have been for him and not for defendant. Wilkinson v Metropolitan Life Ins. Co., 63 Mo.App. 404; Wilkinson v. Metropolitan Life Ins. Co., 64 Mo.App. 172; Floyd v. Prudential Ins. Co., 72 Mo.App. 455; Thomas v. Prudential Ins. Co., 158 Ind. 463; McCarthy v. Metropolitan Life Ins. Co., 162 Mass. 254; Prudential Ins. Co. v. Young, 43 N.E. 253; Western and Southern Life Ins. Co. v. Galvin, 68 S.W. 655 (24 Ky. Law Rep. 444). The uncontradicted evidence shows that at...
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