94 F.2d 129 (8th Cir. 1938), 10997, Morgan v. Penn Mut. Life Ins. Co.

• Docket Nº: 10997.
• Citation: 94 F.2d 129
• Party Name: MORGAN v. PENN MUT. LIFE INS. CO.
• Case Date: January 29, 1938
• Court: United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 129

94 F.2d 129 (8th Cir. 1938)

MORGAN

v.

PENN MUT. LIFE INS. CO.

No. 10997.

United States Court of Appeals, Eighth Circuit.

January 29, 1938

Edward D'Arcy of St. Louis, Mo., for appellant.

James C. Jones, Jr., of St. Louis, Mo. (James C. Jones and Lon O. Hocker, both of St. Louis, Mo., John M. Huebner, of Philadelphia, Pa., and Jones, Hocker, Gladney & Grand, of St. Louis, Mo., on the brief), for appellee.

Before STONE, GARDNER, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This was an action brought by appellant as plaintiff below to recover on a policy of life insurance issued by appellee to her father, Arthur E. Bingham, and in which she was named as beneficiary. The petition was in conventional form. The answer admitted the execution and delivery of the policy, the death of the insured, and the making of proper proof of death, but alleged that the policy contained provision that the insured should have full power to change the beneficiary, and the the insured, in consideration of the payment to him of $9,234.44, surrendered to the insurance company 'that portion of the policy or combination annuity bond under which the defendant agreed, upon the death of the said Arthur E. Bingham, to pay to the plaintiff the sum of $15,000.00,' and hence at the time of his death the policy was no longer in effect, but had been surrendered up and canceled.

The action was tried upon an agreed statement of facts. At the close of the evidence, each of the parties moved for a directed verdict. The request for a directed verdict by plaintiff was overruled, and that of the defendant was sustained. Judgment was accordingly entered, dismissing plaintiff's action on the merits, and from the judgment thus entered appellant prosecutes this appeal. We shall refer to the parties as they were designated in the lower court.

The sole question presented is whether the court erred in granting defendant's motion for a directed verdict. Both parties having moved for a directed verdict, the question on appeal is whether the verdict as directed is sustained by substantial evidence.

On July 17, 1903, defendant issued and delivered to Arthur E. Bingham, plaintiff's father, its policy of combination annuity bond, under which, at death, benefits were made payable to plaintiff in the principal sum of $15,000. The policy also provided for payment to the insured during his lifetime of a certain annuity. The policy contained

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a clause authorizing the insured to change the beneficiary; in fact, the insured, in his application, which was attached to and made a part of the policy, reserved this right. In this regard the policy provided as follows: 'Arthur E. Bingham, the insured, shall have full power while this policy is in force and not previously assigned, to name a new payee to receive in place of Madeline, his daughter, the instalments as they fall due hereunder, which by the terms of this contract are now payable to her, such change shall be made by instrument in writing and shall take effect only upon its endorsement upon the policy by the Company at its Home Office.'

The policy contained a table of loan...