Barnett v. Prudential Ins. Co. of Am.

• Decision Date: 01 April 1946
• Docket Number: No. 20698.,20698.
• Citation: 194 S.W.2d 317
• Parties: MARGARET ALLEN BARNETT v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION.
• Court: Missouri Court of Appeals

194 S.W.2d 317

MARGARET ALLEN BARNETT v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION.

No. 20698.

Kansas City Court of Appeals. Missouri.

April 1, 1946.

Appeal from Jackson County Circuit Court. — Hon. John R. James, Judge.

AFFIRMED.

F.H. Richart for appellant.

(1) The appellant, the plaintiff in the action, has the legal capacity to sue upon the cause of action alleged in and by said second amended petition and to maintain this action in her own name and as the only party plaintiff, for the reason that, the policy of insurance sued upon was executed unto her and in her name as the insured and not unto nor in the name or names of any other person or persons; and the contract of insurance sued upon, evidence by said policy, was entered into by and between the respondent as insurer, and said appellant, as the insured, there being no other party or parties to said contract. Civil Code of Missouri, Sec. 11, Laws of Missouri, 1943, page 360; R.S. Mo. 1939, sec. 850; Payne v. Bankers & Shippers Ins. Co., 229 Mo. App. 901, l.c. 906, 907, 77 S.W. (2d) 183, 187; Still v. Connecticut Fire Ins. Co., 185 Mo. App. 550, l.c. 558, 172 S.W. 625, l.c. 628; Anthony v. German Am. Ins. Co., 48 Mo. App. 65. (2) Appellant would still be entitled to maintain this action in her own name and as the only plaintiff as being "a party with whom or in whose name a contract has been made for the benefit of another." Civil Code of Missouri, sec. 11, supra; R.S. Mo. 1939, sec. 850; Payne v. Bankers & Shippers Ins. Co., supra; Still v. Connecticut Fire Ins. Co., supra; Anthony v. Ger. Am. Ins. Co., supra. (3) Said rider form is susceptible of a construction consistent and not in conflict with or in contradiction of said policy provision. Soukup v. Employers' Liability Assurance Corporation, 341 Mo. 614, 108 S.W. (2d) 86; State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 267 S.W. 379; Casebolt v. Central Life Ins. Co., 180 S.W. (2d) 265; Scotten v. Met. Life Ins. Co., 336 Mo. 724, 81 S.W. (2d) 313; Sec. 17, Laws of Missouri 1943, p. 361; Sec. 42, Laws of Missouri 1943, p. 371. (4) Appellant is expressly denominated as the "insured" the words "insurer" and "insured" being the usual terms employed to designate the parties to a contract of insurance, as recognized by lexicographers and court decisions. Black's Law Dictionary (Deluxe Third Edition), p. 989; 44 C.J.S., pp. 472, 473, beginning at 11th line in 2nd column on said page 472; Ohio Farmers Ins. Co. v. Cochran, 104 Ohio State Reports 427, l.c. 433, 135 N.E. 537, l.c. 539, at lower half of 1st column on said page 539; Kantor v. N.Y. Life Ins. Co., 219 Iowa 1005, 258 N.W. 759, l.c. 760, at 6th line in 1st column on said page 760; Bank Savings Life Ins. Co. v. Steiner, 81 S.W. (2d) 225, l.c. 226, at foot of 2nd column on said page 226.

Henry I. Eager, Kenneth, E. Midgley and Michaels, Blackmar, Newkirk, Eager & Swanson for respondent.

(1) (a) Plaintiff's partners were required to be joined, as defendant's obligation, if any, was to the partnership not to plaintiff individually. Sec. 847.11, R.S. Mo. Ann. (Code of Civil Procedure, Sec. 11); Windisch et al. v. Farrow et al. (Mo. App.), 159 S.W. (2d) 392, 394, and cases cited; Massman Constr. Co. v. Shain (Mo.), 130 S.W. (2d) 491, 496-497. (b) The parties to the contract sued on were defendant and the partnership, not defendant and plaintiff. Sec. 847.44, R.S. Mo. Ann. (Code of Civil Procedure, Sec. 44); Jewell Realty Co. v. Dierks, 322 Mo. 1064, 18 S.W. (2d) 1043; Hughes v. State Board of Health, 345 Mo. 995, 137 S.W. (2d) 523. (2) In any event no cause of action in plaintiff is alleged as the petition shows that disability benefits, if payable, were payable only to the partnership, the riders attached to the policy clearly so providing and taking precedence over contrary recitals in the printed provisions of the policy. Wagner Electric Corp. v. Ocean Acc. & Guar. Corp., Ltd., of London, Eng., 36 F. (2d) 186; Givens v. Aetna Life Ins. Co. of Hartford, Conn., 59 S.W. (2d) 761. (3) A claim in plaintiff's individual capacity cannot be united in the same petition with a claim in a representative capacity. Sec. 847.61 (Code of Civil Procedure, Sec. 61); Rockwood v. Crown Laundry Co., 350 Mo. 561, 178 S.W. (2d) 440.

SPERRY, C.

Plaintiff, Margaret Allen Barnett (Margaret R. Allen before her marriage), sued defendant The Prudential Insurance Company of America, for disability benefits claimed to have accrued to her under the provisions of a life insurance policy which also provided coverage for permanent total disability. Defendant's motion to dismiss was sustained. Plaintiff appeals.

Plaintiff pleaded that she became totally and permanently disabled, within the provisions of the policy, while said policy was in full force and effect, and that such condition continued until the filing of the petition. She pleaded the policy and attached same as an exhibit.

It is recited in the policy that it and the application constitute the entire contract. In the application it appears that plaintiff is the insured, having signed same as such; and that L.A.D. Secretarial School, a partnership, is the applicant. The following appears therein:

"... 13. To whom is this insurance to be payable at your death? (Full name) (Please print). L.A.D. Secretarial School, a partnership, is the applicant. The following appears therein; Allen.

.......

"21a. Is beneficiary to have all dividends, benefits and advantages to be had or derived from this policy? Yes.

.......

"25. Do you wish the privilege of changing the beneficiary? Answer yes or no. (Answer no if question 21a is answered Yes). No.

.......

"Full signature of the person whose life is to be insured:

                  "Margaret R. Allen
                  "Full signature of applicant
                  "Ludie S. Davis, Sec'y. and
                  "Counsel-L.A.D. Secretarial School."
                

The policy provided for a death benefit of $5,000 and a like sum in addition for accidental death. Immediately thereafter appears the following:

"PAYABLE TO the Beneficiary or Beneficiaries designated on rider form #1780, attached to this Policy, and in the manner provided.

"If there be no Beneficiary living at the death of the Insured the amount of insurance payable shall be paid to the executors, administrators or assigns of the Insured, unless otherwise provided in the Policy. The right to change the Beneficiary has not been reserved by the Insured.

"TOTAL AND PERMANENT DISABILITY BENEFITS.

"MONTHLY INCOME TEN DOLLARS PER MONTH FOR EACH $1000 of The Face Amount of Insurance, payable at the Home Office of The Company to the Insured in event of total and permanent disability before age 60, subject to the provisions as to Total and Permanent Disability contained in the Policy. "WAIVER OF PREMIUMS in event of Total and Permanent Disability as hereinafter provided."

To the policy, at the time it was issued and became effective, were attached two riders, as follows:

"Rider Form Attached to and Made a Part of Policy No. 6382648

"LIFE of Margaret R. Allen

"BENEFICIARY PROVISION-MANNER OF PAYMENT

"If this Policy shall become a claim by the death of the Insured the amount of insurance then payable in accordance with the terms of the Policy shall be payable as follows:

"To Edna M. Landes, Ludie S. Davis and Margaret R. Allen, partners doing business under the firm name of L.A.D. Secretarial School of Kansas City, Missouri, Beneficiary, or in the case of dissolution of said partnership to the surviving or liquidating partner or partners, or the assigns of said partnership.

                       "The Prudential Insurance Company
                           of America
                              "By W.H. Miller
                                  Assistant Actuary
                "Newark, N.J. October
                27, 1928.
                     "ORD-1780-Rev. 11-23 3-5-28."
                  "Rider Form Attached to and Made a
                Part of Policy No.
                   6382648
                  "LIFE of Margaret R. Allen
                    "EXTENSION OF BENEFICIARY'S RIGHTS
                

"It is specially agreed that all dividends, benefits and advantages to be had or derived from this Policy shall belong to the Beneficiary hereunder and not to the Insured, and if at the death of the Insured there be no Beneficiary existing to the surviving partner or partners of the Beneficiary and not to the executors, administrators or assigns of the Insured, any other provision of the Policy to the contrary notwithstanding.

                                 "The Prudential Insurance Company
                                     of America,
                                     "By Willard I. Hamilton,
                                         Secretary.
                "Newark, N.J., October 27, 1928.
                "Attest A. Sullivan.
                "ORD 11067 1-6-27 FIRM"
                

In its motion to dismiss defendant stated the following reasons:

"1. That plaintiff does not have legal capacity to sue upon the cause or causes of action attempted to be alleged.

"2. That the said second amended petition fails to state a claim upon which relief can be granted to plaintiff.

"3. That several claims have been improperly united in said cause."

It appears on the face of the pleadings (the policy being an exhibit and therefore forming a part thereof, Section 847.44 R.S. Mo. Ann.) that the contract sued on was between defendant and L.A.D....