Bradshaw v. Metropolitan Life Ins. Co.

• Citation: 110 S.W.2d 834
• Decision Date: 07 December 1937
• Docket Number: No. 24146.,24146.
• Parties: BRADSHAW v. METROPOLITAN LIFE INS. CO.
• Court: Court of Appeal of Missouri (US)

110 S.W.2d 834

BRADSHAW v. METROPOLITAN LIFE INS. CO.

No. 24146.

St. Louis Court of Appeals. Missouri.

December 7, 1937.

Appeal from St. Louis Circuit Court, Division No. 17; Robert J. Kirkwood, Judge.

"Not to be published in State Reports."

Action by Hattie Peters Bradshaw against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

S. E. Garner, of St. Louis, for appellant.

Fordyce, White, Mayne, Williams & Hartman and Walter R. Mayne, all of St. Louis, and Harry Cole Bates, of New York City, for respondent.

HOSTETTER, Presiding Judge.

This is an action on an industrial life insurance policy begun by plaintiff in a justice of the peace court of the city of St. Louis, where plaintiff recovered judgment on January 10, 1935, for $366. On appeal to the circuit court of said city, the cause was heard by the court without the intervention of a jury. It was claimed that by reason of the disappearance and absence of the insured, Eldridge Peters, from Missouri for more than seven years, a presumption of his death arose.

Plaintiff, being called as a witness, testified that she has lived in St. Louis since 1911, and that she has a sister and two brothers, all of whom are residents of St. Louis, and a father and mother still alive who reside in Dixon, Tenn.; that in 1917 her sister was present when she had a talk with the agent of defendant, at the time of the issuance of the policy. On objection being made that plaintiff (sister of insured) was not the qualified executrix or administratrix of the insured's estate, to whom the policy of insurance was payable, and was not the proper party to maintain this suit, the court sustained the objection and ruled that no conversation between plaintiff and the agent of the company could alter the terms of the policy in that respect.

Thereupon, plaintiff's attorney made an offer of proof as follows:

"That on or about the 19th of March, 1917, defendant's agent Fox appeared at the plaintiff's house and solicited life insurance on her brother, Eldridge Peters, and that at said time the said Eldridge Peters told said agent that he wanted this insurance for the benefit of his sister, Hattie Peters, who is now Hattie Peters Bradshaw, and that upon inquiry the said agent told the plaintiff and Eldridge Peters that it was not the custom of the company to write the name of the beneficiary in the policies, but that if the policy was retained by the plaintiff and the premium receipt book of premiums paid by her, that upon the death of the insured she would be the beneficiary.

"We would further show that when the policy was issued and delivered, that again the plaintiff in this case examined the policy and asked the agent why her name was not on it, and he again explained to her. We will further show that the policy was delivered to the plaintiff; that she paid the premiums thereon; that the policy has remained in her possession ever since and that she has paid the premium of fifteen cents per week since the date of issue to this date.

"We will further show that after the said Eldridge Peters had gone from the State of Missouri and into the State of Tennessee and had remained away from Missouri for more than seven years and had not been seen or heard of from or by this plaintiff, nor any member of his family in St. Louis and that he had not returned to the State of Missouri. That this plaintiff made an application to the Metropolitan Life Insurance Company explaining the disappearance of her brother and made demand on them for the face value of this policy.

"We will further show that the company made some effort to locate him and communicated with the plaintiff as to what and how they were getting along and that the defendant Life Insurance Company has never paid the amount of this policy to any of the parties mentioned in the facility of payment clause. If permitted, we would further show that since 1931 this plaintiff has continued to pay fifteen cents per week on this policy."

The policy was then offered in evidence showing its number; its date, March 19, 1917; name of insured, Eldridge Peters; age 18; weekly payments, 15 cents; amount $273.

Defendant's counsel then made the following objection to the offer of proof, viz.: "First, that any statements made between the plaintiff and the agent for the company at the time the application was signed by the insured was merged into the policy of insurance at the time of its delivery. Second, that by the terms of the policy, the only right of action to sue thereon is only vested in the administrator, or the executor of the insured, and as there is no showing that the plaintiff is qualified as administratrix or executrix of the insured's estate, no right of action can be maintained by her in her individual capacity. Third, that by the terms of the policy offered in evidence, it provides that the policy contains the entire agreement between the company and the insured, the owner and holder thereof, that its terms cannot be changed, or its conditions varied except by written agreement signed by the president or the secretary of the company; that agents, which also includes deputy superintendents and assistant superintendents, are not authorized or have no power to make, alter or change contracts, waive forfeiture or receive premiums or payments in arrears. Fourth, that as the plaintiff and also the insured accepted the terms and provisions of said policy upon delivery, they are bound thereby and now estopped from asserting that there is any other or different contract than the one offered in evidence."

The court, after remarking that it thought the only remedy available to the plaintiff was to have the probate court declare the insured dead and appoint her as administratrix of his estate, sustained defendant's objection, to which ruling plaintiff saved her exception, and, judgment being rendered in favor of defendant, the plaintiff, after an ineffective motion for a new trial, brings the cause to this court by appeal for review.

The policy contains the following provisions in respect to the method of payment in the event of death of the insured, viz.: "* * * And Doth Further Agree, subject to conditions aforesaid, if the insured shall 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 this Policy and the Premium Receipt Book, the amount stipulated in said schedule, to the executor or administrator of the insured, unless payment be made under the provisions of the next succeeding paragraph.

"The Company may make any payment or grant any nonforfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this Policy have been satisfied."

It is claimed by defendant's counsel that the effort on the part of the plaintiff's attorney to have the statements, made by the soliciting agent to the plaintiff at the time of the issuance of the policy, heard for the purpose of changing or altering the terms of the policy as written, could not be permitted, for the reason that under the authorities the written contract, delivered by the agent to the plaintiff, recites that it constitutes the entire contract; therefore, any statements, made by the agent at that time could not have...