Brookshire v. Metropolitan Life Ins. Co.

• Decision Date: 07 February 1933
• Docket Number: No. 22362.,22362.
• Court: Missouri Court of Appeals
• Parties: BROOKSHIRE v. METROPOLITAN LIFE INS. CO.

56 S.W.2d 817

BROOKSHIRE v. METROPOLITAN LIFE INS. CO.

No. 22362.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Appeal from Cape Girardeau Court of Common Pleas; O. A. Knehans, Judge.

"Not to be published in State Reports."

Action by W. A. Brookshire against Metropolitan Life Insurance Company. Judgment was rendered for plaintiff. From an order granting plaintiff a new trial, defendant appeals.

Affirmed and remanded.

Edgar & Banta, of Ironton, and Fordyce, White, Mayne & Williams, of St. Louis, for appellant.

Davis & Damron, of Fredericktown, for respondent.

SUTTON, C.

This is an action to recover $937.50 for the deforcement of an attorney's lien. The trial, with a jury, resulted in a verdict and judgment for plaintiff for $100. From an order granting plaintiff a new trial, defendant appeals.

Prior to November, 1930, Emile F. McCall was in the employ of the St. Joseph Lead Company. He was insured by the defendant, Metropolitan Life Insurance Company, in the sum of $3,750. The insurance was taken out and paid for by his employer, St. Joseph Lead Company, and is what is known as group insurance.

The insurance contract provides, so far as pertinent here, substantially as follows:

"If death occur while the employé is in the employ of the employer, and while the insurance is in force, the amount of the insurance in force on the employé will be paid to Mary McCall, beneficiary.

"In case of the termination of the employment for any reason whatsoever, the employé shall be entitled to have issued to him by the Metropolitan Life Insurance Company, without evidence of insurability, and upon application made to that company within thirty-one days after such termination, and upon the payment of the premium applicable to the class of risk to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance in any one of the forms customarily issued by such company, except term insurance, in an amount equal to the amount of his protection under the group insurance contract at the time of such termination.

"Upon receipt, at its home office in the city of New York, of due proof that the employé while insured hereunder, and prior to his sixtieth birthday, has become totally and permanently disabled as the result of bodily injury or disease so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the company will waive the payment of further premiums as to such employé, and six months after receipt of such proof will commence to pay to the employé in lieu of the payment of insurance at his death 94 monthly installments of $45.17 each.

"In the event of the death of the employé during the period of total and permanent disability any installments remaining unpaid shall be commuted at the rate of 3½ per cent per annum compound interest and paid to the beneficiary in one sum."

It appears that Emile F. McCall, while in the employ of the St. Joseph Lead Company, contracted tuberculosis. His employment with the St. Joseph Lead Company was terminated on November 15, 1930. On February 25, 1931, plaintiff, an attorney engaged in the practice of law at Farmington was employed by Emile F. McCall to represent him in his claim for total and permanent disability under his insurance contract. The employment was evidenced in writing, and provided for a contingent fee of 25 per cent. of whatever amount might be collected on the claim if collection was made without suit, and 40 per cent. of whatever amount might be collected in the event it should become necessary to file suit on the claim.

Pursuant to his employment, plaintiff wrote defendant at its New York office, informing defendant that the insured, according to his physician's diagnosis, was in an advanced stage of tuberculosis, and requesting defendant to furnish him with blanks upon which insured could make formal proofs for total and permanent disability benefits, and also stating the terms of his employment. After receiving from the defendant blanks for formal proofs, plaintiff made up the proofs and caused them to be properly signed and verified by the insured and his physician, and forwarded them to the defendant. Defendant objected to the validity of the claim on the ground that there was no showing that the insured was totally and permanently disabled before his employment ceased with the St. Joseph Lead Company. However, after extended correspondence between plaintiff and defendant, the claim was finally approved by defendant for total and permanent disability benefits on April 7, 1931, premiums being waived as of March 14, 1931, so that the first installment payment became due September 14, 1931.

The insured died on April 10, 1931. Pulmonary tuberculosis caused his death.

On April 17, 1931, insured's widow, the beneficiary, employed plaintiff to represent her, in her claim for total and permanent disability benefits due the insured, on the same percentage basis as was agreed upon in his employment by the insured. On April 18th plaintiff wrote defendant of his employment by Mrs. McCall, and sent with his letter affidavits proving the insured's death, and also a copy of his contract of employment by Mrs. McCall. This letter was mailed about 11 o'clock a. m. at Farmington. There was an outgoing mail at 2:30 p. m. The evidence for defendant shows that this letter was received by defendant at the New York office on April 21st.

On April 16th the St. Joseph Lead Company made out proofs of the death of the insured and forwarded the same to the defendant. These proofs were not signed by Mrs. McCall. So far as the evidence shows, these proofs were made out without her knowledge. Plaintiff testified that he knew nothing of the sending of these proofs at the time he made up and forwarded proofs of...