Brown v. Equitable Life Assur. Soc.

• Decision Date: 08 October 1940
• Docket Number: No. 25391.,25391.
• Citation: 143 S.W.2d 343
• Parties: BROWN v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: Missouri Court of Appeals

143 S.W.2d 343

BROWN v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

No. 25391.

St. Louis Court of Appeals. Missouri.

October 8, 1940.

Rehearing Denied October 22, 1940.

Appeal from St. Louis Circuit Court; David J. Murphy, Judge.

"Not to be reported in State Reports."

Action by Tillie Brown against the Equitable Life Assurance Society of the United States, to recover on a certificate furnished in accordance with a policy of group life insurance. From an order granting the defendant a new trial, the plaintiff appeals.

Order affirmed, and cause remanded.

S. R. Redmond, Henry D. Espy, and John A. Davis, all of St. Louis, for appellant.

Rassieur & Rassieur and Otis J. Garland, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on a policy of group life insurance issued on November 2, 1923, by defendant Equitable Life Assurance Society. The policy insures the lives of all the employees of the Pittsburgh Plate Glass Company in the classes specified in the insurance plan and in the amounts determined thereby, for the term of one year from the Register date, or for such part of said term as they shall respectively remain in the employment of the employer and in the specified classes of employees.

The policy provides that upon receipt of due proof of the death of any such employee occurring while insured under the policy and while the policy is in force, the society will pay to the beneficiary the amount for which such employee's life is insured.

Under the insurance plan, the policy provides that all employees, as set forth in a schedule attached to the policy, of the Pittsburgh Plate Glass Company who have direct dependents, shall be insured, upon completion of one year of service, the amount of insurance on employees who are paid on a wage scale to be one thousand dollars, and provides further that employees without dependents are excluded from insurance under the policy.

The policy further provides as follows:

"This insurance is granted in consideration of the payment to the Society on the Register date and monthly thereafter of the premium for the amount of insurance then in force under this policy at the average rate determined by dividing the total of the individual premiums required, according to the scale of monthly rates given below, at the ages (nearest birthday) of the employees insured as of the Register date and for the respective amounts of insurance on their lives, by the aggregate amount of such insurance.

"Upon the renewal of this policy the same average rate will be continued, provided that either the Employer or the Society may at any time require that a recalculation of such average rate be made as of the next succeeding anniversary of the Register date on the basis of the then attained ages (nearest birthday) and amounts of insurance then in force and such recalculated rate shall in that event constitute the average rate on and after such anniversary subject, however, to further recalculations under the same conditions at any subsequent anniversary.

* * *

"This policy, together with the Employer's application therefor, copy of which is securely attached hereto, and the individual applications, if any, of the employees insured, shall constitute the entire contract between the parties. * * *

"The insurance under this policy upon the life of any employee shall automatically cease upon the termination of his employment with the Employer in the specified classes of employees without regard to the cause of such termination, except that the Employer may elect that all employees who while insured hereunder are temporarily laid off or given leave of absence or are disabled or retired on pension, shall be considered to be in the employment of the Employer during such period. * * *

"The Employer shall furnish the Society with the names of all employees as they qualify under the Insurance Plan, together with the information as to each necessary to determine the age, amount of insurance and the date such insurance is effective in accordance with said Insurance Plan and during the continuance of this policy all changes in status and terminations in the group policy of employees insured shall be reported to the Society within one month after such changes or terminations.

"The premium readjustment corresponding to any such change shall become due as of the monthly premium due date next succeeding such change or termination. Each monthly premium shall include any adjustment in past premiums arising from those changes which had not previously been taken into account."

At the time of the issuance of the group policy to the Pittsburgh Plate Glass Company, an individual certificate was issued to Andrew L. Brown, then in the employ of the glass company, certifying that the glass company had contracted to insure the life of said Andrew L. Brown for the sum of one thousand dollars with the Equitable Life Assurance Society by a policy of group life insurance, the insurance to be payable, upon receipt of due proof of death, to the beneficiary designated as entitled to receive the same, if death occur while in the employment of said employer and while insured under said policy, subject to the terms and conditions thereof. The certificate further provides as follows: "This individual certificate is furnished in accordance with the terms of the said Equitable Group Insurance policy, which policy together with the employer's application therefor constitute the entire contract between the parties." Plaintiff is the beneficiary named in the certificate.

The trial with a jury resulted in a verdict in favor of plaintiff for $1,000, the face amount of the policy, $100 for vexatious refusal to pay, $200 as attorneys' fees, and $30 as interest, making a total of $1,330. Judgment was given accordingly.

Defendant's motion for a new trial, duly filed, was sustained and a new trial granted by the court on the ground that the court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence.

From the order granting defendant a new trial plaintiff appeals.

Plaintiff contends here that she made out a prima facie case, and that therefore the...