Butler v. Eq. Life Ins. Society, 18513.

• Decision Date: 17 February 1936
• Docket Number: No. 18513.,18513.
• Parties: WALTER BUTLER, ADMINISTRATOR, ETC., RESPONDENT, v. THE EQUITABLE LIFE INS. SOCIETY, APPELLANT.
• Court: Missouri Court of Appeals

93 S.W.2d 1019

WALTER BUTLER, ADMINISTRATOR, ETC., RESPONDENT, v. THE EQUITABLE LIFE INS. SOCIETY, APPELLANT.

No. 18513.

Kansas City Court of Appeals. Missouri.

February 17, 1936.

Appeal from the Circuit Court of Jackson County. — Hon. Allan C. Southern, Judge.

REVERSED AND REMANDED.

Meservey, Michaels, Blackmar, Newkirk & Eager and Robert E. Coleberd for appellant.

Alexander & Green of Counsel.

(1) The court erred in refusing to give defendant's Instruction lettered "B" at the close of the whole case, which instruction was in the nature of a demurrer to the evidence and should have directed a verdict for defendant for the reason that plaintiff did not make out a case against defendant under the group policy. Gallagher v. Simmons Hardware Co., 214 Mo. App. 111, l.c. 114, 258 S.W. 16; Hardie v. Metropolitan Life Insurance Co., 7 S.W. (2d) 746, l.c. 747; Kingsland v. Missouri State Life Ins. Co., 66 S.W. (2d) 959, l.c. 961; Steffen v. Equitable Life Assurance Society of the U.S., 64 S.W. (2d) 302, l.c. 305, 306; Travelers Insurance Co. v. Conine, 37 Ga. App. 500, 140 S.E. 784; Thull v. Equitable Life Assurance Society of the U.S., 40 Ohio App. 486, 178 N.E. 850; Carpenter v. Railroad, 21 Ind. App. 88; Magee v. Equitable Life Assurance Society of the U.S. (N.D.), 244 N.W. 518, 85 A.L.R. 1457; Equitable Life Assurance Society of the U.S. v. Green (Ky.), 83 S.W. (2d) 478, l.c. 480. (2) The right to cancel a group policy is in the employer and its act of cancellation is binding upon its employees holding certificates issued under the group policy. Davis v. Metropolitan Life Ins. Co. (Tenn.), 32 S.W. (2d) 1034, l.c. 1035, 1036; Missouri State Life Insurance Co. v. Hinkle (Tenn.), 74 S.W. (2d) 1082, l.c. 1083; Stoner v. Equitable Life Assurance Society of the U.S. (Pa.), 28 Dauphin Co. Reps. 235. (3) No legal duty rested on defendant to give any notice of any kind to Ida Mae Butler or to the plaintiff (administrator of her estate), as to the cancellation of the group policy. 32 C.J., sec. 561, pages 1312, 1313; Bosse v. K. & L.S., 204 Mo. App. 18, l.c. 27. (4) The furnishing to the defendant by Ida Mae Butler, the employee, of due proof that she was totally and permanently disabled was a condition precedent to claim total and permanent disability benefits under the group policy. This was not done. Porter v. Equitable Life Assurance Society of the U.S., 71 S.W. (2d) 766. l.c. 773; Jacoby v. New York Life Insurance Co., 77 S.W. (2d) 840. l.c. 845, (5) The court erred in giving plaintiff's Instruction No. "5" (113-114) which submitted the issue of penalties and attorney's fees to the jury. The facts did not warrant the submission of the issue to the jury. Kingsland v. Insurance Company, 66 S.W. (2d) 959; State ex rel. Metropolitan Life Insurance Company v. Shain et al., 66 S.W. (2d) 871. l.c. 876; Grandgenett v. National Protective Insurance Assn., 73 S.W. (2d) 341, l.c. 344; Medling v. Abraham Lincoln Life Insurance Co., 41 S.W. (2d) 6. l.c. 8; State ex rel. Northwestern v. Trimble et al., 18 S.W. (2d) 21, l.c. 22; Friedman v. Maryland Casualty Co., 21 S.W. (2d) 880. l.c. 881; Kusnetsky v. Insurance Company, 313 Mo. 143, l.c. 158, 159; Aufrichtig v. Columbia National Life Insurance Co., 298 Mo. 1, 249 S.W. 912. (6) The verdict is excessive and void for the reason that the jury allowed a penalty of 19.7 per cent of the amount sued for which is in excess of that permitted by section 5929, Revised Statutes of Missouri, 1929. (a) The verdict is excessive and void for the further reason it is for a greater sum than asked for in plaintiff's petition. Balch v. Myers, 65 Mo. App. 422, l.c. 427; Gary Realty Co. v. E.P. Kelly et al., 278 Mo. 450, l.c. 468; Reavis v. Gordon et al., 45 S.W. (2d) 99; Wright v. Jacobs, 61 Mo. 19; Section 5929, R.S. Mo., 1929. (7) The court erred in permitting plaintiff to testify that he did not consent to or receive any notice of the cancellation of the group policy. Because (a) plaintiff sues as administrator of the Estate of Ida Mae Butler and did not come into existence as such until long after the group policy had been cancelled, and (b) notice is not required. (8) The court erred in permitting plaintiff to testify that Ida Mae Butler did not receive any notice of or consent to the cancellation of the group policy. Because notice was not required by the terms of the group policy. (9) The court erred in giving plaintiff's Instruction No. "2" (112-113) for the reasons: (1) this instruction assumes facts not in evidence. (2) it is not a proper statement of the law. Gundelach v. Compagnie Generale Transatlantique, 41 S.W. (2d) 1. l.c. 2; Porter v. Equitable Life Assurance Society of the U.S., 71 S.W. (2d) 766; Jacoby v. New York Life Insurance Co., 77 S.W. (2d) 840. (10) The court erred in giving plaintiff's Instruction No. "3" (113). It is not a proper statement of the law applicable to this case.

Borders, Borders & Warrick, Wilfred Wimmell and Daniel L. Brenner for respondent.

(1) The court did not err in refusing to give defendant's instruction in the nature of a demurrer to the evidence. The court should not have directed a verdict for the defendant for the reason that the plaintiff made a case for submission to the jury. Bullock v. Aetna Life Insurance Co., 76 S.W. (2d) 726; Girvin v. Metropolitan Life Ins. Co., 75 S.W. (2d) 596. (2) The deceased, Ida Mae Butler, had such an interest in the group insurance policy issued by the defendant that it could not be cancelled without notice to her. Prudential Insurance Company of America v. Ferguson, 180 S.E. 503; Johnson v. Inter-Ocean Casualty Company, 112 W. Va. 384, 164 S.E. 411; Deese v. Travelers Ins. Co., 167 S.E. 797; Thompson v. Pacific Mills, 141 S. Car. 303, 131 S.E. 619. (3) Plaintiff did give the defendant notice of disability. Furthermore, the filing of proof of disability was waived by defendant. Porter v. The Equitable Life Assurance Society of the United States, 71 S.W. (2d) 766; Nagel v. Metropolitan Life Ins. Co., 80 S.W. (2d) 709; Meyer v. Insurance Co., 73 Mo. App. 166; Davis v. Yorkshire Ins. Co., 221 Mo. App. 798, 288 S.W. 80. (4) The issue of penalties and attorney's fees was properly submitted to the jury. Porter v. Equitable Life Assurance Society of the United States. supra; Avery v. Mechanics' Ins. Co., 295 S.W. 509; Masson v. Metropolitan Life Ins. Co., 36 S.W. (2d) 118. (5) The verdict is not void for the reason the jury allowed $71.46, which is stated to be a penalty. Jones v. Insurance Co., 173 Mo. App. 1; Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668. (6) The court did not err in permitting plaintiff to testify that he did not consent to or receive any notice of cancellation, and that to his knowledge Ida Mae Butler did not receive any notice or consent to cancellation. Bullock v. Aetna Life Ins. Co., supra; Girvin v. Metropolitan Life Ins. Co., supra. (7) The court did not err in giving plaintiff's instructions Nos. 2 and 3.

SHAIN, P.J.

The case at bar involves interesting questions arising on group policy insurance.

After a careful examination of the record and briefs filed in the case, we conclude that the statement of the issues as presented in the respondent's brief is an ideal statement adapted for a judicial opinion, and we adopt and use the same as follows:

"This suit was commenced by Ida Mae Butler on a group policy of insurance issued by the defendant on the lives of the employees of Loose-Wiles Biscuit Company of New York. Said policy contained disability provisions and Ida Mae Butler, an employee of said Loose-Wiles Biscuit Company, brought suit seeking benefits for total and permanent disability which commenced April 25, 1933. She died May 2, 1934, and the suit was revived on August 10, 1934, in the name of Walter Butler, her husband, who was appointed administrator of her estate by the Probate Court of Jackson County, Missouri, on May 28, 1934. This suit was prosecuted by him as such administrator.

`Under said group policy which was issued as of July 1, 1926, the deceased, Ida Mae Butler, was issued a certificate of insurance by the defendant, which certificate as well as the group policy contained disability provisions; that from August 1, 1931 (which was the date that the amount of insurance carried by Ida Mae Butler was increased to $1500), until the date of her disability, to-wit: April 25, 1933, the said Ida Mae Butler regularly paid the sum of 90c per month on said insurance policy and the Loose-Wiles Biscuit Company contributed 30c per month toward the premium of said policy and the defendant received as premium thereon the sum of $1.20 per month. The said group policy of insurance contained the following pertinent provisions: (a) that the defendant was insuring the lives of the employees of the Loose-Wiles Biscuit Company who elected in writing to participate in said policy (R.42); (b) that the employee had the right to change the beneficiary named in said certificate (R. 44); (c) that the certificate issued to Ida Mae Butler and said group policy provided that the application of the employee, together with the group policy, constituted the entire contract of the parties (R. 56); (d) that the policy could be terminated in one of two ways, viz.: in the event the employee left the employ of the Loose-Wiles Biscuit Company, or in the event the employee executed a written notice that he desired to discontinue his participation under said policy (R. 58); (e) that in the event the employee left the employ of said Loose-Wiles Biscuit Company, he had the right to convert said policy into a policy of life insurance in any one of the forms customarily issued by the defendant (R. 56); that the employee was to pay as premium 60c per month per $1000 and the employer the balance (R. 43, 53).

"The deceased, Ida Mae Butler, who held the above described certificate, retained the same until the date of her death and said certificate thereupon passed into the hands of her administrator. Upon...