Clarkston v. Metropolitan Life Ins. Co.

• Decision Date: 04 May 1915
• Docket Number: No. 13977.,13977.
• Parties: CLARKSTON v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

176 S.W. 437

190 Mo. App. 624

CLARKSTON v. METROPOLITAN LIFE INS. CO.

No. 13977.

St. Louis Court of Appeals, Missouri.

May 4, 1915.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by Edward Clarkston, by Diannah A. Gross, his guardian, against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Nathan Frank and Louis B. Sher, both of St. Louis, for appellant. James J. O'Donohoe, of St. Louis, for respondent.

NORTONI, J.

This is a suit on a policy of life insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The policy in suit is of the industrial character, and was issued in the amount of $231. The insured having died within six months of its date, under the terms of `the policy, the amount available thereon is one-half of the maximum agreed to be paid, that is, $115.50. All of the premiums were duly paid, and it appears that the insured died from tuberculosis. Defendant insists that the insured was suffering with this disease at the time the insurance was effected, and declined to pay the amount sued for. The application represented that insured was in sound health when he applied for the insurance, but there is evidence in the proof of death furnished tending to show the contrary. Under our statute (section 6937, R. S. 1909) no misrepresentation made in obtaining a policy of life insurance shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable; that is, to the death of the insured. It is conceded the insured died from tuberculosis a few months after the policy was issued, and it is conceded, too, that the application contained a statement to the effect that he was free from such a malady at the time it was made.

The evidence, and the only evidence introduced on the part of defendant, tending to prove that insured was suffering from tuberculosis at the time the application was made and the policy issued, is contained in a statement of one of the attending physicians made a part of the proof of death. According to this statement of the physician in the proof of death, the insured not only died of tuberculosis, but was suffering therefrom several weeks before the application for the insurance was made. Of course, the recitals in the proof of death touching this question are to be regarded as conclusive, unless contradicted or otherwise explained, but the evidence may not be regarded as conclusive on this question here, and especially so in view of our statute rendering it one for the jury if there is evidence tending to prove the contrary; that is, that the insured was not suffering from tuberculosis at the Lime of his application for, and the issuance of, the policy. The statute above cited (section 6937, R. S. 1909) provides that the question concerning this shall be one for the jury. We apprehend the statute means what it says, where there is evidence pro and con on the subject. In such cases, no one can doubt that the jury alone may determine as to whether or not the condition of the health of the insured at the time the insurance was effected contributed to his death. See Roedel v. John Hancock Mut. Life Ins. Co., 176 Mo. App. 584, 160 S. W. 44.

Plaintiff introduced in evidence, as tending to contradict and explain the statement of the attending physician in the proof of death, the report made by defendant's physician—that is, its medical examiner—in connection with, and attached to, the application for the insurance, in which it appears that such examiner personally inspected the life insured and examined the subject to ascertain his fitness therefor. This report so made by defendant's physician on a personal examination of the insured recites that he had examined his respiratory organs, and found them in all respects sound, and that he possessed sound health and a good constitution. This was competent and sufficient evidence for the consideration of the jury on this question, and the finding concerning it is therefore conclusive here. See Coscarella v. Metropolitan Life Ins. Co., 175 Mo. App. 130, 157 S. W. 873.

The more difficult question in the case relates to the right of plaintiff to sue on the policy. It is argued the suit should be prosecuted by the administrator or personal representative of the plaintiff's mother, who, it is said, was designated beneficiary in the policy. In order to determine this question, it is essential to state additional facts, and consider too, the provisions of the policy. Plaintiff, Edward Clarkston, is an infant son of the insured, six or seven years old, and prosecutes the suit by his guardian and curator. He is not expressly named as a beneficiary in the policy, but is within the terms of what is known as a facility of payment clause, which is parcel of such industrial insurance policies. The policy contains a recital concerning the beneficiary as follows: "Name of beneficiary and relationship to the insured, Jemmia Clarkston—wife." In view of this it is argued that Jemmia Clarkston, wife of the insured, was designated as beneficiary in the policy, and, as she died shortly subsequent to the death of her husband, the suit should be prosecuted by her representatives, and not by the child, Edward Clarkston. The evidence is clear that Jemmia Clarkston, the insured's wife, and mother of plaintiff, died before the institution of this suit, and it appears, too, that plaintiff is the only remaining member of the family. Under our statute (section 6944, R. S. 1909), so far as relevant here, a policy of life insurance made by an insurance company on the life of any person, expressed to be for the benefit of the wife of the insured, shall inure to her separate benefit, independently of the creditors, executors, and administrators of the husband. But even under this statute, if it is stipulated in the policy that the insured and the company may change the beneficiary, it is said the wife obtains no vested interest in the insurance; that is, provided the beneficiary be changed, of course, before the death of the insured occur. See Robinson v. New York Life Ins. Co., 168 Mo. App. 259, 153 S. W. 534; Eves v. Sovereign Camp, Woodmen of the World, 153 Mo. App. 247, 254, 255, 133 S. W. 657. It is therefore competent for the parties on entering into the contract of insurance, even though the wife is designated as beneficiary, to stipulate that her interest shall not be a vested one, and it is clear in any view of the case here that Jemmia Clarkston did not acquire a vested interest in the insurance in suit, and this is true though her husband, the insured, died before she.

This is said, however, in view of the provision in the policy that, though she is named as beneficiary, there appears no promise whatever to pay her any more than there appears a promise to pay the several other persons named in the facility of payment clause. So much of the policy as is relevant to this matter is as follows:

"In consideration of the payment of the premium mentioned in the schedule below, on or before each Monday, doth hereby agree, subject to the conditions below and on page 2 hereof, each of which is hereby made a part of this contract and contracted by the assured to be a part hereof, and with the privileges and concessions to policy holders on pages 2 and 3 hereof, which are hereby made part of this contract, to pay as an endowment, to the insured named below, on the anniversary of this policy next after he or she shall have...