Clarkston v. Metropolitan Life Insurance Company
| Decision Date | 04 May 1915 |
| Citation | 176 S.W. 437,190 Mo.App. 624 |
| Parties | EDWARD CLARKSTON, By Guardian, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wilson A. Taylor Judge.
AFFIRMED.
Judgment affirmed.
Nathan Frank and Louis B. Sher for appellant.
(1) Proofs of death furnished to the insurance company are prima-facie evidence of the facts therein stated, and are conclusive, unless the beneficiary shows that the statements made therein were erroneous, or were given through mistake. Almond v. Modern Woodmen of America, 133 Mo.App 382; Mutual Benefit Life Ins. Co. v. Newton, 22 Wall. (U.S.) 32; Hassencamp v. Life Ins. Co., 120 F 475; Hanna v. Life Ins. Co., 44 N.E. 1099; Walther v. Ins. Co., 65 Cal. 417; Modern Woodmen of America v. Von Wald, 6 Kan.App. 231; Hart v. Trustees, 84 N.W. 851; 3 Elliott on Evidence, sec. 2387; 2 Wigmore on Evidence, page 1265. (2) The proofs of death furnished by the beneficiary when her claim was originally made and introduced in evidence at the trial, showed that for three months prior to the issuance of the policy in suit, the insured was suffering from tuberculosis, and that from the 7th day of May, 1910, until the 24th day of August, 1910, he was undergoing treatment for such disease by Dr. Elliott; the proofs of death signed by Dr. Elliott and Dr. Popejoy, offered in evidence, showed that such diseases caused or contributed to cause the insured's death. Such evidence was unimpeached and uncontradicted at the trial of this case, and consequently the contents of such proofs of death offered and submitted by respondent in support of her claim, were and must now be taken as conclusive of the facts therein stated. Almond v. Modern Woodmen of America, supra; Benefit Ass'n v. Sargent, 142 U.S. 691; Dennis v. Union Mutual Ins. Co., 84 Cal. 570. (3) Where a policy of life insurance contains a named beneficiary, the fact that it also has a condition permitting the insurer to make payment to any person or persons within certain designated classes, does not obligate the insurer to pay the policy to any one other than the named beneficiary. Lewis v. Metropolitan Life Ins. Co., 178 Mass. 52, 59 N.E. 439; Wolkal v. Belsky, 65 N.Y.S. 815; Ferretti v. Prudential Ins. Co., 97 N.Y.S. 1007; Golden v. Mutual Life Ins. Co., 59 N.Y.S. 143. (4) A beneficiary originally designated in a policy issued by an old line life insurance company acquires a vested interest in the policy, which inures to the benefit of the estate of the beneficiary on the death of the insured. Sec. 6944, R. S. 1909; U. S. Casualty Co. v. Kacer, 169 Mo. 301; Smith v. Grand Lodge, A. O. U. W., 124 Mo.App. 181; Shields v. Sharp, 35 Mo.App. 178; Packard v. Ins. Co., 9 Mo.App. 469; Blum v. Life Ins. Co., 197 Mo. 513; Conn. Mut. Life Ins. Co. v. Ryan, 8 Mo.App. 535; Bank v. Hume, 128 U.S. 206; Masonic Ben. Ass'n v. Bunch, 109 Mo. 580. (5) Where there is a provision reserving the right to change the beneficiary, but the right has not been exercised, the interest of the beneficiary passes to the personal representative of the latter, and, being entitled to the proceeds of the policy, such personal representative may, after the death of the insured, sue for wrongful conversion by the company. 3 Am. & Eng. Ency. of Law, page 987; Foster v. Gile, 50 Wis. 603; Clark v. Equitable Aid Union, 6 Pa. Co. Ct. 321; N. Y. Mut. Life Ins. Co. v. Allen, 212 Ill. 134, 72 N.E. 200; Freund v. Freund, 218 Ill. 189, 75 N.E. 925. (6) The company cannot, after the death of the insured and consequent vesting of the right of the beneficiary, waive, as against the beneficiary, provisions of the policy relative to change of beneficiary. Freund v. Freund, 218 Ill. 189, 75 N.E. 925; Begley v. Miller, 137 Ill.App. 278; French v. Assurance Society, 205 Mass. 424, 91 N.E. 577; Shephard v. Crowley, 61 Fla. 735.
James J. O'Donohoe for respondent.
(1) The defendant failed to introduce sufficient evidence to overcome even the plaintiff's prima-facie case. Keily v. K. of F. M., 167 Mo.App. 619; Winn v. M. W. of A., 157 Mo.App. 1. The question of misrepresentations was for the jury. The cases thus deciding are now almost too numerous for citation. Section 6973, R. S. 1909; Dodt v. Ins. Co., 171 S.W. 655; Buchholz v. Ins. Co., 177 Mo.App. 683; Roedel v. Ins. Co., 176 Mo.App. 584; Coscarella v. Ins. Co., 175 Mo.App. 130; Welsh v. Ins. Co., 165 Mo.App. 233; Ins. Co. v. Stiewing, 173 Mo.App. 108; Lynch v. Ins. Co., 150 Mo.App. 461; Salts v. Ins. Co., 140 Mo.App. 142; Burns v. Ins. Co., 141 Mo.App. 212; Williams v. Ins. Co., 189 Mo. 70; Keller v. Ins. Co., 198 Mo. 440. (2) The insured's wife took no vested interest in the policy. Jackson v. American Yeomen, 167 Mo.App. 24; Webb v. Ins. Co., 134 Mo.App. 576; Leeker v. Ins. Co., 154 Mo.App. 440; 1 Bacon Ben. Soc. (3 Ed.), sec. 291b; 4 Cooley Br. Ins., p. 3755; 2 May Ins. (4 Ed.), sec. 399m. (3) This action is prosecuted by the right party. Wallace v. Ins. Co., 174 Mo.App. 110; Renfro v. Ins. Co., 148 Mo.App. 258; Floyd v. Ins. Co., 72 Mo.App. 455; Wilkinson v. Ins. Co., 64 Mo.App. 172; Wilkinson v. Ins. Co., 63 Mo.App. 404; Thomas v. Ins. Co., 158 Ind. 463; McCarthy v. Ins. Co., 162 Mass. 254; Ins. Co. v. Young, 43 N.E. 253; Ins. Co. v. Galvin, 24 Ky. L. 444; 68 S.W. 655; Pfaff v. Ins. Co., 141 Pa. 562; Brennan v. Ins. Co., 170 Pa. 488; Ins. Co. v. O'Farrell, 64 Kan. 278; Ins. Co. v. Schaffer, 50 N.J. L. 72; Brooks v. Ins. Co., 70 N.J. L. 36.
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 time 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; but, however that may be, where there is evidence pro and con on the subject, 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...
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