Costelle v. Metropolitan Life Ins. Co., 6339.
Decision Date | 27 July 1942 |
Docket Number | No. 6339.,6339. |
Citation | 164 S.W.2d 75 |
Parties | COSTELLE v. METROPOLITAN LIFE INS. CO. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Newton County; Emory E. Smith, Judge.
"Not to be published in State Reports".
Action by Lawrence S. Costelle against the Metropolitan Life Insurance Company on a group life and accident policy. Judgment for plaintiff, and defendant's motion for new trial was overruled and defendant appeals.
Reversed.
Spencer & McPherson and Kenneth J. Schuessler, all of Joplin, and Michaels, Blackmar, Newkirk, Eager & Swanson, of Kansas City (Harry Cole Bates, of New York City, of counsel), for appellant.
H. A. Gardner, of Monett, and Daniel H. Osborn and White & Hall, all of Kansas City, for respondent.
The parties are noted in this Court as respondent and appellant. Respondent, a resident of appellant's State, has no interest in this case, except as assignee and trustee of the beneficiary, and is evidently a party to this record merely to avoid removal of this case to the Federal Court. As no point is made on this, we will not further refer to respondent, save as assignee or trustee of the beneficiary, and we will refer to the interested parties hereafter as "beneficiary" and the "insurance company," to avoid confusion.
The action is founded on a group policy of insurance issued to the Kansas City Southern Railway Company by the insurance company, and W. T. McNabb was issued a certificate of insurance as an employee by the railway company. His wife was beneficiary. Said W. T. McNabb died from accident July 31, 1934.
The insurance company claimed that the certificate of said McNabb had lapsed on account of nonemployment, while the beneficiary claimed that such certificate was kept alive both as to life insurance in the sum of $2,000, and accident insurance in the sum of $2,000, on account of the sickness and physical disability of said W. T. McNabb, and certain leaves of absence.
The jury found for respondent, trustee of the beneficiary, and judgment was rendered for plaintiff (respondent) in the sum of $4,000 on the life and accident features of the policy, and for interest in the sum of $1,640, and for attorneys' fees, amounting to $500 (apparently for vexatious delay), a total of $6,140, and judgment for such sum was rendered in favor of plaintiff; and, after unsuccessful motion for new trial, an appeal to this Court was granted to the insurance company.
The first point made in appellant's briefs is that no case was made for the jury. There is no question about the issuance of the general, or master, policy or the issuance of a certificate under it to W. T. McNabb. The only question of fact is whether or not said insurance, either life or accident, was in force and effect at the time of the death of the insured. Nor is there any question but that insured's death on July 31, 1934, was caused by accident.
To clear away some of the underbrush, we must say, and it is not disputed, that the terms of the master or general policy govern the case and that the burden was upon plaintiff to show that W. T. McNabb, as the insured, was covered by such insurance at the time of his death.
It was provided in such master policy, as follows:
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