Craig v. Metropolitan Life Insurance Co.

• Decision Date: 07 June 1927
• Parties: CATHERINE CRAIG, AND KEELING B. WELLS, ADMINISTRATOR OF THE ESTATE OF ROBERT PAUL, DECEASED, RESPONDENTS, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

296 S.W. 209

220 Mo.App. 913

CATHERINE CRAIG, AND KEELING B. WELLS, ADMINISTRATOR OF THE ESTATE OF ROBERT PAUL, DECEASED, RESPONDENTS, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.

Court of Appeals of Missouri, St. Louis

June 7, 1927

Appeal from the Circuit Court of Montgomery County.--Hon. Ransom A Breuer, Judge.

Judgment reversed and cause remanded.

Hunter & Chamier for appellant.

Fordyce Holliday & White of counsel.

(1) As the policy provides by its terms that it was payable only to the executor or administrator of the insured, and as plaintiff Catherine Craig brings her suit as the mother of the deceased, and not as his administratrix, and it is admitted that she is not the administratrx, the court erred in overruling the demurrer to the evidence, because plaintiff Catherine Craig was not qualified to maintain her suit. Manning v. Prud. Ins. Co., 202 Mo.App. 124, 213 S.W 897; Burns v. Prud. Ins. Co., 253 S.W. 81; Walton v. Met. Life Ins. Co., 207 Mo.App. 296, 232 S.W. 259. (2) It was error to render judgment for plaintiff Keeling B. Wells. The answer denied his appointment as administrator and his capacity to sue, and there is no proof whatever in the record showing his appointment, or that he had any right to maintain this suit. (3) Proofs of death, which are not contradicted or explained by other evidence, are prima-facie evidence of the facts therein stated, and are conclusive as admissions. Stephens v. Met. Life Ins. Co., 190 Mo.App. 673; Castens v. Sup. Lodge, K. & Lh., 190 Mo.App. 57; Bruck v. Life Ins. Co., 194 Mo.App. 529; Hicks v. Life Ins. Co., 196 Mo.App. 162. (4) The verdict and judgment should have been for the defendant, because--(a) The evidence conclusively established the fact that at the time the insured made application for the policy, he was suffering from pulmonary tuberculosis, from which he afterwards died; (b) That on October 20, 1924, the date of the policy, and later when same was delivered, the insured was not in sound health, as required by the provisions of the policy See authorities under last point, above. (5) There was no showing that defendant's refusal to pay was wilful or without reasonable cause, as the facts would have appeared to a reasonable and prudent man at the trial, and the court should not have awarded attorney's fees for vexatious refusal to pay. Weston v. American Ins. Co., 191 Mo.App. 282; Patterson v. American Ins. Co., 184 Mo.App. 44; Keller v. Insurance Company, 198 Mo. 460; Non-Royalty Shoe Co. v. Assurance Co., 277 Mo. 423; Berryman v. Southern Surety Co., 227 S.W. 96; Rogers v. Insurance Company, 157 Mo.App. 671; Renfro v. Insurance Company, 148 Mo. 258; Blackwell v. Insurance Company, 80 Mo.App. 78. (6) The court erred in permitting petition to be amended by making Keeling B. Wells a party plaintiff, as it amounted to the substitution of an entirely different cause of action for the one originally pleaded. Meyer v. Ry. Co., 271 S.W. 865, 866, and cases cited. (7) The petition filed does not state facts sufficient to constitute a cause of action.

Claude R. Ball for respondents.

(1) The court was within its rights in permitting the administrator to be made a party plaintiff. The cases cited by defendant are not in point. In this case, in any event, the parties plaintiff and defendant are the only parties interested in the result. The coming of the administrator into the case made no change in the cause of action, and the court acted in accordance with the statute and its discretion in so permitting the administrator to be made a party plaintiff. Secs. 1274, 1275 and 1276, R. S. 1919; Merrill v. City of St. Louis, 83 Mo. 244; Lilly v. Tobbein, 103 Mo. 477; Turner v. Noble, 211 Mo.App. 656; Oakley v. Richards, 275 Mo. 266. (2) The petition filed by Catherine Craig was adopted by plaintiff Keeling B. Wells, with permission of the court, and if the defendant was advised that that petition was defective a demurrer was one way to determine that question, but defendant made no objection in any way to the petition, or hearing thereon, and judgment was rendered for plaintiff on the verdict and finding of the court. The defect, if any, was waived by defendant, for the defect or omission, as contended by defendant's brief, was "cured by the verdict, the statute treating the proper amendment as having been made." Kronski v. Railway, 77 Mo. 362; Sec. 1550, R. S. 1919; Turner v. Noble, 211 Mo.App. 656; Green v. Strother, 201 Mo.App. 418. (3) The proofs of death were prepared by the defendant. The evidence shows that Catherine Craig could neither read nor write, and it was done by defendant's agents the morning of the day Robert Paul was buried. She was told that it was necessary for her to sign same to get the insurance. Told Wells, who was present, to go ahead and bury the body, as the insurance would be paid. She had nothing to do with the doctor's statement, never heard it read, and at the direction of defendant's agents her husband took the blank to Dr. Menefee and returned home with it and it was given to said agents. She was told to touch the pen, and did it. She testified that she did not know what any of the papers contained or meant, and is not an admission, except possibly as against interest, which may be and was overcome by the evidence, and was no admission against the administrator in any sense. "And in no event can such an admission of this character be conclusive," etc. Bruck v. Ins. Co., 194 Mo.App. 529, l. c. 538. (4) The refusal of defendant to pay this small sum to this "negro mammy" was willful, and defendant's answers, and its conduct, in failing to comply with section 6145, Revised Statutes 1919, is corroborative of plaintiff's evidence, and authorized the verdict allowing attorney's fee, and the authorities cited by defendant are not in point in this case. (5) The evidence was sufficient to take the case to the jury, and the verdict and judgment of the court, in accordance with the statute, whether plaintiff was entitled to recover, was for the court, sitting as a jury, to determine. Sec. 6142, R. S. 1919; Dye v. N. Y. Life Ins. Co., 207 Mo.App. 540; Manning v. Ins. Co., 202 Mo.App. 124; Bruck v. Ins. Co., 194 Mo.App. 529.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

This is an action on an industrial insurance policy for $ 260, and was instituted by Catherine Craig, mother of the insured Robert Paul.

The case was tried by the court without the intervention of a jury. Before the submission of the case, but after the court had overruled the defendant's demurrer offered at the close of all the evidence, during the argument of counsel, the court indicated that plaintiff, Catherine Craig, was not entitled to maintain the suit, whereupon counsel for plaintiff asked the court to take a recess to afford plaintiff time to have an administrator of the estate of the deceased insured, Robert Paul, appointed. A recess was taken and thereafter, over the objection of defendant, Keeling B. Wells was permitted to be made a party plaintiff as administrator of the estate of Robert Paul, deceased, and to adopt the petition which had theretofore been filed by Catherine Craig. The defendant, upon the overruling of his objection to said Wells administrator being made a party plaintiff, filed an answer in which it denied that the said Wells was the administrator of the estate of Robert Paul, deceased, and denied that Wells had any legal capacity to sue. The cause was then re-submitted to the court on the evidence theretofore adduced, together with additional evidence offered by plaintiff directed to the question of attorneys' fees.

Judgment resulted in favor of both plaintiffs and against the defendant for the full face of the policy, $ 260, together with $ 75 attorneys' fees.

The record discloses that the policy in question herein sued upon is an ordinary or old line life insurance policy issued by the defendant company, which does a life insurance business upon the level rate plan. The policy is what is generally termed an industrial policy containing the so-called facility of payment clause, by the terms of which the amount stipulated in the policy, in the event of the death of the insured, is payable to the executor or administrator of the insured, the company, however, reserving the right to make the payment or grant any non-forfeiture privilege provided in the policy to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably...