Doty v. The Western & Southern Life Ins. Co.

Decision Date07 May 1929
Docket NumberNo. 20667.,20667.
CourtMissouri Court of Appeals
PartiesNANCY B. DOTY, RESPONDENT, v. THE WESTERN & SOUTHERN LIFE INS. CO., A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

Appeal from the Circuit Court of the County of St. Louis. Hon. Jerry Mulloy, Judge.

AFFIRMED.

Fordyce, Holliday & White, Walter R. Mayne for appellant.

Joseph O'Meara, Jr., of counsel.

(1) The court erred in overruling defendant's objection to the introduction of plaintiff's evidence for the reason that plaintiff's petition failed to state facts sufficient to constitute a cause of action. Mayhew, Admr., v. Mutual Life of Illinois, 217 Mo. App. 429; Shaver v. Mercantile Insurance Co., 79 Mo. App. 420; Howe v. Pac. Mut. Life Ins. Co., 75 Mo. App. 63; Story v. Am. Central Ins. Co., 61 Mo. App. 534. (2) The court erred in overruling defendant's objection that plaintiff, not being the qualified administratrix of the insured's estate, had no right to maintain suit on the policy. McDaniels v. Western & Southern Life Ins. Co., 164 N.E. 192; Manning v. Prudential Ins. Co., 213 S.W. 897; Griffith v. Prudential Ins. Co., 172 Ill. App. 304; Huebner v. Metropolitan Ins. Co., 146 Ill. App. 282; Bishop v. Prudential Ins. Co., 217 Ill. App. 112; Floyd v. Prudential Ins. Co., 72 Mo. App. 455; Nolan v. Prudential Ins. Co., 123 N.Y.S. 688; Bradley v. Prudential Ins. Co., 187 Mass. 226; Lewis v. Metropolitan Ins. Co., 178 Mass. 52; Prudential, etc., Co. v. Godfrey, 75 N.J. Eq. 484; Marsulis v. Metropolitan Life Ins. Co., 79 N.J. Law 271; Walton v. Metropolitan Life Ins. Co., 232 S.W. 259. (3) The burden of proof was on the plaintiff to establish the policy was in force at the time of the death of the insured. See authorities, point 1. (4) The court erred in overruling defendant's demurrer at the close of the plaintiff's case and at the close of the entire case. See authorities, points 1 and 2. (5) The court erred in failing to give and read to the jury defendant's instruction No. 1. Smith v. Southern, 236 S.W. 413.

Thomas R. McGinnis and Wm. H. Bray for respondent.

HAID, P.J.

This is an appeal from a judgment in favor of plaintiff for $500 upon an industrial insurance policy issued by the defendant. The facts will sufficiently appear in the consideration of the questions presented and it will therefore be unnecessary to state them here.

The defendant's first contention is that the court erred in overruling defendant's objection to the introduction of any evidence for the reason that plaintiff's petition failed to state facts sufficient to constitute a cause of action. We have examined the petition and are satisfied that it does sufficiently state a cause of action. It alleges that on or about July 22, 1927, defendant issued and delivered a policy of insurance upon the life of the deceased, and that the amount of such policy was payable upon the death of the insured to plaintiff; that the insured paid certain premiums; that insured died on a certain day; that notice of death was given defendant and demand made for payment and payment was refused. The defendant's objection is based upon the fact that there is no allegation that at the time of the death of the insured, September 6, 1927, the said policy was in full force and effect and that plaintiff or the insured had complied with the terms and conditions of said policy and it cites in support of its position the case of Mayhew v. Mutual Life of Illinois, 217 Mo. App. 429, 266 S.W. 1001, but, as was said in the case last cited, (l.c. 439):

"The only objection to the petition at the trial was made by an objection to the introduction of any testimony. This form of attack on a petition, while allowable, is not favored by the courts and after verdict all reasonable intendments will be indulged in favor of sustaining it. The ultimate purpose to be accomplished by the allegations of a petition is to furnish a basis for a judgment and to notify the defendant what he must defend against." [Ahern v. Collins, 39 Mo. 145.]

In the case of McIntyre v. Ins. Co., 142 Mo. App. 256, 266, 126 S.W. 227, the court holds that the rule of construction after answer is filed and the issues are tried is that the petition is to be liberally interpreted and every reasonable inference indulged in favor of the pleader. [Hays v. Miller's Estate, 189 Mo. App. 72, 77, 173 S.W. 1096.]

Testing the petition by the cases above cited, it is apparent that the objection made to the introduction of any evidence goes only to matters to be pleaded in defense. While it is true that the petition does not allege the provision in the policy granting the insured a period of grace for the payment of premiums it does allege that the policy was issued and delivered on July 22, 1927, and that four weeks' premiums were paid from said date and that the insured died on September 6, 1927, but from this it cannot be inferred that such premiums carried the insurance for only four weeks but on the contrary, for aught that appears in the allegation the premiums paid carried the insurance for a period beyond the date of the death of the insured. Since, under the decisions referred to, the allegations of the petition under the circumstances here present must be construed most favorably to plaintiff and every fair inference drawn therefrom in plaintiff's favor, and the fair inference being that plaintiff had in mind that the policy was in force at the time of the death of the insured, otherwise suit would not have been filed, we hold that the petition did sufficiently state a cause of action which was not subject to attack after verdict.

The next contention made by the defendant is that plaintiff cannot maintain the action because she had not qualified as Administratrix of the deceased insured.

The policy in suit did not name a beneficiary in the body of the instrument. It contained a "facility of payment" clause in the form generally in use in industrial insurance policies which provided that the company might make payment "to any relative by blood or connection by marriage of the insured, or to any person appearing to the company to be equitably entitled thereto by reason of having incurred expense or obligations on behalf of the insured or for the insured's burial; and the production by the company of a receipt signed by any or either of said persons or other proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and all claims under this policy have been fully satisfied." The policy, however, did have attached to it a rider dated July 22, 1927, reading as follows:

"The undersigned, insured under policy No. 7058598 in the above company, hereby authorizes the said company to pay the amount of insurance due under said policy to Nancy B. Doty, my mother.

"It is agreed that this authorization is not to vary in any way or alter the terms and conditions contained in said policy, especially the `facility of payment' provision therein."

Upon this rider again appeared the facility of payment clause containing the provision heretofore recited and at the end of the rider the same was signed by the insured.

No contention was made, either in the defendant's pleading or at the trial, that it had paid the amount of the policy to any of the persons designated in the facility of payment clause, and, therefore, as is said in the case of Wallace v. Insurance Co., 174 Mo. App. l.c. 120, 157 S.W. 1028; "Its position that it will pay only the executor or administrator comes, we think, with rather bad grace," when, by the very terms of the clause referred to, it might have paid any of the persons named therein, and the receipt of such person would have protected the defendant against any other claim. [Jackson v. Metropolitan Ins. Co. (Mo. App.), 294 S.W. l.c. 455.]

In the Wallace case above referred to, the soliciting agent represented to plaintiff that the amount of the policy would be paid the latter if he had possession of the policy and plaintiff was held to be entitled to the fund because of such representation, notwithstanding the policy purported to be payable to the executors or administrators of the insured and although there was nothing in writing providing for a payment to plaintiff.

The defendant relies upon the decision in the case of Manning v. Prudential Ins. Co., 202 Mo. App. 124, 213 S.W. 897, in which this court held that a facility of payment policy made payable to the executor or administrator of the insured could not be enforced in an action by a sister of the insured notwithstanding the fact that she paid the premiums upon the policy. This case is quite different from the one under consideration in the fact that that policy, under its terms, was made payable to the executor or administrator of the insured, reserving the right to the insurer to pay to others, without, however, conferring on such others the right to compel payment to them.

The defendant puts much reliance on the case of McDaniel v. Western & Southern Life Ins. Co., 164 N.E. 192, but after due and careful consideration, while the opinion is persuasive, we are unable to subscribe to the doctrine announced in that case.

In the present case, as in the McDaniel case, the rider which was attached to the policy...

To continue reading

Request your trial
6 cases
  • Doty v. Western & Southern Life Ins. Co.
    • United States
    • Missouri Court of Appeals
    • 7 Mayo 1929
  • Bradshaw v. Metropolitan Life Ins. Co.
    • United States
    • Missouri Court of Appeals
    • 7 Diciembre 1937
    ... ... Metropolitan Life Ins. Co. (Mo.App.) 3 S.W.2d 397; Doty v. Western & Southern Life Ins. Co., 223 Mo.App. 360, 16 S.W.2d 712; Williams v. Metropolitan Life ... ...
  • Moldovan v. John Hancock Mut. Life Ins. Co.
    • United States
    • Missouri Court of Appeals
    • 7 Febrero 1939
    ... ... 110, 157 S.W. 1028; Chandler v. American Life & Accident Ins. Co., Mo. App., 96 S.W.2d 883; Doty v. Western & Southern Life Ins. Co., 223 Mo.App. 360, 16 S.W.2d 712; Burns v. Prudential Ins. Co., ... ...
  • Jones v. Prudential Ins. Co. of America
    • United States
    • Missouri Court of Appeals
    • 3 Febrero 1942
    ... ...         Action on two life policies by Roy B. Jones agaisnt Prudential Insurance Company of America, ... Prudential Ins. Co. of America, 227 Mo.App. 689, 56 S.W.2d 1066; Doty v. Western & ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT