Eisen, Admr., v. John Hancock Mut. L. Ins. Co., 18472.
| Decision Date | 27 January 1936 |
| Docket Number | No. 18472.,18472. |
| Court | Missouri Court of Appeals |
| Parties | IKE EISEN, ADMINISTRATOR OF THE ESTATE OF MORRIS EISEN, DECEASED, RESPONDENT, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, APPELLANT. |
Appeal from Circuit Court of Jackson County. — Hon. Emory H. Wright, Judge.
AFFIRMED.
Frank H. Backstrom and Paul E. Bayse for respondent.
Meservey, Michaels, Blackmar, Newkirk & Eager and Robert E. Coleberd for appellant.
This is a suit upon a group life insurance policy. The case was tried before the court, without the aid of a jury, resulting in a judgment in favor of the plaintiff in the sum of $1000. Defendant has appealed.
The facts show that on June 30, 1931, the Associated Interstate Druggists, Inc., referred to in the testimony as the A.I.D. (and for convenience we will hereinafter so describe it) applied to the defendant for a group life insurance policy on its employees. Said policy, described as "one year renewable term insurance," was issued by the defendant on August 18, 1931.
The A.I.D. is a cooperative druggists' buying association composed of a number of druggists in Kansas City. Whether it is a corporation or a voluntary association is not shown in the evidence. However, no point is made that employees of the individual druggists were not covered by the policy where the proper steps for coverage were taken. Such coverage is admitted. Some of the individual druggists employers paid all of the premiums covering the insurance of their employees and some of them required each of his employees to pay his (employees) part.
B.L. Medicus was the owner and operator of a drug store located at 43rd Street and Prospect Avenue, in Kansas City, and was a member of the A.I.D. Insurance under the group or master policy in favor of the individual employee was commonly initiated by the employee signing a card. There is a dispute between the parties as to the nature of this card, defendant insisting that it was an application to the defendant by the employee for insurance under the master policy and plaintiff insisting that it was a mere "data" card for information to the defendant as to the employees of the individual druggists and an authorization to the employer by the employee to deduct a certain sum per month from the employees salary to be paid toward the insurance premium. We will later discuss the nature of this card.
Cards at the Medicus store were signed by himself, his wife and three employees, the last consisting of a porter and two delivery boys. Two thousand dollars of insurance was taken by Medicus and his wife, each, and $1000 by each employee, making $7000 in all. The monthly premium provided to be paid on each $1000 worth of insurance was eighty-five cents. According to the cards signed the employees, each, were to pay sixty of the said eighty-five cents and Medicus was to pay the balance. However, Medicus paid the entire premium for all of his employees except that of the porter, his part of the premium being collected from him by Medicus. Medicus forwarded an amount equalling the entire premiums to the A.I.D. at its office in Kansas City, who collected from the numerous individual druggists all of the premiums under the master policy and forwarded the same to the defendant at its home office in Boston, Massachusetts.
On August 18, 1931, when the master policy took effect the two delivery boys employed by Medicus were Morris Saunders and Donald English. These employees signed the cards. The one signed by Donald English is typical of all the rest and reads as follows:
"Form 36
"Ad 3-26 30
"JOHN HANCOCK MUTUAL LIFE INSURANCE
COMPANY of Boston, Massachusetts
--------------------------------------------------------------
"Name of
Employer A.I.D
--------------------------------------------------------------
"Name of Married or
Employee English Donald Francis Single
Last First Middle
--------------------------------------------------------------
"Address 3909 Olive K.C. Mo. Color
Street City State W
--------------------------------------------------------------
"Date of Birth November 5th, 1917 Age nearest
Month Day Year Birthday 14
--------------------------------------------------------------
"Continually Employed Since
Month Day Year
--------------------------------------------------------------
"Occupation General Employee Dept
--------------------------------------------------------------
"Amount of Insurance $1,000
--------------------------------------------------------------
"Name of
Beneficiary English George H. Relationship
Last First Middle Father
--------------------------------------------------------------
"I hereby authorize deduction of 60c per month from my wages
to apply towards cost of this insurance
"DONALD FRANCIS ENGLISH.
______________________________________________________________
(Signature of Employee.)
"Date ______
"Note — Day, Month and Year necessary
initials not sufficient. Please print names
in full."
An individual certificate of insurance was issued to English, but on August 24, 1931, Morris Eisen, a minor, was employed by Medicus as a delivery boy in the place of English. Thereafter, English worked for Medicus "just occasionally, not steady." Rose testified that, so far as possible, he filled out these cards for the employees and they signed them but where the employee was not on duty the cards were left with the owner of the store to be signed; that these cards, after being filled out and signed; were delivered by Rose to the local branch of the defendant, which forwarded them to the defendant's home office in Boston; that from these cards another card was made out at the home office containing the information shown on the original card; that the two cards, together with an individual policy for the employee, were mailed to the defendant's branch office in Kansas City which office delivered the cards made by the defendant to the A.I.D.'s general office in Kansas City, and retained the original card signed by the employee; that when the group policy was issued the defendant sent to the A.I.D. a file box for the purpose of filing the cards the former would deliver to the latter. When the cards were sent from the home office to Kansas City individual policies accompanied them for each of the employees mentioned in the cards. These policies were delivered by Rose to stores where such employee worked.
It appears that when the application for the group policy was taken the five persons above mentioned at the Medicus store, signed cards which were sent to the defendant's home office and individual policies were there issued to each of such five persons. Whenever any new persons were employed by the various druggists it was customary to have each of such employees sign a card which was forwarded to the defendant's home office in the same manner as above outlined with the same procedure.
The premiums were paid monthly by the A.I.D. to the defendant in the following manner: Rose, who had a copy of the cards in question and who kept a record of each individual certificate of insurance issued, made up from his records invoices or bills for the various stores on one sheet, the original of which was turned over to Mr. Smith, the accountant and bookkeeper for the A.I.D., Rose, keeping a duplicate. The master policy, being issued on the 18th day of the month, the invoices or the bills for the premiums on the insurance was for a period covering the time elapsing between the 18th of the month when they fell due and the 18th of the succeeding month. The bills were made out as near as possible after the first of the month following the month in which the day occurred when the current premium began to run. For instance, the premium for the month beginning on January 18th, and ending on February 18th, was required to be paid over to the defendant by the A.I.D. by the 18th of February, there being thirty days of grace allowed. Rose would forward his invoices or bills to the A.I.D. as near after the first day of February as possible so that the A.I.D. could collect the premiums shown to be due on the bills from the individual druggists, whose employees were insured, prior to the 18th of February. As before stated the policy provided a grace of thirty days for paying the premium so that the premium falling due on January 18th, was not required to be paid until February 18th.
Medicus' wife attended to the matter of making the payments on the insurance at his store and looking after the insurance of the individual employees. However, she neglected to notify the defendant, or any of its agents, or Rose, that Morris Eisen had been employed by Medicus. Eisen became ill with a cold on January 8, 1932. Evidently, his illness was not thought to be serious for the reason that he desired to continue at work but Medicus thought that he should stay at home, which he did. However, at this time Medicus looked through the individual policies of insurance in his possession. He found the one that had been issued to Donald English but discovered that none had been issued to Eisen. So he telephoned Smith at the office of the A.I.D. the next morning and told him to cancel the English policy and to...
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