Eulinberg v. Quick Payment Old Line Life Ins. Co.

• Decision Date: 06 May 1924
• Docket Number: No. 18487.,18487.
• Citation: 261 S.W. 725
• Parties: EULINSERG v. QUICK PAYMENT OLD LINE LIFE INS. CD.
• Court: Missouri Court of Appeals

261 S.W. 725

EULINSERG v. QUICK PAYMENT OLD LINE LIFE INS. CD.

No. 18487.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

"Not to be officially published."

Action by Lou Eulinberg against the Quick Payment Old Line Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Boyer & Threlkeld, of Tarmington, for appellant.

A. M. Spradling, of Cape Girardeau, and Hines & Hines, of Jackson, for respondent.

DAVIS, C.

This is an action by plaintiff on a policy of insurance issued by defendant on the life of Robert F. Eulinberg, deceased, for the payment of $480 in the event of his death while the policy was in force. The cause being tried before the court, judgment was rendered in favor of plaintiff for $566.40, which included the amount of the policy and interest. Defendant appealed.

The cause was tried solely on the evidence offered by plaintiff. The record tends to show that on June 3, 1918, defendant issued and delivered to plaintiff's deceased husband, Robert F. Eulinberg, its insurance policy No. 29477 on the life of plaintiff's husband, in and by which policy defendant agreed, in consideration of the payment of the premium until his death, to pay to the executors or administrators of said insured the sum of $480 upon receipt of proofs of death. The policy contained the following clause:

"If the insured should die after the date hereof, and if all due premiums shall have been paid, this policy shall be incontestable, except for misstatement of age, or military service in time of war. If death should ensue while the insured is engaged in the military or naval service in time of war, the liability of the company shall not exceed the amount paid in premiums on this policy."

There is no evidence that the insured misstated his age, or military service in time of war, or that he was engaged in the military or naval service in time of war. The evidence shows he was a minister engaged in his calling, and doing small jobs for a living.

Shortly after the insured's death, at the instance of defendant, plaintiff forwarded proofs of death and the insurance policy to defendant. Thereafter, defendant denying plaintiff's right to the proceeds of the policy, plaintiff was forced to sue, and did file suit in the Cape Girardeau court of common pleas. In the original petition plaintiff counted on policy No. 29477, alleged to have been issued by the appellant on or about the ________ day of March, 1918, wherein it is alleged that, in consideration of the payments of certain premiums therein provided for and upon receipt of the proofs of death of Robert Eulinberg, the insured, defendant agreed and promised to pay plaintiff, the beneficiary named in said policy, the sum of $480. Thereafter, at the instance of plaintiff, the court ordered defendant to produce into court, for the use of plaintiff at the trial, the policy of insurance issued on the life of deceased, with the premium receipt book showing payment of weekly premiums, which the court found defendant was withholding, and which original policy and premium receipt book defendant filed as per order of court. Thereafter, on May 29, 1923, plaintiff filed an amended petition setting out in substance that defendant promised to pay a certain policy of insurance, No. 29477, to the executors or administrators of said insured upon receipt of proofs of death of said Robert Eulinberg, and which petition recites:

"That on May 24, 1923, the probate judge of Cape Girardeau county, in vacation, made an order refusing to grant letters of administration on the estate of Robert Eulinberg, deceased, because the same was not greater in amount than was allowed by law as the absolute property of the widow of said deceased, and that by virtue of the provisions of section 2, of Revised Statutes of Missouri 1919, this plaintiff as the widow of said deceased is duly authorized to collect, sue for, and retain all the property belonging to the estate of her said husband, Robert Eulinberg, deceased."

The above order of the probate judge was approved and confirmed on June 11, 1923. The evidence further shows that Robert Eulinberg died on February 19, 1919, and that the policy was in full force and effect at that time; that all premiums had been paid; that proofs of death were immediately furnished and received by defendant.

Defendant tiled a motion to strike the amended petition from the files, because the amended petition constituted a complete substitution of parties plaintiff; because it constituted a complete substitution of one cause of action for another without issuance of summons or the service of process; because it constituted a complete departure from the cause of action set up in the original petition, and conferred no jurisdiction; because it completely changed the cause of action, and substituted a totally different cause of action by a totally different plaintiff. This motion was overruled.

Defendant filed an answer, which admitted its corporation, but generally denied. It further set up in its answer as a defense substantially the same allegations set forth in its motion to strike the amended petition from the files. Plaintiff's replication was a general denial of the new matter.

I. Defendant in its brief states that its principal contention relates to the substitution of one plaintiff for another, and the substitution of one cause of action for another, each purporting to have been based on a written contract, shown by the original petition and the amended petition to be one and the same contract. Plaintiff having forwarded the policy of insurance, the premium receipt book, and the proofs of death to defendant, filed suit on said policy as the beneficiary named therein, when defendant failed or refused to pay her the proceeds. As the policy was not in her possession, we may infer that...