Forck v. Prudential Ins. Co. of America

• Decision Date: 04 December 1933
• Citation: 66 S.W.2d 983,228 Mo.App. 316
• Parties: HELEN FORCK, APPELLANT, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT
• Court: Kansas Court of Appeals

66 S.W.2d 983

228 Mo.App. 316

HELEN FORCK, APPELLANT, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, RESPONDENT

Court of Appeals of Missouri, Kansas City

December 4, 1933

Appeal from Circuit Court of Cole County.--Hon. W. S. Stilwell Judge.

AFFIRMED.

Judgment affirmed.

H. P Lauf and Lewis H. Cook for appellant.

James T. Blair, Jr., Walter R. Mayne, Blair & Blair and Fordyce White, Mayne & Williams for respondent.

CAMPBELL, C. Reynolds, C., concurs.

OPINION

CAMPBELL, C.--

Plaintiff's petition alleges that the defendant is a corporation organized under the law of New Jersey and authorized to transact a life insurance business within the State of Missouri; that on April 18, 1931, her husband, Ben Forck, applied to the defendant for a policy of insurance "together with other employees of the Lee Jordan Lumber Company, a corporation, of Jefferson City, Missouri," for what is known as a group insurance policy in the sum of $ 2000 and designated plaintiff as the beneficiary in the policy to be issued; that at the time the application was made the premium required by the defendant was paid to it; that it thereupon became and was the duty of the defendant to either issue the policy applied for to the said Ben Forck or reject the application within a reasonable time and to notify the applicant thereof; that defendant, in violation of its said duty, wrongfully failed, neglected and refused to issue said policy of insurance to the said Ben Forck, and failed and neglected to reject said application and notify the said Ben Forck thereof within a reasonable time, and that said application was pending with the defendant company at the time of the death of Ben Forck which occurred on May 23, 1931; that defendant did not return or offer to return the premium which it received. Judgment is prayed in the sum of $ 2000, the amount of damages alleged.

The cause was tried and plaintiff had a verdict and judgment in the sum of $ 2000. The defendant filed motion for new trial which the court sustained upon the ground that plaintiff's petition did not state facts sufficient to constitute a cause of action.

Courts have said that a life insurance company receiving an application for life insurance is in duty bound to act with reasonable diligence in accepting or rejecting it, and that failure to do so is a tort for which it is liable in damages. [Duffie v. Bankers Life Insurance Company, 139 N.W. 1087; DeFord v. New York Life Insurance Company, 224 P. 1049; Strand v. Bankers Life Insurance Company, 213 N.W. 349; Metropolitan Life Insurance Company v. Brady, 95 Ind.App. 564, 174 N.E. 99; Security Insurance Company v. Cameron, 205 P. 151; Fox v. Voluntary State Life Insurance Company, 116 S.E. 266; Columbian National Life Ins. Co. v. Lemmons, 222 P. 253; Dyer v. Life Ins. Co., 232 P. 346; American Life Insurance Company v. Nabors, 48 S.W. 459.]

The following authorities hold that an application for life insurance is a more proposal and that the life insurance company receiving an application is not required to accept or reject it or to notify the applicant that his application has been accepted or rejected; that in event the premium accompanied the application the company is liable for a return of the premium if it fails to accept the application within a reasonable time. [Savage v. Insurance Company, 121 So. 487; Metropolitan v. Brady, 174 N.E. 99, 102; National Union Fire Insurance Company v. School District, 182 S.W. 547; Butterfield v. Springfield Life Insurance Company, 278 P. 733; Giddings v. Northwestern Mutual Life Insurance Company, 102 U.S. 108, 111, 26 L.Ed. 92; Thornton v. National Council, 110 W.Va. 412, 158 S.E. 507.]

But plaintiff is not in position to have determined the question as to whether or not the alleged failure of defendant was a breach of duty rendering it liable in damages. The duty, if any, was owing to the applicant, Ben Forck, and not to the plaintiff.

Negligence is a positive wrong, a breach of duty, and no person may recover damages because of the wrong save the one to whom the duty was owing.

The case of Duffie v. The Bankers' Life Ass'n of Des Moines, 139 N.W. 1087, has been cited with approval many times. In that case Joseph M. Duffie on April 8, 1911 applied to the defendant therein for insurance upon his life, naming his wife as beneficiary in the policy applied for. The applicant, Duffie, died on July 9, 1911. The insurance company did not accept or reject the application during the life of the applicant. After the death of the applicant his widow brought suit to recover damages for the alleged negligent failure of the insurance company to...