Gallagher v. Simmons Hardware Co.

• Decision Date: 08 January 1924
• Citation: 258 S.W. 16,214 Mo.App. 111
• Parties: MRS. ANNA GALLAGHER, Respondent, v. SIMMONS HARDWARE COMPANY and AETNA LIFE INSURANCE COMPANY, Defendants, SIMMONS HARDWARE COMPANY, Appellant
• Court: Missouri Court of Appeals

258 S.W. 16

214 Mo.App. 111

MRS. ANNA GALLAGHER, Respondent, v. SIMMONS HARDWARE COMPANY and AETNA LIFE INSURANCE COMPANY, Defendants, SIMMONS HARDWARE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

January 8, 1924

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.

REVERSED.

Judgment reversed.

Smith & Pearcy for appellant.

Benj. J. Klene for respondent.

NIPPER C. Allen, P. J., Becker and Daues, JJ., concur.

OPINION

NIPPER, C.--

The Simmons Hardware Company took out a group policy of insurance on the lives of certain of its employees, among whom was James Gallagher, the husband of plaintiff. After this policy was taken out, the Simmons Hardware Company wrote a letter to its employees who were included in this group policy of insurance, stating to them that, by special arrangement with the Aetna Life Insurance Company, the hardware company had contracted for a group life insurance policy to cover the lives of certain employees of the company. Gallagher was advised that he was included in that list. It was suggested to him to name a beneficiary, and in case of his failure to do so, payment would be made to those to whom the hardware company thought it should be made. This letter advised that the insurance was paid for entirely by the hardware company and all that was expected of the employee was that he would do his part in maintaining that spirit of loyalty and co-operation which had characterized the organization from its beginning. The letter also stated that, in the event of the death of the insured while he retained his place as an employee of the company, during the continuance of the insurance, the amount of insurance then in force "will be paid by us to those you leave behind." Accompanying this letter was the following certificate:

"Aetna Life Insurance Company of Hartford, Connecticut, does insure the life of certain employees of Simmons Hardware Company by a group policy of insurance, No. 439, issued and delivered to said employees. Under and subject to the terms and conditions of said policy and application therefor, the life of James Gallagher, an employee, is insured in the sum of four hundred and twenty dollars. The insurance shall be terminated whenever said employee shall leave the employment of the Simmons Hardware Company.

"Dated October 31, 1919; certificate No. 1599."

About the 15th of May, 1920, James Gallagher became sick, and did not report for work at the Simmons Hardware Company again. On the 12th of September, 1920, he died. The plaintiff, his wife, who was designated by him as the person to whom he desired this insurance paid, brought suit against the Simmons Hardware Company and the Aetna Life Insurance Company to recover the amount of the policy. The learned trial judge took the position that the hardware company was liable, and announced his intention of giving a peremptory instruction in the nature of a demurrer as to the defendant Aetna Life Insurance Company, after which the plaintiff dismissed as to the life insurance company, and obtained judgment against the Simmons Hardware Company, after the court had refused to give peremptory instructions in behalf of the hardware company. From this judgment the hardware company appeals.

The trial court...