Glenn v. Missouri Ins. Co.

• Decision Date: 03 April 1944
• Parties: Ella B. Glenn, by her Next Friend, Ada Kinney, Respondent, v. Missouri Insurance Company, a Corporation, Appellant
• Court: Kansas Court of Appeals

179 S.W.2d 644

238 Mo.App. 236

Ella B. Glenn, by her Next Friend, Ada Kinney, Respondent, v. Missouri Insurance Company, a Corporation, Appellant

Court of Appeals of Missouri, Kansas City

April 3, 1944

Appeal from Jackson Circuit Court; Hon. Brown Harris, Judge.

Reversed.

Watson Ess, Groner, Barnett & Whittaker and Douglas Stripp for appellant.

The court erred in refusing defendant's request for a directed verdict on both counts and in directing verdict for the plaintiff. The extended insurance and defendant's liability on the policy expired prior to the insured's death. Doty v. Amer. Nat. Ins. (Mo.), 165 S.W.2d 862; Casebolt v. Cent. Life Ins. Co. (Mo. App.), (pending on rehearing); Logan v. Fid. & Cas. Co., 146 Mo. 114 47 S.W. 948; Sec. 5831, R. S. 1939; Prange v. Inter. Life Ins. Co., 329 Mo. 651, 46 S.W.2d 523; Tabler v. Gen Am. Life Ins. Co., 342 Mo. 726, 117 S.W.2d 278; Vail v. Midland Life Ins. Co. (Mo. App.), 108 S.W.2d 147; Lacy v. Am. Cent. Life Ins. Co., 232 Mo.App. 1132, 115 S.W.2d 193; Bramble v. Kansas City Life Ins. Co. (Mo.), 160 S.W.2d 746; Hussey v. Ohio Nat. Life Ins. Co. (Mo. App.), 119 S.W.2d 455; Legrand v. Central States Life Ins. Co., 235 Mo.App. 323, 132 S.W.2d 1105; Wendorff v. Mo. State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99; Adams v. Met. Life Ins. Co., 228 Mo.App. 915, 74 S.W.2d 899; State ex rel. v. Trimble, 306 Mo. 295, 267 S.W. 876.

Carl L. Anderson for respondent.

The court did not err in directing a verdict for the plaintiff because the policy of insurance insofar as its clauses with reference to term insurance and life insurance are conflicting and ambiguous and therefore should be construed most favorably to the respondent. Doty v. American Nat'l Ins. Co. (Mo.), 165 S.W.2d 862.

Sperry C. Boyer, C., not sitting.

OPINION

SPERRY

Ella B. Glenn, plaintiff, was beneficiary in a policy insurance, issued on the life of Blanche Mills deceased, by Missouri Insurance Company, defendant. There was a directed verdict for plaintiff and, from a judgment based thereon, defendant appeals.

It is conceded by both parties that if the policy provides, in plain and unambiguous languages, for term insurance during the first year of its life, and ordinary or whole life thereafter, then plaintiff was not entitled to recover and the judgment should be reversed; and that if the language of said policy is ambiguous, so as to require construction, we must give it that construction which is most favorable to plaintiff, and hold that the policy, from the date of its issue, provided ordinary or whole life only. In the latter event the judgment must be affirmed. The question presented is one to be determined exclusively from the language of the policy itself.

Nowhere on or in the policy do there appear any words purporting to describe or name the type of the policy or the kind of insurance therein provided. One of the provisions of the policy which must be considered in disposing of this case, appears at the top of the front page thereof, to-wit:

"In Consideration of the application for this Policy, which is hereby referred to and made a part of this contract, and in further consideration of the payment in advance of the premium stated in Schedule below, on or before every Monday hereafter during the life of the insured, twenty (20) per cent of which premium is for life insurance and eighty (80) per cent of which is for insurance against disability from sickness or accident, the Missouri Insurance Company doth hereby agree, subject to the conditions herein, to pay to the beneficiary the amount of death benefit provided herein within twenty-four (24) hours after due proof of death has been furnished the Company, and in case of sickness or accident to pay to the insured the weekly benefits named in Schedule below according to the terms hereof; . . . (Italics ours.)

"The 'schedule' above referred to provides level premium rates.

Another provision necessary to be considered appears on the same page, in the first of a series of paragraphs stating various conditions governing said policy, immediately under the following:

"This Policy is Issued and Accepted Subject to the Conditions Set Forth in this Folio, and the Reverse Side Hereof, Each and All of Which are Hereby Made a Part of this Contract."

The first paragraph appearing thereunder is as follows:

"The first year's insurance under this policy is Term Insurance. Thereafter a reserve shall be accumulated upon the basis of the Standard Industrial Table of Mortality with 3 1/2 per interest, and in the event of default of payment of premium when due, after premiums for three full years have been paid, this policy, without action on the part of the insured, will be extended for the full amount of the natural death benefit only, for such length of time as three-fourths of the reserve hereunder at the anniversary immediately preceding the date of such default, will purchase according to the Standard Industrial Table of Mortality with 3 1/2 per cent interest."

The difference in the size of the type used in the various above-quoted provisions of the policy is demonstrated by the difference in the size of the type used herein. All of the paragraphs in the section from which the last above-quoted is taken, appear in the same size type, and are equally clear and legible.

Plaintiff contends that the policy here considered is ambiguous because the insuring and consideration clauses (the first paragraph quoted), provides whole life insurance, while the first sentence in the first paragraph appearing under "conditions" provides term insurance during the first policy year. She contends that the policy involved in this case is so similar to that considered in Doty v. American National Insurance Company, 165 S.W.2d 862, is to be indistinguishable. Defendant contends that the policy is to be distinguished from that considered in the Doty case and that it is governed by the rule declared in Legrand v. Central States Life Insurance Company of St. Louis, 235 Mo.App. 323, 132 S.W.2d 1105, wherein it was held that whole life insurance and term insurance were combined in a policy without ambiguity, and that said policy was not subject to construction but must be enforced as written.

In Doty v. American National Insurance Company, supra, l. c. 868, the following language appears: "The insuring clause promises payment on proof of the death of the insured. The consideration clause requires equal or level payments during the continuance of the contract. These clauses provide whole life insurance only." (Italics ours.) An examination of the policy here considered discloses an identical situation in that respect.

In the Doty case the court further said, l. c. 868, 869:

"We next come to the 'Agreement and Conditions' of the policy. Under 'Ninth' and in small letters we find the following: 'No suit shall be brought against the Company after two years from the date of the death of the Insured. If any suit be commenced after two years, the lapse of time shall be...