Jones v. Prudential Ins. Co. of America

• Citation: 158 S.W.2d 209
• Decision Date: 03 February 1942
• Docket Number: No. 25924.,25924.
• Parties: JONES v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Court of Appeal of Missouri (US)

158 S.W.2d 209

JONES v. PRUDENTIAL INS. CO. OF AMERICA.

No. 25924.

St. Louis Court of Appeals. Missouri.

February 3, 1942.

As Modified on Denial of Rehearing February 17, 1942.

Appeal from Circuit Court, City of St. Louis; John W. Joynt, Judge.

"Not to be reported in State Reports."

Action on two life policies by Roy B. Jones agaisnt Prudential Insurance Company of America, a corporation. From a judgment for the defendant, plaintiff appeals.

Affirmed.

John P. Griffin, of St. Louis, for appellant.

Fordyce, White, Mayne, Williams & Hartman and R. E. LaDriere, all of St. Louis, for respondent.

ANDERSON, Judge.

Appellant brought this suit against respondent to recover on two policies of life insurance, issued by respondent upon the life of appellant's father, Lewis M. Jones. The cause was tried before the Court, a jury having been waived, and resulted in a finding and judgment in favor of defendant.

The policies were issued May 18, 1925, at which time insured was 60 years old, unmarried, and residing at appellant's home, where he continued to live until January, 1930, when he married and established a home with his wife, with whom he continued to live until May, 1933, at which time he separated from her. From that date until the date of his death, September 15, 1936, he resided with appellant. At the time the application papers for the policies were being filled out, appellant asked the agent who the money would be paid to in the event of his father's death, and the agent replied that "it would be paid to you as long as you got them (policies)." Thereafter the policies were issued, and both contained the following provisions:

"In Consideration of the payment of the weekly premium herein specified, on or before each and every Monday during the continuance of this Policy or until the anniversary date of the Policy, immediately preceding the seventieth anniversary of the birth of the insured, will pay at its Home Office, Newark, New Jersey, immediately upon receipt of due proof of the death of the Insured, during the continuance of this Policy, the amount of Insurance herein specified, to the executors or administrators of the Insured, unless payment be made under the provisions of the next succeeding paragraph; subject to the `General Provisions' on the second page hereof, which are hereby made part of this contract.

"Facility of Payment.—It is understood and agreed that the said Company may make any payment or grant any non-forfeiture provision provided for in this Policy to any relative by blood or connection by marriage of the Insured, or to any person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, for his or her burial, or for any other purpose, and the production by the Company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled thereto, and that all claims under this Policy have been fully satisfied.

"No condition, provision or privilege of this Policy can be waived or modified in any case except by an endorsement hereon signed by the President, one of the Vice Presidents, the Secretary, one of the Assistant Secretaries, the Actuary, the Associate Actuary or one of the Assistant Actuaries. No modification or change shall be made in this Policy except such as is in accordance with the laws of the State or Province in which the same is issued. No Agent has power in behalf of the Company to make or modify this or any other contract of insurance, to extend the time for paying a premium, to waive any forfeiture, or to bind the Company by making any promise, or by making or receiving any representation or information."

When insured left his son's house in 1930 to live with his wife, he took the policies with him. At that time he was employed by the Century Electric Company, and continued to be so employed until a month or two previous to the separation with his wife in May, 1933. After the separation, the wife, Mrs. Margaret Jones, retained possession of the policies. In 1934, insured made a request that respondent issue duplicate policies, and respondent's superintendent, under date of June 20, 1934, answered as follows:

"I am in receipt of your letter in reference to securing duplicate policies inasmuch as the original policies are in the possession of your wife.

"We will be unable to comply with your wishes and if you desire to continue this insurance, it will be necessary for you to secure these policies from your wife after which we will give this matter our attention."

Insured then served on the superintendent of the respondent's local office the following notice:

"In re: Policies Nos. 64049969 and 64049970.

"I have heretofore requested that you name a specific beneficiary in above policies issued on my life. You have refused to do this without the policies. The policies are now in the possession of my wife from whom I am separated and I cannot get possession of same. I hereby request that said policies be cancelled and that you issue duplicates in place of and in behalf of the above policies and that you name as beneficiary in both of said policies, Roy B. Jones, who is my son. If the premiums are delinquent on said policies at the time of issuing the duplicates, I will pay the premiums up to date and all future premiums accruing on same. I demand that this request be complied with at once.

"Witness my hand and seal this 10th day of August, 1934.

                               "(Signed) Lewis M. Jones."
                

This notice was served by deputy sheriff on August 20, 1934.

Mrs. Margaret Jones kept possession of the policies during the entire time from the date of separation until insured's death. No premiums were paid after the separation, the policies being kept alive on extended insurance under their non-forfeiture provisions.

On November 28, 1936, Margaret Jones was appointed administratrix of the insured's estate, and on or about December 7, 1936, by a check bearing that date respondent paid to her in her official capacity the amount due on both of said policies.

Mrs. Jones testified for the defendant at the trial. She stated that she married the insured January 11, 1930, and that thereafter insured moved into her house, which she had furnished. He then gave her the policies. During their married life, she worked, doing washing, and from her earnings she paid all the premiums which accrued on the policies during the time they were living together. After the separation she was unable to make the payments because she became ill. The policies thereafter lapsed, and went on as extended insurance.

Mr. William P. Tucker, assistant superintendent of the insurance company, also testified for defendant, stating that he talked to Mr. Jones, who told him that he should be recognized as the claimant, as he was the son of the deceased, and his father had lived with him for a period of time. Mr. Tucker also testified that he talked with Mrs. Jones.

The testimony shows that appellant made arrangements for insured's funeral with the Leidner Undertaking Company, and the bill for the funeral was sent to him. There is no evidence, however, that he ever paid this bill, or that he incurred any expense in connection with insured's last illness or burial. Appellant testified that Mrs. Jones refused to have anything to do with the funeral or arrangements therefor.

The record further shows that plaintiff filed this suit December 3, 1936, and service of the writ and petition was had on the superintendent of insurance on December 4, 1936. The record does not show, however, whether or not respond...