Kelly v. The Prudential Insurance Company of America
| Decision Date | 19 April 1910 |
| Citation | 127 S.W. 649,148 Mo.App. 249 |
| Parties | JOSEPH P. KELLY, Admr. of MARY F. KELLY, Deceased, Respondent, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant |
| Court | Missouri Court of Appeals |
Argued and Submitted March 16, 1910.
Appeal from St. Louis City Circuit Court.--Hon. Hugo Muench, Judge.
REVERSED.
Judgment reversed.
Fordyce Holliday & White for appellant.
(1) The demurrer to the evidence offered by the defendant at the close of the case should have been sustained as the evidence showed that plaintiff's intestate, Mary F. Kelly, had no insurable interest in the life of the insured, and hence, the assignment to her was invalid. Whitmore v. Supreme Lodge, 100 Mo. 36; Huesner v. Insurance Company, 47 Mo.App. 336; Insurance Company v Richards, 99 Mo.App. 88; Bruer v. Insurance Co., 100 Mo.App. 540; Insurance Co. v. Ellison, 3 L R. A. (N. S.) 934, and note; Deal v. Hainley, 135 Mo.App. 507. (2) The court erred in admitting, over the objection of defendant's counsel, the testimony of witness Rose Kelly, as to conversations taking place after the assignment of the policy, and, in the absence of the defendant or its agents, between the insured Brophy and the assignee Mary F. Kelly, both of whom were dead at the time of the trial. Brown v. Insurance Co., 109 Mo.App. 135; Wojtylak v. Coal Co., 188 Mo. 260, et seq; Johnson v. v. Burks, 103 Mo.App. 221; Criddle v. Criddle, 21 Mo. 522; Perry's Administrators v. Roberts, 17 Mo. 36. (3) The court erred in admitting in evidence, over defendant's objection, the letter from plaintiff's counsel to defendant and reply of defendant's agent thereto. Authorities under point 2. (4) The court erred in excluding the evidence offered by defendant that it had paid the proceeds of the policy to the public administrator. Floyd v. Prudential Insurance Co., 72 Mo.App. 455; Thomas v. Prudential, 158 Ind. 463; Susquehanna v. Swank, 102 Pa. St. 17; Metropolitan v. Shafer, 50 N. J. Law 72 (11 A. 154); Metropolitan v. O'Farrer (Kas.), 67 P. 835; Ruoff v. Hancock, 86 A.D. 447; Pfaff v. Prudential, 141 Pa. St. 562; Brennan v. Prudential, 170 Pa. St. 488; McCarthy v. Metropolitan, 162 Mass. 254; Bradley v. Prudential, 187 Mass. 226, 72 N.E. 989; Golden v. Metropolitan, 55 N.Y.S. 143; Thompson v. Prudential, 104 N.Y.S. 257; Prudential v. Young, 43 N.E. 253 (Ind.); Thomas v. Prudential (Pa. 1892), 24 A. 82; The State (Metropolitan Life Co. (Prosecutor) v. Shaeffer, 50 N. J. Law 72, 11 A. 154 (8087); Lewis v. Metropolitan (Mass. 1901), 59 N.E. 439; McNalley v. Metropolitan (Pa. 1901), 49 A. 229; Maburg v. Metropolitan (Mich. 1901), 86 N.W. 1026. (5) The court erred in giving plaintiff's instruction. Lemaster v. Railroad, 122 Mo.App. 313, et seq; Sundmacher v. Lloyd, 114 Mo.App. 317; Stanfield v. Loan Assn., 53 Mo.App. 595, et seq; Laughlin v. Gerardi, 67 Mo.App. 372; Forster v. Guggemos, 98 Mo. 391; Rudd v. Insurance Co., 120 Mo.App. 1, l. c. 16. (6) The court erred in refusing defendant's instruction No. 1. Authorities under point 4. (7) The court erred in refusing defendant's instructions Nos. 2 and 3. Authorities under point 1. (8) The court erred in refusing defendant's instruction No. 5. Strode v. Meyer Bros. Drug Co., 101 Mo.App. 627; Deal v. Hainley, 135 Mo.App. 507, and authorities under point 5.
Seneca N. & S. C. Taylor for plaintiff.
(1) The court did not err in overruling defendant's demurrer to the evidence on the ground assigned by the defendant, nor on any other ground. The evidence undeniably shows that Mr. Brophy was largely indebted to Mrs. Kelly, and after taking out the policy upon his own life in his own favor, he assigned it to her on a blank furnished by the defendant for that purpose, and with the defendant's approval, his signature being witnessed by the defendant's agent. Obviously from the evidence, Mr. Brophy made such an assignment to her in payment of his indebtedness to her. Such being the facts, every well-considered case supports the action of the court in overruling the demurrer to the evidence. Quotations from the authorities upon which we rely may assist the court. Ashford v. Ins. Co., 80 Mo.App. 641; Van Cleave v. Union Casualty Co., 82 Mo.App. 682; Reynolds v. Ins. Co., 88 Mo.App. 685; Ins. Co. v. Francis, 94 W. S. 561; Strode v. Drug Co., 101 Mo.App. 627; Locher v. Kuechenmiester, 120 Mo.App. 719; Deal v. Hainley, 135 Mo.App. 513. (2) A policy of insurance is assignable as any other chose in action. Floyd v. Prudential Ins. Co., 72 Mo.App. 459; St. John v. Amer. Mut. Life Ins. Co., 13 N.Y. 31; Brockway v. Mutual Ben. L. Ins. Co., 9 F. 249; Mutual L. Ins. Co. v. Armstrong, 117 U.S. 591; A. O. U. W. v. Brown, 112 Ga. 545; Fitzpatrick v. Ins. Co., 56 Conn. 116; Chamberlain v. Butler, 61 Neb. 730; Prudential Ins. Co. of America v. Liersch, 122 Mich. 436; Steinback v. Diepenbrock, 158 N.Y. 24; Strike v. Wis. Odd Fellows Mut. L. Ins. Co., 95 Wis. 583; Bowen v. Natl. Life Assn., 63 Conn. 460; Rittler v. Smith, 70 Md. 261; Bursinger v. Bank of Waterloo, 67 Wis. 76; Souden v. Home Friendly Soc., 72 Md. 511; Clogg v. McDaniel, 89 Md. 416; Mutual L. Ins. Co. v. Allen, 138 Mass. 24; Dixon v. Natl. L. Ins. Co., 168 Mass. 48; Murphy v. Red, 64 Miss. 614; Johnson v. Van Epps, 14 Ill.App. 201; McFarland v. Creath, 35 Mo.App. 112; Stoelker v. Thornton, 88 Ala. 421; Olmstead v. Keyes et al., 85 N.Y. 598.
This is an action on a policy of insurance upon the life of one William Brophy, the principal, $ 500, payable, unless otherwise paid under conditions in the policy, unto the executors, administrators or assigns of William Brophy. The conditions referred to are in what is called the "facility clause." It is a policy issued by what is called industrial insurance companies and contains the "facility of payment" clause referred to above, which is to the effect that the company may make any payment provided for in the policy, to any relative by blood or connection by marriage of the insured, or to any other person appearing to the company to be equitably entitled to the same by reason of having incurred expenses in any way on behalf of the insured for his or her burial or for any other purposes, and the introduction by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them to be conclusive evidence that such benefits have been paid to the person or persons entitled thereto and that all claims under the policy have been fully satisfied. This "facility clause" is the second article of the conditions, and the policy in suit is No. 15,550,408. The suit in the case was brought by the administrator of Mary F. Kelly, deceased, and it is stated in the petition that after the issue of the policy to Brophy, he had paid the premiums as they fell due and that it was in force when he died October 12, 1908; that "during the lifetime of said William Brophy and for value received, he assigned, transferred and delivered said policy to Mary F. Kelly, of the city of St. Louis, Mo., and that Mary F. Kelly, after said assignment, continued to be the owner and holder of said policy until her death, which occurred on or about the 3d of November, 1908;" that on the 13th of October, 1908, a day after the death of Brophy, the defendant, knowing that the policy had been assigned to Mrs Kelly and recognizing its liability to her upon the policy, obtained it from her for the purpose of preparing proofs of the death of Brophy and promised to make out the proofs of death and then pay her the amount called for by the policy; that on this promise of the defendant, she delivered the policy to it and thereafter on the 3d of November, 1908, died, then being the owner of the policy and entitled to the money called for by it; that the defendant never paid the money to Mrs. Kelly during her lifetime; that on her death plaintiff was appointed her administrator and had qualified as such and had demanded the $ 500 from defendant which defendant had refused to pay; that plaintiff cannot file the policy by reason of having delivered it to the defendant, who has declined to surrender it or to give him a copy of it, and judgment is demanded for the $ 500 and interest.
The answer, after a general denial, sets up the issue of the policy and its terms as before stated; that is to say, that it was payable "to the executors, administrators or assigns of the person named as the insured in the said policy." That Brophy died on the 12th of October at St. Louis; that on the 20th of November, the public administrator, Harry Troll, took charge of the estate of Brophy, under an order of the probate court of the city, and as administrator made a demand upon the defendant company for the proceeds of the policy which the company paid to said Troll. For another defense, it is averred that Mary F. Kelly, plaintiff's intestate, had no insurable interest in the life of William Brophy by relationship or otherwise and that if any assignment of the policy was made by Brophy to Mary F. Kelly, it was null and void, illegal and contrary to public policy, and Mary F. Kelly and plaintiff, her administrator, have no interest or right in the proceeds of the policy. The reply was a general denial. Trial was had before a court and jury. The following paper was produced which was claimed to be the assignment from Brophy to Mrs. Kelly:
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