Kempf v. Equitable Life Assur. Soc. of United States

• Decision Date: 11 March 1916
• Docket Number: No. 1645.,1645.
• Citation: 184 S.W. 133
• Parties: KEMPF et al. v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: Missouri Court of Appeals

184 S.W. 133

KEMPF et al. v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

No. 1645.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Rehearing Denied April 3, 1916.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Hattie E. Kempf and others against the Equitable Life Assurance Society of the United States. From a judgment for the plaintiffs, defendant appeals. Affirmed.

Alexander & Green, of New York City, and Barbour & McDavid, of Springfield, for appellant. W. T. Lamkin, of Billings, Mo., and J. T. Neville and J. T. White, both of Springfield, for respondents.

FARRINGTON, J.

The plaintiffs (respondents) recovered judgment for $5,000 based on the following petition (formal parts omitted):

"Now at this day come the plaintiffs herein and file this their final amended petition, leave of court being first had, and for their cause of action state:

"That the plaintiff Anna Kempf is a minor and that F. T. Stockard has been by order of this court duly and legally appointed her next friend under the statutes of the state of Missouri and is now acting herein in that capacity; that said Anna Kempf is the daughter, and plaintiff Hattie E. Kempf is the widow, of Joseph E. Kempf, deceased.

"That the defendant is a corporation duly organized under the laws of the state of New York and engaged in the business of life insurance, with its home office in the city and state of New York, and at all times herein mentioned was duly authorized to do business as a life insurance company in the state of Missouri.

"That one of the methods or plans by which the lives of individuals are insured by insurance companies is denominated and commonly called the `Ordinary Life Plan,' whereby the assured pays a stipulated sum of money annually or semiannually at stated periods for and during the entire life of the assured, and wherein the insurer pays to the beneficiary of the assured a stipulated sum at his death.

"That the defendant among the plans adopted and used by it in insuring the lives of individuals adopted and at the times herein mentioned was using such `Ordinary Life Plan' of insurance, and adopted certain forms of policy or insurance contracts for such `Ordinary Life Plan,' one of which forms containing the usual terms and conditions of such `Ordinary Life Plan' is hereto attached and marked `Exhibit A.'

"That on the 12th day of June, 1913, said Joseph E. Kempf applied to the defendant for a policy of insurance upon the said `Ordinary Life Plan' in the sum of $5,000, with plaintiffs herein as beneficiaries of such insurance, and the said Joseph E. Kempf and the defendant thereupon, on said 12th day of June, 1913, entered into a contract whereby the defendant agreed to insure and did insure the life of Joseph E. Kempf on said `Ordinary Life Plan' and did promise to pay to plaintiffs herein in equal parts the sum of $5,000 upon the death of said Joseph E. Kempf; that by the terms of said contract said insurance on the life of Joseph E. Kempf was to take effect and be in force from and after the said 12th day of June, 1913, provided the said Joseph E. Kempf was, on said date, in the opinion of the authorized officers of the defendant in New York, an insurable risk under the rules of said defendant, and the application of said Kempf was otherwise acceptable on the plan and for the amount applied for by him; that said contract was in writing and is shown by the application of said Joseph E. Kempf above mentioned, a copy of which is hereto attached and marked `Exhibit B,' and a binding receipt for the first semiannual premium paid by said Kempf to defendant, a copy of which receipt was executed by M. A. Nelson, the duly authorized and acting agent of defendant, and a copy thereof is hereto attached and marked `Exhibit C'; that all of said acts were done in the state of Missouri and said Joseph E. Kempf was at all times herein stated a resident of the state of Missouri and expected to remain a resident of Missouri.

"That said Joseph E. Kempf on said 12th day of June, 1913, at the time of the signing of said receipt and the presentation of said application, paid to the defendant the sum of $111.25, the amount figured and estimated by the said M. A. Nelson, agent of defendant, as the correct and proper amount to be paid by said Joseph E. Kempf for the first semiannual premium to be paid by him for said insurance on his life in the sum of $5,000, and that pursuant to said application and said receipt a policy of insurance upon the life of said Joseph E. Kempf was by said agreement to be issued to him by defendant in the sum of $5,000.

"Plaintiffs further say that in the opinion of the defendant's authorized officers in New York, the said Joseph E. Kempf was on the 12th day of June, 1913, an insurable risk under the defendant's rules and his said application was otherwise acceptable on the plan and for the amount applied for as aforesaid and thereby the said contract of insurance became and was in full force and effect from and after said 12th day of June, 1913.

"That said Joseph E. Kempf on the 24th day of June, 1913, departed this life while said insurance was in full force and effect, but before any policy was delivered to him by defendant, and thereby the defendant became liable to the beneficiaries named in said application, these plaintiffs, for the said sum of $5,000.

"Wherefore plaintiffs pray judgment against the defendant for the said sum of $5,000 and interest from the filing of this suit, together with their costs."

The answer filed set up the defense: That the assured committed suicide within one year. That the contract, if any, was a New York contract, pleading the New York laws governing suicide cases. That the policy contained the following provision: "Self-destruction, sane or insane, within one year from the date of issuance hereof is a risk not assumed by the society under this policy. In such an event the society will return the premiums actually received." That such provision in New York is a legal provision, pleading certain New York decisions on this question. That the acceptance and approval of the application and the issuance of the policy was done by the defendant's agents in New York. This part of the answer, over defendant's exception, was stricken out, and exception preserved.

That part of the answer pertinent to the issue as we see it, and which we deem decisive of the case and the theory on which the case was tried, is as follows (formal parts omitted):

"Comes now the defendant and for its answer to plaintiffs' amended petition admits that it is a corporation as alleged in said petition. It further admits that on June 12, 1913, Joseph E. Kempf applied to the defendant for a policy of life insurance in the sum of $5,000, and at the same time executed to M. A. Nelson, the agent of the defendant, his promissory note in the amount of $111.25 as and for the first semiannual premium to be due on the policy as applied for, should one be issued as per the terms of said application. * * * Further answering, the defendant denies each and every allegation in said petition contained except as hereinabove admitted to be true, and having fully answered prays to be discharged with its costs."

The facts of the case may be stated as follows:

On June 12, 1913, Joseph E. Kempf made an application to the defendant company for $5,000 insurance on the ordinary life plan, on which day he executed a note for $111.25, the same representing the first semiannual premium. On the same day the defendant's agent executed and delivered the following receipt:

"Received of Joseph E. Kempf one hundred eleven and 25/100 dollars, the first semiannual premium on proposed insurance for $5,000 on the life of self for which the above-mentioned application is this day made to the Equitable Life Assurance Society of the United States. Insurance subject to the terms and conditions of the policy contract shall take effect as of the date of this receipt, provided the applicant is on this date in the opinion of the society's authorized officers in New York, an insurable risk under its rules and the application is otherwise acceptable on the plan and for the amount applied for; otherwise the payment evidenced by this receipt shall be returned on demand and the surrender of this receipt. [Signed] M. A. Nelson, Agent. Dated at Springfield, Mo., 6/12/13."

The application for insurance, mentioned in the receipt, is the usual form of such documents, being a printed blank with printed questions to be answered and filled in by the applicant. It names the plaintiffs herein as beneficiaries, and contains the following stipulation:

"I hereby agree that the policy issued hereon shall not take effect until the first premium has been paid during my good health."

It also contains the following:

"I have paid to M. A. Nelson $111.25 to cover the first semiannual premium on the policy applied for, in accordance with the provisions of the receipt of date and number corresponding to this application, which I hereby accept, and agree to the conditions thereof."

In the application Kempf stated that he used alcoholic beverages to the extent of from one to two ounces before breakfast.

The local medical examiner pronounced Kempf in good health, stated that he was a first-class risk, and recommended him for life insurance. The forms for the application and the receipt were furnished to the defendant's agent by the defendant company. The application was received by the defendant on June 17, 1913, on which date there was made on defendant's record the notation: "Await inspection (habits). A. W. B." Inquiry was made by the defendant, and after the receipt of answers thereto the application shows the following entry thereon in New York: "June 23, 1913. Approved 5,000 age plus 45%. A. L. S." Dr. A. L. Sherill was one of the medical directors of the defendant company at the home office. The following appears under the...