Longley v. Metropolitan Life Ins. Co. of New York

• Decision Date: 05 April 1932
• Docket Number: No. 21737.,21737.
• Parties: LONGLEY v. METROPOLITAN LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

48 S.W.2d 74

LONGLEY v. METROPOLITAN LIFE INS. CO. OF NEW YORK.

No. 21737.

St. Louis Court of Appeals. Missouri.

April 5, 1932.

Rehearing Denied April 19, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be officially published."

Action by Harry Longley against the Metropolitan Life Insurance Company of New York. From an adverse judgment, plaintiff appeals.

Affirmed.

John A. Davis, of St. Louis, for appellant.

Fordyce, Holliday & White and Walter R. Mayne, all of St. Louis, for respondent.

SUTTON, C.

This is an action on twelve industrial insurance policies, aggregating in amount $1,136, issued by defendant, on the life of Harry Wilson. The trial, before the court, without a jury, resulted in a judgment for defendant, and plaintiff appeals.

The cause is now under submission here on a rehearing. Plaintiff insists "that the judgment, order and decree of the circuit court, under the law and the evidence, is for the wrong party," and asks "that the judgment be reversed and the cause remanded with directions."

Plaintiff alleges in his petition that on November 17, 1925, Harry Wilson, who was his stepfather, borrowed from him the sum of $350, and delivered to him the policies in suit to hold as security for said loan, and agreed for plaintiff to pay the premiums thereon until the death of said Harry Wilson, and that plaintiff retained possession of said policies, and paid the premiums due thereon until the death of said Harry Wilson, all with the knowledge and consent of the defendant.

The policies provide that the company, in consideration of the payment of the premiums, will pay the respective amounts stipulated, to the executor or administrator of the insured, unless payment is made under the facility of payment clause, which provides that the company may pay to the husband or wife, or any relative by blood or 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 on the behalf of insured, or for his burial, and that the production of a receipt signed by either of said persons, or of other proof of such payment, shall be conclusive evidence that all claims under the policies have been satisfied.

The policies also provide as follows: "Any assignment or pledge of this policy, or any of the benefits hereunder, shall be void and of no effect. This policy contains the entire agreement between the company and the insured and the holder and owner hereof. Its terms cannot be changed or its conditions varied, except by a written agreement, signed by the President or Secretary of the company. Therefore, agents (which term includes also superintendents and deputy superintendents) are not authorized and have no power to make, alter or discharge contracts."

There was evidence on the part of plaintiff tending to show that on November 17, 1925, he made a loan of $350 to Harry Wilson; that Wilson delivered to him the policies as security for the loan; that Maurice Rodenberg, an agent of the defendant, was present at the time of this transaction; that it was agreed between the parties that plaintiff should pay the premiums on the policies until the death of the insured; that Mr. Rodenberg told the parties that this arrangement was all right and that plaintiff would receive the money at the death of the insured. Plaintiff's evidence also tends to show that pursuant to this arrangement, he paid the premiums on the policies, to Mr. Rodenberg, until the death of the insured; that Mr. Rodenberg was soliciting agent in charge of a certain debit or district, in the city of St. Louis; that he had authority to solicit insurance, deliver policies, and collect premiums thereon, in said district. It was not shown that the defendant or any of its agents or officers, other than Rodenberg, had any knowledge of the arrangement pledging the policies for the securement of the plaintiff's loan, or that the premiums thereon were paid by plaintiff, until after the death of the insured.

Defendant introduced the receipt of the insured's administrator, who is insured's daughter, acknowledging payment of the policies, and releasing defendant from all manner of claims and demands whatsoever, arising under and by reason of the policies, and also introduced the defendant's canceled check by which such payment was made.

It is obvious, in view of this evidence, that it may not be said, as a matter of law, that the plaintiff was entitled to recover. Of course, if the policies were assigned or pledged to the plaintiff to secure the payment of a loan, and in consideration of his payment of subsequently accruing premiums thereon, with the consent of the defendant, or its agent, authorized to consent thereto on behalf of the defendant, such consent would be binding on the defendant, notwithstanding the provisions of the policies above quoted. James v. Mutual Reserve Fund Life Ass'n, 148 Mo. 1, 49 S. W. 978; Springfield Steam Laundry v. Traders' Ins. Co., 151 Mo. 90, 52 S. W. 238, 74 Am. St. Rep. 521; Bigalke v. Mutual Life Ins. Co. (Mo. App.) 34 S.W.(2d) 1019; New York Life Ins. Co. v. Kansas City Bank, 121 Mo. App. 479, 97 S. W. 195; Jones v. Prudential Ins. Co., 173 Mo. App. 1, 155 S. W. 1106; Bush v. Missouri Town Mutual Ins. Co., 85 Mo. App. 155. But the testimony in this case, with respect to the making of the loan, and the pledge of the policies to secure the loan, is far from conclusive. On the contrary, it is quite dubious. Plaintiff testified that when the arrangement was made for pledging the policies, Maurice Rodenberg, defendant's agent, and one Matt Watts, were present, and that he paid the insured, at the time, $350 in cash. Matt Watts testified that he was present and saw the money paid in cash. He also testified that Mr. Rodenberg was present at the time. Mr. Rodenberg, who was produced by plaintiff, testified that he told the insured and plaintiff that it would be all right to pledge the policies to secure the loan, if it was desired to make such arrangement; but it is significant that he did not testify that any money was paid. He was not in the employ of the defendant at the time he testified, but was employed by a competing company. Plaintiff admitted that at the time the alleged loan was made he was a bootlegger. No note or other written evidence of the loan was taken, and there was no written evidence...