Manning v. Prudential Insurance Co.
| Decision Date | 11 July 1919 |
| Parties | MARY M. MANNING, Respondent, v. PRUDENTIAL INSURANCE CO., Appellant |
| Court | Missouri Court of Appeals |
Rehearing Denied 202 Mo.App. 124 at 132.
Appeal from the Circuit Court of the City of St. Louis. Hon. Leo. S Rassieur, Judge.
REVERSED AND REMANDED. (with directions).
Judgment reversed and cause remanded.
Fordyce Holliday & White, for appellant.
(1) The court erred in admitting in evidence the policy in suit and in overruling the demurred to the evidence offered at the clise of plaintiff's case and at the close of the whole case, for the policy was payable only to the executors or administrators of the insured and the plaintiff had not qualified as such and was not entitled to sue. Floyd v. Prudential Ins. Co., 72 Mo.App. 455; Braley v. Prudential Ins. Co., 187 Mass. 226; Prudential Ins. Co. v. Godfrey, 75 N.J.Eq. 484; Nolan v. Prudential Ins. Co., 123 N.Y.S. 688; Bank v. Vadnais, 26 R. I. 122; Ferretti v. Prudential Ins. Co., 97 N.Y.S. 1007; Heubner v. Metropolitan Life, 146 Ill.App. 282; Lewis v. Metropolitan Life, 178 Mass. 52; Marsulli v. Metropolitan Life, 79 N. J. Law 271. (2) The court erred in refusing to admit in evidence the public records of the Health Department of the City of St. Louis. Reynolds v. Prudential Ins. Co., 88 Mo.App. 679. (3) The court erred in refusing to nonsuit the plaintiff or direct a verdict for defendant as the evidence conclusively showed the insured was suffering from consumption at the time he applied for the policy and knew it and that this disease caused his death. Stephens v. Metropolitan Life Ins. Co., 190 Mo.App. 673.
Jno. B. Dempsey for respondent.
(1) The appellate courts do not weigh evidence; that is the province of the jury, subject to the overseeing control of the trial judge, and the defense of misrepsentation was properly for the jury. Roeschell v. Insurance Co., 176 Mo.App. 591; Cascarella v. Insurance Co., 175 Mo.App. 136; Brush v. Insurance Co., 194 Mo.App. 529. (2) The insurer, under the facility of payment clause, is enabled to protect itself, even against the claim of a named beneficiary, by a payment to some person within the classes designated, but there must be such payment or some demand accepted by the insurer for payment. Wilkinson v. Life Ins. Co., 64 Mo.App. 404; Wilkinson v. Life Ins. Co. 64 Mo.App. 172; Renfro v. Insurance Co., 148 Mo.App. 270; Western & Southern Ins. Co. v. Garvin, 24 Ky. L. R. 444, 68 S.W. 655. (3) The insurer exercises its right of selection when it furnishes blanks for proof of death and subjects a claimant who is within the designated classes to the expense of making proofs of death. Andrews v. Insurance Ass'n. 168 Mo. 151, 166, par. 4; Sherlock v. Ins. Co., 193 Mo.App. 430 (see cases cited, 437). (4) The refusal of the insurer to pay based upon an express ground in a waiver of the defense of incapacity to sue offered against a plaintiff within the classes designated in the facility of payment clause in the contract of insurance. Sherlock v. Insurance Co., supra, (5) There was no error in refusing to admit in evidence the records of the St. Louis Health Department, which is a part of the Hospital Department of the City of St. Louis (see Abs., p. 55). Smart v. Kansas City, 208 Mo. 162. (6) The refusal to permit defendant to read in evidence the records of the Hospital Department of the City of St. Louis, even if erroneous, was not material error, for the defendant was permitted, over plaintiff's objection and exception to prove every fact which those records disclosed by witness Julius Lehman (see Abs., pp. 60-67). R. S. 1909, sec. 2082. (7) The judgment should be affirmed, with 10 per cent damages, especially in view of the fact that the trial jury allowed neither damages nor attorney's fees. Troll v. Insurance Co., 172 Mo.App. 12 (p. 18).
This is an action, instituted before a justice of the peace, on a policy of life insurance issued by defendant insuring the life of Jesse Manning, a brother of the plaintiff. The contract of insurance is what is termed an "industrial policy," whereby, in consideration of a weekly premium of fifteen cents, the defendant agreed to pay the sum of $ 288 upon the death of the insured (or one-half that amount if the insured died within six months after the issuance of the policy") to the executors or administrators of the insured, unless payment were made under the provisions of the so-called "facility of payment" clause in the policy, which is as follows:
"It is understood and agreed that the said company may make any payment or grant any non-forfeiture privilege 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 expenses on behalf of the insured, for his or her burial, or, if the insured be more than fifteen years of age at the date of this policy, 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 privilege to any or either of them shall be conclusive evidence that such payment or privilege has been made or granted to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied."
The insured died on November 27, 1914, within six months after the issuance of the policy; and the suit proceeds for the recovery of $ 144 and interest, and for ten per cent damages and an attorney's fee as for vexatious refusal on defendant's part to pay the insurance.
Plaintiff prevailed before the justice of the peace, and upon defendant's appeal to the circuit court, and a trial there de novo, before the court and a jury, there was a verdict and judgment for plaintiff for $ 144 and interest (without damages or attorney's fee for vexatious refusal to pay), and defendant prosecutes the appeal.
The defendant filed no answer, but its defenses were that only the executor or administrator of the insured could maintain an action on the policy; that the insured was not in sound health at the time of the issuance of the policy, but was suffering from the disease which subsequently caused his death, by reason whereof the policy by its terms was void; and that the policy was procured by the insured by misrepresentations in his application therefor.
The defenses of misrepresentation, and that the insured was at the date of the issuance of the policy suffering from the disease from which he subsequently died, may be briefly disposed of. It appears that the insured died of consumption, or pulmonary tuberculosis. And there is abundant evidence tending to show that he was afflicted therewith at the time of the issuance of the policy and that statements in his application in regard thereto were false; but, on the other hand, there is evidence in plaintiff's behalf tending to rebut and contradict this, such as to make this entire matter a question for the jury. [See Bruck v. John Hancock Ins. Co., 194 Mo.App. 529, and cases there cited, 185 S.W. 753.]
Error is assigned to the refusal of the court to admit in evidence, over the plaintiff's objections, certain records of the Health Department of the City of St. Louis; this ruling being predicated upon the decision of our Supreme Court in Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709. As to this it is only necessary to say that since the court permitted a witness to testify from these records, and to state fully in the presence of the jury the alleged facts recorded therein the exclusion of the records themselves could not, in any event, be prejudicial or reversible error.
The chief point pressed upon us is that by the terms of the policy defendant agreed to pay only the executor or administrator of the insured, though reserving the rights or option to pay anyone falling within the provisions of the "facility of payment" clause; and that the policy vested in plaintiff no right of action whatsoever.
As said, plaintiff is a sister of the deceased. The latter left surviving him a widow, father, mother and two sisters. It appears that the insured applied for the policy at the suggestion of this plaintiff. She testified that she suggested to him that if he wanted to take out any insurance to do so through one Lehr, a collector for defendant who came to plaintiff's home every week; and that thereafter, at plaintiffs instance, Lehr came to her one evening, met the insured there and procured his application for the policy. Plaintiff says that she took no further part in the matter, but was "in and out of the room" while the agent and the insured were together. According to plaintiff's testimony the insured paid the first weekly premium on the policy and plaintiff paid all of the subsequent premiums. According to Lehr's testimony plaintiff paid all of the premiums. It appears that plaintiff contributed $ 50 to the funeral expenses which were otherwise borne by plaintiff's mother.
Shortly after the death of the insured plaintiff filed with the...
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