McAdoo v. Met. Life Ins. Co.

• Decision Date: 07 December 1937
• Docket Number: No. 24161.,24161.
• Citation: 110 S.W.2d 845
• Parties: ROSALIE McADOO (PLAINTIFF), RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION (DEFENDANT), APPELLANT.
• Court: Missouri Court of Appeals

110 S.W.2d 845

ROSALIE McADOO (PLAINTIFF), RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION (DEFENDANT), APPELLANT.

No. 24161.

St. Louis Court of Appeals. Missouri.

Opinion filed December 7, 1937.

Motion for rehearing overruled December 22, 1937.

Writ of certiorari denied February 25, 1938.

Appeal from Circuit Court of the City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

Fordyce, White, Mayne & Williams and Joseph R. Long for appellant.

(1) No statutory presumption of death. R.S. Mo. 1929, sec. 1709; St. Louis Union Trust Company v. Buck, 204 Mo. App. 1, 220 S.W. 716; Eylar v. Prudential Insurance Company of America, 89 S.W. (2d) 150. (2) Evidence insufficient to establish common-law presumption of death. (a) No evidence that insured disappeared from last known place of abode. Heath v. Salisbury Home Telephone Co., 27 S.W. (2d) 31; 326 Mo. 875, 33 S.W. (2d) 118; 8 R.C.L. 709; 17 Corpus Juris, p. 1170, sec. 9; Marquet v. Aetna Life Insurance Co., 128 Tenn. 213, 159 S.W. 733, L.R.A. 1915B 749; Armstrong v. Armstrong, 99 N.J. Eq. 19; Hitz v. Ahlgren, 170 Ill. 60, 48 N.E. 1068; Stinchfield v. Emerson, 52 Me. 465; Modern Woodmen v. Michelin, 101 Okla. 217, 225 Pac. 163, 36 A.L.R. 971; Hansen v. Owens, 132 Ga. 648, 64 S.E. 800; Renard v. Bennett, 93 Pac. 261, 76 Kas. 848; Francis v. Francis, 180 Pa. 644, 37 A. 120, 57 Am. St. Rep. 668; State v. Teulon, 41 Tex. 249; Wright v. Jones, 23 N.D. 191, 135 N.W. 1120; In re Morrison's Estate, 38 A. 895, 183 Pa. 155; Rudolph v. Brown, 150 Ga. 147, 103 S.E. 251; Wentworth v. Wentworth, 71 Me. 74; Miller v. Sovereign Camp, 140 Wis. 505, 122 N.W. 1127, 28 L.R.A. (N.S.) 178; Metropolitan v. Lyons, 50 Ind. App. 534, 98 N.E. 824; Gorham v. Settegast, 44 Tex. Civ. App. 254, 94 S.W. 665; Thetford v. Modern Woodmen, 273 S.W. 666; Styles v. Hawkins (Tex.), 207 S.W. 89; Re Tobin, 15 N.Y.S. 749; Smith v. Smith, 49 Ala. 156; Thomas v. Thomas, 16 Neb. 553, 20 N.W. 846; Kidd v. Joint School District, 194 Wis. 353, 216 N.W. 499; White v. Prudential (Minn.), 253 N.W. 519; National Life and Accident Co. v. Hankerson, 175 S.E. 590; Brotherhood of Locomotive Firemen v. Hall, 64 S.W. (2d) 744; American National Insurance Co. v. Gracia, 46 S.W. (2d) 1011; Fowler v. Hardee, 16 S.W. (2d) 154. (b) No showing of diligent inquiry at last known place of abode. Heath v. Salisbury Home Telephone Co., 27 S.W. (2d) 36, supra; Shown v. McMackin, 77 Tenn. (4 Lea) 601, 42 Am. Rep. 680; Greenleaf on Evidence (15 Ed.), sec. 278; 8 R.C.L. 709; Donovan v. Twist, 93 N.Y.S. 990, 105 App. Div. 171; Eklund v. Supreme Council, 152 Minn. 120, 87 N.W. 26; Modern Woodmen of America v. White, 70 Colo. 270, 199 Pac. 965, 17 A.L.R. 393, l.c. 398; Armstrong v. Armstrong, 99 N.J. Eq. 19; Renard v. Bennett, 93 Pac. 261, 76 Kan. 848; In re Morrison's Estate, 38 A. 895; Sackett v. Metropolitan, 260 Mich. 466, 245 N.W. 499; Hill's Admx. v. Metropolitan Life Insurance Co., 240 Ky. 172, 41 S.W. (2d) 935; Lemire v. National Life Association, 194 Iowa, 1245, 191 N.W. 67; Mackie v. Grand Lodge, 100 Kan. 345, 164 Pac. 263; Modern Woodmen of America v. Michelin, 101 Okla. 217, 225 Pac. 163, 36 A.L.R. 971; Bradley v. Modern Woodmen, 146 Mo. App. 428, 124 S.W. 69; Martin v. Modern Woodmen, 158 Mo. App. 468, 139 S.W. 231; Holman v. Modern Woodmen, 243 S.W. 250; Policemen's Benefit v. Ryce, 72 N.E. 764, 213 Ill. 9. (c) Plaintiff unlikely to hear from the insured. Heath v. Salisbury Home Telephone Co., supra. (d) Failure of plaintiff to hear from insured may be explained otherwise than by assuming death. Volmer v. John Hancock Mutual Life Insurance Co., 101 Pa. Sup. Ct. 117; White v. Prudential Insurance Co. (Minn.), 258 N.W. 519; Browne v. N.Y. Life Insurance Co., 57 Fed. (2d) 62; Potter v. Prudential Insurance Co., 108 Conn. 271, 142 A. 891; Campbell v. Nelson, 240 N.W. 401; In re Buck's Estate, 220 S.W. 716, 204 Mo. App. 1; Butler v. Mutual Life Insurance Co., 225 N.Y. 197, 121 N.E. 758. (3) Error in plaintiff's instructions. (a) Instruction No. 1 given by the court at the request of plaintiff was erroneous. Dickens v. Miller, 12 Mo. App. 408. (b) Instructions numbered 3 and 4 given at the request of plaintiff, are erroneous. (4) Action barred by Statute of Limitations. (5) Conclusion.

Kopitsky & Kessler and Robert L. Aronson for respondent.

(1) Plaintiff made a case for the jury under the statutory presumption of death after absence of seven years. Section 1709, R.S. Mo., 1929; Adams v. New York Life Ins. Co., 158 Mo. App. 564, 138 S.W. 921; Unwin v. John Hancock Mutual Life Ins. Co., 43 S.W. (2d) 899; Williams v. National Life & Accident Ins. Co., 222 Mo. App. 355, 1 S.W. (2d) 1034; Duff v. Duff, 156 Mo. App. 247, 137 S.W. 909; Gilroy v. Brady, 195 Mo. 205, 93 S.W. 279; Seidenkranz v. Supreme Lodge (Mo. App.), 199 S.W. 451. (2) Plaintiff made a case for the jury under the common-law presumption of death after absence for more than seven years. Unwin v. John Hancock Mutual Life Ins. Co., supra; Adams v. New York Life Ins. Co., supra; Cobble v. Royal Neighbors, 291 Mo. 125, 236 S.W. 306; St. Louis Union Trust Co. v. Buck, 204 Mo. App. 1, 220 S.W. 716; Schell v. Metropolitan Life Ins. Co., 3 S.W. (2d) 269; Gilroy v. Brady, supra; Wheelock v. Overshiner, 110 Mo. 100, 19 S.W. 640; Warren v. Order of Railway Conductors, 199 Mo. App. 200, 201 S.W. 368; Chapman v. Kullman, 191 Mo. 237, 89 S.W. 924; Flood v. Growney, 126 Mo. 262, 28 S.W. 860; Holman v. Modern Woodmen, 243 S.W. 250; Winter v. Supreme Lodge, 101 Mo. App. 550, 73 S.W. 877; Walsh v. Metropolitan Life Insurance Co., 162 Mo. App. 546, 142 S.W. 815; Martin v. Modern Woodmen, 158 Mo. App. 468, 139 S.W. 231; Seidenkranz v. Supreme Lodge, 199 S.W. 451; Biegler v. Supreme Council, 57 Mo. App. 419; Karst v. Chicago Fraternal Life Assoc., 40 S.W. (2d) 735. (3) Plaintiff's causes of action were not barred here by the Statute of Limitations under the facts of this case. Bonslett v. New York Life Ins. Co., 190 S.W. 870; Martin v. Modern Woodmen, 158 Mo. App. 468, 139 S.W. 231; Shearlock v. Mutual Life Ins. Co., 193 Mo. App. 430, 182 S.W. 89. (4) Plaintiff's Instruction No. 1 was properly framed, and the same, or a similar, instruction has been expressly approved by our courts. Unwin v. John Hancock Mutual Life Ins. Co., 43 S.W. (2d) 899; Holman v. Modern Woodmen, 243 S.W. 250; Flood v. Growney, 126 Mo. 262, 28 S.W. 860. (5) No error was committed in giving Instruction No. 4 in case No. 24161. Said instruction was proper, taken in conjunction with the other instruction in the case. Plaintiff was entitled to a recovery of premiums paid after the death of the insured. Williams v. National Life & Accident Ins. Co., 222 Mo. App. 355, 1 S.W. (2d) 1034.

HOSTETTER, P.J.

This is a suit begun by plaintiff on February 16, 1934, in a justice of the peace court in the city of St. Louis, based on an industrial life insurance policy issued by defendant on November 13, 1905, wherein the defendant promised to pay plaintiff the sum of $342.50 upon the death of Robert P. Logan, then her husband. The named beneficiary in the policy was "Rosalee Logan, wife."

Plaintiff prevailed in the justice of the peace court and upon defendant's appeal to the circuit court she again prevailed, recovering the total sum of $645.91, made up of the following items, viz: amount of policy and interest $369.60; attorneys fees $150; amount of premiums and interest, $126.31. Judgment being rendered for said total sum together with costs and the motion for a new trial being overruled, defendant brings the cause to this court by appeal for review.

When the cause reached the circuit court, the plaintiff filed an amended petition consisting of two counts on which the case was tried, which was, in substance, as follows:

After alleging the issuance of the policy it was averred that on or about March 16, 1916, the insured, Robert P. Logan, disappeared from his usual place of abode and has been absent and unheard of for more than seven years, continuously, from and after said 16th day of March, 1916; that following his disappearance the plaintiff, his wife, made due and diligent search for him, but was unable to locate him or to secure any information as to his whereabouts, and she avers that he is dead. The petition also contains allegations of due notice of the death, defendant's failure to recognize the claim, and its insistence upon further premium payments; also that defendant's refusal to pay was vexatious, willful and without probable cause.

In the second count plaintiff alleged that she had paid all the premiums due upon the policy, after the disappearance of the insured, until the filing of this action on February 16, 1934, and that said premiums were paid by her under the mistaken assumption that the aforementioned Robert P. Logan was, or might be, alive, when, in fact, he was then dead. Altogether, plaintiff prayed judgment for the amount of the policy, with interest, for a ten per cent penalty, for a reasonable attorney's fee, for the recovery of the premiums which she had paid, with interest, and for her costs.

The answer of the defendant to both counts of the petition consisted of general denials and of a plea of the Statute of Limitations, which was alleged to be ten years as to the first count (Section 861, Revised Statutes, Missouri, 1929, Mo. Stat. Ann., sec. 861, p. 1139), and five years as to the second count (Section 862, Revised Statutes, Missouri, 1929, Mo. Stat. Ann., sec. 862, p. 1143.)

The insured and the beneficiary were colored persons. Plaintiff testified that she married the insured in 1902, without going through a formal ceremony, and lived with him in East St. Louis, Illinois, until about 1902 or 1909. (Unquestionably plaintiff and Logan were living together as husband and wife, as many of their race were wont to do, under a common-law form of marriage, then recognized as valid in Missouri. This form of marriage was not outlawed until 1921. [See Laws of Missouri...