McKinney v. Fidelity Mut. Life Ins. Co.

• Decision Date: 12 March 1917
• Docket Number: No. 18168.,18168.
• Citation: 270 Mo. 305,193 S.W. 564
• Parties: McKINNEY et al. v. FIDELITY MUT. LIFE INS. CO.
• Court: Missouri Supreme Court

193 S.W. 564

270 Mo. 305

McKINNEY et al. v. FIDELITY MUT. LIFE INS. CO.

No. 18168.

Supreme Court of Missouri, Division No. 1.

March 12, 1917.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Byrd N. McKinney and others against the Fidelity Mutual Life Insurance Company. From the judgment, they appeal. Affirmed.

Clarence F. Wescott and F. H. Bacon, both of St. Louis, for appellants. Jones, Hocker, Sullivan & Angert and James C. Jones, Jr., all of St. Louis, for respondent.

BOND, P. J.

I. Action on a policy of life insurance to recover amounts totaling $30,000, or the commuted value thereof of $21,552. The answer was a general denial, and the cause was tried without a jury on an agreed statement of facts resulting in a judgment for plaintiffs for $2,760, less costs. The plaintiffs appealed.

The agreed statement of facts, in substance, is as follows:

That this case shall be submitted to the court upon an agreed statement of facts and such other testimony as either party may deem material; all objections by either party to the sufficiency of the pleadings being hereby waived.

The defendant is a corporation organized under the laws of the state of Pennsylvania and licensed to do the business of life insurance in the state of Missouri; that on the 29th day of December, 1903, defendant issued and delivered to Charles S. McKinney its policy of life insurance, dated December 29, 1903, in the sum of $30,000, a copy of which is hereto attached, marked "Exhibit A" to this agreed statement; that on December 29, 1903, Charles S. McKinney resided in the city of St. Louis, state of Missouri; that said policy (Exhibit A) remained in the possession of the said Charles S. McKinney until November 25, 1912, when it was surrendered by the said Charles S. McKinney to the defendant as hereinafter stated.

The plaintiffs, beneficiaries named in said policy, had no knowledge of the surrender of the same by said Charles S. McKinney until after his death; that all the premiums provided for in said policy were duly paid by the said Charles S. McKinney to the defendant up to November 1, 1912; that the premium due November 1, 1912, was not paid on that day, or within the 30-day grace period provided and allowed for such payment in the clause headed "General Precedent Conditions," on the second page of Exhibit A; that said policy, on December 1, 1912, had a paid-up value of $2,760, and, if not legally surrendered on or before that date, was entitled to be continued in force for the full amount thereof for a period of 3 years and 1 month from that date; that on November 19, 1912, said Charles S. McKinney wrote to the defendant company as follows:

                               "St. Louis, November 19, 1912
                

"Mr. L. G. Fouse, President Fidelity Mutual Life Insurance Co., Philadelphia, Pa. — My Dear Sir: I have a policy with your company, No. 148,948. I want to take paid-up insurance on this policy. I inclose you self-addressed envelope, so that you may further direct my steps in this direction. Thanking you in advance,

                     "Yours truly,          C. S. McKinney."
                

That said letter was duly received by said L. G. Fouse on or before November 22, 1912; that on November 22, 1912, the defendant company, through its authorized agent J. B. Franks, assistant actuary, wrote to said Charles S. McKinney the following letter:

                     "Philadelphia, Pa., November 22, 1912
                

"In re Paid-Up Insurance Loan, No. 148,948.

"Mr. Charles S. McKinney, 4109 Westminster Pl., St. Louis, Mo. — Dear Sir: We have your favor of November 19. Your policy of the above number can be surrendered at the present time for a paid-up policy of $2,760, payable in one sum at your death," etc.

                     "Yours truly
                          "J. B. Franks, Assistant Actuary."
                

That said letter was duly received by said Charles S. McKinney on or before November 25, 1912; that on November 25, 1912, the said Charles S. McKinney wrote to L. G. Fouse, president of the defendant company, the following letter:

                             "St. Louis, November 25, 1912
                

"Mr. L. G. Fouse, Fidelity Mutual Life Insurance Co., Philadelphia, Pa. — Dear Sir: I am inclosing you my policy 148,948. Also I am returning you blank form No. 375, properly filled out, and you may return to me the paid-up value on this policy. Thanking you in advance,

                    "Yours truly,      Charles S. McKinney."
                

That said letter was duly received by said L. G. Fouse, president, on or before November 28, 1912; that on November 25, 1912, the said Charles S. McKinney executed and sent to the defendant company with his said letter of that date the following paper, to wit:

"Surrender and Cancellation of Policy Contract.

"I, the insured under policy 148,948, issued on the 29th day of December, 1903, on the life of Charles S. McKinney, of St. Louis, Mo., by the Fidelity Mutual Life Insurance Company, of Philadelphia, Pa., do hereby, in consideration of the issuance of a paid-up policy for $2,760, payable in one sum at death, request a cancellation of said policy, and do, for myself and my legal representatives, hereby release and forever discharge the said the Fidelity Mutual Life Insurance Company from all actions, causes of action, suits, controversies, claims, and demands whatsoever, for and by reason of said policy No. 148,948, or of any matter, cause, or thing connected therewith.

"In witness whereof I have hereunto set my hand the 25th day of November, A. D. 1912.

                                      "Charles S. McKinney
                  "Witness: Omar Hilton."
                

That said paper was duly received by the defendant on or before November 28, 1912; that pursuant to the request contained in the letter of Charles S. McKinney, of November 25, 1912, and in the paper designated "Surrender and Cancellation of Policy Contract," hereinabove set out, the defendant prepared and executed its policy of paid-up insurance, dated November 25, 1912, in the sum of $2,760, a copy of which policy is hereto attached, marked "Exhibit B," and on December 3, 1912, wrote to the said Charles S. McKinney the letter of that date, a copy of which is as follows:

                        "Philadelphia, Pa., December 3, 1912.
                     "In re Policy No. 148,948, Inclosed.
                

"Mr. Charles S. McKinney, 4109 Westminster Place, St. Louis, Mo. — Dear Sir: We inclose herewith participating paid-up policy of above number for $2,760, issued per instruction of our actuarial department, and your letter of the 25th, inclosing policy and form No. 375.

                    "Yours very truly,
                       "R. L. Tull, Secretary Policy Dept."
                

That said letter dated December 3, 1912, and said policy (Exhibit B) were sent to the said Charles S. McKinney through the medium of the United States mail, postage prepaid, on December 3, 1912, and were delivered at his residence, 4109 Westminster Place, St. Louis, Mo., on December 5, 1912; but it is further stipulated and agreed that the letter of December 3, 1912, and said policy (Exhibit B) were not delivered at the residence of Charles S. McKinney until after the death of said Charles S. McKinney, on December 5, 1912, as hereinafter set forth, and said policy was not seen by Charles S. McKinney prior to his death on said December 5, 1912.

Plaintiffs, beneficiaries named in said original policy, returned said second policy to the company and refused to accept same; that said policy was afterwards returned to the attorney for plaintiffs by the company, and it is agreed that plaintiffs shall deposit said policy with the clerk of the circuit court of the city of St. Louis, upon the filing of this agreed statement of facts, to be retained by said clerk until the determination of this suit, when it shall be delivered to defendant; that the rights of the plaintiffs shall not be prejudiced by anything done by them in regard to said policy; that said Charles S. McKinney died on December 5, 1912, about 1 p. m., in the city of St. Louis and at the Mercantile Club in said city; that his death was sudden; that the cause thereof was heart disease; that due proofs of death and demand for the payment of the sum of $30,000 were made by plaintiffs; and that the payment of said sum was refused.

That the defendant admitted its liability for the sum of $2,760, the sum insured by Exhibit B; that it tendered payment of said sum to the plaintiffs; that acceptance of said sum was refused; that the defendant has...