Mitchell v. Metropolitan Life Ins. Co.

• Citation: 116 S.W.2d 186
• Decision Date: 03 May 1938
• Docket Number: No. 24491.,24491.
• Parties: MITCHELL v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

116 S.W.2d 186

MITCHELL v. METROPOLITAN LIFE INS. CO.

No. 24491.

St. Louis Court of Appeals. Missouri.

May 3, 1938.

Rehearing Denied May 18, 1938.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Action by Jennie Mitchell against the Metropolitan Life Insurance Company on a life insurance policy. From an adverse judgment, the defendant appeals.

Reversed.

Fordyce, White, Mayne, Williams & Hartman and Raymond E. La Driere, all of St. Louis (Harry Cole Bates, of New York City, of counsel), for appellant.

S. R. Redmond and Henry D. Espy, both of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action upon a policy of life insurance in the amount of $2,000, which was issued by defendant, Metropolitan Life Insurance Company, upon the life of one Wyona R. Mitchell, who died on May 28, 1935. Plaintiff, Jennie Mitchell, the mother of the insured, was the beneficiary designated in the policy.

The defense was put upon the ground that the policy had been allowed to lapse for nonpayment of premium at the expiration of the first year, and was therefore void and of no value or force at the time of the death of the insured.

Upon a trial of the case to a jury, a verdict was returned in plaintiff's favor for the aggregate sum of $2,405, embracing the face value of the policy with interest and an allowance of $300 as an attorney's fee upon a finding of vexatious refusal to pay. Judgment was rendered accordingly, and defendant's appeal to this court has followed in the usual course.

It appears that for a number of years the Mitchells had carried three small industrial policies which had been issued by defendant; one upon the life of the daughter, Wyona, and two upon the life of plaintiff's husband, William Mitchell.

In the early part of 1932 there was a discussion between the Mitchells and one of defendant's soliciting agents with respect to the surrender of the industrial policies and the application of their cash surrender value towards the payment of the premiums upon larger policies of a different type which would be issued to replace the three surrendered. Whether the suggestion for the change came from the agent or from the Mitchells themselves does not appear, but at any rate the industrial policies were surrendered, and on May 19, 1932, defendant issued two endowment policies, one of which was the policy now in suit insuring the life of the daughter, Wyona, in the sum of $2,000, and the other a policy insuring the life of William Mitchell in the sum of $1,000.

The annual premiums on the two policies were, respectively, $32.08 and $58.70, or a total of $90.78.

The aggregate cash surrender value of the three industrial policies was $113.96, and on May 26, 1932, defendant drew its check for this amount, and made the same payable to all three members of the Mitchell family. Plaintiff indorsed the check for herself and the other payees, and gave it back to defendant's agent to be applied towards the payment of the combined premiums on the two new policies which had been issued.

Defendant's evidence was that the sum of $90.78 was applied to the payment of the first annual premiums upon the two new policies; that some $7 or $8 were used to pay up arrears on still other industrial policies which the Mitchells had in their possession; and that the remaining $15 or $16 was paid to plaintiff in cash. However, plaintiff's evidence was that no part of the amount of the check was either paid to her in cash or used to pay up arrears on other industrial policies, but that to the contrary the whole of the amount of the check was applied to the payment of the premiums upon the two new policies.

The policy in suit provided, among other things, that it was issued in consideration of the payment of the sum of $32.08, and of the payment of a like annual premium on each May 19th thereafter during the period of the policy or until the prior death of the insured; that all premiums were payable on or before their due dates at the home office of the company or to any authorized agent of the company, but only in exchange for the company's official premium receipt; and that the payment of a premium should not maintain the policy in force beyond the due date when the next premium was payable, save that for every premium after the first a grace period of thirty-one days was allowed, during which period the insurance should continue in force.

There was the usual provision that no agent was authorized to waive forfeitures, to alter or amend the policy, to accept premiums in arrears, or to extend the due date of any premium.

There was a further provision that after premiums for two full years had been paid, the insured, or any other person entitled thereto, might, upon the lapse of the policy for default in the payment of any premium, elect at his or her option, within three months after the due date of any premium in default, to take either the cash surrender value of the policy, or participating paid-up endowment insurance, or...