Moldovan v. John Hancock Mut. Life Ins. Co.

• Decision Date: 07 February 1939
• Docket Number: No. 24837.,24837.
• Citation: 124 S.W.2d 541
• Parties: MOLDOVAN v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

124 S.W.2d 541

MOLDOVAN v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 24837.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Jr., Judge.

"Not to be published in State Reports."

Action by Jennie Moldovan against the John Hancock Mutual Life Insurance Company on two industrial life insurance policies. From a judgment for plaintiff, defendant appeals.

Affirmed.

Leahy, Walther, Hecker & Ely and Lyon Anderson, all of St. Louis, for appellant.

Arthur Kreisman and Moldafsky & Moldafsky, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on two industrial life insurance policies issued on September 18, 1935. Each of the two policies provide, so far as pertinent here, as follows:

"The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, in consideration of the payment of the premium stipulated herein on or before each Wednesday during the continuance of this policy until premium payments cease by the terms hereof, grants this insurance with the privilege and benefits and subject to the conditions and provisions on this and the three following pages which are hereby made a part of this contract and constitute the entire contract between the parties hereto.

"Name of insured, Shea Harris. Name of Beneficiary, Jennie Moldovan. Relationship of Insured, Daughter. Full policy amount, $200. Age next birthday, fifty-eight years. Weekly premium, forty cents. Agent, 9154.

"On satisfactory proof of the death of the Insured made in the manner and to the extent required herein and upon surrender of the Policy and Premium Receipt Books, the Company will pay the amount due hereunder. The Company may make any payment or grant any nonforfeiture benefit provided herein either to the beneficiary above named, if living, or to such other living beneficiary as may be duly and finally designated, and recognized by endorsement hereon, or to the Executor or Administrator of said Insured or to any relative by blood or connection by marriage, or to any person appearing to the Company to be equitably entitled thereto by reason of having incurred expense in any way on behalf of the Insured for burial or for any other purpose; and the receipt of any such payee shall be conclusive evidence that payment has been made to the person or persons entitled thereto and that all claims under this policy have been fully satisfied.

"This policy shall not take effect unless upon its date the Insured shall be alive and in sound health and the premium duly paid."

The trial, with a jury, resulted in a verdict in favor of plaintiff for $436, including interest, and judgment was given accordingly. Defendant appeals.

Error is assigned by defendant here upon the refusal of its instruction in the nature of a demurrer to the evidence. This assignment is put on two grounds: First, that under the facility of payment clause of the policies plaintiff acquired no right of action against the defendant; and, second, that the proofs of death submitted by plaintiff contain an admission that at the time the policies were issued the insured was suffering from the disease which subsequently caused his death.

With respect to the first ground urged in support of the assignment, defendant company contends that the only person who can sue on the policies is the insured's executor or administrator, and that this is so because there is in the policies no promise on the part of the company to make payment of the policies to the plaintiff as the named beneficiary therein, but the company is given the option to make payment to any of the persons designated as in its discretion it sees proper, and in case the company does not exercise this option the policies become payable to the insured's executor or administrator by operation of law.

Defendant relies on Manning v. Prudential Insurance Company, 202 Mo.App. 124, 213 S.W. 897. In that case it was held that the insurance company, not having exercised its option to make payment to any person designated in the facility of payment clause, the executor or administrator of the insured alone was entitled to sue. But in that case the executor or administrator was named as the beneficiary in the policy, and it was held that the executor or administrator became entitled to sue not by operation of law but under the terms of the policy. The policy provisions with which the court was there concerned are just the converse of the provisions with which we are here concerned. In the policies here the plaintiff is named as the beneficiary, and the executor or administrator is designated in the class of persons to whom the insurance company has the option to make payment.

Defendant urges, however, that the policies here are unlike the policy in the Manning case, in that in the policies here there is no promise to make payment to plaintiff as the named beneficiary. We are unable to accept this view, for in the policies here just such a promise appears by necessary implication at least if not in express terms.

The insuring clause of these policies, stripping it of some of its verbiage, not essential to its interpretation, for the sake of clarity, reads as follows:

"The John Hancock Mutual Life Insurance Company, in consideration of the payment of the premium stipulated herein, grants this insurance. Name of insured, Shea Harris. Name of beneficiary, Jennie Moldovan. Full policy amount, $200. On satisfactory proof of the death...