Patterson v. Prudential Ins. Co.

• Citation: 23 S.W.2d 198
• Decision Date: 07 January 1930
• Docket Number: No. 20930.,20930.
• Parties: PATTERSON v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Court of Appeal of Missouri (US)

23 S.W.2d 198

PATTERSON v. PRUDENTIAL INS. CO. OF AMERICA.

No. 20930.

St. Louis Court of Appeals. Missouri.

January 7, 1930.

As Modified on Denial of Rehearing January 24, 1930.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be officially published."

Action by Ruth Patterson against the Prudential Insurance Company of America. A verdict was rendered for plaintiff, and, from an order granting a new trial, plaintiff appeals. Order affirmed, and cause remanded.

Earl M. Pirkey, of St. Louis, for appellant.

Fordyce, Holliday & White and Walter R. Mayne, all of St. Louis, and Ralph W. Hyatt, of Newark, N. J., for respondent.

BENNICK, C.

This is an action upon an alleged contract of life insurance. The verdict of the jury was for plaintiff, and against defendant, in the sum of $2,000, as the amount due under the terms of the contract. In due course, defendant's motion for a new trial was filed, and was sustained by the court upon the ground that the peremptory instruction in the nature of a demurrer to all the evidence should have been given; and from the court's order plaintiff has perfected her appeal to this court.

After alleging that the defendant was an insurance company, incorporated under the laws of New Jersey, and doing business in Missouri, the petition set up the following cause of action:

"That plaintiff was at the time of the death of Edward R. Young hereinafter mentioned, and at all times herein mentioned prior thereto, his natural mother, and he was in her care and custody, and said Edward R. Young was at the time of his death on October 15, 1927, a minor of the age of seventeen;

"That on October 7, 1927, plaintiff and defendant entered into a contract by the terms of which plaintiff was to pay $3.00 in cash and other payments after three weeks from said October 7, 1927, and defendant was to issue a policy on the life of said Edward R. Young, payable to the plaintiff in case of his death from natural causes or accident after October 7, 1927, provided that said Edward R. Young was in sound health on October 7, 1927, and said policy was to promise payment to plaintiff of $1,000 in case of the natural death of said Edward R. Young, and $2,000 in case of his death by accident after October 7, 1927.

"That plaintiff duly paid said $3.00, and duly performed all of the conditions on her part required by said agreement;

"That said Edward R. Young was in sound health on October 7, 1927, and until he was injured on October 15, 1927, on which date he received personal injuries by accident which caused his death on that date;

"That thereafter plaintiff duly informed defendant of his death, and duly demanded payment of $2,000, the amount of said policy, but defendant has vexatiously refused to pay said loss and still so refuses, said policy was never delivered to plaintiff."

Defendant's answer was a general denial, coupled with a plea by way of affirmative defense as follows:

"For its affirmative answer and defense, without waiving the general denial hereinabove pleaded, defendant states that on the 29th day of September, 1927, one Edward Young made application for a policy of insurance in the defendant company in the sum of One Thousand ($1,000) Dollars, in consideration of the payment of a semi-annual premium of nine and 17/100 ($9.17) Dollars, payable on the 20th day of April and the 20th day of October of each year during the continuance of said policy. That in said application so made by said Edward Young, he agreed as follows:

"`I hereby declare that all the statements and answers to the above questions are complete and true, and I agree that the foregoing, together with this declaration, as well as the statements and answers made or to be made to the Company's Medical Examiner, or in my declarations in lieu of medical examination, shall constitute the application and become a part of the contract of insurance hereby applied for. I further agree that the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and that unless the full first premium is paid by me at the time of making this application, the policy shall not take effect until issued by the Company and received by me and the full first premium thereon is paid, while my health, habits and occupation are the same as described in this application. It is understood and agreed, however, that if at the time of signing this application the full first premium is paid, the insurance shall take effect from the date of this application, in accordance with the provisions of the policy hereby applied for, provided this application is approved and accepted at the Home Office of the Company, in Newark, New Jersey, under the plan, for the premium paid and amount of insurance applied for.'

"Defendant further states that at the time of the signing of said application said Edward Young paid to defendant the sum of Three ($3.00) Dollars, with the understanding and agreement on his part with the defendant company that in the event said application, when forwarded to the Home Office of the defendant company, was not accepted by said defendant company, and that said policy, if one be issued, shall not become effective until the first full premium was paid by said Edward Young, while said `health, habits and occupation' remain the same, as described in said application.

"Defendant further states that upon the agreements as set forth in said application between said Edward Young and the defendant, defendant issued its policy of insurance on the 20th day of October, 1927, in the sum of One Thousand ($1,000) Dollars, but said policy of insurance was not delivered to said Edward Young during his lifetime for the reason that said Edward Young died, as alleged in plaintiff's petition, on the 15th day of October, 1927; that said Edward Young did not pay, nor did any one in his behalf pay, the full first premium on said policy during his lifetime, nor was said policy delivered to said Edward Young or any one for him prior to the 15th day of October, 1927; that defendant, upon being advised of the death of said Edward Young, offered to return and tender the sum of Three ($3.00) Dollars to the plaintiff herein, but said amount was refused and defendant, therefore, tenders in Court, for the benefit of plaintiff, the sum of Three ($3.00) Dollars.

"Defendant states that as said policy was not issued or delivered prior to the death of said Edward Young, said policy of insurance is not in force, and, therefore, the plaintiff is not entitled to recover."

The reply was a general denial of the new matter contained in the answer.

The evidence disclosed that Henry D. Fritz, defendant's assistant superintendent in its office in the city of St. Louis, with whom plaintiff had been acquainted for twelve or thirteen years, and who had procured several policies of insurance for her throughout that period, called upon her at her home some time during the month of September, 1927, and solicited her for a policy of insurance upon the life of her son, Edward R. Young, in defendant company. Failing to secure her application on his first call, Fritz paid plaintiff a second visit on the following October 7th, on which occasion she informed him that all the money she had at the time was $3. Asked to state what transpired between the two, she testified that Fritz said "that was perfectly all right, he would write the application and take it to the boy for him to sign it and then bring it back for me to sign." Later in her examination she testified that Fritz "told me that three dollars would be perfectly all right to insure the boy, that would be satisfactory, and when I paid him the three dollars and he gave me the receipt the boy would be insured and in case anything should happen to him, in case of natural death, I would receive one thousand dollars and in case of accident, two thousand dollars."

There was no dispute about the fact that she paid Fritz the sum of $3, and that he thereupon gave her a receipt, in words and figures as follows:

                "The Prudential Insurance Co. of America
                       "Home Office, Newark, N. J
                  "Incorporated under the laws of the State
                of New Jersey
                          "Edward D. Duffield, President
                "No. ____
                "Name of Person to be Insured.
                     ________.
                                              "10-7, 1927.
                

"Received from Mrs. Patterson the sum of $3.00, being the payment of ____ weeks' premium on account of an Industrial policy applied for in The Prudential Insurance Company of America. It is understood and agreed that there shall be no liability on the part of the Company on account of this payment unless and until it shall issue a policy, except that if death occur after the date hereof and of the application from which this receipt is detached and prior to the issue of such policy, payment of the amount thereof in accordance with and subject to the conditions and agreements therein contained shall be made, Provided the insured was in sound health on the date of the application.

                            "[Seal.] Henry Fritz, Agent."
                

It will be observed that the above receipt was on a form prepared to go with an application for a policy of industrial insurance. Defendant's contention throughout the trial was that the application in this case was for an ordinary life policy, and not for an...