Pickett v. Equitable Life Assur. Soc., 21007.

• Decision Date: 06 May 1930
• Docket Number: No. 21007.,21007.
• Citation: 27 S.W.2d 452
• Parties: PICKETT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Missouri Court of Appeals

27 S.W.2d 452

PICKETT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 21007.

St. Louis Court of Appeals. Missouri.

May 6, 1930.

Appeal from Circuit Court, Audrain County; W. C. Hughes, Judge.

"Not to be officially published."

Action by Maud Lee Pickett against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City (Alexander & Green, of New York City, of counsel), for appellant.

Fry & Hollingsworth, of Mexico, Mo., for respondent.

HAID, P. J.

This is an appeal from a judgment for plaintiff entered upon refusal of defendant to plead further after a demurrer to its answer was sustained. The plaintiff is beneficiary in a policy of insurance issued by the defendant upon the life of Thomas Lee Pickett, her son, in which the defendant pleaded that the insured committed suicide within one year from the date of the issuance of the policy, the policy providing that there should be no liability except for the premiums paid, if suicide should ensue within the period named. The plaintiff admits in this court that, if the law of Missouri governs the contract of insurance, the plaintiff is entitled to recover, but, if the suicide statute of Missouri is not applicable, then the judgment should be reversed.

The plaintiff filed an amended petition in the usual form. The answer did not deny any allegation in the petition, but it expressly admitted all the material allegations. The facts pleaded in the answer are, in effect, as follows Defendant is an insurance company incorporated in New York, with its home office in New York City. On September 23, 1928, the insured, Thomas Lee Pickett, while temporarily residing at Wray, Colo., applied to defendant through one Olvey, defendant's agent at Wray, for a policy of life insurance on the ordinary life plan in the amount of $1,000, with a quarter annual premium of $5.46, payable on the 23d days of December, March, June, and September in each year. In his application he stated that his residence was "No. 645 North Clark Street, Mexico, Missouri, home address home of father and mother," and he directed in the application that the premium notices be sent to his residence. In this application insured expressly reserved the right to change the beneficiary or to assign the policy, and it contained an agreement that the policy to be issued on the application should not take effect until the first premium had been paid during the good health of insured, and he stated in the application that he had paid to agent Olvey $5.46 to cover the first quarterly premium, and that such payment was made in accordance with the provisions of a receipt concurrently dated bearing the same number as the application, in which the insured stated that he accepted said receipt and agreed to the conditions thereof. Insured was in good health when he signed the application and paid the premium. The receipt above mentioned was called a binding receipt; it provided that the insurance applied for should take effect as of September 23, 1928, the date of the application, provided only that insured on said date was, in the opinion of defendant's authorized officers in New York, an insurable risk under the rules of defendant, and that said application was otherwise acceptable on the plan and for the amount and at the rate of premium applied for.

The application with the premium was sent in to the home office. It was examined by defendant's authorized officers in New York on the days immediately succeeding September 27, 1928, and said officers on October 10, 1928, unconditionally passed, accepted, and approved the application, and were then and there of the opinion that insured was, on the date of said receipt, an insurable risk under the rules of defendant, and that the application was otherwise acceptable on the plan and for the amount and at the rate of premium applied for, and the officers ordered that a policy of life insurance on the plan, for the amount and at the rate of premium applied for, be issued, and such a policy was issued at the home office and was placed in the mails for unconditional delivery to insured. The policy contained a provision that self-destruction sane or insane within one year from the date of issue of said policy was a risk not assumed by defendant under said policy, and that in such an event defendant's liability should be limited to an amount equal to the premium actually paid. It also provided that, in case of death, proofs thereof were to be sent to New York, and that the amount due on the maturity of policy was payable in New York; and it stipulated that the policy could be assigned, but that any assignment to be effective must be in writing and filed at the home office of defendant in New York. It also provided that insured could change the beneficiary, but to be effective it must be by written request filed at the home office of defendant in New York and an indorsement made on the policy. It also provided that premiums were payable in advance at the home office in New York or to any agent or cashier of defendant upon delivery of official receipt signed by the president, vice president, secretary, or treasurer of defendant company and countersigned by such agent or cashier. The date of issuance of said policy was fixed as of September 23, 1928...