Pierce v. Business Men's Assur. Co. of America

• Decision Date: 14 March 1960
• Docket Number: No. 1,No. 47665,47665,1
• Citation: 333 S.W.2d 97
• Parties: Shirley Ann PIERCE, an Infant, by L. F. Pinkley, Guardian of the Property and Estate of Shirley Ann Pierce, a Minor, Respondent, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 97

333 S.W.2d 97

Shirley Ann PIERCE, an Infant, by L. F. Pinkley, Guardian of the Property and Estate of Shirley Ann Pierce, a Minor, Respondent, v. BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA, a Corporation, Appellant.

No. 47665.

Supreme Court of Missouri, Division No. 1.

March 14, 1960.

Harry C. Blanton, Sikeston, Geo. L. Gordon, Kansas City, Blanton & Blanton, Sikeston, Lathrop, Righter, Blackwell, Gordon & Parker, Kansas City, of counsel, for defendant-appellant.

Web A. Welker, Portageville, Linus E. Young, Portageville, for plaintiff-respondent.

SAMUEL A. DEW, Special Commissioner.

The plaintiff, a minor, brought this action in the name of the guardian of her property and estate, to recover $40,000 on a life insurance policy issued by the defendant on the life of her father, since deceased, of which policy she is the sole beneficiary. She further sought to recover interest, damages for vexatious delay and attorneys' fees. The defendant deposited $30,000 with the court, subject to the order of the court, which, on order, was paid to the plaintiff, with accrued interest thereon. Trial was thereupon had on the plaintiff's claim for the remaining $10,000 sued for, with interest, damages and attorney's fees. The court, upon a trial without a jury, gave judgment for the plaintiff for $10,000 with interest accrued, but denied her prayer for damages and attorney's fees. From this judgment the defendant took this appeal.

The sole dispute now between the parties is the amount due the plaintiff under that part of the policy denominated the 'Double Indemnity Supplement', which provides that in event the death of the insured be caused solely by accidental means as therein prescribed, the defendant would pay, 'in addition to any benefits otherwise payable, a sum equal to the face amount of the policy.' Defendant contends that the 'Face Amount' of the policy is $10,000, as stated at the top of its first page and also in the insured's application. Plaintiff insists that the 'Face Amount' of the policy is $20,000, made so by the provisions of a clause entitled 'Double Benefit to Age Sixty', effective because the insured died before reaching the age of 60 years.

It is admitted that the policy was issued, as alleged; that it was in full force and effect when the death of the insured occurred; that the insured at the time of his death was 56 years of age, and that he was killed in an automobile accident. Other facts were stipulated by the parties, leaving for determination only the amount, if any yet due to plaintiff under the 'Double Indemnity Supplement' (for accidental death).

At the top of the first page of the policy in question, in a space boxed off and outlined by ornamental border lines, appear the name of the insurer, the number and date of the policy, the name and age of the insured, the name of the beneficiary, the amount of the annual premium, and the printed words: 'Face Amount', followed by the typewritten figures '$10,000.00', so as to read: 'Face Amount $10,000.00.'

Immediately below the above section, but without the decorative border lines, appear the printed words: 'Whole Life Policy', 'Double Benefit to Age 60', 'Guaranteed Rate', 'Non-Participating', and the typewritten words in capital letters: 'With Waiver of Premium and Double Indemnity Benefits.'

Next below the last above quoted words and also boxed within a space outlined with ornamental border lines, in the following:

'Business Men's Assurance Company of America agrees to pay immediately to the beneficiary at the Home Office of the Company the amount stated above upon receipt of due proof of death of the insured during the continuance of this policy.

'Double Benefit to Age Sixty--If the death of the insured occurs prior to the anniversary date of this policy on which his age at nearest birthday is sixty years, the Company will pay, in lieu of the face amount, double the amount provided above.' (Italics supplied.)

The remaining contents of page 1 are not pertinent here except that following the section last described, and below the signatures of the insurer's officials, appear again the same printed words 'Whole Life Policy', 'Double Benefit to Age 60', 'Guaranteed Rate', 'Non-Participating', and the typewritten insertion 'With Waiver of Premium and Double Indemnity Benefits.'

Omitting the numerous provisions on the next page and a half of the policy which are not material to the issues involved, and the clause referred to as to the 'Total Disability Supplement' waiving premiums undercertain provisions specified, we find attached the 'Double Indemnity Supplement', bearing the same date of issuance. For a period expiring December 1, 1966, and for the premium stated, the defendant agreed therein as follows:

'In the event of the death of the insured while this policy and supplement are in force, during the period of payment of premiums and before the date of expiry shown above, if such death results from bodily injuries effected solely through accidental means and within ninety days from the date of such injuries, the Company will pay the beneficiary in addition to any benefits otherwise payable, a sum equal to the face amount of the policy. Such additional amount shall be payable to the beneficiary upon receipt of due proofs of death.' (Italics supplied.)

In the application for the policy made by the insured, attached to and made a part of the policy, there appears, among other matters, Question 27, with inserted answers, as follows: 'What form life contract? Double to Sixty. Amount? $10,000. Dis. 1 or 2? No. 1. D. I.? Yes.'

The defendant vigorously asserts that there is no ambiguity or repugnance in...