Rohde v. Metropolitan Life Ins. Co.

• Decision Date: 07 December 1937
• Citation: 111 S.W.2d 1006,233 Mo.App. 865
• Parties: HARRY C. ROHDE, ADMINISTRATOR C. T. A. OF THE ESTATE OF CAROLINE ROHDE, DECEASED, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, RESPONDENT
• Court: Missouri Court of Appeals

111 S.W.2d 1006

233 Mo.App. 865

HARRY C. ROHDE, ADMINISTRATOR C. T. A. OF THE ESTATE OF CAROLINE ROHDE, DECEASED, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

December 7, 1937

Rehearing denied January 19, 1938, Reported at: 233 Mo.App 865 at 871.

Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert J. Kirkwood, Judge.

AFFIRMED.

Judgment affirmed.

Fordyce White, Mayne, Williams & Hartman for respondent.

Harry Cole Bates of counsel.

(1) Admission in evidence of the various provisions of the will of insured as to the disposition of her property, including the policies of insurance, was proper, for the reason: It was evidentiary of an ultimate fact alleged in defendant's answer. R. S. Mo. (1929), sec. 783; Banks v. Morris & Co., 302 Mo. 254; Petersen Oven Co. v. Bread Co., 21 S.W.2d 219. (2) Jackson v. Metropolitan Life Ins. Co., 294 S.W. 453; Doty v. Western & Southern Life Ins. Co., 16 S.W.2d 712, l. c. 714; Longley v. Metropolitan Life Ins. Co., 48 S.W.2d 74; Clarkston v. Metropolitan Life Ins. Co., 176 S.W. 437. (3) Alleged statement of soliciting and collecting agent of defendant, made after death of insured, that proceeds of policies would be paid to plaintiff was beyond his authority, not binding on defendant, does not estop defendant, and was without any consideration. Jackson v. Metropolitan Life Ins. Co., 294 S.W. 453; Longley v. Metropolitan Life Ins. Co., 48 S.W.2d 74. (4) Insurer has wide discretion in making payment under facility of payment clause, and except upon clear showing of bad faith extinguishes all further liability. Longley v. Metropolitan Life Ins. Co., 48 S.W.2d 74.

H. C. Whitehill and George F. Johnson for appellant.

(1) The issues in a cause are made and raised by the pleadings alone and cannot be enlarged by evidence or instructions. Kleinlein v. Foskin, 13 S.W.2d 648; Christian v. Connecticut Mutual Life Insurance Co., 45 S.W. 268; Degonia v. St. Louis, I. M. & S. Ry. Co., 123 S.W. 807; State ex rel. McManus v. Muench, Circuit Judge, 117 S.W. 24. (2) Under industrial policies of insurance of the kind involved in this case, the executor or administrator of the estate of the deceased insured is the proper party to maintain an action for the proceeds of such policies. Craig v. Metropolitan Life Insurance Company, 220 Mo.App. 913, 296 S.W. 209; Manning v. Prudential Insurance Company, 202 Mo.App. 124, 213 S.W. 897; Burns v. Prudential Insurance Company, 253 S.W. 81; Plummer v. Metropolitan Life Insurance Company, 81 S.W.2d 453, l. c. 460; Valenti v. Prudential Insurance Company, 71 F.2d 229. (3) The principal object of industrial insurance is to create a fund for the purpose of defraying expenses of the last illness and funeral of the insured. Schlereth v. Neeley, 285 S.W. 168; Wallace v. Prudential Insurance Company, 157 S.W. 1028; Folta v. Prudential Insurance Company, 176 A. 326; Plummer v. Metropolitan Life Insurance Company, 81 S.W.2d 453; McCarthy v. Metropolitan Life Insurance Company, 90 S.W.2d 159. (4) When an insurer pays the proceeds of an industrial policy of insurance to any person designated in the facility of payment clause as being equitably entitled to the same, the sole determining factor under that provision of the policy is whether or not the party receiving the proceeds has incurred expense on behalf of the insured or for his or her burial. Folta v. Prudential Insurance Company, 176 A. 326; Minuto v. Metropolitan Life Insurance Company, 191 A. 117; Valenti v. Prudential Insurance Company, 71 F.2d 229; Watson v. Pilgrim Health and Life Insurance Company, 171 S.E. 226. (5) Whether a person designated in the facility of payment clause of an industrial insurance policy is equitably entitled to the proceeds of the policy is a question of fact for the jury. Valenti v. Prudential Insurance Company, 71 F.2d 229; Zornow v. Prudential Insurance Company, 206 N.Y.S. 92; Sylvester v. Metropolitan Life Insurance Company, 238 N.W. 234, 255 Mich. 302. (6) An insurer has no right to arbitrarily pay the proceeds of a policy to any person designated in the facility of payment clause, even though related to insured by blood or marriage, but must exercise discretion and pay to person equitably entitled thereto. North v. National Life and Accident Insurance Company, 231 S.W. 665, l. c. 667; Sylvester v. Metropolitan Life Insurance Company, 238 N.W. 234, 255 Mich. 302; Zornow v. Prudential Insurance Company, 206 N.Y.S. 92; Hooks v. Metropolitan Life Insurance Company, 171 So. 601; Zohn v. Metropolitan Life Insurance Company, 294 N.Y.S. 17; Minuto v. Metropolitan Life Insurance Company, 191 A. 117; Dorsey v. Metropolitan Life Insurance Company, 145 So. 304; American National Louisiana Life Insurance Company v. Scott, 257 S.W. 934. (7) A statement by an agent of an insurance company who received applications for insurance, collected premiums and obtained proofs of death and the surrender of the policies and receipt books, to the effect that the proceeds of the policies would be paid to one of the persons designated in the facility of payment clause because he was administrator of the estate of the insured, constitutes a present election by the insurer to pay the proceeds of the policies to that person and is binding on the company. Renfro v. Metropolitan Life Insurance Company, 129 S.W. 444; Ellis v. Metropolitan Life Insurance Company, 3 S.W.2d 397; Wallace v. Prudential Insurance Company, 157 S.W. 1028; Jones v. Prudential Insurance Company, 155 S.W. 1106; LaRaw v. Prudential Insurance Company, 12 F.2d 140.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

This is a suit on nine policies of industrial insurance, issued by defendant company on the life of Caroline Rohde; brought by plaintiff as administrator c. t. a., to recover $ 1167.55, the aggregate amount of the policies. There is in each of the policies a facility of payment clause.

In one of the policies the facility of payment clause is as follows:

"The company may pay this policy to either the executor or administrator, husband or wife, or any relative by blood, or lawful beneficiary, of the insured, and the production by the company of the policy and a receipt in full, signed by either of them, shall be conclusive evidence that all claims upon said company under this policy have been fully satisfied."

In each of the other policies the facility of payment clause is as follows:

"The company may pay the amount due under this policy to either the beneficiary named below or to the executor or administrator, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial; and the production of a receipt signed by either of said persons shall be conclusive evidence that all claims under this policy have been satisfied."

The petition pleads the issuance of the policies, the death of the insured while the policies were in force, the making of due proofs of death, and the plaintiff's appointment and qualification as administrator c. t. a. of the insured's estate.

The answer alleges that Caroline Durfield, a daughter of the insured, made due proofs of the death of the insured and established that she was the person equitably entitled to receive the proceeds of the policies, and that defendant paid to said Caroline Durfield the amount due on the policies, and that upon receipt of said payment the said Caroline Durfield released and forever discharged defendant from any and all manner of claims and demands whatsoever arising under said policies.

It is admitted that upon the death of the insured the defendant paid to Caroline Durfield, a daughter of the insured, the amount due on the policies.

The insured upon her death left surviving her four children, Harry C. Rohde, the plaintiff, Frederick Rohde, Emma Gunn, and Caroline Durfield. She made a will, which was duly admitted to probate, whereby she directed that all her just debts and funeral expenses be paid as soon as possible after her demise, devised and bequeathed to Harry C. Rohde her real estate and improvements thereon known as 4940 Spalding Avenue, in the City of St. Louis, all tools, implements, stock on hand, moneys, and all other property employed in her automobile radiator, supply, accessory, and repair business, conducted at No. 4135 Olive Street, in the City of St. Louis, directing that before either said devise or bequest should be paid to him he should be required to pay to Emma Gunn $ 1000 and to Caroline Durfield $ 500, bequeathed to Frederick Rohde $ 100, bequeathed to Emma Gunn her household goods, and bequeathed any life insurance payable at her death to Emma Gunn and Caroline Durfield, to be divided equally between them.

Plaintiff testified that the insured at the time of her death resided with him at 4940 Highland Avenue; that neither his sisters nor brother resided at the home of his mother at the time of her death; that his sisters and brother were married and living in their separate homes; that shortly after his mother died he made application to the probate court for his appointment as administrator c. t. a., having previously received the consent of his sisters and brother that he should be administrator c. t. a.; that after filing said application he had a conversation with Mr. Bender, the man who had been collecting the premiums on the policies for several years; that he told Mr. Bender that he had been appointed administrator of the estate, and that Mr. Bender told him that the check for the insurance...