Schmidt v. Aetna Life Ins. Co. of Hartford, Conn.

• Decision Date: 21 November 1932
• Parties: BLANCHE D. SCHMIDT, APPELLANT, v. AETNA LIFE INSURANCE CO., ETC., RESPONDENT
• Court: Kansas Court of Appeals

54 S.W.2d 431

227 Mo.App. 577

BLANCHE D. SCHMIDT, APPELLANT, v. AETNA LIFE INSURANCE CO., ETC., RESPONDENT

Court of Appeals of Missouri, Kansas City

November 21, 1932

Appeal from Circuit Court of Pettis County.--Hon. Dimmitt Hoffman Judge.

AFFIRMED.

Judgment affirmed.

Crawford & Harlan for appellant.

Morrison Nugent, Wylder & Berger for respondent.

OPINION

ARNOLD, J.

This is an action to recover upon a certificate of life insurance issued upon and under the provisions of a certain group policy.

Defendant is an insurance corporation organized under the laws of the State of Connecticut, having its home office at Hartford in said State, and duly authorized to do business in the State of Missouri. The record discloses that on November 14, 1927, defendant issued and delivered to E. M. Milton & Sons and affiliated companies of Sedalia, Missouri, a group policy of insurance, for the benefit of certain of their employees who would accept the benefits thereof by agreement with said employer, among whom was John Schmidt. Under and by virtue of said group policy, a certificate No. 89, was issued by said employer to said John Schmidt, on November 14, 1927, insuring his life for the sum of $ 1,000, and naming his wife, Blanche D. Schmidt, plaintiff herein, as beneficiary. Under the terms of said insurance, part of the premium was deducted by the employer from the pay of the employee, and the remainder of the premium was paid by the employer who remitted the total premium to the insurer.

On or about the last day of May, 1929, the said John Schmidt left the employ of said E. H. Milton & Sons, his insurance being paid up to June 14, 1929. On June 30, 1929, John Schmidt died from a hemorrhage sustained during an operation on his tonsils. Thereafter the plaintiff herein, wife and beneficiary named in the certificate, made claim for $ 1,000, claimed to be due under the certificate of insurance, but defendant company refused payment on the ground the employer had notified defendant that said insured had voluntarily left their employ on the last day of May, 1929, and the employer asked insurer to cancel the insurance as to said John Schmidt, said written request being dated June 15, 1929. The insurance was cancelled, but John Schmidt was never notified of the request nor of the cancellation.

Payment being refused, this suit was instituted by plaintiff, who alleged in her petition the issuance of said insurance, the death of the insured, that she was the beneficiary, and asked judgment against defendant in the sum of $ 1,000, the amount of the policy, ten per cent thereof for vexatious delay and $ 250 attorney's fee.

The answer was, first, a general denial, and for affirmative defense, it was alleged said insured left the employment of the Milton Oil Company on or about June 1, 1929, and that the certificate of insurance referred to in plaintiff's first amended petition, as having been issued to the said John Schmidt by the Milton Oil Company, was at the express direction of said oil company cancelled on or about the 13th day of June, 1929, and that no premium was paid by, or on behalf of said insured beyond the period ending June 14, 1929, after which time said certificate and said master policy of insurance, in so far as the same, at any time, had related to plaintiff, were of no force or effect.

The reply was a general denial.

Thereupon the parties entered into a stipulation, as follows:

"Comes now the parties hereto, by their respective attorneys, and waive trial by jury in said cause, and stipulate and agree that said court shall decide said cause upon the following agreed statement of facts, to-wit:

"That the defendant is a corporation, duly organized under and existing by virtue of the laws of the State of Connecticut and is qualified to do business in the State of Missouri. That on or about the 14th day of November, 1927, the defendant issued and delivered to E. H. Milton & Sons, and Affiliated Companies, a certain group policy number 3960.

"That one John Schmidt was an employee of said Milton & Sons, and that said employer issued, upon November 14, 1927, to the said John Schmidt a certificate number 89, under which Blanche D. Schmidt was designated as beneficiary of said John Schmidt, under said group policy.

"That part of the premium of said insurance was paid to said employer by said employee, by him authorizing his employer to deduct said funds from his salary, and the balance of said premium was paid by said employer and the total amount forwarded to the defendant. That premiums were payable in advance; that the last payment made by said employee, or anyone for him, was for the period ending June 14, 1929; that said Schmidt, while in good health, resigned as an employee of said employer, on June 1, 1929, because he found work more to his preference.

"That said employer notified the defendant that said employee had ceased making payments as aforesaid, and had voluntarily left their employment on the last day of May, 1929, and requested defendant to cancel said policy as to said employee, John Schmidt. That defendant, in compliance with said request, cancelled said policy as to the said John Schmidt, on or about June 13, 1929, and immediately notified said employer, but did not notify said John Schmidt of the cancellation.

"That the said John Schmidt, nor anyone for him, ever exercised the Conversion Privilege; (the plaintiff does not admit the said John Schmidt was under a duty to exercise such Conversion Privilege) that said John Schmidt died on June 30, 1929, as the result of a hemorrhage sustained during an operation on his tonsils.

"That the copy of said...