Sims v. Missouri State Life Ins. Co.

• Decision Date: 04 February 1930
• Citation: 23 S.W.2d 1075,223 Mo.App. 1150
• Parties: ANNIE SIMS, RESPONDENT, v. MISSOURI STATE LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT. [*]
• Court: Missouri Court of Appeals

23 S.W.2d 1075

223 Mo.App. 1150

ANNIE SIMS, RESPONDENT, v. MISSOURI STATE LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

February 4, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Jourdan & English, Allen May and Harold Knight for appellant.

(1) In determining who is the beneficiary under the terms of a policy of life insurance, the courts are governed by the intentions of the parties, as indicated by the surrounding circumstances and conditions at the time the contract was made, as applied to the language of the instrument. 37 C. J 410; Overbeck v. Overbeck, 25 A. 646; Mutual Life Ins. Co. v. Devine, 180 Ill.App. 422; Beattie v. National Bank, 174 Ill. 571; Loos v. John Hancock Mut. Life Ins. Co., 41 Mo. 539; Renfro v. Ins Co., 148 Mo.App. 258; Waring v. Wilcox, 96 P 910. (2) The language of the policy designating the beneficiary is to be treated as of testamentary character and is to receive the same construction as if used in a will, especially where the persons claiming to be beneficiaries are the natural objects of the bounty and affection of the insured, the policy being liberally construed in their favor. 37 C. J. 410; National American Ass'n v. Kirgin, 28 Mo.App. 80; Duvall v. Goodson, 79 Ky. R. 224; Mutual Life Ins. Co. v. Devine, 180 Ill.App. 422; Mutual Benefit Life Ins. Co. v. Cummings, 133 Pacif. (Ore.), 1169; Hogan v. Wallace, 46 N.E. 1136. (3) The policy in question was a contract between the Laclede Gas Light Company and the defendant, Missouri State Life Insurance Company, for the benefit of the insured, Will Sims. The certificate itself was not the contract. Gallagher v. Simmons Hardware Co., 258 S.W. 16. The certificate, like a share of stock, is only evidence of the contract which had theretofore been made, and which was complete without the issuance of the certificate. Williams v. Everett, 200 S.W. 1045. (4) In the designation of a beneficiary in an insurance contract, the words "his wife" are surplusage when the name of a person is used, and it is for the trier of the facts to determine the identity of the person intended. 37 C. J. 567; Prudential Life Ins. Co. v. Morris, 70 A. 924; Clements v. Terrell, 145 S.E. 78; Doney v. Equitable Life Assurance Society, 117 A. 618. (5) Parol evidence is admissible to either (a) explain latent ambiguities, or (b) show the surrounding circumstances to explain inaccuracies in the language used. Renfro v. Insurance Co., 148 Mo.App. 258; Riggs v. Meyer, 20 Mo. 329; Chapman v. McIlwrath, 77 Mo. 38; Decker v. Decker, 12 N.E. 754; Hogan v. Wallace, 46 N.E. 1136; Goff v. Roberts, 72 Mo. 573; State v. Weare, 38 N.H. 317; Clinton v. Hope Ins. Co., 45 N.Y. 454; Willard v. Darrah, 168 Mo. 660; Bond v. Riley, 317 Mo. 595, 600; Gordon v. Burris, 141 Mo. 602, 611. (6) A parol assignment of an insurance policy accompanied by delivery will pass the title to the policy. Chapman v. McIlwrath, 77 Mo. 38. (7) An insurance company which defends in good faith against its alleged liability on an insurance policy may not be penalized for such defense. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399. (8) Where the alleged liability of an insurance company depends on a question of law, which is an open question, undecided by the Missouri courts of review, the insurance company may test its liability without becoming liable for a vexatious refusal to pay. State ex rel. Missouri State Life Ins. Co. v. Allen, 295 Mo. 307; Mound City Roofing Tile Co. v. Insurance Companies, 218 Mo.App. 395; Renfro v. Insurance Co., 148 Mo.App. 258; Cooper v. National Life Ins. Co., 253 S.W. 465; State ex rel. v. Fidelity & Deposit Co., 298 S.W. 83.

Bass & Bass and John Grossman for respondent.

(1) The rules governing the construction and interpretation of contracts are applicable to a contract of insurance. 37 Corpus Juris 408. (2) A written contract cannot be varied or contradicted by parol evidence of the intent of the parties. Bond v. Riley, 317 Mo. 595; Darlington Lbr. Co. v. Railroad Co., 243 Mo. 224; McPherson v. Kisse, 239 Mo. 664; Owsley v. Jackson, 163 Mo.App. 11; Liggett v. Bank, 233 Mo. 590. (3) Parol evidence is never admissible to show an intention contrary to that expressed in the policy. Joyce on Ins. (2 Ed.), par. 3806; Renfro v. Met. Life Ins. Co., 148 Mo.App. 258; Bond v. Riley, 317 Mo. 595. (b) The trial court did not err in excluding parol testimony offered by appellant for the purpose of explaining the designation, "his wife, Annie Sims, as beneficiary," said designation being clear, definite and unambiguous; neither did the court err in refusing to permit appellant to show that Will Sims called Annie Belle his wife, and intended her to be the beneficiary. Bolton v. Bolton, 73 Maine, 299; 1 Greenleaf on Evidence, pars. 277, 290; Mendez v. Sovereign Camp W. O. W., 269 S.W. 142; Rice v. Rice, 63 S.W. 586. (c) As a matter of law, it is presumed that the name of a beneficiary is the legal one. Morris v. Equitable Life Assurance Society, 109 Nebr. 352; Mendez v. Sovereign, etc., 269 S.W. 142. (d) A "wife" is a woman who has a husband living and undivorced. Black's Law Dictionary. The term "wife" necessarily implies a lawful marriage. Vaughn v. Dalton, 119 La. 61. The term "wife" is determined in "Words and Phrases" as follows: "The popular as well as the lexical meaning of 'wife' is a woman who is united to a man in the lawful bonds of wedlock." In re Davenport's Trusts, 17 Eng. Law & Equity, 293. (4) (a) A person is required to stand or fall by the theory on which the case was tried and submitted in the lower court. This case was not tried upon any theory of assignment in the trial court and appellant cannot now shift his ground. Walker v. Owen, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575; Tomlinson v. Ellison, 104 Mo. 112; Dunnigan v. Greene, 165 Mo. 98; Brooks v. Yocum, 42 Mo.App. 516; Mirrieless v. Wabash R. R., 163 Mo. 470; St. Louis Brokerage Co. v. Bagnell, 76 Mo. 554. (b) Granted, that the case was submitted on the theory of assignment, then assignee is incompetent as a witness to prove the contract of assignment by the insured. Section 5410, R. S. of Mo. 1919; Saetelle v. Met. Life Ins. Co., 81 Mo.App. 509; Deal v. Hainley, 135 Mo.App. 507; Blood v. W. O. W., 140 Mo.App. 526; Kersey v. O'Day, 173 Mo. 560. (c) The assignee of a life policy must have an interest in the life assured. Annie Belle had no insurable interest in the eyes of the law, being neither creditor nor related by blood or marriage. Mo. State Life v. Calif, State Bank, 216 S.W. 785; Warnock v. Davis, 104 U.S. 779; 1 Cooley, Briefs on Insur., p. 359; Deal v. Hainley, 135 Mo.App. 507; Kelley v. Prud. Ins. Co., 148 Mo.App. 249; Tripp v. Jordan, 177 Mo.App. 339. (d) There was no evidence offered to prove, or that tended to prove, an assignment. The theory of assignment is an afterthought. (5) (a) Damages for vexatious refusal to pay may be inflicted where the evidence and circumstances show that such refusal was willful and without reasonable cause, as the facts appeared to a reasonable and prudent man Patterson v. Amer. Ins. Co., 174 Mo.App. 44; Non-Royalty Shoe Co. v. Phoenix Assurance Company, 277 Mo. 399. (b) If there was no excuse on the defendant's part for the failure or refusal to pay the insurance, the court may allow damages and reasonable attorneys' fees. Brown v. Ry., 45 Mo. 221; Pauley v. Bus. Men's Assur. Co., 217 Mo.App. 302; Jaggi v. Ins. Co., 191 Mo.App. 384. (c) Not only was the refusal to pay by the appellant willful and without reasonable cause, but the evidence, as shown by the correspondence exchanged between the appellant and respondent's counsel reveals an aggravated vexatious refusal to pay and an extreme lack of good faith. The trial court did not err in assessing damages and attorney fees. (6) (a) The mere fact that appellant has, in its assignment of errors (but not referred to in its brief or argument, however) invoked a constitutional provision does not give the Supreme Court jurisdiction on appeal, unless the case actually, and in fact, involves a construction of some constitutional provision, and the court will look beyond the claim of the party to determine from the record whether the claim is substantial. Supreme Lodge v. Paramount Prog. Order of Moose, 17 S.W.2d 327. (b) Section 6337 of the Revised Statutes of Missouri for 1919, relating to assessment of damages for vexatious refusal and attorneys fees, has been declared constitutional on numerous occasions, and when the precise constitutional question has once been determined the Supreme Court will not assume jurisdiction on account of the jurisdictional questions mooted. Shoe Co. v. Assurance Co., 277 Mo. 424; Dickey v. Holmes, 208 Mo. 664; Keller v. Home Ins. Co., 198 Mo. 440; State v. Railroad, 242 Mo. 360; Barber v. Hartford Life Ins. Co., 269 Mo. 21; Fidelity Mutual Life v. Mettler, 185 U.S. 308.

BENNICK, C. Becker and Nipper, JJ., concur. Haid, P. J., absent.

OPINION

BENNICK, C.

This is an action upon a contract of life insurance, the policy being one of group insurance taken out by the Laclede Gas Light Company with defendant, by the terms of which defendant agreed to insure the lives of all the employees of such company in amounts as set forth in the main group policy. Plaintiff is the widow of Will Sims, who was one of such employees, and she has sued for the full amount of insurance due at his death, which was $ 500. The case was tried to the court alone without the aid of a jury, and the judgment was for plaintiff for the sum of $ 923.33, made up of items of $ 500 as the face value of the policy, $ 123.33 as interest, $ 50 as the penalty for vexatious refusal to pay, and $ 250 as...