Valenti v. Prudential Ins. Co.

• Decision Date: 01 May 1934
• Docket Number: No. 9751.,9751.
• Citation: 71 F.2d 229
• Parties: VALENTI v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. Court of Appeals — Eighth Circuit

71 F.2d 229 (1934)

VALENTI v. PRUDENTIAL INS. CO. OF AMERICA.

No. 9751.

Circuit Court of Appeals, Eighth Circuit.

May 1, 1934.

Julius C. Shapiro, of Kansas City, Mo. (Frank Benanti and William Goodman, both of Kansas City, Mo., on the brief), for appellant.

Kenneth E. Midgley, of Kansas City, Mo. (William C. Michaels, Roy P. Swanson, and Albert L. Reeves, Jr., all of Kansas City, Mo., Ralph W. Hyatt, of Newark, N. J., and Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, Mo., on the brief), for appellee.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

This is a suit in two counts to recover upon two policies of life insurance, commonly known as industrial insurance, issued by appellee to one Nicola Valenti, now deceased. The first policy, numbered 55,630,299, was issued under date October 23, 1922, stipulating as its premium a weekly payment of 20 cents, and the face amount of the insurance as $404. The second policy, numbered 62,199,633, was issued under date December 29, 1924, providing for a weekly payment of 45 cents, and for a face amount of $603. As stated in the agreed statement of facts: "Under date of November 26, 1928, defendant issued an announcement by a circular styled `Double Insurance for Death by Accidental Means' without increase in premium rate or extra cost in connection with all of its weekly premium industrial policies, announcing also in said circular that a similar provision would be included in its weekly premium industrial policies issued on and after December 10, 1928, without any increase in premium rate; that a copy of said circular is hereto attached, marked `Exhibit C,' and made a part of this stipulation, for consideration in its entirety."

The circular in question contained, as a condition of the additional coverage for accidental death, the following provision: "Upon receipt of due proof that the insured after attainment of age 15 and prior to the attainment of age 70, has sustained bodily injury, solely through external, violent and accidental means, occurring after the date of the policy (but in no case prior to December 10, 1928) and resulting in the death of the insured within ninety days from the date of such bodily injury while the policy is in force, and while there is no default in the payment of premium, the company will pay in addition to any other sums due under the policy and subject to the provisions of the policy an accidental death benefit equal to the face amount of insurance stated in the policy less the amount of any disability benefit which has become payable under the policy on account of the same bodily injury." Valenti was between the ages specified.

The circular contained also the following condition: "Not only will this affect new policies issued from now on, but it also will be granted to existing industrial policies as to accidents, as defined, occurring on and after December 10, 1928, while the policies are in force. (Not granted on lapsed policies running under extended insurance or on paid-up policies issued to replace policies that have elapsed.)"

On or about March 13, 1931, at Kansas City, Missouri, Nicola (commonly called throughout record and briefs as "Nick") Valenti "sustained bodily injury solely through external, violent and accidental means, to-wit, gun-shot wounds inflicted by a third party unknown, which resulted immediately in his death." At the time of his death, no premiums had been paid upon said policies, or either of them, since June 16, 1930, and they were in effect only by virtue of statutory provisions applicable thereto whereby the insurance, to the face amount insured by said policies, was extended for respective terms expiring October 12, 1933, and June 1, 1934.

Nick Valenti left surviving him his father, Ben Valenti, and a son aged four years. October 10, 1931, Ben Valenti, as custodian of the minor son of Nick Valenti, and claiming to be "equitably entitled to the proceeds of the policies," brought suit against appellee in the circuit court of Jackson county, Missouri. In his petition he sought to recover, in addition to the face amount of the insurance hereinabove and in the agreed statement of facts stated, a like amount for accidental death, together with 10 per cent. of the principal sum for vexatious delay and attorneys' fees aggregating $750.

The case was removed to the District Court for the Western District of Missouri because of diversity of citizenship. In both policies appellee agreed to pay the insurance therein specified "to the executors or administrators of the insured," or, at its option, "to any person appearing to said company to be equitably entitled to the same by reason of having incurred expenses on behalf of the insured for his or her burial." Accordingly, at the outset, appellee, conceiving itself to be liable for the face of the policies as set out in the statement of facts, in view of the allegations of Ben Valenti, as stated in his original petition, that he was the person, as father, who "has incurred the burial expenses of the deceased," tendered to Ben Valenti the sum of $1,070.54, being the said face amount of the policies, together with all paid-up additions thereto by reason of dividends which had accrued at that time. This tender was refused.

Thereafter Ben Valenti procured his appointment as administrator of the estate of Nick Valenti, deceased, and, upon application, was authorized to amend his petition by adding his name as such administrator as a party plaintiff, alleging that "plaintiff, in his personal and in his representative capacities, is the only person entitled to the proceeds of the policies of insurance sued on herein." This amendment, so authorized, was duly made by interlineation.

Appellee by its answer denied liability for the additional amount claimed for accidental death, and for any amount except the face amount of the policies with all paid-up additions thereto by reason of dividends, which it again tendered — this time to Ben Valenti as administrator, and in the sum of $1,076, computed to that date. This tender also was refused, and was paid into the registry of the court upon filing of the amended answer. In that answer appellee alleged, in view of the premises, that Ben Valenti, as an individual, had no capacity to maintain this action to recover the proceeds of the policies, and that appellee stood released by virtue of its tender to him as administrator.

At the trial a jury was waived, the court found the facts to be as stipulated by the parties in the agreed statement of facts filed in the case, and announced, among others, the following conclusions of law:

"1. Under the law and the facts stipulated by the parties hereto, and in view of the fact that the defendant has paid to the clerk of this court the sum of $1,076.00 under the provisions of its answer, the judgment must be for the defendant as to both counts of plaintiff's petition.

"2. There was no vexatious refusal to pay in this case on the part of the defendant.

"3. The amount of $1,076.00 paid by defendant to the clerk of this court is payable to Ben Valenti, administrator of the estate of Nick Valenti, deceased, and not to Ben Valenti in his individual capacity.

"4. The provision contained in the accidental death provision added to the policies here involved under date of December 10, 1928, to the effect that the accidental death provisions were applicable `while the policy is in force and while there is no default in the payment of premiums' are valid and legal and a binding limitation upon the applicability of said provisions. The accidental death benefits under the policies were not payable on the date of the death of Nick Valenti because at that time there had been and remained default in the payment of premiums on each of said policies as to all premiums due on and after June 23, 1930, and said policies were at the time of the death of said Nick Valenti running under extended insurance."

Pending appeal, Ben Valenti died, and this appeal is prosecuted by appellant Lucille Valenti, as administratrix of the estate of Ben Valenti, deceased, and as administratrix of the estate of Nick Valenti, deceased. When the case was first submitted to this court, at the November term, 1933, appellant had presented no bill of exceptions, and applied for an order granting leave to file, nunc pro tunc, a supplemental transcript of the record. This application was granted and such supplemental transcript has been filed, containing an order and judgment setting out again the agreed statement of facts stipulated by counsel, which agreed statement was adopted and found by the trial court as the facts in the case, the court's conclusions of law, and conclusions of law requested by both parties at the close of the trial. This supplemental transcript, filed approximately one year after the entry of judgment in the District Court, is evidently intended to supply a bill of exceptions if such, upon the record, should be deemed necessary and proper. It is at least doubtful if this supplemental transcript can be made to discharge such a function, and appellee moves to strike it from the files. In the view we take of the case, however, we find it unnecessary to dwell upon this phase of the controversy.

In a jury-waived case, where the facts have been agreed upon, the scope of appellate review is well settled.

Section 773, 28 USCA p. 447, provides:

"Issues of fact in civil cases in any district court may be tried and determined by the court, without the intervention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury."

"And when the finding is special the review may extend to the determination of the sufficiency of the facts found to support the...