Wallace v. Prudential Ins. Co.

• Decision Date: 06 May 1913
• Citation: 157 S.W. 1028
• Parties: WALLACE v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

157 S.W. 1028

WALLACE v. PRUDENTIAL INS. CO. OF AMERICA.

St. Louis Court of Appeals. Missouri.

May 6, 1913.

Rehearing Denied June 17, 1913.

1. JUSTICES OF THE PEACE (§ 91) — ACTIONS — PLEADING — SUFFICIENCY.

A statement, in an action begun in justice court, is sufficient if it affords reasonable notice of the claim relied on and is sufficiently definite to operate as a bar to another suit; therefore a statement in an action on a life insurance policy is sufficient to entitle the plaintiff to relief though he proceeded on the theory that he was the beneficiary and it was not issued to him; the insurer's agent merely assuring him that he could collect the proceeds.

2. INSURANCE (§ 129) — LIFE INSURANCE — STATEMENTS OF AGENT.

A statement by an agent writing industrial insurance that the policy would be paid to whoever produced it, and that it was unnecessary for the insured to designate the beneficiary, is binding on the insurer, for in this class of insurance the agent who collects the premium and delivers the policy is the only one of the insurer's officials with whom the insured comes in contact, and his statements as to the mode of payment will constitute a waiver of the provisions of the policy.

3. EVIDENCE (§ 441) — DOCUMENTARY EVIDENCE — PAROL EVIDENCE TO VARY.

Where an industrial insurance policy provided that it should be payable to the executors or administrators of insured unless payment should be made as provided for by the facility of payment clause, which authorized the company to make payment to any relative or any other person equitably entitled to the same, parol evidence that the agent negotiating the insurance informed the insured and plaintiff, the insured's brother, whom the insured desired to make beneficiary, that the proceeds would be paid to plaintiff if he produced the policy, is admissible, not tending to vary the provisions of a written instrument, for the policy authorized payment to plaintiff and did not absolutely provide for payment to the executors and administrators.

4. TRIAL (§§ 139, 140) — JURY QUESTION.

The credibility of witnesses and the weight of the evidence are questions for the jury.

5. EXECUTORS AND ADMINISTRATORS (§ 3) — NECESSITY OF ADMINISTRATION — INSURANCE.

It should be the policy of the law to enforce industrial insurance policies which are taken out chiefly for the purposes of procuring a decent burial without the necessity of administration.

6. TRIAL (§ 238) — INSTRUCTIONS — ISSUE OF LAW.

In an action on an industrial insurance policy, where plaintiff, insured's brother, claimed the proceeds because of a waiver of the provisions as to payment, an instruction that, if the insurer's agent informed the insured that whoever presented the policy would receive payment and that the policies issued by defendant were so payable, verdict should be for plaintiff, is not improper as submitting an issue of law; the last clause referring, not to the actual provisions of the policy, but to the statements of the agent.

7. APPEAL AND ERROR (§ 1064) — REVIEW — HARMLESS ERROR.

The instruction, even if submitting an issue of law, was harmless to defendant because simply requiring the jury to find more than was necessary to entitle plaintiff to recover, to wit, that the policies of defendant were payable to whoever presented them after death.

8. COSTS (§ 260) — DAMAGES FOR VEXATIOUS APPEAL.

Under Rev. St. 1909, § 2084, authorizing an award by the appellate court of damages for a vexatious appeal, not exceeding 10 per cent. of the amount of the judgment, upon the affirmance of the decision or dismissal of the case, an award of the maximum damages will be allowed where an insurer without any just defense appealed from a judgment against directing payment of a policy of less than $200, keeping the case in court several years.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Joseph Wallace against the Prudential Insurance Company of America. From a judgment for plaintiff on appeal from a Justice's Court, defendant appeals. Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellant. R. G. Meigs and John B. Dempsey, both of St. Louis, for respondent.

ALLEN, J.

This is an action upon a policy of insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The instrument sued on is what is known as an industrial policy, and purports to be payable to the executors or administrators of the insured, "unless settlement shall be made as provided in article 2 under the head of Provisions." The clause of the policy last referred to is known as a "facility of payment" clause, providing that the insurance company may make any payment provided in the policy "to 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, for his or her burial or, if the insured be more than fifteen years of age at the date of this policy, for any other purpose, and the production by the company of a receipt signed by any or either of said persons, or of other sufficient proof of such payment to any or either of them, shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy had been fully satisfied."

The cause originated before a justice of the peace and was instituted by plaintiff, Joseph Wallace, a brother of the insured, and one John Collins, an undertaker. They recovered before the justice, and the defendant duly appealed to the circuit court, where a trial was had before the court and a jury. During the trial the cause was dismissed as to said Collins, and proceeded to verdict and judgment in favor of plaintiff, Joseph Wallace, respondent in this court.

The policy in question was issued August 23, 1909, insuring the life of William L. Wallace in the sum of $176, in consideration of a weekly payment of 10 cents. It provided that, in case of the death of the insured within six months after the issuance of the policy, only one-half of the benefits thereunder should be payable. The insured died on or about January 26, 1910; all the weekly premiums under said policy having been paid.

The evidence shows that plaintiff was present at the time the policy in question was issued to the insured through one Taylor, an agent of the defendant company; that the insured wanted the policy made payable to plaintiff, and he and plaintiff requested that it be so issued, but the agent told them that this was unnecessary, saying: "The holder of every policy gets the money. You will get the money; all you have to do is to have the policy." It was shown that the agent solicited the insurance, delivered the policy, and collected the weekly premiums thereunder, and that the insured and plaintiff dealt solely with him in the premises. The plaintiff kept the policy until the death of his brother, when he went to Collins, the undertaker, and arranged with him to bury the insured, turning over the policy to him as security for the payment of the funeral expenses. The undertaker, at the instance and request of plaintiff, buried the deceased at an expense of $86.50, and through him proofs of death were furnished defendant and demand made for the payment of the amount due under the policy. The defendant refused to pay the amount due under the policy either to Collins or to plaintiff, but tendered to the latter $2 and some cents, the amount of the premiums paid thereon.

During the trial in the circuit court plaintiff asked leave to amend the statement upon which the cause was tried...