White v. Metropolitan Life Ins. Co.

• Decision Date: 15 March 1949
• Docket Number: No. 27497.,27497.
• Citation: 218 S.W.2d 795
• Parties: WHITE v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Court of Appeals

218 S.W.2d 795

WHITE v. METROPOLITAN LIFE INS. CO.

No. 27497.

St. Louis Court of Appeals. Missouri.

March 15, 1949.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be reported in State Reports."

Action by Josie Moore White, administratrix of the estate of Henry Stearns, deceased, against Metropolitan Life Insurance Company to recover death benefits under a policy issued by defendant. From an order setting aside a verdict in favor of plaintiff, and granting a new trial, plaintiff appeals.

Order affirmed and cause remanded for further proceedings.

Franklin E. Reagan, Adolph K. Schwartz and Sievers & Reagan, all of St. Louis, for appellant.

Fordyce, White, Mayne, Williams & Hartman and F. W. Schwarz, all of St. Louis for respondent.

WOLFE, Commissioner.

This action was brought to recover death benefits alleged to be due under a policy of insurance. It is based upon a presumption of death arising from the absence of the insured for over seven years. The jury returned a verdict for the administratrix of the insured but the court set aside the verdict and judgment and granted a new trial. It is from this order that the plaintiff administratrix prosecutes this appeal.

The plaintiff testified that the insured, whose name was Henry Stearns and who was at times known as Stodder, came to live with her in St. Louis in 1924. He was her first cousin but she had never seen him before and she did not know where he had previously lived. She said that he was a widower and was about fifty years of age in 1935 but she knew very little about his family. She had known his mother who was dead, she "guessed" that he might have a brother or sister living, but she knew nothing of his father. According to the plaintiff Stearns had very little to say about himself and he was also illiterate.

The plaintiff had a policy of life insurance with the defendant and after Stearns started living at her home he became insured by the same company. His policy was applied for and issued at the instance of the plaintiff in 1924. She was asked if she had anything to do with getting the insurance and her reply was, "I put him in", and in response to further questions she related that she paid the premiums herself.

The insured was inclined to "travel about" and in 1925 he left the plaintiff's home and she did not hear from him again until about ten years later when he reappeared and told her he had been in Chicago. He stayed with her for about three months this time and again departed on April 1, 1935.

Plaintiff testified that Stearns, after his second appearance in St. Louis, was very sick and had something "like he was paralyzed in his right leg", and her sister testified, "He looked like he had something — I don't know — rheumatism — something like that." The same sister further elaborated by saying, "He was kind of dragging like. He wasn't well you know * * * He did pretty well at times." He had no medical attention while staying at the plaintiff's home but previous to his return he had gone to an "herb doctor" in Chicago, who had given him some herbs that he mixed with water and took as medicine. By April 1, 1935, all of the herbs had been used so he decided to go to Chicago to attend to some "personal things" and to get some more herbs.

He was accompanied to the station by the plaintiff, her sister and a neighbor. They helped him to the train, put him aboard and watched the train depart for Chicago. Before he left he told them that he would be back in a week and concluded by saying "* * *, but I am coming back to die." He had a round-trip ticket but he never returned nor was he heard from by the plaintiff or her sister again. Plaintiff wrote once to the Chicago police in an effort to locate him but received no reply to her letter.

The premiums on Stearns' life insurance policy were paid weekly by the plaintiff to an agent named Holtzman who called to collect until March 16, 1931, after which time, according to plaintiff, he quit collecting from her. Although the insured had left her home in 1925, for his first departure, she continued to pay one dollar a week until this last collection. She stated that the week following she saw Holtzman and asked him why he had quit collecting but "he wouldn't say nothing." She saw him sometime later and stated that their conversation was as follows:

"* * * he says, `No, I ain't going to take no more premiums from you.' He said, `You wasn't at home the other week.' And he got angry when he came, he said, `Now I am going to quit — take the policy from you.' He were angry with me because I wasn't there, and I mailed it in and he wouldn't take it."

Plaintiff stated that about two weeks after the last collection by Holtzman she mailed nine dollars to the company and that it was mailed back to her. On August 8, 1931, she wrote a letter to the defendant in which she stated that she knew that she owed "right smart", but expressed her desire to renew her policy and Stodder's (it will be remembered that the insured was called by this name at times). On September 9, 1931, she filed a "Declaration of Disappearance" with the defendant company, in which she advised it that the insured had lived with her as a roomer and had disappeared on July 25, 1925. Apparently nothing was done to reinstate the policy during the short reappearance of the insured in 1935 but the plaintiff states that she had her own policy reinstated in 1936 and at that time, which was after the second departure of Stearns, the company refused to reinstate his policy.

The defendant's evidence was to the effect that any payments received by mail during the grace period of the policy were credited to the policyholder and that the policy on Henry Stearns lapsed for nonpayment of premiums on May 4, 1931. The policy provided that in order to reinstate it after a lapse, evidence of the sound health of the insured must be presented to the company. The records of the Metropolitan Life Insurance Company also revealed that the policy in question, by reason of extended term insurance, did not expire until November 18, 1937. There was evidence that the collector named Holtzman was no longer in the company's employ.

The case was presented to the jury on two theories; one, that Stearns died prior to the expiration date of the extended insurance and, two, that by reason of a refusal to accept premiums which were tendered while the policy was in force the defendant was estopped from asserting that the insurance lapsed for nonpayment of premiums.

After a verdict for the face amount of the policy the defendant duly filed its motion for a new trial and it was sustained on the grounds that three instructions had been erroneously given and that the court erred in not declaring a mistrial at defendant's request when plaintiff's counsel, in his final argument to the jury, commented on the failure of the defendant to produce Holtzman as a witness.

Appellant asserts that the defendant did not state any grounds for its objection to the instructions at the time they were given and that such objection could not therefore be considered. On the same point he also urges that the motion for a new trial was not in conformity with rule 3.23 of the Supreme Court.

The grounds for objections to instructions need no longer be stated at the time the objection is made as Section 122, Laws of 1943, p. 389, was amended by Laws of 1947, Vol. 1, p. 228, Mo.R.S.A. § 847.122, and as amended that section now provides "* * * it shall not be necessary to state grounds for objections for instructions." This new section was in effect at the time of the trial.

As for the contention that the motion for a new trial was insufficient under rule 3.23 of the Supreme Court, appellant overlooks the fact that the rule has to do with the sufficiency of such motions for appellant review and the trial court's right to pass upon its own errors is not limited by the rule.

The first instruction which the court held it had erroneously given when it sustained the motion for a new trial was as follows:

"The Court instructs the Jury that it is admitted in this case that the policy of insurance issued by the defendant was in force on or about April 1, 1935.

"The Court further instructs the Jury that if you find and believe from the evidence in this case that on or about April 1, 1935, the said Henry Stearns was a person of approximately 50 years of age, if you so find, and was a person in poor health, if you so find, and that death was expected in a short time by the said Henry Stearns, if you so find, that the said Henry Stearns left the State of Missouri on or about April 1, 1935, to attend to some personal matters before he expected to die, if you so find, and that the said Henry Stearns made said trip out of the State of Missouri intending to return to the State of Missouri and City of St. Louis within a few days, if you so find, and if you further find and believe from the evidence that the said Henry Stearns failed to return to the State of Missouri as he had planned, if you so find, and that the said Henry Stearns died at any time prior to November 18, 1937, then your verdict must be for the plaintiff, even though you may believe and find from the evidence that the insurance was not in force after November 18, 1937, and if you do find for the plaintiff you will assess her damages in a sum not to exceed $1060.00, with interest thereon at the rate of 6% per annum from January 15, 1944, to this date."

The obvious purpose of instructions is to inform the jury of the law as it is to be applied to the evidence that they have heard. The law applicable here is that a presumption of death arises if a person who resides in this state leaves it and does not return for seven successive years, unless there is proof that the party was alive within that time....