White v. Prudential Ins. Co. of America
| Decision Date | 04 April 1939 |
| Citation | 127 S.W.2d 98,235 Mo.App. 156 |
| Parties | DONIE WHITE (PLAINTIFF), RESPONDENT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, A CORPORATION (DEFENDANT), APPELLANT |
| Court | Missouri Court of Appeals |
Motion for rehearing overruled April 18, 1939.
Writ of Certiorari denied by Supreme Court June 6, 1939.
Rehearing Denied 235 Mo.App. 156 at 166.
Appeal from the Circuit Court of City of St. Louis.--Hon. Joseph J Ward, Judge.
Judgment reversed.
Fordyce White, Mayne, Williams & Hartman and R. E. LaDriere for appellant.
Ralph W. Hyatt of counsel.
(1) Verdict should have been directed for defendant, as requested, at the close of the entire case. Hardie v Metropolitan Life Ins. Co. (Mo. App.), 7 S.W.2d 746; Gallagher v. Simmons Hdw. Co. (Mo. App.), 214 Mo.App. 111, 258 S.W. 16; Steffen v. Equitable Life Assurance Co. (Mo. App.), 64 S.W.2d 306; Magee v. Equitable Life Insurance Co., 62 N.D. 614, 244 N.W. 518; Austin v. Metropolitan Life Ins. Co., 142 S.W. 337; Beecey v. Travelers Ins. Co., 267 Mass. 135, 166 N.E. 571, l. c. 572; Thull v. Equitable Life Assn., 40 Ohio App. 486, 178 N.E. 850; Curd v. Traveler Ins. Co., 51 Ga.App. 306, 180 S.E. 249; Neely v. Travelers Ins. Co., 141 Kan. 691, 42 P.2d 957, l. c. 960; Magee v. Sun Life Assurance Co. of Canada, 180 So. 797; Simsaki v. Equitable Society of U.S. 277 N.Y.S. 424, 151 Misc. 533; Harris v. Insurance Company, 248 Mo. 304; Darlington Lumber Co. v. Railroad, 243 Mo. 224, l. c. 245; Girvin v. Metropolitan Life Ins. Co. (Mo. App.), 75 S.W.2d 596, 84 S.W.2d 644; Foster v. Metropolitan Life Ins. Co. (Mo. App.), 233 S.W. 499; Cooper v. Metropolitan Life Ins. Co., 94 S.W.2d 1070. (2) Plaintiff's main instruction (No. 1), permitting recovery by the plaintiff even though no premium was paid after May 31, 1936, is contrary to law. Borden v. Folk, 97 Mo.App. 566, 71 S.W. 478; Sells v. Fireside Ins. Co., 66 S.W.2d 955; Brock v. Rock Island, 305 Mo. 512, 266 S.W. 691; Henry v. Ill. Central, 282 S.W. 423; Estes v. Desnoyers, 155 Mo.App. 577, 56 S.W. 316; Key v. Cosmopolitan, 102 S.W.2d 797; Murphy v. Great American Ins. Co. (Mo. App.), 268 S.W. 671; Yancey v. Central Mut. Ins. Co., 77 S.W.2d 149; Chipley v. National Life, 67 S.W.2d 992. (3) Instruction No. 3 is contrary to law and should not have been given. Butler v. Insurance Co., 93 S.W.2d 1019; Magee v. Sun Life Insurance Co., 180 So. 797; Chrosniak v. Metropolitan Life Ins. Co., 201 N.Y.S. 211, 121 Misc. 453 (affirmed 204 N.Y.S. 898, 209 A.D. 846); Beecey v. Travelers Insurance Co., 267 Mass. 135, 166 N.E. 571; Magee v. Equitable Life Assurance Co., 62 N.D. 614, 244 N. S. 518. (4) The question of vexatious delay should not have been submitted to the jury. Patterson v. American Ins. Co., 174 Mo.App. 44, 160 S.W. 62; Camdenton School District ex rel. Powell v. New York Casualty Co., 340 Mo. 1070, 104 S.W.2d 319; Houston v. Metropolitan Life Ins. Co., 97 S.W. 856; St. Clair v. Washington & Fidelity National Ins Co., 89 S.W.2d 85; Non Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399, 210 S.W. 37; Grandgenette v. National Protective Association, 229 Mo.App. 132, 73 S.W.2d 341.
S. E. Garner, S. R. Redmond and Henry D. Espy for respondent.
(1) The court did not err in submitting the case to the jury. Caine v. Physicians' Indemnity Company of America, 45 S.W.2d 904; Foster v. Metropolitan Life Ins. Co., 233 S.W. 499; Rasch v. Bankers' Life Ins. Co., 201 S.W. 919; Girvin v. Metropolitan Life Ins. Co., 84 S.W.2d 644; Stewart v. North American Accident Ins. Co., 33 S.W.2d 1007; Hanley v. Life Ass'n of America, 4 Mo.App. 253; Wagaman v. Security Mutual Life Ins. Co., 110 Mo.App. 616, 85 S.W. 117; Wacker v. National Life & Acc't Ins. Co., 213 S.W. 869; Fullington v. Ozark Poultry Supply Co., 39 S.W.2d 781; Easter v. Brotherhood of American Yeoman, 154 Mo.App. 456, 135 S.W. 964; Keeton v. National Union (Mo. App.), 182 S.W. 798; Smith v. Ohio Millers' Mut. Fire Ins. Co., 330 Mo. 236, l. c. 246, 49 S.W.2d 42, 45; Rose v. National Lead Co., 94 S.W.2d 1047; Halsey v. American Central Life Ins. Co., 258 Mo. 659, 167 S.W. 951; Winkelman v. Central States Life Ins. Co., 101 S.W.2d 736, 231 Mo.App. 501. (2) Plaintiff's main Instruction No. 1 is a correct statement of the law as applied to the facts. Mayhew v. Travellers Protective Ass'n, 52 S.W.2d 29; Holloway v. Barnes Grocery Co., 223 Mo.App. 15; Gannaway v. Pitcairn, 109 S.W. 78; Krielitz v. Calcaterra (Mo.), 33 S.W. 909; Stokes v. Godefroy Mfg. Co. (Mo.), 85 S.W.2d 434; Moss v. Metropolitan Life Ins. Co., 84 S.W.2d 395, l. c. 398; Liemkuehler v. Wessendorf, 323 Mo. 64, 18 S.W.2d 445; Young v. Wheelock, 330 Mo. 992, 64 S.W.2d 950, l. c. 956. (3) The court did not err in giving Instruction No. 3, which did not direct a verdict. State v. Hudson, 222 S.W. 1049; 32 C. J. 1245; Home Ins. Co. v. Hamilton, 143 Mo.App. 23, 128 S.W. 273; Butler v. Equitable Life Assurance Society, 93 S.W.2d 1019, l. c. 1025; Missouri Cattle Loan Co. v. Great Southern Life Ins. Co., 330 Mo. 988, 52 S.W.2d 1. (4) The court did not err in submitting to the jury the question of vexatious refusal to pay. Hiller v. Connecticut Fire Ins. Co., 63 S.W.2d 461; Tinsley v. Washington National Ins. Co., 97 S.W.2d 874; Gardner v. Queens Ins. Co., 115 S.W. 4; Hawkins v. Washington National Ins. Co., 78 S.W.2d 543; State ex rel. Continental Life v. Allen, 303 Mo. 608, 268 S.W. 43; Streeter v. Washington National Ins. Co., 68 S.W.2d 889, 893; Bigalte v. Mutual Life Ins. Co., 34 S.W.2d 1019.
This is an action by plaintiff, the widow and designated beneficiary of Stephen White, to recover upon a policy of group insurance which was issued by defendant to Pullman, Incorporated, for the benefit of the latter's employees, of whom White was one at the time of the issuance of the policy on June 1, 1933. Thereafter White was intermittently employed by the Pullman Company in its active service until January 25, 1936, when he was compelled to quit work because of illness. It was a conceded fact that following the termination of his active employment he kept his insurance in force until June 1, 1936, and the issue in the case was whether he was still insured under the policy at the time of his death on January 16, 1937.
Judgment was entered for plaintiff for the aggregate sum of $ 3,926, and defendant's appeal to this court has followed in the usual course.
The master policy provided that in consideration, among other things, of the Pullman Company's payment of a premium comprising the sum of the several premiums for the individual amounts of insurance embraced within the coverage of the policy, defendant insured the several persons named in the record of the employees, the amount of insurance on the life of any one employee being fixed in the first instance upon the basis of his earnings during the six months preceding the date of his eligibility for insurance, but with provision made for an increase in the amount of insurance as of January first of each succeeding year to accord with any increased earnings in the previous year. The cost of the insurance was expressly required to be apportioned between the Pullman Company and those of the employees who agreed to come within the coverage of the policy, and included (within minimum and maximum limits) natural death insurance; accidental death insurance, with dismemberment benefit features; and weekly sickness and nonoccupational accident insurance.
The policy provided that the same was based on the payment of successive monthly premiums computed in each instance with reference to the amount of insurance outstanding under the policy on the due date of each premium, and that if any premium was not paid when due, the policy should thereupon become void, save that for every premium except the first a grace period of thirty-one days was allowed during which the policy remained in force.
There was a further clause which provided that the Pullman Company should keep a record of the employees insured under the policy, which record should contain their names, the respective amounts for which they were insured, and the date on which the insurance on each employee became effective; that such record should become a part of the policy, and should be open to inspection by defendant at any time; and that the Pullman Company should report to defendant at the end of each month the number of employees insured at that time and the total amount of insurance then in force, specifying the number of new employees added during such period and the total amount of insurance on their lives, the total amount of increases in insurance during such period, the number of employees whose insurance was terminated during such period, and the total amount of insurance so terminated.
With respect to the termination of individual insurance, that is, the insurance upon the life of any particular employee, the policy provided that irrespective of any other mode of termination, the insurance upon the life of any person insured under the policy should cease and terminate upon the termination of the employment of such person by the Pullman Company, except that, at the option of the Pullman Company, employees temporarily laid off, on leave of absence, or temporarily disabled, should, during such periods, be considered as being in the employ of the Pullman Company.
There was a further provision requiring defendant to issue to the Pullman Company, for delivery to each person insured under the policy, an individual certificate setting forth the insurance protection to which such person was entitled and to whom payable, together with a provision that when the insurance on the life of any person insured under the policy should...
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