Whited v. National Western Life Ins. Co.

• Citation: 526 S.W.2d 364
• Decision Date: 04 August 1975
• Docket Number: Nos. KCD,s. KCD
• Parties: Jean WHITED, respondent, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, a Foreign Corporation, Appellant. Jean WHITED, Appellant, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, a Foreign Corporation, Respondent. 27123, KCD 27118.
• Court: Court of Appeal of Missouri (US)

Page 364

526 S.W.2d 364

Jean WHITED, respondent, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, a Foreign

Corporation, Appellant.

Jean WHITED, Appellant, v. NATIONAL WESTERN LIFE INSURANCE COMPANY, a Foreign

Corporation, Respondent.

Nos. KCD 27123, KCD 27118.

Missouri Court of Appeals, Kansas City District.

Aug. 4, 1975.

Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for Jean Whited.

Richard A. King, Independence, for National Western Life Ins. Co.; Constance, Slayton, Stewart & King, Independence, of counsel.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special JJ.

ANDREW J. HIGGINS, Special Judge.

Appeal (No. 27123) by National Western Life Insurance Company from that part of summary judgment which favored Jean Whited and required National to pay $10,000 life insurance policy proceeds plus six per cent interest to Mrs. Whited as beneficiary of a life insurance policy, consolidated with appeal (No. 27118) by Jean Whited from that part of summary judgment which favored National Western Life Insurance Company and denied Mrs. Whited's claim of vexatious refusal to pay.

On November 4, 1968, Gary R. Jackson, a resident of Missouri at 9616 East 33rd Street, Independence, Missouri, while a member of the United States Army stationed at Ft. Rucker, Alabama, applied by written application to Missouri Fidelity Union Trust Life Insurance Company for a $10,000 policy of life insurance, and designated his mother Jean Jackson (Whited), first beneficiary. The policy application was solicited by the company's agent in Alabama. Missouri Fidelity subsequently merged with National Western Life Insurance Company; and both companies were, at all times, licensed to do business in Missouri as foreign insurance companies.

The application contained the following provision: '(U)nless the first premium is paid in cash with this application there shall be no insurance contract until a policy has been delivered to me (the insured) during the good health and while the habits and occupation of the proposed insured remain as described in this application, and the first premium paid.'

At the time of execution of the application, Gary R. Jackson also executed a 'Class E' military pay allotment directing the service finance officer to deduct from his December pay the sums necessary to satisfy the initial and subsequent premiums on the policy as they became due and forward them to the insurance company. Such an allotment may be canceled at will by the serviceman; no other form of payment was made.

The application instructed that the policy be mailed to the beneficiary, Mrs. Jean Jackson, 9616 East 33rd Street, Independence, Missouri. The policy was issued January 1, 1969, and mailed to the Independence address.

The policy contained the following provision: 'If the insured shall commit suicide while sane or insane within two years from the date of issue of this policy, the liability of the Company shall be limited to the amount of premiums actually paid hereunder.'

It also provided: 'Any provision of this policy which is, on the date of issue, in conflict with the statutes of the State in which the policy is issued or delivered is hereby amended to conform to such statutes.'

Section 376.620, RSMo 1969, V.A.M.S., provides: 'In all suits upon policies of insurance on life hereafter issued by any company doing business in this state, to a citizen of this state, it shall be no defense that the insured committed suicide, unless it shall be shown * * * that the insured contemplated suicide at the time he made his application for the policy, and any stipulation in the policy to the contrary shall be void.'

Suicide exclusions are recognized by the substantive law of Alabama. See Kiley v. Pacific Mut. Life Ins. Co., 237 Ala. 253, 186 So. 559 (1939); 1 Appleman, Insurance Law and Practice, § 362 (1965).

Gary R. Jackson died September 8, 1969, of a bayonet wound in the chest while on active military duty in Vietnam. His mother made claim for the proceeds of the policy of insurance and, upon the company's refusal to pay, instituted this action for recovery of the proceeds of the policy and damages for vexatious delay. Defendant took the position that the death was the result of suicide, submitted an affidavit that the stab would was self-inflicted in support of that position, and contended that the policy was made in Alabama where the suicide exclusion is recognized. ¹ Plaintiff took the position that the cause of death was immaterial because the contract was made in Missouri where suicide exclusions are void.

Upon completion of the pleadings, plaintiff moved for judgment on the pleadings which the trial court considered as a motion for summary judgment under Rules 55.27(b) and 74.04, V.A.M.R. Among other things, the court found that the military allotment form of payment did not meet the contract requirement of cash necessary to complete the contract in Alabama, and ruled that the policy was a Missouri insurance contract to which the suicide exclusion would not apply; and found that defendant was reasonably entitled to insist upon judicial determination of the policy terms in question, and ruled that defendant was not to be held for vexatious delay.

A summary judgment may be entered when the party seeking it shows by unassailable proof that he is entitled to judgment as a matter of law and that the other party would not be entitled to recover under any discernible circumstances. Brummet v. Livingston, 384 S.W.2d 101, 103(1) (Mo.App.1965); Wright v. Wrehr, 415 S.W.2d 781, 783 (Mo.1967). See also Anderson v. Steurer, 391 S.W.2d 839 (Mo.1965); E. O. Dorsch Electric Co. v. Plaza Construction Co., 413 S.W.2d 167 (Mo.1967).

Appellant National Western Life Insurance Company contends that plaintiff was not entitled to that part of the summary judgment in her favor, asserting that the record indicates circumstances under which National would be entitled to prevail. National's position is that if Alabama substantive law is applied the suicide exclusion in the policy is a valid defense. See Kiley v. Pacific Mut. Life Ins. Co., supra. In order to bring itself within this position, National argues that the events which took place in Alabama were sufficient to complete the contract of insurance there and make Alabama law applicable in that Missouri will apply the law of the state where a contract is made in interpreting its provisions. See, e.g., Kellogg v. National Protective Ins. Co., 236 Mo.App. 837, 155 S.W.2d 512 (1941); Pickett v. Equitable Life Assur. Soc., 27 S.W.2d 452 (Mo.App.1930); Auffenberg Lincoln-Mercury v. Wallace, 318 S.W.2d 528 (Mo.App.1958); American Institute of Marketing Sys., Inc. v. Brooks, 469 S.W.2d 932 (Mo.App.1971); Grider v. Twin City Fire Ins. Co., 426 S.W.2d 698 (Mo.App.1968); Fields v. Equitable Life Assur. Soc., 118 S.W.2d 521, 524 (Mo.App.1938).

Appellant National refers to the provision in the policy application that there would be no insurance contract until the policy was delivered 'unless the first premium is paid in cash with this application,' to further state its position: 'If the first premium can be construed to have been paid in cash with the application the last act necessary to bind the parties to a contract took place in Alabama and the law of that state should apply--allowing defendant to prevail.' In support, appellant contends it was entitled to present extrinsic evidence of the meaning of 'cash' in the application and the significance of the execution of a military pay allotment in order to show that the contract of insurance was consummated in Alabama.

As recognized by appellant National, resolution of this litigation turns on the meaning of 'cash' or 'cash with this application' as used in the insured's application for the life insurance policy in question. Thus, the dispositive question is whether execution of a military pay allotment satisfied the requirement of the policy application for payment, i.e., 'payment of the first premium in cash with this application.'

The trial court ruled that execution of the military pay allotment 'amounts to nothing more than an agreement to pay through an intermediary at a further date,' subject to election of the insured to continue the order in force,' 'and does not meet the contract requirement of cash necessary to bind the defendant to the insurance obligation when the application was taken. * * * accordingly, * * * subject insurance contract became effective, according to its terms, upon delivery of the policy to plaintiff in Missouri. It is therefor(e) a Missouri contract to be enforced and interpreted according to the laws of this state. * * * Suicide exclusion clauses being prohibited by statute in this state and such * * * being the only defense to payment of the policy death benefit, plaintiff is entitled to recover.'

This determination, as attacked by appellant National, should be affirmed, if, as a matter of law, and without need to resort to extrinsic evidence, execution of a military pay allotment is not the equivalent of 'cash' or 'cash with this application' as required by the policy application for its completion.

As in the trial court, the problem...