Wilkins v. Metropolitan Life Ins. Co.

• Decision Date: 03 March 1942
• Parties: FRANCES BRITT WILKINS (PLAINTIFF), RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION (DEFENDANT), APPELLANT
• Court: Missouri Court of Appeals

159 S.W.2d 354

236 Mo.App. 586

FRANCES BRITT WILKINS (PLAINTIFF), RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION (DEFENDANT), APPELLANT

Court of Appeals of Missouri, St. Louis

March 3, 1942

Appeal from Circuit Court of Audrain County.--Hon. Frank Hollingsworth, Judge.

REVERSED.

Judgment reversed. Cause certified to Supreme Court.

C. C Franklin and Harry H. Evans for respondent.

(1) Under the terms of the policies and the statutes then in force, the accidental death benefits as well as the amount provided for natural death benefits were payable. Secs. 5852, 5854, R. S. Mo. 1939; Secs. 6151, 6153, R. S. Mo. 1919; Fletcher v. Metropolitan Life Ins. Co., 137 S.W.2d 621; Salamone v. Prudential Ins. Co. of America, 103 S.W.2d 506; New York Life v. Rositzky, 45 F.2d 758; Gooch v. Metropolitan Life Ins. Co., 61 S.W.2d 704; Westerman v. Supreme Lodge, 196 Mo. 760, 94 S.W 470, 480; Cravens v. New York Life Ins. Co., 148 Mo 583, 50 S.W. 519, affirmed 178 U.S. 389, 20 S.Ct. 962; Burridge v. Ins. Co., 211 Mo. 158, 173; Rosenberry v. American Benevolent Assn., 142 Mo. 552, 564-65, 121 S.W. 785; Prindle v. Fidelity & Casualty Co., 223 S.W. 252; Givin v. Metropolitan Life Ins. Co., 93 S.W.2d 1122. (2) The Legislature, when it adopted the nonforfeiture statutes in 1879, intended the act to apply to insurance on life, which includes policies of insurance insuring against death solely through external, violent and accidental means. (a) All sections of the nonforfeiture statute must be read in pari materia in ascertaining the legislative intention. Law 1869, p. 27, par. 1; Sec. 5938, R. S. 1879; Sec. 6151, R. S. Mo. 1919; Secs. 5852, 5854, R. S. 1939; Logan v. Fidelity & Casualty Co., 146 Mo. 114, 47 S.W. 948; Moore v. Ins. Co., 112 Mo.App. 696, 87 S.W. 988; Lamport v. General Accident, 272 Mo. 19, 197 S.W. 95; Smith v. Mutual Benefit Ins. Co., 173 Mo. 329. (b) The amendment to Sec. 6151, R. S. Mo. 1919, should be so construed that a harmonious construction be placed upon this section when construed with Sec. 6153, R. S. Mo. 1919. Secs. 6151-53, R. S. Mo. 1919; Secs. 5741-53, R. S. Mo. 1929; Secs. 5852-54, R. S. Mo. 1939; Laws 1923, p. 233, amending Sec. 6151, R. S. Mo. 1919; Valenti v. Prudential Ins. Co. of America, 71 F.2d 229; Smith v. Equitable, 107 S.W.2d 191, 195; Elias v. Montgomery Elevator Co., 50 S.W.2d 130, 133; State ex rel. Dean v. Daues, 14 S.W.2d 990, 1001-02; Hegberg v. St. L. & S. F. R. R. Co., 147 S.W. 192, 146 Mo.App. 514; State v. Messino, 30 S.W.2d 750, 754; State ex rel. Aull v. Field, 112 Mo. 554, 20 S.W. 742; Cleaver v. Central States Life Ins. Co., 142 S.W.2d 474. (3) Defendant's appeal is vexatious and the statutory penalty should be assessed. Sec. 1964, R. S. Mo. 1929; Bonzon v. Met. Life Ins. Co., 143 S.W.2d 336, 341; Prudential v. German Mutual, 142 S.W.2d 500, 504; Boillot v. Income Guaranty Co., 124 S.W.2d 608, 612.

Hunter & Chamier, Kenneth E. Midgley and Michaels, Blackmar, Newkirk, Eager & Swanson for appellant.

Harry Cole Bates of counsel.

(1) Walls v. Metropolitan Life Ins. Co. (Mo. App.), 125 S.W.2d 86; Prange v. International Life Ins. Co. of St. Louis (Mo.), 46 S.W.2d 523, 526. (2) The only "amount" extended under the statutory provisions is the "face amount," which does not include double indemnity benefits. No other amount of extended insurance is mentioned in the statute except to refer to the amount of extended insurance specified in the policies, which in this case is none. Sec. 5852, R. S. of Mo. 1939; Smith v. Equitable Life Assur. Soc. of the U. S. (Mo. App.), 107 S.W.2d 195; Valenti v. Prudential Ins. Co. of America (D. C.), 1 F.Supp. 993, 71 F.2d 229; Cleaver v. Central States Life Ins. Co. (Mo.), 142 S.W.2d 474. (3) The parties had the right to eliminate accidental death benefits from the coverage carried on extended insurance. This was clearly and unambiguously done by making current payment of premiums a condition in the accidental death benefit coverage clause, which is inconsistent with coverage on extended insurance. The parties did not need to say the same thing again by express exclusion. Smith, Cleaver, and Valenti Cases, supra; Sec. 5852, R. S. 1939; Sec. 5741, R. S. 1929; Rose v. Franklin Life Ins. Co., 153 Mo.App. 90, 96, 97; Langan v. United States Life Ins. Co. (Mo. App.), 121 S.W.2d 268; 130 S.W.2d 47; 32 C. J., pp. 1095, 1096, sec. 180; 32 C. J., p. 1109, sec. 202; Mitchell v. Accident Co., 179 Mo.App. 1, 7; Bouvier's Law Dictionary, Exception; Fletcher v. Metropolitan Life Ins. Co. (Mo. App.), 137 S.W.2d 621; Salamone v. New York Life Ins. Co. (Mo. App.), 103 S.W.2d 506; Rositzky v. New York Life Ins. Co., 45 F.2d 758. (4) Full ordinary death benefits having been paid, whether the accidental death benefits, added by amendment of the contracts in 1928, were carried on extended insurance, is to be determined under sec. 5852, R. S. of Mo. 1939, enacted in 1923, and not by predecessor statutes, even though the policies were issued in 1903 and 1908. Sec. 6151, R. S. 1919; Sec. 7897, R. S. 1899, as amended in 1903; Sec. 5852, R. S. 1939; Sec. 5741, R. S. 1929, enacted in 1923; Valenti Case, supra; Carmen v. Harrah, 182 Mo.App. 365, 170 S.W. 388; Bank v. Federal Reserve Bank, 262 U.S. 649, 660; Armour Packing Co. v. U.S. 153 F. 1, 19; Edwards v. Kearzey, 96 U.S. 595, 601. (5) Even if the statutes in force prior to 1923 were controlling, they required only extension of the full amount of ordinary life insurance written in the policy, not including accidental death benefits. This is clear beyond question in light of the statutory history, the section considered as a whole, and statutes in pari materia. Mutual Reserve Life Ins. Co. v. Roth, 122 F. 858; Westerman v. Supreme Lodge (en banc), 196 Mo. 670, 94 S.W. 470; Sec. 6151, R. S. Mo. 1919; Mooney v. Merriam, 77 Kan. 305, 310; Magers v. Northwestern Mutual Life Ins. Co. (Mo.), 152 S.W.2d 148; Laws of Missouri, 1879, pp. 130, 131, R. S. 1879, secs. 5983, 5984, 5985, 5986; Sec. 5854, R. S. 1939; Sec. 5985, R. S. 1879; Art. II, Chap. 119, R. S. 1879; Art. III, Chap. 89, R. S. 1889; Logan v. Ins. Co., 146 Mo. 114, 47 S.W. 948; Rose v. Franklin Life Ins. Co., 153 Mo.App. 90, 96, 132 S.W. 613; 32 C. J. 1095, sec. 180; Sec. 6153, R. S. 1919; Fox v. Mutual Benefit Life Ins. Co., 107 F.2d 715; Fletcher and Rositzky cases, supra; Leibing v. Mutual Life Ins. Co. of New York, 269 Mo. 509, 523, 524.

BENNICK, C. Anderson, J., concurs; Hughes, P. J., concurs in result only in separate opinion; McCullen, J., dissents in separate opinion and requests certification to Supreme Court.

OPINION

BENNICK, C.

This is an action to recover the accidental death benefits under two policies of industrial insurance which were issued by defendant, Metropolitan Life Insurance Company, upon the life of one William Cooper, who died on August 1, 1936, as the result of bodily injuries sustained directly and independently of all other causes through external, violent, and accidental means. Plaintiff sues under the facility of payment clause contained in each of the policies; and defendant expressly disavows any question regarding her capacity to maintain the action.

The one policy, which was for an amount of $ 210 with increasing benefits, was issued in 1903, and the other, which was for an amount of $ 258 with increasing benefits, was issued in 1908. Each policy provided for the payment of a weekly premium, and further provided that except for a grace period of four weeks, if any premium should not be paid when due, the policy should be void.

Neither policy, when issued, contained a provision for the payment of an accidental death benefit, but in 1928 defendant prepared and sent out an announcement, effective December 1, 1928, granting accidental death benefits on all industrial policies then in force, including the two in question in this proceeding.

Such announcement provided that upon due proof of the insured's accidental death as therein defined "while this policy is in force, and while premiums are not in default beyond the grace period specified in this policy," the company would pay, in addition to any other sums due under the policy, and subject to its provisions, an accidental death benefit "equal to the face amount of insurance then payable at death," save that if the insured's bodily injuries should be sustained while the insured was engaged in the course of certain excepted employments, then in that event, the accidental death benefit should be reduced to "one-half of the face amount of insurance then payable at death."

A still further provision of the announcement was that the accidental death benefit was granted without specific extra premium being charged therefor, the cost being included in the premium for the policy.

Both policies lapsed for nonpayment of premiums on August 1, 1932, four years to the day before the death of the insured, which occurred under circumstances making defendant liable for the payment, not only of the principal amounts of the policies which were of course due regardless of the cause of death, but also of accidental death benefits "equal to the face amount of insurance then payable at death," if the accidental death coverage provided by the announcement was carried over as temporary or extended insurance beyond the date of lapse. Defendant paid the principal amounts of the policies, but refused to pay the accidental death benefits upon the ground that such coverage had not been carried forward after lapse as temporary or extended insurance. Thereupon this action was instituted; and from a judgment entered for plaintiff for the aggregate amount of $ 686.40, defendant's appeal to this court has followed in the usual course.

Thus we have the issue squarely drawn of whether, upon the lapse of the...