Williams v. People's Life & Acc. Ins. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: [224 Mo.App. 1233] NIPPER, J.
• Citation: Williams v. People's Life & Acc. Ins. Co., 224 Mo.App. 1229, 35 S.W.2d 922 (Mo. App. 1931)
• Decision Date: 03 March 1931
• Parties: ANNABELLE WILLIAMS, RESPONDENT, v. PEOPLES LIFE AND ACCIDENT INSURANCE COMPANY, A CORPORATION, APPELLANT

35 S.W.2d 922

224 Mo.App. 1229

ANNABELLE WILLIAMS, RESPONDENT, v. PEOPLES LIFE AND ACCIDENT INSURANCE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

March 3, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon. Harry Sprague, Judge.

REVERSED.

Judgment reversed.

Martin Farrow for appellant.

(1) Plaintiff had no insurable interest and the court erred in refusing defendant's instructions, peremptory, and Nos. 3 and 8, and in giving plaintiff's instruction A Charter Oak Life Ins. v. Brant, 47 Mo. 419; Singleton v. St. L. Mut. Ins. Co., 66 Mo. 63; Reynolds v. Ins. Co., 88 Mo.App. 679; Whitmore v. Sup. L. K. & L. of H., 100 Mo. 36, 13 S.W. 495; Masonic Ben. Ass'n v. Bunch, 109 Mo. 560, 19 S.W. 25; Sternberg v. Levy, 159 Mo. 617, 60 S.W 1114; Ryan v. Metropolitan Life Ins. Co., 117 Mo.App. 688, 93 S.W. 347; Locher v. Kuechenmiester, 120 Mo.App. 701, 98 S.W. 92; Deal v. Hainley, 135 Mo.App. 507, 116 S.W. 1; Abernathy v. Springfield Mut Ass'n (Mo. App.), (not officially published), 284 S.W. 198; 1 Couch on Insurance, 763-765, sec. 294; 1 Couch on Insurance, 770-771, sec. 295; 1 Couch on Insurance, 779, sec. 296; McRae v. Wormack, 98 Ark. 52, 135 S.W. 807, 33 L.R.A. (N.S.) 949; Mutual Aid Union v. White, 166 Ark. 467, 267 S.W. 137; Equitable Life Ins. Co. v. O'Connor, 162 Ky. 262, 172 S.W. 496; Keystone M. Ben. Ass'n v. Norris, 115 Pa. 446, 8 A. 638; 1 Cooley's Briefs on Insurance (2 Ed.), 387, 392; Taussig v. United Security Life Ins. & Trust Co., 231 Pa. 16, 79 A. 810; Guardian Mut. Life Ins. Co. v. Hogan, 80 Ill. 35; Langdon v. Union Mutual L. Ins. Co., 14 F. 272; Home Mut. Ben. Ass'n v. Keller, 148 Ark. 361, 230 S.W. 10; Dresen v. Metr. Life Ins. Co., 195 Ill. A. 292; Baker v. Lyell, 210 Mo.App. 230, 242 S.W. 703. (2) As the application was signed by plaintiff, for insured, an infant, the policy based thereon is invalid; and the court erred in refusing defendant's instructions, peremptory and No. 6, and in giving plaintiff's instruction A. Turner v. Bondalier, 31 Mo.App. 582; Mechem on Agency (2 Ed.), secs. 140, 141 and 142; Curtis v. Alexander (Mo.), (not officially published), 257 S.W. 432, 436; 31 C. J. 1081, sec. 184, text to nn. 5-8; Poston v. Williams, 99 Mo.App. 513, 73 S.W. 1099. (3) As the application was signed by plaintiff, for insured, who was mentally incompetent, the policy based thereon is invalid; and the court erred in refusing defendant's instructions, peremptory and No. 4, and in giving plaintiff's instruction A. Cases cited under head 2, supra; See, also, 32 Corpus Juris 741, sec. 527, text to nn. 11-12. (4) The policy is void because it was obtained without insured's knowledge or consent. 1 Cooley's Briefs on Insurance (2 Ed.), 846, and cases cited; 1 Couch on Insurance, 779, sec. 296. (5) The application was fraudulently signed by a person other than insured, and the policy based thereon is invalid; and the court erred in refusing defendant's instructions, peremptory and No. 7, and in giving plaintiff's instruction A. Carter v. Metr. Life Ins. Co., 275 Mo. 84, 204 S.W. 399; Swinney v. Conn. Fire Ins. Co. (Mo. App.), 8 S.W.2d 1090; So. States Mutual Life Ins. Co. v. Herlihy, 138 Ky. 359, 128 S.W. 91. (6) As insured was afflicted with his fatal illness on the date of the policy, defendant was only liable, at the most, for the premiums; and the court erred in refusing defendant's instructions, peremptory and 3A, and in giving plaintiff's instruction A. Taylor v. Loyal Prot. Ins. Co. (Mo. App.), 194 S.W. 1055; State ex rel. Comm. Cas. Co. v. Cox (Mo.), 14 S.W.2d 600, and cases there cited; McAndiless v. Metr. Life Ins. Co., 45 Mo.App. 578; Renn v. Sup. Lodge K. P., 83 Mo.App. 442; Watkins v. Bro. of A. Y., 188 Mo.App. 626, 176 S.W. 516; 6 Cooley's Briefs on Ins. (2 Ed.), 5499, 5503; Geogoric v. Prudential Ins. Co., 165 Ill. A. 570. (7) There was no evidence of vexatious refusal, and the court erred in refusing defendant's instruction No. 5, and in giving plaintiff's instruction B. Non-Royalty Shoe Co. v. Ins. Co., 277 Mo. 399, 210 S.W. 37; Merkel v. Ry. Mail Ass'n, 205 Mo.App. 484, 226 S.W. 299; Liebing v. Mut. L. Ins. Co. (Mo.), 226 S.W. 897; Berryman v. Southern Sur. Co., 285 Mo. 379, 227 S.W. 96, 101; Bennett v. Standard Acc. Ins. Co., 209 Mo.App. 81, 237 S.W. 144; Zimmermann v. Southern Sur. Co. (Mo. App.), 241 S.W. 95, 97; Meisenbach v. Nat. Life & Acc. Ins. Co. (Mo. App.), not officially published, 241 S.W. 450, 452; McAlister v. Nat. L. I. Co. (Mo. App.), 261 S.W. 733, 734; Kusnetzky v. Security Ins. Co. (Mo.), 281 S.W. 47; State ex rel., etc., v. Fid. & Dep. Co. (Mo.), 298 S.W. 83; Landrigan v. Mo. State Life Ins. Co., 211 Mo.App. 89, 245 S.W. 382, 387; State, ex rel. Mo. State L. I. Co. v. Allen et al., JJ., 295 Mo. 307, 243 S.W. 839; Cooper v. Nat. Life Ins. Co., 212 Mo.App. 266, 253 S.W. 465.

John P. Griffin for respondent.

(1) The policy in suit is an industrial policy and insurable interest is not necessary, because the amount is so small ($ 198) there is no incentive to destroy the life on which it is issued. Metropolitan Life Ins. Co. v. Nelson, 170 Ky. 674, 186 S.W. 520. (2) The policy contains a provision that it is payable to the executors or administrators of the insured, unless payment be made under the provisions of the next succeeding paragraph, which is the "facility of payment" clause. This provides that the company may make payment to any relative by blood or connection by marriage of the insured or to any person appearing to the company to be equitably entitled to same by reason of having incurred expense in behalf of the insured for burial, or any other purpose. In view of all the above prospective beneficiaries there is certainly substantial insurable interest, and it has been held that the executor or administrator is the only one that can maintain the action. Manning v. Prudential Ins Co., 202 Mo.App. 124. (a) Appellant raised the point at the trial, that the respondent was not a proper party plaintiff because the policy is payable to the executor or administrator (Abs., p. 2), but it has abandoned it in its brief. It would not be consistent with the attack on the insurable interest. (b) The insured was a dependent boy, and his father died March 1, 1927, and from that time on he was taken care of by the respondent, her husband (his brother) and his other brothers, which gave all of them an insurable interest. Reynolds v. Prudential Ins. Co., 88 Mo.App. 679; McGraw v. Metropolitan Life Ins. Co., 5 Pa. S.Ct. 488; 1 Cooley's Briefs on Ins., pp. 386-388; Carpenter v. United States Life Ins. Co., 161 P. 9, 28 A. 943; Cronin v. Vermont Life Ins. Co., 20 R. I. 570, 40 A. 497. (c) When appellant issued the policy in suit, on the 22nd day of August, 1927, it inserted in typewriting the following: "Beneficiary--Anna Bell Williams--sister-in-law." Therefore it knew the relationship and is charged with knowledge of it. It collected the premiums from her, until the insured died the later part of March, 1928, it accepted the policy from her after insured died and gave her form to make proof of death, and made her go to the trouble and expense of making it, and, therefore, with this information in front of it, its officers and agents, it is now estopped to set up want of insurable interest. Dolan v. Missouri Town Mutual Fire Ins. Co., 88 Mo.App. 666; Reid v. Brotherhood of Railroad Trainmen (Mo. App.), 232 S.W. 185; Van Cleave v. Union Casualty & Surety Co., 82 Mo.App. 668; King v. Metropolitan Life Ins. Co. (Mo. App.), 211 S.W. 721. (3) A contract entered into between an adult and an infant is binding on the adult, and the infant only can attack it on the ground that it is not void, but voidable. Hill v. Taylor, 125 Mo. 331, 28 S.W. 599. (4) The respondent's evidence showed that the appellant's agent knew the insured, and the jury was required to find that it knew that it was insuring William I. Williams before finding for respondent, and the jury believed the respondent's evidence and found that appellant knew it was insuring William I. Williams, the insured, all of which were facts to be passed on by the jury, and the jury found against appellant. This finding forecloses the question. Van Cleave v. Union Casualty & Surety Co., 82 Mo.App. 668; St. Louis Brewing Ass'n v. Schafer, 210 Mo.App. 213, 242 S.W. 642; Miles v. Connett (Mo. App.), 229 S.W. 1103. (5) The only evidence of bad health appellant offered was the copy of the death certificate which showed that the doctor only treated him ten days before his death. The certificate showed that death was caused by tuberculosis, but the doctor gave his opinion from the history he got of the case. This was controverted by respondent and appellant's witnesses. They testified he was only sick two weeks before he died; that he was in good health up to that time; had not had a doctor since he was a baby. The statement in the death certificate is not sufficient to submit the question to the jury, but it was submitted by appellant's instruction D and appellant is bound by the jury's finding. King v. Metropolitan Life Ins. Co. (Mo. App.), 211 S.W. 721; St. Louis Brewing Ass'n v. Schafer, 210 Mo.App. 213, 242 S.W. 692; Ryan v. Metropolitan Life Ins. Co., 30 S.W.2d 190. (6) Appellant's refusal to pay this claim is highly vexatious. First, it claimed respondent had no right to bring this suit, and then abandoned this defense for the purpose of strengthening the defense of lack of insurable interest, which it knew all about, since the policy was issued, but, nevertheless, collected the premiums. This left it without anything in the way of a defense, except the "history" hearsay statement in the death certificate. The defense was neither reasonable nor substantial, therefore the failure to pay was vexatious. State ex rel....