Willis v. American Nat. Life Ins. Co.
| Decision Date | 28 January 1956 |
| Docket Number | No. 7426,7426 |
| Citation | 287 S.W.2d 98 |
| Parties | Beulah WILLIS, Plaintiff-Respondent, v. AMERICAN NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Karl Blanchard, Joplin, Dibrell, Dibrell & Greer, Galveston, Tex., and Seiler, Blanchard & Van Fleet, Joplin, of counsel, for defendant-appellant.
Coyne & Patten, Joplin, for plaintiff-respondent.
This is a suit which concerns the right of an insured to collect attorney's fees by reason of vexatious delay. Plaintiff, now respondent, secured a verdict for $2,294.27 on the policy and $764.76 attorney's fees, which last amount was reduced by remittitur to $700.
Prior to April 27, 1954, plaintiff held a policy of insurance (face amount $2,294) with defendant on the life of her son, Billy Ray Willis. The policy contained a provision that suicide within two years from date of issue would limit any benefit to the return of premiums paid. On that day Billy Ray came to his death. Shortly after the funeral a Mr. Woods, who is identified simply as 'an agent,' who plaintiff said was 'one of the men down to the office,' came to her home and helped her prepare her proof of death. This proof, together with the policy, was forwarded to the home office of defendant at Galveston, Texas, and it is stipulated that it reached such home office on May 13, 1954. Cause of death listed in the proof was 'suicide.' On May 28 or May 29 following, one Mr. Tutt, who identified himself as 'district manager' of defendant at Joplin, called upon plaintiff at her home and told her, Plaintiff testified that she then informed Tutt she was going in the morning and employ an attorney, that she didn't believe her son had killed himself; and Tutt told plaintiff he didn't blame her, and for her to do whatever she thought best. In that conversation plaintiff requested the return of her policy and Tutt told her he would have to write and ask the company for it.
On the next day plaintiff went to the office of Coyne & Patten, attorneys, employed them to represent her in her case against the defendant, and entered into an arrangement whereby she was to pay her attorneys a contingent fee of one-third. On that same day Mr. Patten wrote a letter addressed to defendant at First National Bank Building, Joplin, Missouri (evidently the office of the district agent) which informed of the employment, requested the return of the policy to the attorneys so that suit might be brought and directed that any settlement be negotiated through the office of the attorneys. On or about June 1, Patten phoned Tutt's office and asked for the correct amount due on the policy. On this occasion he talked with Tutt, who told him (Patten) that 'the company' had instructed him not to pay the amount of the policy 'and that was all there was to it.' In that conversation Patten informed Tutt of the Missouri statute Section 376.620 RSMo 1949, V.A.M.S., which excludes suicide as a defense except where such is contemplated at time of issuance. Tutt said he didn't know about it.
On June 4, Tutt called plaintiff and she referred him to Patten. Tutt then called Patten and informed him that the company had decided to pay the face amount of the policy and he had received a draft in such amount which he offered to deliver. Patten then told Tutt that plaintiff had been required to incur attorney fees and expense without good cause and 'I expected his company to adjust the attorney fees.' Tutt responded that he had no authority except to offer the face of the policy, and Patten said,
Some time later, probably the morning of June 7, Tutt called Patten and, according to Patten, wanted to know when suit was going to be filed and said he wanted to send the suit papers and check back (to the home office) at the same time. According to defendant's witness Tutt, he (Tutt) had been instructed in a telephone conversation with his home office that morning, and he told Patten that the company did not feel like they would pay any more than the face of the policy and asked him whether suit had been brought, that the home office had instructed him to forward any suit papers to it immediately. He said Patten told him no, there had been no suit filed, 'but asked me if today would be soon enough and I told him that would be all right with me.' The suit was filed June 7.
It was stipulated that tender of the face amount of the policy was made on June 4 and again on June 7.
Plaintiff's petition charged that defendant was a corporation licensed to do business in the State of Missouri; set up the issuance of the policy, the death of the insured, the proof of death and demand for payment for the face amount of the policy, 'but plaintiff says that the same has not been paid to her'; that after 'due notice and all necessary papers to make a demand under said policy' defendant notified plaintiff it was not liable and refused payment and that said refusal was vexatious and without reasonable cause, by reason of which plaintiff was entitled to damages of $229.60 and reasonable attorney's fees in the sum of $750. The prayer was for a total of $3,275.60. The amended answer admitted certain portions of the petition, including that which charged defendant as a corporation licensed to do business in the state, and stated affirmatively that proof of death was received May 13; admitted demand for the face amount of the policy and pleaded tender of such amount on June 4 and June 7 (later stipulated), admitted the sum of $2,294.27 was due, set up demand of an undertaker to a portion of the proceeds (for an interpleader not in question here) and tendered the sum admitted to be due into court.
Defendant-appellant's assignment number 1 is refusal to direct a verdict, based on the proposition that a tender of the face amount of the policy prior to the actual filing of suit precludes any recovery for attorney's fees.
Attorney's fees for vexatious delay are allowed by two statutes. RSMo 1949, Section 375.420 RSMo 1949, V.A.M.S., is the old act (see R.S.Mo.1866, p. 402) which has come down with various amendments to its present form. It has rather general application. Section 375.168, V.A.M.S., is of recent origin and is limited. See S.B. 182, Laws of 1951, pp. 276, 280. RSMo 1949, Section 375.160 RSMo 1949, V.A.M.S., was applicable solely to insurance companies not incorporated or authorized under the laws of the state and provided that those doing business herein should be deemed to have appointed the Superintendent of Insurance as agent for service, and set forth a method of service. The act of 1951 which repealed 375.160 enacted in lieu thereof ten new sections, 375.160-375.169 inclusive, all of which deal with unauthorized insurance companies. Section 375.168 of this new act provides in substance:
'In any action * * * against any insurance company * * * upon any contract of insurance issued or delivered in this state to a resident of this state, * * * if such insurer has failed or refused for a period of thirty days after due demand therefor prior to the institution of such action * * * to make payment * * * and it shall appear * * * that such refusal was vexatious and without reasonable cause, the court or jury may * * * allow the plaintiff damages * * *' as provided in section 375.420.
The title to the act of 1951 limits the application to companies not authorized under the laws of this state. The petition charges and the answer admits that defendant 'is a corporation duly organized and licensed to do business in the State of Missouri,' and this would seem to exclude the defendant from that class of persons to whom section 375.168 is applicable.
And we think there can be no recovery under this section for another reason. It is stipulated that the notice and demand first reached defendant on May 13 and that tender of the face amount of the policy was first made on June 4, a lapse of some 22 days.
It is not contended, nor can we find any evidence, that the 'man from the office' who helped plaintiff prepare her claim for benefits was such an agent or officer who could bind the company by receiving notice or demand (if it was such in this case). In fact, the only evidence on the question at all was in reference to the authority of the 'district manager,' and he seemed to have no authority in reference to the settlement, payment or adjusting of claims. An agent has no authority to bind his principal unless the notice or knowledge is in reference to the particular thing he is authorized to do. State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, 262 S.W. 43, 44; State ex rel. John Hancock Mutual Life Ins. Co. v. Hughes, Mo.Sup., 152 S.W.2d 132, 135; West's Missouri Digest, Principal and Agent, k178.
The plaintiff-respondent contends that, by the refusal to pay, the defendant had waived the 30-day waiting period and that plaintiff was not precluded from relying on sec. 375.168. To sustain this contention she cites Martin v. Continental Ins. Co. of City of New York, Mo.App., 256 S.W. 120; Roberson v. Brotherhood of Locomotive Firemen, etc., 233 Mo.App. 159, 114 S.W.2d 136; and State ex rel. Metropolitan Life Ins. Co. v. Allen, 339 Mo. 1156, 100 S.W.2d 487. None of these suits were brought under 375.168. The Martin and Metropolitan cases were situations where the policy provided for a waiting period after the occurrence which made the benefits payable, and the Roberson case was one in which the insured was required to first pursue his remedy through the various procedures of the fraternity. In these cases it was not a question of a right to receive the benefits provided, but whether the suit was premature. The insurer violated the contract by refusing to pay and...
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