Bernice Burckhardt, plaintiff-appellant (hereinafter plaintiff), appeals from the action of the trial court sustaining separate motions of defendant-respondents, General American Life Insurance Company (hereinafter General American) and McDonnell-Douglas Corporation (hereinafter McDonnell) to dismiss her Second Amended Petition for failure to state a claim and entering judgment dismissing her petition. We reverse and remand.
Plaintiff’s Second Amended Petition was in three counts. In Count I General American is the sole defendant. Plaintiff alleged that she is the widow of Andrew Burck-hardt who, during his lifetime, had been an employee of McDonnell; that in the fall of 1968 General American began negotiations with McDonnell to enter into a group life insurance contract whereby optional additional life insurance benefits would be provided for salaried employees of McDonnell. She further alleged that although all of the terms of the group policy had not been finalized, in March of 1969 General American and McDonnell agreed to offer optional additional life insurance benefits to McDonnell’s salaried employees; that General American, in conjunction with its agent, McDonnell, prepared and submitted to her husband, Andrew Burckhardt, and other salaried employees of McDonnell, an “offering brochure” outlining the terms and conditions of the optional additional life insurance and further advised her husband and other salaried employees of McDonnell that to become members of the insurance group, membership had to be accepted by April 7, 1969, the effective date of the “new program.” The “offering brochure,” a memorandum dated March 14,1969, was attached to plaintiff’s petition, marked “Exhibit ‘A’ ” and incorporated by reference into the Second Amended Petition. This document, *60 on a McDonnell letterhead, reads as follows:
“Memo No. JHG-150
14 March 1969
To: All Salaried Employes of MCAIR, MCAUTO, MDAC-ED and MDC Corporate Offices-St. Louis
From: J. H. Cinnater
Subject: Optional Additional Life Insurance Plan and Enrollment Therein
1. As a salaried employee, you are eligible under this new program, which becomes effective 7 April 1969, to purchase an additional amount of life insurance and accidental death and dismemberment benefits equal to the amount provided at no cost to you, by your basic program. Purchase of this additional insurance will also make you eligible for post-retirement life insurance. Your additional life and accidental death and dismemberment benefits cannot be more or less than the amount of your basic life insurance.
3.Your contribution of 66$ per thousand per month prior to retirement will be deducted in equal payments from each of the first two paychecks of the month.
3. If you retire under the McDonnell Douglas Retirement Income Plan, you will be entitled to post-retirement life insurance, provided you enroll in the additional insurance of the plan during this period. Upon retirement, 80% of the additional life insurance benefit prior to retirement will be continued; on the first anniversary of your retirement, 60% of this benefit will be continued; and beginning with the second anniversary of your retirement, 50% will be continued, which is your Lifetime Continued Amount. Your accidental death and dismemberment benefit ceases at retirement or at age 65 whichever occurs first. At retirement, your contribution of $1.50 per thousand per month based on Lifetime Continued Amount will be deducted from your monthly pension check.
4. You are urged to purchase the additional insurance made available to you.
5. The attached enrollment card should be completed indicating authorization of the deduction or rejection and returned to your supervisor promptly. No enrollment card received after 7 April 1969, will be accepted without evidence of insurability, unless you were on an authorized leave or vacation during the enrollment period. Your additional life insurance will be equal to the amount of basic life insurance shown on the enrollment card.
6. The beneficiary for your additional life insurance will be the same as on your basic life insurance. .
(signed) J. H. Cinnater
J. H. Cinnater Treasurer”
Exhibit “B”, the enrollment card, reads as follows:
*61
MDC 245 17 APR 701”
Appellant further alleged that her husband accepted General American’s offer and thereby became a member of the insured group by signing and returning Exhibit “B” — the enrollment card — to General American or its agent McDonnell before he died and paid the required premium to General American’s agent, McDonnell; that Andrew Burckhardt died on April 13, 1969; and that she, as beneficiary under the terms of her husband’s optional additional group life contract has performed all conditions precedent to payment under the terms of the group insurance contract, “the terms of which are set out in Exhibits ‘A’ and ‘B’; ” that she has often demanded that General American pay her the principal sum due under the contract, but General American has refused and continues to refuse to pay all or any part of the $20,000.00 insurance proceeds. She prayed judgment against General American for $20,000.00 together with her costs.
Count II of plaintiff’s Second Amended Petition pled, in the alternative, and incorporated by reference all of the allegations of Count I except those contained in paragraph 5 of that Count. 1 Plaintiff then further averred that in March of 1969 General American, acting through and in conjunction with McDonnell, its agent, and pursuant to the provisions of a draft “master” agreement with McDonnell “dated November, 1968,” offered optional additional life insurance to salaried employees of McDonnell by the “offering brochures,” Exhibit A, which set out the terms of the insurance; and directed the employees accept or reject the offer by signing Exhibit B, the enrollment card. A copy of the “draft” master agreement was attached to the petition as “Exhibit ‘C’ ” and incorporated by reference therein. Plaintiff further alleged that pursuant to the provisions of the “offering brochure” her husband accepted the offer by signing and returning the enrollment card to General American’s agent, McDonnell; that the return to work clause in the draft master agreement was never communicated to her husband nor was it mentioned in the “offering brochure; ” that General American and McDonnell, with full knowledge of the fact that her husband was then in poor health and not working, nevertheless failed and neglected to advise him that the draft of the master agreement *62 contained a return to work clause requiring group members to return to work before becoming eligible for life insurance benefits under the contract, or that the “offering brochure” was not consistent with the draft master contract in this respect, or that although he could become a member of the insured group by accepting General American’s offer and paying the required premium, the policy benefits would nevertheless not take effect until he had returned to work; that thereby General American is estopped to raise the return to work clause as a defense to its obligation to make payment of the group benefits to plaintiff. She further alleged full performance of all conditions precedent to receiving payment under the terms of the policy, her demand for payment on a number of occasions, and the refusal of General American to pay all or any part of the principal amount of the policy, to-wit: $20,000.00, and seeks judgment in that amount from General American.
Count III of the Second Amended Petition alleged that plaintiff was the widow of Andrew Burckhardt; that he was a salaried employee of McDonnell who died on April 13, 1969; and that she was the third party beneficiary under an agreement between McDonnell and Mr. Burckhardt, the terms of which are set out in the “offering brochure” and the enrollment card which were attached to her Second Amended Petition as “Exhibits ‘A’ and ‘B’ ” and incorporated therein by reference; that McDonnell, acting as the alleged agent of General American, but in reality an undisclosed principal, “subsequently” prepared and submitted to plaintiff’s husband a proposal outlining the terms and conditions of an offer to provide life- insurance benefits for him; that McDonnell advised “decedent” that he was to accept or reject the offer by signing the enrollment card; that Mr. Burckhardt accepted McDonnell’s offer by signing and returning the enrollment card to McDonnell before he died and paid the required premium to McDonnell and that thereby McDonnell became obligated to plaintiff in accordance with the terms of the agreement in the sum of $20,000.00; that she has performed all conditions precedent to receiving payment under the policy and has demanded payment but McDonnell and General American have refused to pay all or any part of the principal amount of the policy in the amount of $20,000.00. She prayed judgment on this Count against both General American and McDonnell, jointly and severally, in the amount of $20,000.00 together with her costs.
Both defendants, General American and McDonnell, filed separate motions to dismiss Counts I, II and III of Plaintiff’s Second Amended Petition for the reason that they “fail to state a claim or cause of action upon which relief can be obtained.” The trial court sustained the motions of each of the defendants. Plaintiff filed a Motion to amend this order of the trial court or in the alternative for a new trial. The motion to amend sought to have the trial court indicate whether it was its intent to sustain the motions of defendants with or without prejudice, and if it was intended to be without prejudice to allow the plaintiff adequate time to file another amended petition. The alternative motion for new trial was on the grounds that if the order was intended to be with prejudice it deprived the plaintiff of her constitutional right to a jury trial and deprived her of her property without due process of law. These motions were argued, submitted and overruled.
On appeal plaintiff asserts that the trial court erred in sustaining the motions of each of the defendants to dismiss Counts I, II and III of her petition because “on the face of the petition all three Counts clearly state a cause of action.” 2 The respondents *63 contend that the trial court properly dismissed Count I of plaintiff’s petition because it is based upon plaintiff’s contention that the memorandum and enrollment card constituted the contract of insurance between plaintiff’s ■ decedent and General American, a contention, they say, that is contrary to Missouri law. With respect to the trial court’s action in sustaining their motion to dismiss Count II of plaintiff’s petition, both defendants take the position that the action of the trial court was correct because the doctrine of estoppel, relied on by plaintiff in Count II of her petition, cannot be used to create insurance coverage where it would not otherwise exist under Missouri law and because McDonnell is not the general agent for General American. With respect to Count III, the defendants contend that the trial court’s action was correct because plaintiff’s contention that McDonnell was an undisclosed principal of General American is a mere conclusion and not supported by any pleaded facts and because McDonnell was not, in fact, an undisclosed principal.
By reason of the posture in which this case comes to this court, prior to disposition of the opposing contentions here, we conclude that it is essential that we set forth the basic principles underlying the results we have reached.
This appeal emanates from a judgment of the trial court dismissing plaintiff’s petition for failure to state a claim for which relief can be had. The trial court’s ruling on a motion of this nature is ordinarily confined to the face of the petition and any exhibits referred to and incorporated therein by attaching the exhibits to the petition.
McDonough v. Aylward,
A reading of the plaintiff’s petition makes it clear that she has based her claim in each Count on what she alleges was a group insurance contract. Group insurance as it is known today is of recent origin and differs markedly from other forms of insurance. One of the features which distinguish a group insurance contract from forms of other insurance policies is that a contract of group insurance is a contract between the insurer and the employer for the benefit of the latter’s employees and the rights of the employee or his beneficiary are to be determined under the provisions of the contract between the insurer and the employer.
Straub v. Crown Life Insurance,
In
Dowdy v. Lincoln National Life Insurance Company,
Plaintiff’s petition, in its simplest form and viewed most favorably from plaintiff’s viewpoint, assuming the facts pleaded to be true, and giving her the benefit of all inferences fairly deducible from the facts stated in her petition, alleges in Count I that McDonnell as General American’s agent, made an offer to McDonnell’s salaried employees for additional optional life insurance benefits equal to life insurance benefits already enjoyed by the salaried employees to whom the offer was made through a basic group life insurance program via the memorandum of March 14, 1969; that her husband was one of the salaried employees to whom this offer was communicated by means of the memorandum aforesaid, and that he accepted the offer by executing and returning the enrollment card which accompanied the memorandum on or prior to the deadline, April 7, 1969, thereby authorizing McDonnell to deduct from his paycheck the premium stated in the memorandum. She further alleged that McDonnell did deduct this premium from her husband’s paycheck. Her theory is that the terms of the group life insurance policy are contained within the four corners of the March 14, 1969, memorandum.
This court in
Williams v. Metropolitan Life Insurance Company,
General American contends that the memorandum and enrollment card were no more than proposals to employees to obtain such additional insurance as to which they may have been entitled. In support of this position it argues that no employee could reasonably expect that this same thirteen sentence memorandum and enrollment card constituted a contract “between two large corporations such as General American Company and McDonnell to insure the vast number of employees actively at work at McDonnell.”
In support of the first part of this argument General American relies on
Hutchinson v. Metropolitan Life Insurance Co.,
General American cites no authorities to support its argument based upon what employees of large corporations must reasonably expect concerning the length or brevity of contracts of insurance for their em *66 ployees and we are not acquainted with any such cases, if they exist.
General American further argues that plaintiff contends that the memorandum and enrollment card take precedence over the master insurance contract, thereby attempting to create an ambiguity where none exists. As we have previously stated, plaintiffs averments are that there was no finalized master insurance contract in existence at the time the memorandum and enrollment card was distributed to McDonnell’s employees in March of 1969, other than those documents upon which she founds her cause of action. General American also states that the memorandum was intended to be read together with the terms of the master policy; nowhere does the memorandum so state.
In
Crawford v. Mid-America Insurance Company,
We do concede that Crawford may be distinguished from this case on other grounds though. In Crawford plaintiff brought the cause of action on the “student accident insurance policy”. In Crawford there was no issue as to what constituted the policy of insurance; it was admittedly the master policy issued to the school district. Here, the plaintiff’s contention is that the policy of insurance is the “offering brochure” and the enrollment card and that it is on the basis of these documents she is entitled to recover. We conclude that the trial court erred in sustaining General *67 American’s motion to dismiss Count I of plaintiffs Second Amended Petition. 4
Count II of plaintiff’s Second Amended Petition pleads, in the alternative, that her claim is founded on the provisions of “a draft ‘master agreement’ ” dated November 1968, which was offered to the salaried employees of McDonnell by General American through and in conjunction with McDonnell who was the agent of General American in making the offer by means of the “offering brochure” which policy was accepted by executing the enrollment card. This “draft ‘master’ agreement” was marked as Exhibit “C” and incorporated by reference in this Count of her petition. The return to work clause stated that the effective date of personal insurance was subject to a condition that if at any time during the day immediately preceding the date any insurance of an employee would otherwise first become effective he was by reason of injury or sickness unable to perform active work on a full time basis, whether or not he was scheduled to work on such preceding day, such insurance would not become effective until such time on or after the date such insurance would otherwise first become effective that he perform active work on a full-time basis. According to the terms of this policy, which was to become effective on April 7, 1969, the benefit amounts of the life insurance afforded were to be in an amount equal to the amount for which the employee was already insured under the basic Life Insurance provided under “Policy MCP-5546.” (The group policy number of the policy defendants rely on is MCP-5546-A). To avoid the impact of this clause and its effect on her claim, plaintiff averred that its presence in the “draft” of the master agreement was not communicated to her husband and was not mentioned in the “offering brochure; ” that by accepting the premium payment with knowledge that her husband was then in poor health and not working, General American waived the condition precedent stated in this clause and is therefore es-topped from raising the “return to work” clause as a defense to its obligation to pay her the benefits of the group policy.
In her brief in this court she argues that in the event the draft master proposal is deemed to have retroactive application, the right to work clause has nonetheless been waived by the action of General American or its agent McDonnell in deducting the required premium from her husband’s paycheck “with full knowledge of the fact that he was at the time not at work, but was, in fact, ill and in the hospital.” That an insurer issuing a group insurance policy can waive some conditions precedent to liability on the group insurance policy has already been decided in this State in
Porter v. Equitable Life Assur. Soc. of U.S.,
Whether the employer in a group insurance policy situation is, for any purpose, the agent of the insurance company issuing the group policy to the employer as Policyholder for the benefit of its employees is a question to be determined by the particular facts in each individual case.
5
In
Longley v. Prudential Insurance Co. of America,
Satz, supra, on the other hand, involved a situation where the decisive issue in the case was whether Satz, as one of the employees of the master policyholder, was entitled to notice of cancellation of the group policy prior to the time such cancellation could become effective. This issue was decided contrary to his contention that the *69 policy could not be cancelled without notice to him. Whether his employer was agent for the insurance company was not decisive in the case and came into the case on appeal only because presented to the court by reason of the trial court’s finding as a matter of fact that the employer was the agent of the insured employee in collecting the monthly premiums. Although not essential to the decision in the case, the court said, 225 S.W.2d l.c. 483: “The trial court did not err in stating as a basis for his finding that the employer was the agent of the insured in collecting premiums. When the certificate was issued to the insured, Sam Satz, he signed a card containing information required by the insurance company in connection with the group policy, which among other matters, contained the following: ‘I hereby authorize Genelle Garment, Inc. (Employer), to deduct from my wages (salary) an amount equal to my portion of the premium, the initial deduction to be .75 cents per month,’ etc. Whether or not the employer is the employee’s agent throughout the whole transaction, it is clear that in the matter of deducting his contributory part of the premium for the group policy the employee did authorize his employer to act as his agent.” Again, the court, in Satz, was not confronted with a case where the employer was soliciting participation in the group policy by its employees as here.
The employer, however, has in some instances been held to be the agent of the insurer for some purposes. In
Sullivan v. John Hancock Life Ins. Co. of Boston,
Assuming arguendo, as General American contends, the return to work clause in its draft of the master policy controls and would, unless waived, preclude plaintiff from recovery, nevertheless, if, as plaintiff alleges, and we must at this procedural plateau accept as true, McDonnell is the agent for the purpose of soliciting its salaried employees to enroll in the new program of optional additional life insurance,
*70
McDonnell, as soliciting agent, as a general rule has authority under Missouri law to solicit insurance, deliver policies, collect premiums and waive conditions precedent.
Grady v. Hancock Mutual Life Ins. Co. of Massachusetts,
Plaintiff relies on
Bohannon v. Illinois Banker’s Life Assn.,
In view of the principles mentioned supra, we conclude that the trial court erred in dismissing Count II of plaintiffs petition for failure to state a claim upon which relief might be had.
Plaintiff’s Count III of her Second Amended Petition is pled on the theory that her husband’s employer was an undisclosed principal on the insurance contract offered to its salaried employees. McDonnell argues that in alleging that it was “in reality an undisclosed principal” and failing to allege the facts to support that “conclusion” the allegations in this respect must be disregarded as a matter of law.
Plaintiff in her brief bases much of her argument on matters outside the four corners of her pleading, including among other things the deposition of the Manager of Personnel, Welfare and Records of McDonnell. As we have previously pointed out, in ruling on a motion to dismiss the trial court is ordinarily confined to the face of the petition and any exhibits referred to and incorporated therein by the filing of a copy of the exhibit to the petition.
McDonough v. Aylward,
supra. As in Count I of her petition, the contract of insurance alleged in Count III is the “offering brochure” and the enrollment card; no reference is made in this Count to the “draft master agreement” of November, 1968, Exhibit “C”, nor is it alleged to be the contract of insurance between plaintiff’s husband and McDonnell. McDonnell’s argument that McDonnell merely assisted General American in administering a life insurance program and that the group insurance policy was executed by General American alone goes directly in the face of plaintiff’s allegations, which, for the purpose of this motion, must be taken as true. McDonnell cites
Cooper v. Metropolitan Life Insurance Co.,
The critical issue presented here, both defendants contend, is whether merely alleging that the employer is an “undisclosed principal” is a conclusion or a statement of fact. Taken out of context this position might have some merit, but viewed within the totality of the facts pleaded we find it to be without any validity-
Plaintiff has sought in this Count of her Second Amended Petition to obtain a judgment against both General American and McDonnell, jointly and severally. There can be no joint and several liability between agent and undisclosed principal. It is settled law that one who has dealt with the agent of an undisclosed principal may elect to hold either the agent or, upon learning the facts, the principal, but he cannot hold both.
Kraehe v. Dorsey,
We hold, therefore, that the judgment of the trial court dismissing Counts I, II and III of plaintiff’s Second Amended Petition with prejudice constituted reversible error and the judgment must therefore be reversed and remanded for further proceedings not inconsistent with this opinion.
Notes
. Paragraph 5 of Count I of plaintiff’s petition was the paragraph which alleged the preparation and submission of the “offering brochure” to McDonnell’s salaried employees and her husband’s acceptance.
. Plaintiff’s Points and Authorities also contend that “Based on the Record, Interrogatories and Deposition plaintiff is entitled to a directed verdict.” We do not consider this portion of her Points and Authorities because it goes beyond the scope of review of an appellate court in an appeal from a mo *63 tion to dismiss as is stated more fully elsewhere in this opinion.
. The numbers of the Rules of the Supreme Court cited in this opinion are the numbers assigned to them prior to September 1, 1973 and in effect at all times relative to the issues raised in this court on appeal.
. We do not consider in ruling on this Count whether the trial court considered Exhibit “C” for the reason that it was neither referred to in this Count nor did the trial court indicate that it did consider it.
. See: W. Meyer, Life and Health Insurance Law (1972) Ch. 23, Group Policyholder as Agent, p. 701; Eugster, Group Insurance: Agency Characterization of the Master Policy-holder, 46 Wash.L.R. 377 (1971).