148 Mo. App. 258 | Mo. Ct. App. | 1910
(after stating the facts).— There have been a number of cases on like policies before this court, this class of insurance being what is commonly called “industrial life insurance.” As was said by this court in the case of Wilkinson v. Life Ins. Co., 63 Mo. App. 404, and referring to this same company defendant, that while the case involves a small amount, upon its decision depended the interpretation to be placed upon the most important clause in the policies issued by what are known as industrial insurance companies. In the Wilkinson case this court held that the clause above referred to, known as the “facility” clause, was valid; and that it did not authorize or compel the payment by the company to one of the persons enumerated, after another such person, who owned the
It will be noticed that in the case at. bar the designation of the party to whom the amount due under the policy^ is to be paid in the event of the death of the insured before the endowment period has matured, is “Estate.” That is, no particular person is designated, the word “estate” alone being used. Over the objection of the defendant the plaintiff offered evidence, which was admitted by the court subject to the exception, to the effect that at the time when the policy was issued it was understood between his mother and the agent of the company, that he, the only child, was the person meant by “Estate.” At the time when the plaintiff claims to have heard this conversation, he was but fourteen years old and was twenty when he testified. The learned counsel for defendant contend with great force that it is very improbable that a young boy of fourteen would have remembered this one fact. We are not the court to pass on that one way or the other. The credibility of the witness was for the learned trial court. Nor can we say what view he took of it. The objection made to this evidence when offered is that it was incompetent, as an attempt to vary the policy. This was the only objection made to it at the time it was offered. The learned trial judge did not finally pass on this objection, but it was not tenable. This testimony had no tendency to vary or contradict the policy but was the explanation, by extrinsic evidence, of what took place at the time of the delivery of the policy, of an ambiguous term, that is to say, the term “estate,” found in the policy itself. We make no contention, of course, over the propositions that contracts are not to be varied by parol testimony as to what was intended by the parties before their execution, but that is not this case. In an old case, that of Loos’ Guard v. John Hancock Mut. Life Ins. Co., 41 Mo. 538, Judge Wagner, who delivered the opinion of the court
1 Bacon in his works on Benefit Societies and Life Insurance (3 Ed.), sec. 263, states the law to be that if the name of the person for whose benefit the insurance is obtained does not appear upon the face of the certificate or policy or if the designations used are applicable to several persons or if the description of the insured is imperfect or ambiguous, so that it cannot be understood without explanation, extrinsic evidence may be resorted to to ascertain the meaning of the contract, and referring to the case of Clinton v. The Hope Ins. Co., 45 N. Y. 454, 1. c. 461, he states it as the law, that where the agent was told that tfie insurance wag designed for the benefit of the widow and heirs and policy was made “payable to the estate,” it. is held that
In the case of Pace v. Pace, 19 Fla. 438, the policy was written as “for the benefit of the estate of the insured,” and it was held that under the circumstances of the case, and aided by extrinsic evidence, as in the case at bar, the terms referred to meant for the benefit of an only minor child, who was less than five years of age at the time of the contract and that it did not go to the administrator or distributees of the estate. The Florida court cites in support of its position the case of Loos’ Guard. v. John Hancock Ins. Co., supra, the case of Clinton v. Ins. Co., supra, and also Globe Ins. Co. v. Boyle, 21 Ohio St. 119, all holding that the words are to be so interpreted as to be for the benefit of the surviving members of a family rather than for the benefit of the creditor or administrator, and that in the instance before the court, the beneficiary intended was the infant child. Mr. Beacon cites a number of cases to the same effect, that is to say that the term “estate” included or designated as the beneficiary, not the administrator or executor, but a child or other one.
2 Joyce on Insurance (Ed. 1897), sec. 776, is to the same effect. There Mr. Joyce states that a question arises where the proceeds of a benefit certificate are payable to the “estate” of the insured, whether the fund shall be subject to the claims of creditors; and he states that in the consideration of this point, the laws of the society, where it is a benefit certificate, the whole statute, contract, the constitution, etc., the terms of the certificate, and the intentions of the parties, must be considered. In the brief of the learned counsel for the respondent in this case,2 Joyce on Insurance. (Ed. 1897), sec. 776, is referred to in support of the proposition that when the term “estate” is used in these policies, such policies become an asset of the personal estate
The judgment in the case is accordingly reversed and the cause remanded with directions to the trial court to enter up judgment in favor of the appellant. If the real plaintiff, the son of the insured, is now of age, as is suggested, the next friend may be dismissed from the case, in the discretion of the trial court, and judgment be entered by it directly in favor of Samuel S. Renfro for the amount due, as shown by the stipulation or agreement of counsel, with interest thereon from the date of the suit at the rate of six per cent per annum.