Walton v. Metropolitan Life Insurance, 232 S.W. 259

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232 S.W. 259 | Mo. Ct. App. | 1921

Lead Opinion

Plaintiff began her action by filing a petition before a justice of the peace upon a policy of life insurance issued by the defendant company, insuring the life of John J. Walton, husband of the plaintiff.

The contract of insurance sued upon is an "Industrial Policy," whereby the defendant in consideration of a weekly premium of fifteen cents, agreed to pay the sum of $270 upon the death of the insured (or one-half that amount if the insured died within six months after the issuance of the policy) to the executor or administrator of the insured, unless payment were made under the provisions of the so-called "facility of payment" clause in the policy. The insured having died within six months of the date of the issuance of the policy, plaintiff in her petition sues for $135 and ten per cent. damages for vexatious refusal to pay the claim, and attorney's fees Plaintiff recovered a judgment in the *300 justice court and on appeal to the circuit court she again prevailed. From judgment in plaintiff's favor in the sum of $253.90, the defendant appeals.

The policy filed in the case and offered in evidence by the plaintiff, over defendant's objection, showed on its face that by its terms the defendant company promised to pay the sum stipulated therein in the event of the death of the insured, to the executor or administrator of such insured. Plaintiff as a witness in her own behalf admitted in her direct examination that she was not the qualified executrix or administratrix of the estate of the deceased, whereupon counsel for defendant objected to the introduction of any evidence in the case for the reason that the policy sued upon is payable to the executor or administrator of the insured. The objection was overruled. At the close of plaintiff's case and again at the close of all the evidence the defendant prayed the court to premptorily direct a verdict for the defendant, which the court refused to do, which action of the trial court is here urged as error. In our view the point is well taken.

The terms of the policy specifically agreed to pay the sum stipulated therein "to the executor or administrator of the insured, unless payment be made under the provisions of the next succeeding paragraph," which provides as follows:

"The company may make any payment or grant any non-forfeiture privilege provided herein to the insured, husband or wife, or any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, or for his or her burial, and the production of a receipt signed by either of said persons, or of other proof of such payment or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied." *301

We have but recently had occasion to interpret the company's right under a facility of payment clause in the case of Manning v. Prudential Ins. Co., 213 S.W. 897, in which case Judge ALLEN, speaking for the court (l.c. 899) said:

"Though reluctant so to do, we are of the opinion that we must hold that the policy in suit vests in plaintiff no right of action against the defendant; that only the executor or administrator of the insured can maintain the action. By the terms of the contract defendant agrees to pay the executors or administrators. And it seems quite clear that the "facility of payment" clause supra operates merely to give the insurance company the option to pay the amount of the insurance to any one coming within the class of persons there described, and that it does not, of itself, give to any such person a right of action on the policy. So it has been frequently ruled in other jurisdictions in passing upon policies of this character. [See Nolan v. Insurance Co., 139 A.D. 166, 123 N.Y.S. 688; Ferretti v. Insurance Co., 49 Misc. 489, 97 N.Y.S. 1007; Lewis v. Insurance Co., 178 Mass. 52; Prudential Ins. Co. v. Godfrey, 75 N.J. Eq. 484, 72 A. 456; Marzulli v. Insurance Co., 79 N.J. Law, 271, 75 A. 473; Heubner v. Insurance Co.,146 Ill. App. 282; Bradley v. Insurance Co., 187 Mass. 226, 72 N.E. 989; Providence County Savings Bank v. Vadnals, 26 R.I. 122,58 A. 454; 14 R.C.L., p. 1426.]"

It follows that upon authority of the Manning case, supra, and the cases therein cited, that the learned trial judge committed error in overruling defendant's requested instruction in the nature of a demurrer at the close of the entire case.

The judgment should be and is hereby ordered reversed and the cause remanded with directions to dismiss plaintiff's petition.

Allen, P.J., concurs. Daues, J., not sitting. *302

Addendum

ON MOTION FOR REHEARING. In her motion for rehearing the respondent says that our holding herein to the effect that plaintiff cannot maintain this suit, and that the right of action lies in the executor or administrator, is contrary to the opinion of this court in North v. National Life Accident Insurance Company of Nashville, Tennessee, 229 S.W. 298.

It appears that a portion of the opinion in the North case is out of line with the decision of this court in Manning v. Insurance Company, 202 Mo. App. 124, 213 S.W. 897, and consequently contrary to what we have stated in the opinion in the present case. So much of the opinion in the North case as announces or appears to announce a doctrine contrary to that of the Manning case and contrary to what we have said in the opinion herein is hereby dissapproved and should not be followed.

With the concurrence of ALLEN, P.J., (DAUES, J., not sitting) the motion for rehearing is overruled.