Craig v. Metropolitan Life Insurance

*916 BECKER, J. — This is an action on an industrial insurance policj'' for $260, and was instituted by Catherine Craig, mother of the insured Robert Paul. The case was tried by the court without the intervention of a jury. Before the submission of the case, but after the court had overruled the defendant’s demurrer offered at the close of all the evidence, during the argument of counsel, the court indicated that plaintiff, Catherine Craig, was not entitled to maintain the suit, whereupon counsel for plaintiff asked the court to take a recess to afford plaintiff time to have an administrator of the estate of the deceased insured, Robert Paul, appointed. A recess was taken and thereafter, over the objection of defendant, Keeling B. Wells was permitted to be made a party plaintiff as administrator of the estate of Robert Paul, deceased, and to adopt the petition which had theretofore been filed by Catherine Craig. The defendant, upon the overruling of his objection *917 to said Wells administrator being made a .party plaintiff, filed an answer in which it denied that the said Wells was the administrator of the estate of Robert Paul, deceased, and denied that Wells had ■ any legal capacity to sue. The cause was then re-submitted to the court on the evidence theretofore adduced, together with additional evidence offered by plaintiff directed to the question of attorneys’ fees. Judgment resulted in favor of both plaintiffs and against the defendant for the full face of the policy, $260, together with $75 attorneys’ fees. The record discloses that the policy in question herein sued upon is an ordinary or old line life insurance policy issued by the defendant company, which does a life insurance business, upon the level rate plan. The policy is what is generally termed an industrial policy containing the so-called facility of payment clause, by the terms of ■ which the amount stipulated in the policy, in the event of the death of the insured, is payable to the executor or administrator of the insured, the company, however, reserving the right to make the payment or grant any non-forfeiture privilege provided in the policy 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 burial;*and the production of a receipt signed' by either of said persons or of other proof of such payment of or grant of such privilege to either of them, shall be conclusive evidence that all claims under this policy have been satisfied. This court has repeatedly held that where, under the terms of a policy of insurance,. it is payable to the executor or administrator of the insured and contains a facility of payment clause, the proceeds of the policy are payable to the executor or administrator of the insured unless settlement shall have been made as provided for in the facility payment clause, and that no cause of action is vested in any one other than the duly qualified executor or administrator of the insured, and that such facility clause does not vest a right of action in any person who comes within the terms of such clause, but that the- contract merely gives to the insurer an option to substitute payment under its terms for the payment otherwise due the executor or administrator of the deceased. [Manning v. Insurance Co., 202 Mo. App. 124, 213 S. W. 897; Walton v. Ins. Co., 207 Mo. App. 296, 232 S. W. 259; Burns v. Ins. Co. (Mo. App.), 253 S. W. 81.] Defendant urges it as error on the part of the trial court in overruling its objection to making Keeling B. Wells, alleged administrator of the estate of Robert Paul, a party plaintiff, *918 We rule this point without merit in light of the liberal provisions of section 1274, Revised Statutes of Mo. 3919, with respect to amendments. It has often been ruled that while it is difficult to lay down a hard and fast rule with, respect to what amendments should be allowed under the provisions of this statute, concededly the rule favors the allowing of amendments and it is the exception to refuse them. [Montague v. Railroad Co., 289 Mo. 288, 233 S. W. 189, and cases therein cited.] This statute has in the later cases been most liberally construed in those cases where the amendment is by bringing in or substituting the proper party plaintiff, and where, if not allowed, plaintiff’s cause of action would be barred. These later cases have uniformly lield that the substituting of a party having the legal right to sue instead of one improperly named as plaintiff, is permissible and does not change the cause of action. [Cytron v. Transit Co., 205 Mo. 692, 104 S. W. 109; Lilly v. Tobbein, 103 Mo. 477, 15 S. W. 618; Turner v. Noble, 211 Mo. App. 656, 249 S. W., 103; Baker Mfg. Co. v. Okla. Hide Co. (Mo. App.), 242 S. W. 134; Glover & Son Comm. Co. v. Milling Co., 136 Mo. App. 265, 116 S. W. 1112; Hackett v. Van Frank, 119 Mo. App. 648, 96 S. W. 247; Pickel Stone Co. v. McClinton, 177 Mo. App. 294, 160 S. W. 833.] Since the cause of action on the policy before us is vested alone in tlie duly qualified executor or administrator of the insured, it is at once apparent that the trial court in any event erred in entering judgment for plaintiff Catherine. Craig, mother of the insured, as she was suing in her individual capacity under the theory that she was entitled to payment under tlie terms of the facility of payment clause in tlie policy. Furthermore, though tlie record discloses that defendant’s answer specifically denied that Keeling B. Wells was the administrator of the estate of Robert Paul, deceased, and denied his legal capacity to sue, yet neither in the petition adopted by Wells is there any allegation, nor anywhere in the record is there any evidence to support a finding that Wells is the duly appointed administrator of said’estate. In this situation defendant’s demurrer offered at the close of the case should have been sustained. In light of the fact that the case may be re-tried, we note that the court erred in liolding that section 6184, Revised Statutes of Mo. 1919, the alleged defense of misrepresentation made by the insured in his application was not available to the defendant, because tlie application for the insurance was not attached to the policy of insurance itself. The policy in suit being issued upon a level or flat rate premium, or in other words, being an old line policy and not a policy issued upon the stipulated premium plan, said section has no application. [See Mattero v. Ins. Co., 202 Mo. App. 293, 215 S. W. 750.] As the defendant’s answer alleges misrepresentation, we advert to the fact that section 6145, Revised Statutes of Mo. 1919, provides *919 tbat in suits brought upon life policies no defense based upon misrepresentation in obtaining or securing the same shall be valid unless the defendant either at or before the trial deposits in court for the benefit of plaintiff, the premiums received on such policy. The record discloses that the defendant did not make such deposit of the premiums but merely, in its answer “tenders herewith the sum of four dollars, the amount of the premiums paid on said policy of insurance from the date of its issuance to the date of the death of the insured, as provided for by the statutes of the State of Missouri.” The statute is mandatory and a tender set out in defendant’s answer is not sufficient. For defendant to avail itself of a defense of misrepresentation, it must, at or before the trial, actually deposit in court, for the benefit of plaintiff, the premiums received on such policy. [Mannion v. Ins. Co. (Mo. App.), 273 S. W. 201.] For the error noted above the judgment should be reversed and the cause remanded. It is so ordered. Danes, P. J., and Nipper, J., concur.