Wilkins v. Metropolitan Life Ins. Co.

CONCURRING OPINION. Section 5852, Revised Statutes 1939, the nonforfeiture statute, which is as much a part of these policies as if expressly written therein, provides that the amount of extended insurance in the event of nonpayment of premiums thereon "shall be such as isspecified in the policy, but never less than the face amountinsured by the policy reduced by the unpaid portion of notes and indebtedness aforesaid;" etc. What was the amount as specified in these policies, and what was the face amount insured by the policies? It was, as to one policy, as originally written, $210 in the event of death from natural causes or it was double that amount in the event of accidental death, and as to the other policy it was $258 in the event of death from natural causes or it was double that amount in the event of accidental death. Certainly, if there had been no failure in the payment of premiums at the time of the death of the insured by accidental means, the amount of insurance as specified by the policy and as shown on the face of the policy would have been double the amount of straight life insurance as specified by the policy. I am unable to understand how the amount specified in the policy or the face amount insured by the policy is changed by the payment or want of payment of the premiums. In other words the amount specified in the policy or the face amount insured by the policy, whether the premiums are paid or not, is only ascertainable by reference to two things, first, an inspection of the face of the policy, and second, an inquiry as to the cause of death. As we said in the case of Fletcher v. Metropolitan Life Ins. Co., — Mo. App. —, 137 S.W.2d 621, 623. "It is one policy promising to pay two kinds of benefits covered by one consideration or premium as stated in the announcement."

To illustrate, if the beneficiary had taken the first of these policies to the insurer and stated, "The insured is dead, what am I entitled to as specified in this policy, or, as shown on the face of this policy?" the only answer the insurer could have possibly made would be, "I cannot tell what the specified amount is on the face of the policy, unless you further tell me whether the death was from natural causes or from accidental means, because in one case the amount specified on the face of the policy is $210 while in the other case it is $420."

To say that the accidental clause is a gracious gift to the insured which may be presented or withheld by the insurer at its pleasure would be doing violence to the intelligence of the contracting parties. True, the clause was not a part of the policy originally, but when it was made a part of the policy on December 1, 1928, it was not in the nature of a gift or a present to the insured. It was no doubt carefully thought out and actuarially determined that the insurer was receiving sufficient premiums to justify the more favorable policy, otherwise the insurer would have been giving away something it didn't have. And when it did add this clause it had the effect of changing the amount specified in the policy or as shown on the face of the policy from the fixed sum of $210 to the sum of either $210 or $420, dependent upon the cause of death.

In these policies the additional benefit was added of double the original liability if death occurred from accidental means, that this did not in the lease change the form of the policy to any other kind of insurance than life insurance; no more so than if the addition had been that the amount of original liability be doubled if the insured died from heart disease rather than from other causes.

It makes no practical difference that the extended insurance would run for a longer time if the death occurred from natural causes than if it occurred from accidental means; in the one event the policy might have expired and in the other event it would still be in force. It was the unforeseen event, the cause of the death, which was to determine both the amount shown on the face of the policy, and, the term of the extended insurance, if the premiums be not paid when due. If the Legislature had intended otherwise it would have added to the words, "The amount of such temporary insurance shall be such as specified in the policy," these or similar words, "In case of death from naturalcauses." No such limitation was made by the Legislature and we should not read into the section something that is not there.

But notwithstanding my individual views, in the case of Smith v. Equitable Life Assur. Soc., 232 Mo. App. 935,107 S.W.2d 191, this court came to a different conclusion, and held that the "face amount" of a policy meant "that amount which is in all events payable thereunder as straight life insurance, without regard to any additional features of the policy such as accidental or disability insurance payment only in the event of certain specified contingencies;" and thereafter the Supreme Court in the case of Cleaver v. Central States Life Ins. Co.,346 Mo. 548, 142 S.W.2d 474, without mentioning the Fletcher case, which was cited in the briefs, held that "the double liability agreement terminated when such extended insurance began," and cited in support thereof the Smith case, thus approving the Smith case. As a good soldier should obey without question the commands of his superior officer, so should a judge cheerfully surrender his individual views and acquiesce in the law as declared by his superiors, and so I concur as to result in the commissioner's opinion.