Summary
In Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1077[1] (Mo.App. 1930), the court held that in determining the beneficiary in a policy of life insurance the court will be governed by the intention of the parties and especially by the intention of the insured.
Summary of this case from Green Hills Prod. Cr. Ass'n v. BlessingOpinion
Opinion filed February 4, 1930.
1. — Insurance — Life Insurance — Beneficiary — Determining Rule. In determining who is the beneficiary under the terms of a policy of life insurance, the court will be governed by the intention of the parties, and especially by the intention of the insured, as the same is indicated by the surrounding circumstances and conditions existing at the time the contract was made, as applied to the language of the policy.
2. — Same — Same — Same — Language of Policy Naming Beneficiary — Construction — Treated as Testamentary. The language of a life insurance policy designating the beneficiary is to be treated as though it were of testamentary character and is to receive, as nearly as possible, the same construction as if it were used in a will, especially where the person claiming to be the beneficiary is the natural object of the bounty and affection of the insured.
3. — Same — Same — Same — Wife — Paramour. If provision is made for the insurance to be paid to the wife of the insured under that general designation, and with nothing more appearing, it will not be held payable to one with whom the insured may have cohabited as his wife, when another woman was his lawful wife.
4. — Same — Same — Same — Designated as Wife — Descriptive — Materiality. If the designation of the beneficiary as the wife of the insured is descriptive only, she being named, it is immaterial whether or not she is his lawful wife, or even that another person is his lawful wife.
5. — Same — Same — Same — Designated as Insured's Wife and By Name — Latter Governs — Intention. Where the beneficiary was referred to as the wife of the insured, and she was also pointedly designated by name, the latter designation was of prime importance; and, while the use of the term "wife" might be highly significant in determining who insured intended his beneficiary to be, yet the person named was one for whose benefit the insurance was taken, in view of which the designation of wife must be regarded as having been descriptive, and, though material, yet not conclusive, upon the question of insured's intent.
6. — Same — Same — Same — Same — Lawful Wife and Paramour — Same Names — Intention. The fact that the wife of insured alone might be said to have been the only actual person named in life insurance policy as beneficiary, and that the prior claimant's real name was different from that in the policy, is not in all events indicative of the person whom it was insured's intention to name as his beneficiary, provided the first claimant went by the name of the person named in the policy and was so called by insured and so known to her associates.
7. — Names — Fictitious — Right to Use. A person may adopt or assume a name from his true one, and may even carry on business and make contracts under his fictitious name.
8. — Evidence — Life Insurance — Policy — Ambiguity — Patent — Parol Evidence — Admissibility. Whether the ambiguity in a life insurance policy is patent or latent in its nature is immaterial upon the question of the admissibility of oral testimony explanatory thereof.
9. — Same — Same — Same — Beneficiary — Designated as Wife and By Name — Paramour Claiming Insurance — Same Names — Ambiguity — Latent — Explainable by Parol Testimony. Where plaintiff, the lawful wife of insured, in an action on a life insurance policy, claimed that she was the beneficiary who was designated in the policy as wife and by name, and another woman who was paid the amount of the insurance as claimant had lived with insured for several years, though she was not married to him, there was a latent ambiguity in the policy as to the one who was the beneficiary intended by insured, which was a proper subject for explanation by oral testimony as to facts and circumstances surrounding insured at the time he made the designation, and exclusion of proffered evidence thereon was error.
10. — Same — Same — Same — Same — Wife — Paramour — Extrinsic Evidence to Show Meaning. If the description of the beneficiary in a contract of life insurance is ambiguous, or if the terms used are applicable to several persons, or if the description is imperfect, extrinsic evidence may be resorted to for the purpose of ascertaining the meaning of the contract.
11. — Insurance — Life Insurance — Beneficiary — Woman Unlawfully Living With Insured — Insurable Interest — Enforceability. Where a woman with whom a man was living had no insurable interest in the man's life, and she was not the one who took out the contract, that did not render the policy void and unenforceable if she was the person whom insured intended to designate as his beneficiary.
12. — Same — Same — Same — Same — Insurance Paid Paramour — Suit by Wife — Instructions — Insurer Entitled to Instruction that If Person Paid Was Beneficiary Wife Could Not Recover — Refusal Reversible Error. In an action on a life insurance policy by the widow of insured, where it appeared that the insurance had theretofore been paid to a woman with whom insured had been living, who claimed to be the beneficiary, the refusal of a declaration of law requested by the insurer at the close of the whole case, the substance of which was that, if the one to whom insurer had paid the insurance produced and surrendered to it the certificate of insurance issued by it on the life of insured, and if she was the person intended by insured to have the benefit of the proceeds of such certificate, then the finding and judgment of the court should be in favor of the insurer, even though that person was not the lawful wife of insured who was designated beneficiary in the policy both as wife and by name, held reversible error.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Frank Landwehr, Judge.
REVERSED AND REMANDED.
Jourdan English, Allen May and Harold Knight for appellant.
(1) In determining who is the beneficiary under the terms of a policy of life insurance, the courts are governed by the intentions of the parties, as indicated by the surrounding circumstances and conditions at the time the contract was made, as applied to the language of the instrument. 37 C.J. 410; Overbeck v. Overbeck, 25 Atl. (Pa.) 646; Mutual Life Ins. Co. v. Devine, 180 Ill. App. 422; Beattie v. National Bank, 174 Ill. 571; Loos v. John Hancock Mut. Life Ins. Co., 41 Mo. 539; Renfro v. Ins. Co., 148 Mo. App. 258; Waring v. Wilcox, 96 P. 910. (2) The language of the policy designating the beneficiary is to be treated as of testamentary character and is to receive the same construction as if used in a will, especially where the persons claiming to be beneficiaries are the natural objects of the bounty and affection of the insured, the policy being liberally construed in their favor. 37 C.J. 410; National American Ass'n v. Kirgin, 28 Mo. App. 80; Duvall v. Goodson, 79 Ky. R. 224; Mutual Life Ins. Co. v. Devine, 180 Ill. App. 422; Mutual Benefit Life Ins. Co. v. Cummings, 133 Pacif. (Ore.), 1169; Hogan v. Wallace, 46 N.E. 1136. (3) The policy in question was a contract between the Laclede Gas Light Company and the defendant, Missouri State Life Insurance Company, for the benefit of the insured, Will Sims. The certificate itself was not the contract. Gallagher v. Simmons Hardware Co., 258 S.W. 16. The certificate, like a share of stock, is only evidence of the contract which had theretofore been made, and which was complete without the issuance of the certificate. Williams v. Everett, 200 S.W. 1045. (4) In the designation of a beneficiary in an insurance contract, the words "his wife" are surplusage when the name of a person is used, and it is for the trier of the facts to determine the identity of the person intended. 37 C.J. 567; Prudential Life Ins. Co. v. Morris, 70 A. 924; Clements v. Terrell, 145 S.E. (Ga.) 78; Doney v. Equitable Life Assurance Society, 117 1153 A. 618. (5) Parol evidence is admissible to either (a) explain latent ambiguities, or (b) show the surrounding circumstances to explain inaccuracies in the language used. Renfro v. Insurance Co., 148 Mo. App. 258; Riggs v. Meyer, 20 Mo. 329; Chapman v. McIlwrath, 77 Mo. 38; Decker v. Decker, 12 N.E. l.c. 754; Hogan v. Wallace, 46 N.E. (Ill.) 1136; Goff v. Roberts, 72 Mo. l.c. 573; State v. Weare, 38 N.H. l.c. 317; Clinton v. Hope Ins. Co., 45 N.Y. 454; Willard v. Darrah, 168 Mo. 660; Bond v. Riley, 317 Mo. 595, 600; Gordon v. Burris, 141 Mo. 602, 611. (6) A parol assignment of an insurance policy accompanied by delivery will pass the title to the policy. Chapman v. McIlwrath, 77 Mo. 38. (7) An insurance company which defends in good faith against its alleged liability on an insurance policy may not be penalized for such defense. Non-Royalty Shoe Co. v. Phoenix Assurance Co., 277 Mo. 399. (8) Where the alleged liability of an insurance company depends on a question of law, which is an open question, undecided by the Missouri courts of review, the insurance company may test its liability without becoming liable for a vexatious refusal to pay. State ex rel. Missouri State Life Ins. Co. v. Allen, 295 Mo. 307; Mound City Roofing Tile Co. v. Insurance Companies, 218 Mo. App. 395; Renfro v. Insurance Co., 148 Mo. App. 258; Cooper v. National Life Ins. Co., 253 S.W. 465; State ex rel. v. Fidelity Deposit Co., 298 S.W. 83.
Bass Bass and John Grossman for respondent.
(1) The rules governing the construction and interpretation of contracts are applicable to a contract of insurance. 37 Corpus Juris 408. (2) A written contract cannot be varied or contradicted by parol evidence of the intent of the parties. Bond v. Riley, 317 Mo. 595; Darlington Lbr. Co. v. Railroad Co., 243 Mo. 224; McPherson v. Kisse, 239 Mo. 664; Owsley v. Jackson, 163 Mo. App. 11; Liggett v. Bank, 233 Mo. 590. (3) Parol evidence is never admissible to show an intention contrary to that expressed in the policy. Joyce on Ins. (2 Ed.), par. 3806; Renfro v. Met. Life Ins. Co., 148 Mo. App. 258; Bond v. Riley, 317 Mo. 595. (b) The trial court did not err in excluding parol testimony offered by appellant for the purpose of explaining the designation, "his wife, Annie Sims, as beneficiary," said designation being clear, definite and unambiguous; neither did the court err in refusing to permit appellant to show that Will Sims called Annie Belle his wife, and intended her to be the beneficiary. Bolton v. Bolton, 73 Maine, 299; 1 Greenleaf on Evidence, pars. 277, 290; Mendez v. Sovereign Camp W.O.W., 269 S.W. 142; Rice v. Rice, 63 S.W. (Ky.) 586. (c) As a matter of law, it is presumed that the name of a beneficiary is the legal one. Morris v. Equitable Life Assurance Society. 109 Nebr. l.c. 352; Mendez v. Sovereign, etc., 269 S.W. 142. (d) A "wife" is a woman who has a husband living and undivorced. Black's Law Dictionary. The term "wife" necessarily implies a lawful marriage. Vaughn v. Dalton, 119 La. 61. The term "wife" is determined in "Words and Phrases" as follows: "The popular as well as the lexical meaning of `wife' is a woman who is united to a man in the lawful bonds of wedlock." In re Davenport's Trusts, 17 Eng. Law Equity, 293. (4) (a) A person is required to stand or fall by the theory on which the case was tried and submitted in the lower court. This case was not tried upon any theory of assignment in the trial court and appellant cannot now shift his ground. Walker v. Owen, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575; Tomlinson v. Ellison, 104 Mo. 112; Dunnigan v. Greene, 165 Mo. 98; Brooks v. Yocum, 42 Mo. App. 516; Mirrieless v. Wabash R.R., 163 Mo. 470; St. Louis Brokerage Co. v. Bagnell, 76 Mo. 554. (b) Granted, that the case was submitted on the theory of assignment, then assignee is incompetent as a witness to prove the contract of assignment by the insured. Section 5410, R.S. of Mo. 1919; Saetelle v. Met. Life Ins. Co., 81 Mo. App. 509; Deal v. Hainley, 135 Mo. App. 507; Blood v. W.O.W., 140 Mo. App. 526; Kersey v. O'Day, 173 Mo. 560. (c) The assignee of a life policy must have an interest in the life assured. Annie Belle had no insurable interest in the eyes of the law, being neither creditor nor related by blood or marriage. Mo. State Life v. Calif, State Bank, 216 S.W. 785; Warnock v. Davis, 104 U.S. l.c. 779; 1 Cooley, Briefs on Insur., p. 359; Deal v. Hainley, 135 Mo. App. 507; Kelly v. Prud. Ins. Co., 148 Mo. App. 249; Tripp v. Jordan, 177 Mo. App. 339. (d) There was no evidence offered to prove, or that tended to prove, an assignment. The theory of assignment is an afterthought. (5) (a) Damages for vexatious refusal to pay may be inflicted where the evidence and circumstances show that such refusal was willful and without reasonable cause, as the facts appeared to a reasonable and prudent man Patterson v. Amer. Ins. Co., 174 Mo. App. l.c. 44; Non-Royalty Shoe Co. v. Phoenix Assurance Company, 277 Mo. 399. (b) If there was no excuse on the defendant's part for the failure or refusal to pay the insurance, the court may allow damages and reasonable attorneys' fees. Brown v. Ry., 45 Mo. 221; Pauley v. Bus. Men's Assur. Co., 217 Mo. App. 302; Jaggi v. Ins. Co., 191 Mo. App. 384. (c) Not only was the refusal to pay by the appellant willful and without reasonable cause, but the evidence, as shown by the correspondence exchanged between the appellant and respondent's counsel reveals an aggravated vexatious refusal to pay and an extreme lack of good faith. The trial court did not err in assessing damages and attorney fees. (6) (a) There mere fact that appellant has, in its assignment of errors (but not referred to in its brief or argument, however) invoked a constitutional provision does not give the Supreme Court jurisdiction on appeal, unless the case actually, and in fact, involves a construction of some constitutional provision, and the court will look beyond the claim of the party to determine from the record whether the claim is substantial. Supreme Lodge v. Paramount Prog. Order of Moose, 17 S.W.2d 327. (b) Section 6337 of the Revised Statutes of Missouri for 1919, relating to assessment of damages for vexatious refusal and attorneys fees, has been declared constitutional on numerous occasions, and when the precise constitutional question has once been determined the Supreme Court will not assume jurisdiction on account of the jurisdictional questions mooted. Shoe Co. v. Assurance Co., 277 Mo. l.c. 424; Dickey v. Holmes, 208 Mo. 664; Keller v. Home Ins. Co., 198 Mo. 440; State v. Railroad, 242 Mo. l.c. 360; Barber v. Hartford Life Ins. Co., 269 Mo. 21; Fidelity Mutual Life v. Mettler, 185 U.S. 308.
This is an action upon a contract of life insurance the policy being one of group insurance taken out by the Laclede Gas Light Company with defendant, by the terms of which defendant agreed to insure the lives of all the employees of such company in amounts as set forth in the main group policy. Plaintiff is the widow of Will Sims, who was one of such employees, and she has sued for the full amount of insurance due at his death, which was $500. The case was tried to the court alone without the aid of a jury, and the judgment was for plaintiff for the sum of $923.33, made up of items of $500 as the face value of the policy, $123.33 as interest, $50 as the penalty for vexatious refusal to pay, and $250 as reasonable attorney's fees. A timely motion for a new trial was filed by defendant, and upon its refusal, an appeal was duly perfected to this court.
Inasmuch as no point is made concerning the sufficiency of the pleadings filed in the case, they may be put aside without further mention.
The amount of insurance to which each employee was entitled was made to depend upon the length of his continuous service with his employer, and the policy provided, among other matters, that the employer should furnish defendant with the names of all employees eligible for insurance, giving the names of the beneficiaries of such employees; that defendant should issue to the employer for delivery to each employee whose life was insured under such group policy, an individual certificate, setting forth a statement as to the insurance protection to which he was entitled, and to whom payable; that the right to change the beneficiary should be reserved to the employees; and that any sum payable by defendant as a death claim should be paid to the beneficiary designated by the employee, in accordance with the terms of the policy.
On October 25, 1923, as provided by the terms of the policy, defendant issued for delivery to Will Sims its certificate No. 1937, which recited that Sims was initially insured for the sum of $500, "payable to his wife, Annie Sims, as beneficiary."
Sims died on July 19, 1924, and some four days later the employer made up a notice of death from the records in its possession, and transmitted the same to defendant, such notice showing that "the beneficiary is Annie Sims, wife, and resides at 2124 Gratiot avenue."
Thereafter the original certificate was produced by one Annie Bell Sims, and delivered to the undertaker who had charge of the funeral. The undertaker thereupon employed a lawyer, Frank S. Bledsoe, who in turn delivered the certificate to defendant, along with proof of loss, and an affidavit by Annie Bell Sims that she was one and the same person as the Annie Sims named as beneficiary in the certificate; and on July 25, 1924, defendant paid the proceeds of the policy by check, made payable to the joint order of Annie Sims, wife of Will Sims, deceased, and Frank S. Bledsoe, her attorney. Incidentally the record shows that Bledsoe retained half of the insurance money for his fee, and that Annie Bell Sims forthwith paid her half of the proceeds to the undertaker, leaving her still indebted to him in the sum of $60.
Defendant was evidently of the opinion that its liability under the policy had been fully discharged by such payment, but on August 27, 1924, a second claim was made upon it by plaintiff herein, who also called herself Annie Sims, the widow of Will Sims, and gave her address as 2911 Bell avenue, in the city of St. Louis. An investigation followed, in the course of which it was found that some twenty years prior to the issuance of the policy and the designation of the beneficiary, Will Sims had been lawfully married in Fulton, Missouri, to plaintiff, whose maiden name was Annie Porter, and that he had lived with her in the city of St. Louis until 1917, when they had separated, although they concededly were never divorced. Shortly thereafter (though obviously without the benefit of clergy), he began living with the first claimant, whose real name was Annie Bell Charleston; and defendant offered to prove by a number of witnesses that Sims called her his wife, and that she was known in the neighborhood where they lived as Annie Sims. It is also of importance to note that Sims was living with such woman at the time of the making of the main group contract, as well as at the time of the issuance of the individual certificate and the designation by him of the beneficiary thereunder.
Plaintiff testified in her own behalf that after the separation her husband visited her at her home on the average of once a week; that he slept there on occasions, although he did not keep his clothing at her home; and that she last saw him two weeks before his death. She further testified that the other woman's name was merely Bell, and not Annie Bell, Annie not being her name, and that she herself had never known that Bell was reputed to be Will Sims' wife. She admitted, however, that she knew that Sims and this woman were living together at 2124 Gratiot street at and long before the time of his death, and that she herself had never had possession of the certificate issued for Sims by defendant.
In the course of defendant's case it was brought out on the cross-examination of the first claimant that Will Sims had called her Annie Bell Sims and that she was so known around Gratiot street, and that he had brought the insurance papers home from his work, and had handed them to her. Defendant offered to prove that he had said at the time: "Here's a paper that the Laclede Gas Light Company gave me, and it is yours." Save for the statement above which came in on cross-examination, there was nothing to show whom Will Sims intended to benefit by his insurance, for all of defendant's proffered testimony to the effect that Sims had introduced the woman as his wife, and that she was known in the neighborhood as Annie Bell Sims, was excluded on objections interposed by counsel for plaintiff, as was also the testimony of a witness who was prepared to state, so the offer of proof discloses, that he was present when Sims made the designation of his beneficiary, and that he named "Annie Sims, who resided at 2124 Gratiot street with him."
At the close of the whole case, and after its requested peremptory declaration of law had been refused, defendant asked a further declaration of law, which the court also refused, the substance of which was that if Annie Bell Sims produced and surrendered to defendant the certificate of insurance issued by it on the life of Will Sims, and if she was the person intended by Will Sims to have the benefit and proceeds of such certificate, then the finding and judgment of the court should be in favor of defendant, even though Annie Bell Sims was not the lawful wife of Will Sims. Among its several assignments of error, defendant counts upon the refusal of such requested declaration of law, as well as upon the court's exclusion of its proffered evidence as to the repute in which Annie Bell Sims was held by Will Sims and by her associates; and we have concluded that this appeal may be satisfactorily disposed of, if we limit ourselves to such two decisive points in the case.
The rule is that in determining who is the beneficiary under the terms of a policy of life insurance, the court will be governed by the intention of the parties, and especially by the intention of the insured, as the same is indicated by the surrounding circumstances and conditions existing at the time the contract was made, as applied to the language of the policy. [Pace v. Pace, 19 Fla. 438; Mutual Benefit Life Insurance Co. v. Cummings, 66 Or. 272, 133 P. 1169; Mutual Life Insurance Co. v. Devine 180 Ill. App. 422; Myers v. Fekerson 288 Pa. 468, 136 A. 785; Bogart v. Thompson, 24 Misc. 581, 53 N.Y.S. 622.]
In fact the cases go so far as to hold that the language of the policy designating the beneficiary is to be treated as though it were of testamentary character, and that it is to receive, as nearly as possible, the same construction as if it were used in a will, especially where the person claiming to be the beneficiary is the natural object of the bounty and affection of the insured. [National American Ass'n v. Kirgin, 28 Mo. App. 80, 83; Mutual Benefit Life Insurance Company v. Cummings, supra; Dunn v. New Amsterdam Casualty Co., 141 A.D. 478, 126 N.Y.S. 229; Mutual Life Insurance Company v. Devine, supra; Lehman v. Lehman, 215 Pa. 344, 64 A. 598; Landrum v. Landrum's Admx., 186 Ky. 775, 218 S.W. 274; Gault v. Gault, 25 Ky. L. 2308, 80 S.W. 493; 37 C.J. 410.]
While there strangely seems to be a scarcity of authority from our own State as to the construction to be put upon that portion of the language of an insurance policy which goes to the designation of the beneficiary, yet if it is to receive substantially the same construction as though it were used in a will, we have an abundance of authority for our guidance from our own jurisdiction.
The cases hold that in the construction of a will, where the purpose is to determine a beneficiary thereunder, it is the primary duty of the court to give effect to the intention of the testator as expressed in his will, if the same is not contrary to law or against public policy, and not to put such a construction thereon as will tend to substitute the court's own ideas or notions for those of the testator; and that where any doubt or uncertainty arises as to the testator's intention, extraneous facts will be admissible to explain the language used, regardless of whether the ambiguity be a patent or a latent one, since the court is entitled to be placed in possession of all available information of the circumstances surrounding the testator when he made the will, to the end that it may be put in the testator's own position as nearly as possible, and may be afforded the opportunity to interpret and understand the will as the testator himself would if he were living. [McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047; Bond v. Riley, 317 Mo. 594, 296 S.W. 401; Kerens v. St. Louis Union Trust Co., 283 Mo. 601, 223 S.W. 645; Mockbee v. Grooms, 300 Mo. 446, 254 S.W. 170; Plummer v. Roberts, 315 Mo. 627, 287 S.W. 316; In re Aiken's Estate (Mo. App.), 5 S.W.2d 662.]
Of course it must be understood that such extrinsic evidence is admissible, not for the purpose of contradicting or varying the terms of the will, but solely for the purpose of ascertaining the testator's true intention from the language used; and that it cannot be made to show that he really intended one thing when he said another, or to disclose an intention not expressed in the will itself, or to aid in making such a will as he evidently must have intended but actually did not make.
As a matter of fact, counsel for neither party attempt to question the correctness of the several canons of construction as we have heretofore stated them, but the controversy on this appeal, as it was in the trial court, is whether there was an ambiguity in the designation of the beneficiary which could become the lawful subject of extraneous explanation. Plaintiff's counsel argue, and the learned trial judge evidently accepted their position, that the designation, "his wife, Annie Sims," as beneficiary was clear, definite, and unambiguous, and that consequently parol evidence was inadmissible, since it could only have served to show an intention contrary to that expressed in the policy. They insist that the first claimant was neither Will Sims' wife, nor was her name Annie Sims, and that by reason of these facts the definite reference by the insured to "his wife, Annie Sims" must have been to the only person who was his wife, and who was Annie Sims.
The fault to be found with counsel's argument is that they regard the term "wife" and the name "Sims" as conclusive upon the question of the insured's intention, when the decisions based on kindred facts would seem to indicate that such is not the case.
We understand that if provision is made for the insurance to be paid to the wife of the insured under that general designation, and with nothing more appearing, it will not be held payable to one with whom the insured may have cohabited as his wife, when another woman was his lawful wife. [Clements v. Terrell, 167 Ga. 237, 145 S.E. 78.] However, if the designation of the beneficiary as the wife of the insured is descriptive only, she being named, it is immaterial whether or not she is his lawful wife, or even that another person is his lawful wife. [Mutual Benefit Life Insurance Co. v. Cummings, supra; Doney v. Equitable Life Assurance Society, 97 N.J.L. 393, 117 A. 618; Clements v. Terrell, supra; Prudential Insurance Co. v. Morris (N.J.), 70 A. 924; Lampkin v. Travelers' Insurance Co., 11 Colo. App. 249, 52 P. 1040; James v. Supreme Council of the Royal Arcanum (C.C.), 130 F. 1014; 37 C.J. 567.]
In this instance it is true that the beneficiary was referred to as the wife of the insured, but she was also pointedly designated by name. Consequently it is the latter designation which is of prime importance; and while the use of the term "wife" might indeed be highly significant in the determination of who Will Sims intended his beneficiary to be, the fact yet remains that it was the person Annie Sims for whose benefit the insurance was held, in view of which the designation of "wife" must be regarded as having been descriptive of Annie Sims, and though material, yet not conclusive, upon the question of the insured's intent.
Likewise, the fact that plaintiff alone might be said to have been the only actual Annie Sims (since the first claimant's real name was Annie Charleston), is not in all events indicative of the person whom it was Will Sims' intention to name as his beneficiary, provided the latter went by the name of Annie Sims, and was so called by the insured, and so known to her associates. We say this for the reason that a person may adopt or assume a different name from his true one, and may even carry on business and make contracts under his fictitious name (Kansas City Fuel Oil Co. v. Shoecraft, 219 Mo. App. 436, 274 S.W. 880); and it has been expressly held by the Supreme Court of Oregon in Mutual Benefit Life Insurance Co. v. Cummings, supra, that the fact that the beneficiary, who was named as the insured's wife, had merely adopted his surname, did not affect her right to recover on the policy, if she was otherwise the person whom the insured intended to have the benefit of his insurance.
To the casual reader of the certificate who knew nothing of the circumstances of the case, there would likely appear to have been no uncertainty or doubt about the designation by the insured of "his wife, Annie Sims" as his beneficiary. He would at once conclude that if Will Sims had a wife, and if her name was Annie, she was the person for whose benefit the certificate was held. Hence we concede that there was no patent ambiguity about the designation of the beneficiary; but this conclusion does not settle the matter, although the lower court seems so to have held. To justify the exclusion of all of defendant's proffered parol evidence explanatory of the designation of the beneficiary, we must find, not only that there was no patent ambiguity, but also that there was no latent ambiguity as well, for the cases hold upon the point that whether the ambiguity is patent or latent in its nature is immaterial upon the question of the admissibility of oral testimony. Now to determine whether there was a latent ambiguity about the designation of the beneficiary, we must put ourselves in the position of Will Sims when he gave his employer the name of the person to whom he wished the proceeds of his insurance to go. The certificate on its face shows only that he designated "his wife, Annie Sims," though there was an offer of proof that he named "Annie Sims, who resided at 2124 Gratiot street with him."
Looking at the matter solely from Will Sims' standpoint, therefore, we grant that he may have meant his lawful wife, Annie Sims, who resided at 2911 Bell avenue. While it is true that they were separated, and had been for many years, yet there had not been a complete parting of the ways, and relations of some sort were yet maintained between the two. Clearly there was a sufficient showing on plaintiff's part to have raised an issue for the trier of the facts to have passed upon, and counsel for defendant do not contend to the contrary.
But that is only half the story. Sims had been separated from plaintiff for six years when he was called upon to designate his beneficiary, and he had been living with the first claimant for the greater part, if not for the whole, of that time. Accepting defendant's proffered evidence at its face value, and indeed there is some positive evidence in the record of like effect, he called the claimant "Annie Sims," and "wife," and she was so known among her associates in the neighborhood where she lived; he specifically designated her as his beneficiary by giving his employer her street address; and upon receipt of the certificate, he handed it to her with the statement that it was hers. Hence, in view of what we have said heretofore about the right of the claimant to have adopted a different name from her true one, as well as about the descriptive character of the term "wife" in connection with the designation of a beneficiary, we must hold that there was a latent ambiguity about the policy, when we consider it from Will Sims' viewpoint, which was the proper subject for explanation by parol testimony of the facts and circumstances surrounding him at the time he made the designation.
Incidentally this conclusion is strictly in keeping with the holdings of other jurisdictions, where the rule is that if the description of the beneficiary in a contract of life insurance is ambiguous, or if the terms are applicable to several persons, or if the description is imperfect, extrinsic evidence may be resorted to for the purpose of ascertaining the meaning of the contract. [Pace v. Pace, supra; Clinton v. Hope Insurance Co., 45 N.Y. 454.] Even more directly in point is the holding of the New Jersey court in Prudential Insurance Co. v. Morris, supra, that where a lawful wife, and a woman who had cohabited with the insured, both claimed the proceeds of a policy of insurance which designated the woman as beneficiary, and which described her as "wife," parol evidence of the circumstances in which the parties lived and surrounding them when the policy was issued was admissible to explain the instrument, and to show the circumstances under which it was executed.
It is not suggested that Annie Bell Sims was not entitled to payment of the proceeds if she was the person whom Will Sims intended to designate as his beneficiary. Assuming that the contract was made wholly for her benefit, it was not a wagering contract, and though she had no insurable interest in Will Sims' life, she is not the one who took out the contract so as to have rendered it void and unenforceable. Moreover, the situation is to be distinguished in a further respect from such cases as Keener v. Grand Lodge, 38 Mo. App. 543; Grand Lodge v. Riebling, 81 Mo. App. 545; and Van Cleve v. Union Casualty Surety Co., 82 Mo. App. 668, where the incapacity of the claimant to recover as opposed to the lawful wife was held to be due to particular laws or regulations of the insuring society, or to the provisions of what is now Section 6403, Revised Statutes 1919, designating who may be named as beneficiaries in a certificate issued by a fraternal beneficial association.
Our conclusion is, therefore, that defendant's proffered evidence was improperly excluded, and that its requested declaration of law was improperly rejected; and further, that the prejudicial effect of such rulings which foreclosed to defendant the right and opportunity to offer its lawful defense, and which precluded the court as the trier of the facts from passing on the same, requires that the judgment rendered be reversed. If there are other errors among the several matters pointed out by appellant, and not discussed herein, they may not appear upon a retrial of the case.
Accordingly, the commissioner recommends that the judgment of the circuit court be reversed, and the cause remanded.
The foregoing opinion of BENNICK, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, reversed, and the cause remanded. Becker and Nipper, JJ., concur; Haid, P.J., absent.