Metropolitan Life Ins. Co. v. Ryan , 237 Mo. App. 464 ( 1943 )

ON MOTION FOR A REHEARING. Plaintiff, on motion for a rehearing, contends that our opinion is in conflict with Kirk v. Metropolitan Life Insurance Co.,336 Mo. 765, 81 S.W.2d 333, wherein the court had before it a suit brought by the administrator of the insured on an industrial policy, and it was held that proofs of death, furnished by another claimant under the facility of payment clause of the policy and adopted by the administrator in his petition, were binding upon the administrator. As to this contention it will suffice to say that in our case the insured's guardian ad litem has not adopted, but repudiates, the proofs furnished by the beneficiary.

Plaintiff further says that if our opinion is correct, and the proofs furnished by the beneficiary are not binding upon the insured, there have been no proofs whatever furnished in his behalf, and that proofs are necessary to authorize the waiver of premiums. We are unable to see how this suggestion is pertinent. This is not a suit by the insured for disability benefits, nor by the beneficiary for the life insurance. It is a suit in equity by the insurer against the insured and the beneficiary to cancel the policy. Whether or not the insured is excused while insane from making proofs of disability resulting from his insanity is a question not now before us for decision.

The Commissioner recommends that plaintiff's motion for a rehearing be overruled.