Zallee v. Connecticut Mut. Life Ins. Co.

• Decision Date: 18 April 1882
• Citation: 12 Mo.App. 111
• Parties: JOHN C. ZALLEE, Appellant, v. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Respondent.
• Court: Missouri Court of Appeals

12 Mo.App. 111

JOHN C. ZALLEE, Appellant,

v.CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 18, 1882.

In the absence of satisfactory proof of fraud or misrepresentation on the part of the insurer, the insured who is guilty of laches in having accepted and acted on the policy for years cannot have the policy changed to conform to his recollection of the terms of the contract.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

J. T. TATUM, for the appellant.

LEE & CHANDLER, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action for a rescission of a contract of life insurance, and to recover the annual premiums paid by plaintiff to the insurance company. On hearing, the circuit court dismissed the bill.

It appears from the evidence that plaintiff was, in 1867, holder of a policy of life insurance in defendant's company, to be absolutely void on failure to pay the annual premiums. Plaintiff swears that the agent in St. Louis of defendant's company then advised him to surrender the policy, which was forfeitable, and to make application for one that was non-forfeitable, on the non-forfeitable endowment plan; that the agent said that, after two years' payment, plaintiff could then lose nothing, but that two years' payment had to be made; that he could get plaintiff such a policy from the company; that the policy was to be paid in twenty years, if plaintiff lived; but should plaintiff cease paying, he was to get his pro rata share for every payment he had made; and his family were to get the $2,500 named in the policy, if plaintiff died meantime. If plaintiff failed, after two years, to pay the premium, he was to get a pro ratafor the amount he had paid; and the policy itself was to be non-forfeitable; and no conditions were mentioned at all. In April, 1867, the agent brought to plaintiff the policy in question in this action, saying at the time: “This is your non-forfeiting policy.” Plaintiff saw, printed on the head of this policy, “Non-forfeiting endowment plan.” Plaintiff says that he relied entirely upon the representations of the agent, and read only a few clauses in the policy; and that on the faith of the representations of the agent, and the words set out above, printed on the policy, he put it away in his safe without any further examination, believing that he had a policy absolutely non-forfeitable after two years' premiums had been paid. In June, 1875, plaintiff could not then pay the premiums then due, and gave to the agent his notes for the same, at thirty and sixty days. These notes were never paid; and, at the time of the trial, were still in the agent's hands. The agent was not authorized to receive notes for premiums. When the plaintiff handed these notes to the agent, he got no receipt for the premium. Always before that he got from the agent, on paying his premium, a receipt of the company; a printed form countersigned by the agent, which contained a statement that “the only evidence of the authority of any agent to receive any premiums on account of the policy, is a receipt in printed form signed by the president or secretary of the company.” In 1876, plaintiff went into bankruptcy. He says, that it was in the January of that year that he first read this policy, which had been in his possession since 1867. In February, 1877, plaintiff handed the policy to the agent to be surrendered for a paid-up policy. The company refused to deliver such a policy, on the ground that the policy was forfeited according to its terms for non-payment of premiums. No premiums had been paid after the transaction in regard to the notes with the agent, in June, 1875. Hodges, who was agent of the company in St. Louis until 1874, testified that, owing to the lapse of time, he could not remember the conversation of which plaintiff spoke; but that he was quite certain that he had never spoken to plaintiff about obtaining from the company any policy in exchange for the forfeitable policy which he first had,...