McIntyre v. Federal Life Insurance Co.

Decision Date07 March 1910
PartiesMARY McINTYRE, Respondent, v. FEDERAL LIFE INSURANCE CO., Appellant
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. E. E. Porterfield, Judge.

AFFIRMED.

Judgment affirmed.

C. A Atkinson and Harkless & Histed for appellant.

(1) Pleadings are construed most strongly against the pleader. Vol. 2, Mo. Ann. Stat. 1906, sec. 3418; Rogers v Wolfe, 130 Mo. 1; Egan v. Insurance Co., 27 La 268; Stocks v. Mueller, 1 Mo.App. 168; Howard v. Goshow, 33 Mo. 118. (2) The court erred in permitting plaintiff to introduce in evidence letter dated July 16, 1904. Life Ins. Co. v. Sefton, 53 Ind. 380; Life Ins. Co. v. Schlink, 175 Ill. 293; Leslie v. St. Louis, 47 Mo. 472. (3) Mrs. McIntyre, in dealing with Holroyd and Brazier did so at her peril and it was her duty to ascertain the authority, if any, each of them possessed, and she was not at liberty to charge the defendant by relying upon any assumption of authority by either of them. Agency cannot be proven in the manner attempted to be proven by plaintiff. Mechem on Agency, secs. 276, 285, 289, 706, 710 and 716; Story on Agency (9 Ed.), secs. 17, 126, 133 and 134; Trask v. Ins. Co., 53 Mo.App. 625; The People v. Courson, 87 Ill.App. 254; Embree v. Ins. Co., 62 Mo.App. 132. (4) The court erred in refusing to instruct the jury as requested by defendant at the close of all the evidence, said instruction being one directing the jury to find for plaintiff in the sum of $ 300. May on Insurance, sec. 63; Frye v. Life Ins. Co., 31 F. 197; Parsons v. Life Ins. Co., 31 F. 305; Weingartner v. Life Ins. Co., 32 F. 314. (5) The burden of proving an oral contract of reinsurance was upon plaintiff and the law requires this proof to be so clear and forcible as to leave no room for reasonable doubt. Chaney v. Insurance Co., 62 Mo.App. 45; Rogers v. Wolfe, 104 Mo. 1; Brownlee v. Fenwick, 103 Mo. 420. (6) Mrs. Hughes accepted the reinsurance contract between the two insurance companies with all its burdens as well as its benefits, and became a party thereto the same as if she had signed it on July 16, 1904. Bolles v. Mutual Res. Fund Life Assn., 220 Ill. 400; Brown v. Mutual Res. Fund Life Assn., 224 Ill. 576; Hodge v. Steel Corp., 54 A. 1; 2 Pomeroy, Equity Jur., secs. 608-628; Cordova v. Hood, 17 Wall. 1; Joy v. City of St. Louis, 138 U.S. 1; Mayor v. Whittington, 78 Md. 231; Moore v. Township of Kenockee, 75 Mich. 332; Wade on Notice (2 Ed.), secs. 30 and 309; Mettart v. Allen, 139 Ind. 644; Barrett v. Davis, 104 Mo. 549; Heddick v. Beeler, 110 Mo. 91; Herman on Estoppel, sec. 800; Johnson v. Trust Co., 159 Ind. 605, and authorities therein cited; Krag-Reynolds Co. v. Oder, 21 Ind.App. 333, and authorities therein cited; Bigelow on Estoppel (2 Ed.), 511; Life & Trust Co. v. Eton, 82 N.E. 480; Parvis v. Mutual Res. Life Ins. Co., 100 N.W. 39. (7) There was no evidence that defendant ever held out Holroyd, Brazier or any other agent as having any authority whatever to waive any of the terms or conditions of said contract or make a new contract on its behalf. Kerney v. Life Ins. Co., 109 Ill.App. 609; Herman on Estoppel, sec. 800; Johnson v. Trust Co., 159 Ind. 605; Bigelow on Estoppel (2 Ed.), 511. (8) There was no ratification by defendant of anything that was said or done by either Mr. Holroyd or Mr. Brazier as to any oral contract of reinsurance which it is alleged and claimed by plaintiff was made with her as agent of Mrs. Catherine Hughes. Ratification can only be where there is full knowledge of all the facts. Owing v. Hull, 9 Peter 607; Barrett v. Davis, 104 Mo. 549; 1 Am. and Eng. Ency. of Law (2 Ed.), secs. 965, 1189, 1190 and 1204; Saville & Somes & Co. v. Welsh, 58 Vt. 683; Steumle & Manawal v. Railway, 42 Mo.App. 73; Hyde v. Larkin, 35 Mo.App. 366; Johnson v. Fecht, 94 Mo.App. 605; Mechem on Agency, secs. 132, 149 and 750; Story on Agency (9 Ed.), sec. 239; Clark v. Clark, 59 Mo.App. 532.

Ewing C. Bland for respondent.

(1) The petition in this cause stated a cause of action in favor of the plaintiff and against the defendant. 1 Cooley's Briefs on Insurance, p. 397; Lingenfelter v. Insurance Co., 19 Mo.App. 252; Worth v. Insurance Co., 64 Mo.App. 583; Lee v. Porter, 18 Mo.App. 378; Winn v. Hillyer, 43 Mo.App. 139; Hale v. Stuart, 76 Mo. 20; Hughes v. Carson, 90 Mo. 399; Grace v. Nesbit, 109 Mo. 9; Allen v. Chouteau, 102 Mo. 318; Bank v. Pettit, 85 Mo.App. 499; Welch v. Chicago, etc., Soc., 81 Mo.App. 37; Gunther v. Aylor, 92 Mo.App. 161. (2) There was no error in admitting in evidence the letter marked "Exhibit F." Malecek v. Railway, 57 Mo. 17; Northrup v. Ins. Co., 47 Mo. 435. (3) The conversations testified to by Mrs. McIntyre as having taken place between her and Mr. Holroyd on August 8, 1904, and between her and Mr. Brasier about December 10, 1904, were competent. Gibson v. Insurance Co., 85 Mo.App. 41; Hayward v. Insurance Co., 52 Mo. 181; Bush v. Insurance Co., 85 Mo.App. 155; Ritchey v. Insurance Co., 104 Mo.App. 146; Bank v. Fricke, 75 Mo. 178; Hackett v. Van Frank, 105 Mo.App. 384. James v. Insurance Co., 148 Mo. 1. (4) Mrs. Hughes was not bound by the terms of the so-called reinsurance contract between the Union Life and the defendant. Welch v. Chicago, etc. Soc., 81 Mo.App. 37, supra; Cravens v. Life Ins. Co., 148 Mo. 583; Horton v. Insurance Co., 151 Mo. 604; R. S. 1899, sec. 1024; R. S. 1899, sec. 7889. (5) Plaintiff was not bound to prove any part of her case beyond a reasonable doubt. Chaney v. Insurance Co., 62 Mo.App. 45. (6) There was evidence to go to the jury in this case on the right of plaintiff to recover. 1 Am. and Eng. Ency. Law, pp. 988 and 999; Bailie v. Insurance Co., 73 Mo. 381; R. S. 1899, sec. 8002; Manufacturing Co. v. Constructing Co., 124 Mo.App. 365; Downing v. Ringer, 7 Mo. 585; 2 Am. and Eng. Ency. of Law, p. 428; City of Desota v. Insurance Co., 102 Mo.App. 1; Ritchie v. Insurance Co., 104 Mo.App. 146; 3 Cooley's Briefs on Ins., p. 2541; Rosenbaum v. Insurance Co., 101 Mo.App. 126.

OPINION

JOHNSON, J.

Action on a contract of life insurance. Plaintiff recovered a judgment for the full amount of her demand and the case is here on the appeal of defendant.

The cause of action pleaded in the petition is grounded on an oral contract of reinsurance. On January 14, 1902, the Union Life Insurance Company, an Indiana corporation, issued a written policy of life insurance to Catherine Hughes whereby, in consideration of an annual premium of seventy-one dollars, the company agreed to pay plaintiff, who was a daughter of the assured, the sum of $ 1000, on the death of the assured. Provision was made in the policy for the payment of the premium in monthly installments of $ 6.27 and the premiums were paid monthly by plaintiff who acted as her mother's agent. These payments were made to an agent of the company who called at plaintiff's home to collect them.

In July, 1904, plaintiff received through the mails a communication signed by the officers of the company to the effect that the assets and business of the company had been transferred to the Federal Life Insurance Company (the defendant) and that the policy in suit had been reinsured in the defendant company. The statement was made that "Under the contract with the Federal Life the net amount of admitted assets transferred to it will be credited to the Union policy-holders," but there is no intimation in the letter of any impairment of the assets of the Union Company or of any provision in the contract of reinsurance for an impairment lien on the policies reinsured. In conclusion the letter says: "The Federal Life is an exceptionally strong and ably managed 'Old Line' company and no Union policy-holder will ever have reason to regret this transfer. We hope you will remain a permanent policy-holder in the Federal."

In the following month, the agent who had collected premiums for the Union company called at plaintiff's home to collect the installment then due. He stated that the policy had been transferred to the defendant and that he was the agent of defendant. Plaintiff testified she showed him the letter from the Union company "and he told me to go on with my premiums just the same as I paid the old company, that the policy was just the same and the full value of the policy would be paid just the same as the Union Life Insurance Company." Thus assured, plaintiff paid the monthly premium and, thereafter paid the premiums until the death of her mother, which occurred July 3, 1905. There can be no doubt, under the evidence, that the collector was the agent of defendant to make these collections and that defendant received and retained the premiums. Shortly after the agent of defendant collected the August premium, another agent of defendant called on plaintiff and, according to her testimony, stated that the insured "would have to pay a larger premium or otherwise would have to be re-examined." Plaintiff replied by repeating the conversation she had with the collector and by stating that she "stood on that agreement and would not have her mother re-examined or pay any more premium than she had been paying to the defendant." The version of this conversation given by the defendant's evidence differs materially from that of plaintiff, but the witnesses do not disagree about the fact that nothing was said in this conversation relative to an impairment lien. Defendant's agent says he tried to tell plaintiff about the lien but she grew very angry and would not listen. This is denied by plaintiff.

Over the objection of plaintiff, defendant introduced in evidence the following letter written to plaintiff by defendant under date of July 16, 1904:

"To the Policy-Holders of the Union Life Insurance Company of Indiana:

"You are hereby...

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