Burke v. American Sav. Life Ins. Co.
| Citation | 132 S.W.2d 709,234 Mo.App. 377 |
| Parties | GERTRUDE A. BURKE, RESPONDENT, v. AMERICAN SAVINGS LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT |
| Decision Date | 30 October 1939 |
| Court | Court of Appeals of Kansas |
Appeal from Buchanan Circuit Court.--Hon. Sam Wilcox, Judge.
AFFIRMED.
Judgment affirmed.
Groves & Watkins and Mosman, Rogers & Bell for appellant.
(1) The plaintiff failed to make a case for the jury. (a) The provision of the double indemnity part of the contract terminating that insurance should have been read and construed with other provisions of the policy, and effect should have been given to it. Kennedy v. National Accident & Health Ins. Co., 76 S.W.2d 748; Jackson County Light, Heat & Power Co. v. City of Independence, 188 Mo.App. 157, 175 S.W. 86; Planters Nut & Chocolate Co. v. Douglas Candy Co. (Mo. App.), 240 S.W. 473. (b) The termination clause of the double indemnity part of the policy is clear and unambiguous, and it should have been enforced. State ex rel. National Life Ins. Co. v Allen, 301 Mo. 631, 256 S.W. 737. (c) By the acceptance of the benefits under the waiver of premium provision of the policy, the double indemnity part thereof was terminated. Yarborough v. Atlantic Life Ins. Co., Inc., 84 F.2d 319; Great Southern Life Ins. Co. v. Jones, 35 F.2d 122; Kansas City Life Ins. Co. v. Pettit, 61 P.2d 1027; Life & Casualty Ins. Co. of Tennessee v. Powell (Ala.), 180 So. 559. (2) Instruction No. 2 is erroneous because it directs a verdict and ignores the question of whether or not the double indemnity provision of the policy was in force at the time of the death of the insured. McDonald v. K. C. Gas Co., 332 Mo. 356, 59 S.W.2d 37; Hall v. Manufacturers' Coal & Coke Co., 260 Mo. 351, 168 S.W. 927; Wojtylak v. Kansas & T. Coal Co., 188 Mo. 260, 87 S.W. 506; St. Louis Union Packing Co. v. Mertens, 150 Mo.App. 583, 131 S.W. 354.
Miles Elliott for respondent.
(1) (a) In holding that the double indemnity provision of the policy had not been terminated but was in force at the time of the death of the insured, the trial court followed the plain language of the policy. The double indemnity provision was so clearly and plainly in force that the policy was not open to construction on this question. The courts will not alter or change the plain language of a contract, and words not technical will be taken in their ordinary and usual acceptance. Liggett v. Levy, 233 Mo. 590, 136 S.W 299; State ex rel. National Life v. Allen, 301 Mo. 631, 236 S.W. 737. (b) Even in the light most favorable to appellant, all that can be said is that the language of the policy pertaining to the termination of the double indemnity provision is ambiguous or requires construction. In that event, it must be construed in favor of insured and against insurer. State ex rel. Mills Lbr. Co. v. Trimble, 327 Mo. 899, 39 S.W.2d 355; Henderson v. Mass. Bonding, etc., Co., 337 Mo. 1, 84 S.W.2d 922; Robinson v. Commonwealth Casualty Co., 224 Mo.App. 969, 27 S.W.2d 49; Kimbrough v. Natl. Protective Ins. Assn., 225 Mo.App. 913, 35 S.W.2d 654. (2) Respondent's Instruction No. 2 was proper in not submitting to the jury the question of whether the double indemnity provision of the policy was in force at the time of the death of the insured. The facts on this question were undisputed, and it was purely a question of law. To have submitted this question of law to the jury for decision would have been error. Carroll v. Campbell, 110 Mo. 557, 49 S.W. 809; Lumpkin v. Strange, 179 S.W. 742; Stoddart v. National, etc., Ins. Co., 251 S.W. 398; Phelps Stone, etc., Co. v. Norton, 227 Mo.App. 268, 52 S.W.2d 413; Henry v. Illinois Cent. R. Co., 282 S.W. 423.
Gertrude A. Burke, beneficiary, was plaintiff in a suit based on a life insurance policy issued to her husband, Earl E. Burke, deceased, by The Sentinel Life Insurance Company, the obligation of said policy having thereafter been assumed by American Savings Life Insurance Company, which company was defendant. Gertrude A. Burke will be referred to herein as plaintiff, Earl E. Burke as insured, and American Savings Life Insurance Company as defendant.
Trial to a jury resulted in a verdict and judgment for plaintiff, and defendant appeals.
Defendant urges error on the part of the trial court in over-ruling its demurrer to the evidence offered at the close of the case. We shall confine our statement of facts to a statement only of those facts pertinent to the demurrer on the grounds assigned here.
The policy in question was for life and endowment at age eighty, was dutly issued to insured on July 2, 1930, in the principal sum of $ 2000. Attached thereto and forming a part thereof was a rider which provided that in the event of death by accidental means defendant would pay double indemnity, or an additional $ 2000. Also attached was another and additional rider which provided that in the event insured should become totally disabled and remain in that condition for a period of four months defendant would waive premiums falling due after the lapse of the said four months and so long as such disability should continue. While the riders each contained provisions for specified annual premiums, for the double indemnity provision $ 3 per year and for the waiver of premiums provision $ 1.56 per year, nevertheless there was written into the body of the main policy itself, which policy was in evidence, the following, which is the only reference therein to the subject of premiums, to-wit:
The matter of premiums to be paid is important in view of opposing contentions of the parties hereto. Witness Filley of defendant's conservation department testified that the annual premiums to be paid for the policy were as follows: $ 73.14 for the main policy, $ 3 for the double indemnity provision, and $ 1.56 for the waiver of premiums provision, making a total of $ 77.70, and stated that the whole premium was thus separable. He also testified that, upon request, the method of payment of premiums was changed from annually to quarterly, and that the correct quarterly premiums to be paid as the total for the three divisible parts of the policy was: $ 77.70 X 6% / 4 = $ 20.60.
On August 31, 1932, while the policy was in full force, insured was totally disabled in an automobile accident and, upon due proof thereof, defendant waived payment of premiums during the period of total disability, and until defendant demanded resumption of payment of premiums, on the grounds that insured had recovered from such total disability, from which time forward quarterly premiums of $ 19.80 each were paid to the St. Joseph office of defendant, for which receipts substantially in the form of the following specimen, which was in evidence, were issued, to-wit:
QE807230
$ 19.80
2 day of Oct.
Upon insured's death defendant paid the principal life indemnity of $ 2000, less an outstanding policy loan but denied liability for the double indemnity for accidental death on the grounds that insured committed suicide. This suit was brought for recovery on the double indemnity provision and the jury found that death was by accidental means within the meaning of the policy, and judgment was for the full sum sued for. Defendant contends here that the double indemnity provision of the policy ceased to operate, by reason of automatic provisions contained therein, when defendant waived payment of premiums during insured's total disability; and that its demurrer should have been sustained on that ground when the policy was introduced in evidence. Defendant relies on the following clause contained in the double indemnity provision:
"The election either automatically or otherwise of any option under this policy whereby the payment of further premiums is not required, or the approval of any claim for total and permanent disability benefits under this policy shall automatically terminate this supplemental contract."
Defendant does not contend that the double indemnity provision became inoperative because of approval of a claim for total and permanent disability. Indeed, the policy nowhere provided for such a claim to be made. Nor does defendant contend that it ever informed plaintiff or insured, prior to insured's death, or prior to the bringing of this suit, that the double indemnity provision of the policy had lapsed for any cause. However, defendant contends that the double...
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