James v. Mutual Reserve Fund Life Ass'n.

• Citation: 49 S.W. 978,148 Mo. 1
• Court: United States State Supreme Court of Missouri
• Decision Date: 08 December 1898
• Parties: JAMES v. MUTUAL RESERVE FUND LIFE ASS'N.<SMALL><SUP>1</SUP></SMALL>

49 S.W. 978

148 Mo. 1

JAMES v. MUTUAL RESERVE FUND LIFE ASS'N.¹

Supreme Court of Missouri, Division No. 1.

December 8, 1898.

LIFE INSURANCE — NONPAYMENT OF PREMIUM — WAIVER — APPEAL — PROOF OF WAIVER — CONSTITUTIONAL PROTECTION — RIGHT TO OPEN AND CLOSE — BURDEN OF PROOF — FORFEITURE — QUESTION FOR JURY — EVIDENCE — SUFFICIENCY — REVIEW — VERDICT — INSUFFICIENT EVIDENCE — NEW TRIAL FOR SURPRISE AND NEWLY-DISCOVERED EVIDENCE.

1. In an action on a life insurance policy under a plea of performance, plaintiff may prove a waiver of forfeiture for nonpayment of a premium when due.

2. A life insurance agent may waive a forfeiture for nonpayment of a premium when due, though the policy expressly states that no waiver shall be valid unless in writing, signed by an officer of the company.

3. Whether or not a forfeiture of a life insurance policy for nonpayment of a premium when due was waived is for the jury.

4. Where a receipt for a premium on a life insurance policy showed that it had been paid after due, and the beneficiary's uncontradicted testimony showed that she had paid other premiums after they were due, it is sufficient to establish a waiver of forfeiture for nonpayment of a premium when due.

5. A judgment will not be reversed because the evidence is insufficient to support the verdict, unless it is apparent that the verdict must have been the result of passion, prejudice, or misconduct of the jury.

6. Where plaintiff claims under a life insurance policy on the ground that a forfeiture for nonpayment of a premium when due was waived by defendant, he has the burden of proof, and is entitled to open and close.

7. A new trial will not be granted for newly-discovered evidence, where it is manifest that by the exercise of diligence it could have been obtained at the trial.

8. Where there is no affidavit of surprise at the ruling of the court in permitting plaintiff to make certain proof under the pleadings, and no request for a postponement to meet plaintiff's evidence, a new trial will not be granted defendant to offset plaintiff's evidence.

9. Where no protection of the constitution was claimed below with respect to the rule as

to proof of waiver in an insurance case, it cannot be claimed on appeal.

Appeal from circuit court, Jackson county; J. H. Slover, Judge.

Action by Johanna Esther James against the Mutual Reserve Fund Life Association. From a judgment for plaintiff, defendant appeals. Affirmed.

On the 3d of October, 1890, the defendant, an insurance company on the assessment plan, insured the life of Milton James, of Kansas City, Mo., in the sum of $3,000, "upon the condition of the payment of nine dollars and eighty-four cents, as a deposit in advance of mortuary premiums and dues, within thirty days from the first week day of the months of February, April, June, August, October, and December." The plaintiff, the wife of the insured, was the beneficiary. With the exception of two or three times, the plaintiff paid the premiums at the office of the local agent in Kansas City, and nearly always to Miss Carrie Dewey, a clerk in said office, who had authority to receive and receipt for them. The policy provided that, if the premiums were not paid on or before the day provided therefor in the policy, it should expire, and become null and void. The plaintiff testified that she had paid premiums after the expiration of the time specified, and as late as the 2d, 3d, and 4th of the next month, but she could not specify which they were. Six receipts were produced by plaintiff, five of which showed that the premiums were paid within the required 30 days, and one — for the premium due April 1, 1892 — was paid on the 2d of May, 1892. The receipts for the other payments, made between October, 1890, and June, 1893, were not produced. The premium payable within 30 days after June 1, 1893, was not paid during that time. Plaintiff says she had always received notices of the assessments prior to that time, but received none for that one, and waited to receive it until July 2d or 3d, and then went to the agent's office, and tendered the premium to Miss Dewey, who told her she would not receive it, and called Mr. F. C. Eames, to whom she again tendered it, but he refused to receive it, because it was three days past due. Plaintiff insisted upon paying it, because she had paid past-due premiums before, which had been accepted without objection, and because she had received no notice. Mr. Eames said: "Well, it is different now; that James was in good health then." Miss Dewey told plaintiff they could not receive the premiums on account of Mr. James' health, and spoke of another similar case, and said they were instructed to watch such cases, and that "we watch them like a hawk." Mr. Eames told plaintiff on July 31st "he was no longer the agent of the company, but his son was, and his son was at home, sick." Plaintiff went to the son's house to see him about it; but, as he had since died, the testimony as to what transpired was excluded. Several times during the month of July plaintiff again offered to pay the premium, as did also her friend, Mr. John Larimer, between the 1st and 7th of July, but it was refused. The insured became insane in June, 1893, and was confined in an asylum. He died in February, 1895. No premiums were tendered between July, 1893, and February, 1895. Miss Dewey and Mr. F. C. Eames testified that the plaintiff never tendered the premiums to either of them at any time, and especially not in July, 1893. They both said Mr. Eames ceased to be the agent of the company in March, 1893, and was not in Kansas City between March 12, 1893, and the spring of 1894, and that they had no conversations with her on the subject at all. Miss Dewey said she was in the office about an hour on the 1st and 3d of July, respectively; that she left Kansas City for Chicago on the 6th, and returned on the 22d, of July. This suit was begun on the 25th of September, to recover on the policy. The defense is a nonpayment of the premium for June, 1893, and a forfeiture of the policy in consequence. The reply is a general denial. The jury found for the plaintiff in the sum of $2,980, which sum was arrived at by deducting the unpaid premiums from the face of the policy, and adding interest on the balance. The defendant appealed.

W. C. & J. C. Jones and Wash Adams, for appellant. Lipscomb & Ruct, for respondent.

MARSHALL, J. (after stating the facts).

1. The first objection of defendant is that under a plea of performance the plaintiff was permitted to prove a waiver of the conditions of the policy to be performed by the insured; that is, the payment of the premiums within the prescribed time. This practice is sanctioned in this state. McCullough v. Insurance Co., 113 Mo., loc. cit. 616, 21 S. W. 209; Insurance Co. v. Kyle, 11 Mo. 278; Nickell v. Insurance Co., 144 Mo., loc. cit. 432, 46 S. W. 439. The reason for this rule is that: "It is merely evidence of a performance. It is not the case of a substitution of a new contract for an old one. It is not an excuse for nonperformance by the prevention or discharge of the defendants, but it is evidence of performance." Napton, J., in Insurance Co. v. Kyle, supra. "The proof of waiver in this case is not an excuse for nonperformance at all. It is proof of performance within the meaning of the condition." Napton, J., in Nickell v. Insurance Co., supra. This rule has obtained in this state for such a long period of time that litigants have a right to assume that it will continue to be followed, notwithstanding it is apparently an exception to the general rules of pleading applicable to other cases.

2. The defendant argues, however, that the policy expressly provides that "no contract, alteration or discharge of contract, waiver of forfeitures, nor granting of permits or credits shall be valid unless the same shall be in writing, signed by the president or vice president and one other officer of the association," and hence the agent or local treasurer at Kansas City could not waive the forfeiture. This is not a new proposition. It has been much discussed, and the rule is established by the great weight of authority that an agent may waive a forfeiture, notwithstanding such a restriction as that above quoted in this policy. This is the result of the adjudications in Alabama, Connecticut, Georgia, Illinois, Indiana, Kansas, Michigan, Louisiana, Missouri, New Hampshire, New York, Tennessee, Texas, Vermont, and by the supreme court of the United States. 2 Joyce, Ins. § 1356, and cases cited in note 75; 1 May, Ins. p. 240, § 135, and cases cited in note 2. In Thompson v. Insurance Co., 52 Mo., loc. cit. 471, a very similar provision to that contained in this policy was under review, and it was held that the agent had power to waive a forfeiture, and might, by a course of dealing, create an estoppel to enforce the provision, notwithstanding the policy also provided that, if the premium was received after it was due, it should be considered "as an act of grace or courtesy, and forms no precedent in regard to future payments." In the case at bar the receipts for premiums provided on their face that they should not be valid unless countersigned by the agent in Kansas City. This policy was negotiated and issued by the agent in Kansas City. All of the premiums were paid to him. All of the dealings of the insured and of the plaintiff were with him. He must, therefore, be regarded as the alter ego of the company, and what he did was the same as if the company was present, acting for itself. Nickell v. Insurance Co., 144 Mo. 420, 46 S. W. 435. Under our law a party to a contract in writing may alter, waive, rescind, vary, or waive the whole or any provision thereof, by a subsequent parol agreement, or by acts in pais amounting to an estoppel. Parties may even become liable for the acts of their agents by their course of business. Edwards v. Thomas, 66 Mo., loc. cit. 482.

3. Insurance...