Ijams v. Provident Sav. Life Assur. Soc.

• Decision Date: 13 December 1904
• Citation: 84 S.W. 51,185 Mo. 466
• Parties: IJAMS v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.
• Court: Missouri Supreme Court

84 S.W. 51

185 Mo. 466

IJAMS v. PROVIDENT SAV. LIFE ASSUR. SOC. OF NEW YORK.

Supreme Court of Missouri.

December 13, 1904.

LIFE INSURANCE — APPLICATION FOR POLICY — DELIVERY OF OTHER POLICY — ACTION FOR FRAUD — COMPLAINT — SUFFICIENCY — EVIDENCE.

1. The complaint in an action by a policy holder against a life insurance company alleged that he applied to defendant for policies the premiums under which should be the same in each year, but that defendant issued policies to plaintiff with intent to defraud him, falsely representing that a specified sum per annum would carry the policies; that when plaintiff had become of an age and in such a condition that he could not obtain insurance, and after he had paid premiums for several years, defendant for the first time informed him that his policies were not policies calling for the same premium each year, but that they were participating premium policies, and that his premium would be raised; and damages were prayed for, in addition to the damages asked in another count, which had been for the premiums paid, with interest. Held, that the count in question sought to recover damages too remote and speculative to constitute the foundation of a cause of action.

2. In an action against a life insurance company by a policy holder to recover damages because of defendant having issued to plaintiff policies under which the amount of the annual premiums was not absolutely fixed, and representing to him that they were absolutely fixed, as he had desired and contracted for, evidence considered, and held to show that the policies issued to plaintiff were the form of policies for which he had applied and contracted.

3. It is presumed that all prior conversations and parol negotiations leading up to the making of a written policy of life insurance have become merged in the policy, and that the policy as written contains the entire contract.

4. A policy holder, to whom participating "level rate" life policies had been issued, sued the insurer for damages on the ground that he had not contracted for such policies, under which the annual premium was not fixed, but for those under which it would be fixed, and that the agent who wrote the insurance had represented to him that the annual premium was fixed, and he contended that the construction put on the policy by the agent should be binding on the company, because the phrase "level rate" was a technical phrase. Held, that the contention was of no merit; it appearing that plaintiff had retained the policies without complaint for seven years, and that the provisions of the policies showed their terms, whereby the amount of the premium thereunder was not fixed absolutely.

Marshall, J., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Edward P. Gates, Judge.

Action by Thomas H. Ijams against the Provident Savings Life Assurance Society of New York. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Hollis & Fidler, for appellant. Wm. T. Gilbert, Karnes, New & Krauthoff, and Yates, Mastin & Howell, for respondent.

ROBINSON, C. J.

On the 4th day of September, 1900, plaintiff filed in the circuit court of Jackson county the following petition in two counts:

"Plaintiff states: That the defendant is, and at all the dates hereinafter mentioned was, a corporation, and as such doing a life assurance business in the state of Missouri. That on the 15th day of January, 1892, plaintiff applied to defendant for insurance upon his life in the sum of ten thousand dollars, payable at plaintiff's death to his wife, Martha L. Ijams, at an annual level rate premium of $217.20 on the yearly renewable term plan. That defendant on January 19, 1892, issued two policies of five thousand dollars each to cover the amount of said ten thousand dollars so applied for by plaintiff, and divided the premium to be paid, namely, $108.60, per annum on each of said policies. That at the time said application was made and said policies were issued and accepted and as the sole inducement for plaintiff to accept the same and to pay the annual premium therefor, defendant represented to plaintiff that the premium agreed upon, to wit, $217.20 per annum, should remain the same during the life of said policies, and that said policies were level rate policies, and should be kept and maintained as such level rate policies, and no change made in the premiums agreed upon, and were the kind applied for by plaintiff in said application for insurance. Plaintiff avers that said application is in writing and is in the possession of defendant, and plaintiff is unable to get the same or a verified copy thereof to file with this petition. Plaintiff says: That he had only a limited knowledge of the business of life insurance, and wholly relied upon the representations of the defendant, believing them to be true, and solely on the good faith of said representations being true, namely, that said policies were yearly renewable term level rate policies, the premium to remain the same unchanged during the life of said policies as applied for by plaintiff, he accepted the same, and paid the annual premiums, and carried out his contract, in all particulars as he had agreed to do, for the term of seven years; his said payments of premiums amounting in the aggregate to $1,520.40. That just prior to the 19th day of January, 1899, defendant notified plaintiff that he did not have level rate policies, but that said policies were on the participating plan, and that his premium would be raised to $312 per annum. That plaintiff tendered to defendant the annual premium agreed upon, which defendant refused to accept, and declared said policies void for nonpayment of premium, and declared the payments made by plaintiff forfeited, and wholly violated its contract with plaintiff, as plaintiff had applied for, and which the defendant led and induced plaintiff to believe it was making with him, and which it had accepted his money for seven years. Plaintiff avers and charges the fact to be: That the defendant wrongfully and fraudulently, with intent to cheat and defraud plaintiff, issued policies on said application which were not level rate premium policies as applied for by plaintiff, and falsely and fraudulently made the false representations and statements aforesaid regarding said policies, knowing them to be false, to deceive plaintiff and lull him into the belief that he had what he had bargained for, until such time as he had paid out the sum of $1,520.40 aforesaid, fraudulently intending at the time to raise said annual premium, when plaintiff had become of an age where he could not get insurance and had parted with such an amount of money to defendant on this false and fraudulent scheme that he would prefer to stand the deceitful imposition rather than go uninsured and forfeit the premiums so paid. That plaintiff had no knowledge or information of this deceit on the part of defendant, or that its representations to plaintiff were false, until about the 1st day of January, 1899, when plaintiff then continued to make tender of his said premium as agreed upon, and endeavored to induce defendant to continue to carry out its said agreement so made with plaintiff, until he found he was without insurance and must lose all the money which had been so deceitfully and fraudulently taken from him by defendant, or seek redress in the courts. Wherefore plaintiff says that, by reason of the wrongful, deceitful, and fraudulent acts of the defendant as in the premises alleged, he has sustained damages in principal and interest paid to defendant up to January 19, 1899, in the sum of $1,839.68, with interest at six per cent. on said amount from said date, for which he asks judgment.

"(2) Plaintiff, for second count and further cause of action against defendant, says: That the defendant did, on or about the 19th day of January, 1892, accept from him a written application, the same mentioned in said first count and herein referred to, for life insurance on plaintiff's life in the sum of ten thousand dollars, payable at his death to his wife, Martha L. Ijams, for and in consideration of an annual level rate premium of $217.20, to be paid by plaintiff on January 19th of each year, for which defendant agreed to issue to him two policies of insurance, of five thousand dollars each, upon which said premium should be equally divided, and said policies to be renewed and extended at each annual premium during the life of plaintiff. The defendant issued policies to plaintiff, which it wrongfully and fraudulently, with intent to cheat and defraud plaintiff, represented to plaintiff to be level rate policies, and falsely represented that the premium of $217.20 per annum would carry said policies during their life, and would be renewed from year to year, and were the kind of policies which plaintiff had applied for on a level rate premium, which should not be varied or changed as long as said amount of $217.20 per annum was paid by plaintiff. That with said understanding and agreement plaintiff received said policies and paid said premium, which defendant accepted each year for the term of seven years, falsely and fraudulently keeping plaintiff lulled into the belief that the statements so made by defendant as aforesaid were true, and that it had given plaintiff the kind of policies and assurance he applied for. That when plaintiff had become of an age and in such a condition of health that he could not obtain insurance on account thereof, and before he had any reason to believe said representations and statements were false, and after said plaintiff had paid on said policies the sum of $1,520.40, and complied with all the terms of said agreement, defendant for the first time informed plaintiff that his said policies were not, as it had represented to him, level rate policies, but were in fact participating premium policies, and that his premium would be raised to the sum of $312.00 per...