Andrus v. Fidelity Mutual Life Insurance Association
| Decision Date | 29 March 1902 |
| Citation | 67 S.W. 582,168 Mo. 151 |
| Parties | ANDRUS et al v. FIDELITY MUTUAL LIFE INSURANCE ASSOCIATION, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. John W. Beebe, Special Judge.
Affirmed.
Chas B. Adams and Wash. Adams for appellant.
(1) The evidence of a forfeiture was conclusive and nothing in the conduct of defendant, when the attempt was made to pay the defaulted premium of November 22, 1898, tended to show a waiver of such forfeiture. The court should have directed a verdict for defendant under the evidence. Reichenbach v Ellerbe, 115 Mo. 588; Gateman v. Ins. Co., 1 Mo.App. 300; Scheele v. Society, 63 Mo.App. 277; Yoe v. Ass'n., 63 Md. 86. The evidence offered to show waiver of the forfeiture clause of the policy growing out of defendant's previous conduct or course of dealing in receiving overdue premiums from the assured, was wholly insufficient to establish a prima facie case of waiver justifying the submission of that issue to the jury. Lewis v. Ins. Co., 44 Conn. 73; Haydell v. Life Ass'n, 104 F. 718; Harvey v. Grand Lodge, 50 Mo.App. 478; Crossman v. Mass. Benefit Co., 143 Mass. 435; Easely v. Valley Ass'n, 91 Va. 162; Thompson v. Ins. Co., 104 U.S. 259; Lantz v. Ins. Co., 139 Pa. St. 559; Ins. Co. v. Rosenberger, 84 Pa. St. 373; Gateman v. Ins. Co., supra; Bacon on Ben. & Life Ins., sec. 424; Ins. Co. v. Thomas, 85 F. 406; Ins. Co. v. Fay, 22 Mich. 467; Smith v. Ins. Co., 63 F. 769; Bosworth v. Ins. Soc., 75 Ia. 582. (2) The court erred in admitting in evidence the premium receipts offered by plaintiff for the purpose of showing waiver. (a) Waiver was not pleaded, and the rule established by the Supreme Court of this State, which allows waiver to be proved, without being pleaded in actions on insurance policies, while as to all other contracts such evidence is not admitted unless pleaded, is a denial to persons issuing insurance policies in this State of the equal protection of the law and an arbitrary and unjust discrimination against them and a violation of the fourteenth amendment of the Constitution of the United States. Railroad v. Ellis, 165 U.S. 159; State v. Hayes, 81 Mo. 574; State v. Loomis, 115 Mo. 314. The prohibitions of the fourteenth amendment refer to all the instrumentalities of the State. A rule of decision established by the Supreme Court of a State can be such a violation of the amendment as an act of the Legislature. Ex parte Virginia, 100 U.S. 339; Neal v. Delaware, 103 U.S. 397; Railroad v. Chicago, 166 U.S. 226. (b) Under the existing rule evidence of waiver was incompetent in the absence of an allegation in plaintiff's petition that all the conditions and requirements imposed upon the insured by the policy were performed by or for her. No such allegation is contained in the petition. An allegation of the performance of the conditions of the policy is the foundation of the rule. James v. Ins. Co., 148 Mo. 10; Nickell v. Ins. Co., 144 Mo. 432; McCullough v. Ins. Co., 113 Mo. 616; Ins. Co. v. Kyle, 11 Mo. 218; Russell v. Ins. Co., 55 Mo. 185; Travis v. Ins. Co., 32 Mo.App. 198; Maddox v. Ins. Co., 29 Mo.App. 198; Roy v. Boteler, 40 Mo.App. 213. (3) The judgment rendered in favor of plaintiff as executor of the estate of Laura E. Andrus is erroneous. Plaintiff was not entitled to recover in that capacity. (a) Under the terms of the policy the interest of Mrs. Hatfield in the proceeds of the policy did not revert to the personal representatives of the assured, except upon the contingency of the assured surviving both beneficiaries. Clark v. Davidson, 195 Pa. St. 137; Ringquist v. Young, 112 Mo. 32. (b) The interest of Mrs. Hatfield in the proceeds of the policy was a vested interest subject only to the contingency named in the policy, and passed at her death to her personal representatives. Packard v. Ins. Co., 9 Mo.App. 469; Ins. Co. v. Palmer, 42 Conn. 60; Voss v. Ins. Co., 44 L. R. A. 689; s. c., 49 Mich. 161; Olmstead v. Keyes, 85 N.Y. 598; Trust Co. v. Ins. Co., 115 N.Y. 152. (c) The court erred in refusing instruction fourteen offered by defendant. It is well settled that an insurance policy is an entire contract and can not be split up into different suits. All parties in interest must be joined in one suit. Voss v. Life Ins. Co., supra; Parsons on Contracts (7 Ed.), 17; Ramey v. Smizer, 28 Mo. 310; Thieman v. Goodnight, 17 Mo.App. 435. (d) The personal representatives of Mrs. Hatfield were necessary parties to this suit. McMillan v. Wacker, 57 Mo.App. 220; Grand Lodge v. Dister, 77 Mo.App. 608.
Scarritt, Griffith & Jones for respondents.
(1) Instruction one, offered by defendant, was properly refused. Chadwick v. Order of Triple Alliance, 56 Mo.App. 563; Bergman v. Ins. Co., 2 Mo.App. 262; Porter v. Ins. Co., 62 Mo.App. 530; Hanley v. Life Ass'n, 69 Mo. 380; Hanley v. Life Ass'n, 4 Mo.App. 253; Stewart v. Sparkman, 69 Mo.App. 459; James v. Life Ass'n, 148 Mo. 12; Thompson v. Ins. Co., 52 Mo. 469; Harvey v. Grand Lodge, 50 Mo.App. 472. (2) The premium receipts admitted in evidence were competent, and their admission was not error. Ins. Co. v. Kyle, 11 Mo. 278; James v. Life Ass'n, supra; Railroad v. Iowa, 160 U.S. 392; Railroad v. Mackey, 127 U.S. 209; Railroad v. Henck, 127 U.S. 210; Walston v. Nevin, 128 U.S. 578; 6 Am. and Eng. Ency. of Law, p. 967. (3) The respondent, as guardian and curator of V. R. Andrus, Jr., and executor of the last will and testament of Laura E. Andrus, is entitled to to recover in this action. Schneider v. Ins. Co., 33 Mo.App. 64; Crecelius v. Horst, 78 Mo. 566; Gains v. Ins. Co., 50 Mo. 44.
OPINIONIn Banc
This is an action upon a policy of insurance for $ 2,000 issued by the defendant on November 22, 1892, upon the life of Laura E. Andrus, payable to her mother and her son, with a proviso that if she survived the beneficiaries, the policy should be payable to her legal representatives. The assured died on December 20, 1898, and her son survived her, but her mother had died previously. The suit is by the executor of her estate and her minor son by his guardian and curator. The plaintiffs obtained judgment in the circuit court, and the defendant appealed. This court has jurisdiction because the defendant invoked in the lower court the protection of the fourteenth amendment to the Constitution of the United States, and that court held that the defendant was not denied the protection of the Federal Constitution by its proceedings and judgment in this case.
The case made is this: On November 22, 1892, the defendant issued its said policy. By its terms the insured was required to pay semiannual premiums of nineteen dollars on May 22 and November 22 of each year, and it was stipulated that a failure to pay the same at such times should cause a forfeiture of the policy, and that no agent had a right to extend the time of payment of the premiums, but that if they were paid after the required times the policy could only be reinstated with the approval of one of the medical directors and of the president of the company, and then only upon application of the assured containing a statement that the assured is in good health and of any medical treatment or advice and of any sickness or complaint the assured may have had since the issuing of the policy and that the acceptance of any premium on a defaulted policy from one who had not been reinstated as aforesaid, should not be a recognition of the policy, but it should remain null and void until the assured was reinstated in the manner above set forth.
The petition, after setting out the character of the parties and the issuance and terms of the policy, the death of the assured and her mother, avers "that immediately after the death of the said Laura E. Andrus as aforesaid the plaintiffs herein gave the defendant due notice and proof of the said death, and duly and faithfully performed all the other terms, stipulations and requirements imposed upon them by the terms of said contract of insurance," etc.
The answer pleads a forfeiture of the policy by reason of a failure to pay the premium that fell due on November 22, 1898; and further pleads that the premium was paid on December 12, 1898, to its agent in Kansas City, who remitted it to defendant at its home office in Philadelphia, where it was received on December 15, 1898, and that the president and treasurer immediately mailed receipt therefor, containing a conditional revival, that is, that the policy was not to be understood as revived by the receipt of the premium unless the assured was in good health and free from all diseases, ailments or injuries, and that the acceptance of that receipt by the assured was a warranty that such was the case, and if it was not true the policy should be null and void; that a certificate of health and application for a revival of the policy was mailed to the assured at the same time for her to execute, but which she never did; and that when the defendant learned on January 24, 1899, from the proofs of loss, that the assured was not in good health and free from disease when the premium was paid on December 12, 1898, it immediately tendered the premium to the plaintiffs, which was refused. The answer then pleads that the policy had become forfeited and void, and the defendant is not liable. It also pleads that there is a defect of parties plaintiff, in that, the administrator of the assured's mother is not a party, and then concludes with a general denial of everything not expressly admitted. The reply is a general denial.
The constitutional question arose and was brought into the case in this way. During the trial the plaintiffs offered in evidence the receipts for all the premiums paid upon the policy. The defendant objected thereto on the ground that it was incompetent and...
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