Atkinson v. Met. Life Ins. Co.

• Citation: 131 S.W.2d 918
• Decision Date: 19 June 1939
• Docket Number: No. 19491.,19491.
• Parties: EDITH ATKINSON, ASSIGNEE, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, RESPONDENT.
• Court: Court of Appeal of Missouri (US)

131 S.W.2d 918

EDITH ATKINSON, ASSIGNEE, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, RESPONDENT.

No. 19491.

Kansas City Court of Appeals, Missouri.

June 19, 1939.

Appeal from the Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

James D. Pouncey for appellant.

(1) The court erred in making the following finding of facts and conclusion of law. "The Kansas Statute does not concern itself with the question of notice after the expiration of the six month period." There is no evidence in the record of this case to support the court's finding of fact and conclusion of law. Secs. 40-410 and 40-411, Kansas Statutes Annotated 1927 and 1935; The American School of Law v. Ragland, 112 S.W. (2d) 110. (2) The court erred in holding that the attempted cancellation of the policy by the company was valid under the laws of Kansas being secs. 40-410 and 40-411, Kansas Statutes Annotated 1927 and 1935. Pedersen v. United Life Ins. Co., 139 Kan. 695; Weed v. Bankers Savings Life Ins. Co., 24 S.W. (2d) 653; Zeigler v. Kansas Life Ins. Co., 120 Kan. 252; Wilson v. Ill. Life Ins. Co., 300 S.W. 554. (3) The court erred in holding as a matter of law that the policy was not in force at the time of Baker Smith's death, November 21, 1934. There was no valid cancellation of policy under evidence and law. Pedersen v. United Life Ins. Co., 139 Kan. 695; Zeigler v. Kansas Life Ins. Co., 120 Kan. 252; Weed v. Bankers Savings Life Co., 24 S.W. (2d) 653; Wilson v. Ill. Life Ins. Co., 300 S.W. 554. (4) The court erred in making the following finding of facts and conclusion of law; "Where both the insured and the insurer after the expiration of the statutory period for notice of intention to cancel policy of insurance has expired, have treated the policy as cancelled and no premiums have been paid or tendered thereafter for a period of about three years, there can be no recovery by the beneficiary on such policy." There was and is now no acquiescence or abandonment pleaded or proved by defendant and there is no issue or issues of same made by pleading same, neither was same a theory or theories upon which defendant relied. Kriegler v. Rozier Ins. Co., 253 S.W. 481; Anger v. McCorakle, 253 S.W. 72; K.C. v. Boyer, 202 S.W. 1086; Thompson v. Wendling, 219 S.W. 671; Smith v. Roach, 59 Mo. App. 117; Spurlosk v. Sproele, 72 Mo. 509; Purdy v. Life Ins. Co., 101 Mo. App. 109; Manhattan Life Ins. Co. v. Wright, 126 Fed. 88, 25 Cyc. 784; Neff v. Sovereign Camp, 48 S.W. (2d) 568. (5) The court erred in giving defendant's Finding of Facts Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12 and 13, and giving defendant's requested conclusion of law "A" and "B." The finding of facts and conclusions of law must include all the evidence and issue or issues to be considered on appeal. Freeman v. Hemenway, 75 Mo. App. 617. The court cannot render judgment on merely conclusion or inferences. Korneman v. Davis, 281 Mo. 234, 219 S.W. 904; Bank v. Banks, 204 Mo. App. 441, 223 S.W. 115; McBride v. Mer. Bank, 48 S.W. (2d) 922. (6) The court erred in failing to give plaintiff's Finding of Facts Nos. 2 and 3, and refusing to give plaintiff's conclusions of law "A," "B," "C" and "D." All the finding of facts offered by plaintiff and conclusions of law offered by plaintiff were supported by evidence and the Kansas laws. Secs. 40-410 and 40-411, Kan. Stat. Anno. 1927 and 1935.

William C. Michaels, Robert E. Coleberd and Albert L. Reeves, Jr., for respondent.

Harry Cole Bates and Michaels, Blackmar, Newkirk, Eager & Swanson of counsel.

(1) The trial court did not commit error in declaring as a matter of law that "the Kansas statute does not concern itself with the question of notice after the expiration of the six months period." This declaration of law is supported by the Kansas authorities and is correct. Secs. 40-410 and 40-411, Gen. Stat. Kan., 1935; Sec. 806, R.S. Mo. 1929; Ramey v. Mo. Pac. Ry. Co. (Mo.), 21 S.W. (2d) 873, l.c. 877; Pedersen v. United Life Insurance Co., 139 Kan. 695, l.c. 698; Wegner v. Insurance Co., 130 Kan. 600, l.c. 604. (2) The trial court did not make the declaration complained of by plaintiff under assignment of error No. 2. (3) The court did not commit error in declaring that "Baker Smith was not insured in defendant company under Policy 5916919-C at the time of his death, November 21, 1934." The undisputed facts and plaintiff's evidence support this declaration. Balch v. Life Ins. Co., 116 Kan. 560, 227 Pac. 326, l.c. 327; Minnesota Mut. Life Ins. Co. v. Cost (10 C.C.A.), 72 F. (2d) 519; Mut. Life Ins. Co. v. Hill, 193 U.S. 551, 559; Pope v. New York Life Ins. Co., 192 Mo. App. 383, 181 S.W. 1047; Serabian v. Met., 17 S.W. (2d) 646; Darby v. N.W. Mut. Life Ins. Co., 293 Mo. 1, 239 S.W. 68; Marshall v. Ins. Co., 98 Kan. 502, l.c. 507; Cranston v. Life Ins. Co., 72 Ore. 116, 139, 142 Pac. 762, 769. (4) The court did not err in giving the following declaration of law "where both insured and the insurer, after the expiration of the statutory period for notice of intention to cancel policy of insurance has expired, have treated the policy as cancelled, and no premiums have been paid or tendered thereafter for a period of about three years, there can be no recovery by the beneficiary on such policy" for the reason it is clearly supported by the evidence in the case. Gosnell v. Camden Fire Ins. Co., 109 S.W. (2d) 59; Belcher v. Haddix, 44 S.W. (2d) 177; See authorities cited under Point (5) of this brief. (5-6) Plaintiff's Assignments of Error V and VI are in general terms and do not state any reasons in support of such assignments as required by Rule 17 of this court. Because of this violation of Rule 17 this court will not consider these alleged assignments of error. Rule 17, Kansas City Court of Appeals; Magee v. Hayden (Mo. App.), 111 S.W. (2d) 239, l.c. 241; Miller v. Mut. Ben. Health and Acc. Assn. (Mo. App.), 80 S.W. (2d) 201, l.c. 202, 203; Weintraub v. Ins. Co. (Mo. App.), 99 S.W. (2d) 160; Orby v. Tarlton, 85 S.W. (2d) 27, 336 Mo. 240; Peck v. Ins. Co., 230 Mo. App. 325, 90 S.W. (2d) 415.

SPERRY, C.

This is a suit on a life insurance policy issued by Metropolitan Life Insurance Company, designated as defendant, to Baker Smith, designated as insured, and assigned after death of insured to Edith Atkinson, designated as plaintiff. A jury was waived and trial to the court resulted in verdict and judgment for defendant. From an adverse ruling on her motion for new trial plaintiff prosecutes this appeal.

The material facts are not in dispute. Insured, while residing in Kansas City, Missouri, in November, 1930, applied for the policy sued on and paid two dollars on account of the first quarterly premium, the full amount thereof being $9.06. Before delivery of the policy insured moved to Wichita, Kansas, where same was delivered to him and he then and there paid the balance due on the quarterly premium. It is stipulated between the parties that this first quarterly premium is the only premium over paid. Insured died November 21, 1934.

There is but one question of law involved. Plaintiff contends that defendant did not notify insured of intention to cancel the policy, as provided by statutes of the State of Kansas, and that, therefore, the policy remained in full force for more than three and one-half years after the payment of the only quarterly premium paid.

The statutes upon which plaintiff relies are sections 40-410 and 40-411, General Statutes of Kansas, 1935, to-wit:

"40-410 — CANCELLATION OF POLICY FOR NONPAYMENT OF PREMIUMS; NOTICE. It shall be unlawful for any life insurance company, other than fraternal, doing business in this state within six months after default in payment of any premium or installment of premium, to forfeit or cancel any life insurance policy on account of nonpayment of any such premium or installment of premium thereon, without first giving notice in writing to the insured under such policy of its intention to forfeit or cancel the same: Provided however, That this section shall not apply to any policy under the terms of which the premium is to be paid weekly, biweekly or monthly and under which a grace period of at least four weeks is granted for the payment of every premium after the first, during which time the insurance shall continue in force; and shall not apply to general or blanket contracts insuring groups of lives. (L. 1927, ch. 231, par. 40-410; June 1.)

"40-411. NOTICE OF INTENTION TO CANCEL POLICY FOR NONPAYMENT OF PREMIUM; TIME FOR PAYMENT. Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the insured under any such policy that the premium thereon, stating the amount thereof is due and unpaid, and of its intention to forfeit or cancel the same, and such insured shall have the right, at any time within thirty days after such notice has been duly deposited in the post office, postage prepaid, and addressed to such insured to the address last known by such company, to pay such premium: Provided, That in lieu of the notice hereinbefore provided, in the case of policies providing for a period of grace of not less than thirty days, or one month, for the payment of premiums and containing any provision for cancellation or forfeiture in case of nonpayment of premiums at the end of such period, the insurance company may, not more than thirty days prior to the date specified in such policy when any premium will become due and payable without grace, in like manner notify the insured under any such policy, of the date when such premium will fall due, stating the amount thereof, and its intention to forfeit or cancel the same if such premium be not paid within the period of grace provided in the policy; and any attempt on the part of such insurance company, within six months after default in the payment of any premium, to cancel or forfeit any such policy without the notice herein...