Berry v. Continental Life Ins. Co.
| Decision Date | 06 January 1931 |
| Docket Number | No. 21290.,21290. |
| Citation | 33 S.W.2d 1016 |
| Parties | WARREN P. BERRY, APPELLANT, v. CONTINENTAL LIFE INSURANCE COMPANY OF MISSOURI, A CORPORATION, RESPONDENT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Montgomery County. — Hon. William C. Hughes, Judge.
AFFIRMED.
C.P. Berry and Grover E. Dowell for appellant.
The judgment is for the wrong party. Under the law and evidence judgment should have been for the plaintiff, and the court erred in reforming the policy, because: (1) There was no proof of mutual mistake. Dougherty v. Dougherty, 204 Mo. 228; Wilhite v. Wilhite, 284 Mo. 387; Benn v. Pritchett, 163 Mo. 560; Steinberg v. Phoenix Ins. Co., 49 Mo. App. 255; Hood v. Owens (Mo. Sup.), 293 S.W. 774; Wall v. Mays (Mo. Sup.), 210 S.W. 871; Tesson v. Atlantic Mut. Ins. Co., 40 Mo. 33; Burns v. Ames Realty Co. (Mo. App.), 11 S.W. (2d) 71; McCormack v. Lynch, 69 Mo. App. 524; Kanan v. Hogan, 307 Mo. 269; Robinson v. Korns, 250 Mo. 663; Salomon v. North British etc. Ins. Co., 215 N.Y. 214, 109 N.E. 121; New York Life Ins. Co. v. Street (Tex. Civ. App.), 265 S.W. 397; Hearne v. New England Mut. M. Ins. Co., 87 U.S. 488, 22 L. Ed. 395. Mistake of scrivener: Brocking v. Straat, 17 Mo. App. 297; Dougherty v. Dougherty, 204 Mo. 228; Hood v. Owens (Mo. Sup.), 293 S.W. 774; Benn v. Pritchett, 163 Mo. 560; Wall v. Mays (Mo. Sup.), 210 S.W. 871. (2) Defendant was guilty of laches barring right to reformation of policy. American Ins. Co. v. Neiberger, 74 Mo. 167; Lierheimer v. Ins. Co., 122 Mo. App. 374; Lewis v. Brookdale Land Co., 124 Mo. 672; Steinberg v. Phoenix Ins. Co., 49 Mo. App. 255; Estes v. Reynolds, 75 Mo. 563; Faith v. Home L. Ins. Co., 203 Mo. App. 196; Taylor v. Short, 107 Mo. 384; Implement Co. v. Rogers (Mo. Sup.), 229 S.W. 779, 782; Snell v. Atlantic F. & M. Ins. Co., 98 U.S. 85, 25 L. Ed. 52; Austin v. Brooklyn Cooperage Co. (Mo. App.), 285 S.W. 1015; National Union F. Ins. Co. v. Spry Lbr. Co., 235 Ill. 98, 85 N.E. 256. (3) The fact that policy as written violated statute (Sec. 6139, R.S. 1919), if if it did, is not material in this case. Landau v. New York L. Ins. Co., 199 Mo. App. 544.
Curlee, Nortoni & Teasdale, R.F. Moll and S.S. Nowlin for respondent.
Under the law and the evidence in this case there was a mutual mistake made in the insurance contract and the court was right in reforming the policy. New York Life Ins. Co. v. Gilbert, 215 Mo. App. 201, 256 S.W. 148; Columbian Nat. Life Ins. Co. v. Black, 35 Fed. Rep. (2d) 571; Bone v. Friday, 180 Mo. App. 577, 167 S.W. 599; Goodin Ins. Co. v. Organ (Mo. App.), 186 S.W. 589; Picotte v. Mills, 200 Mo. App. 127, 203 S.W. 825; Hamphill v. New York Life Ins. Co., 195 Ky. 783, 243 S.W. 1040. The respondent was not guilty of laches. Columbian Nat. Life Ins. Co. v. Black, 35 Fed. Rep. (2d) 571; Griswold v. Hazard, 141 U.S. 260, 35 L. Ed. 678; Buck v. Equitable Life Ins. Co., 96 Wash. 683, 165 Pac. 878; Hibbard v. North Am. Life Co., 192 Wis. 315, 212 N.W. 779; Williams v. Neely, 134 F. 1 L.R.A. 232. Had the policy been intentionally issued as it was mistakenly written, it would have violated the laws of Missouri. R.S. 1919, sec. 6139.
This is an action whereby the plaintiff seeks to recover $2,000, the alleged value of a policy of life insurance, plus profits apportionable to said policy amounting to $177.41.
The petition is in the usual form.
Defendant, in its answer, after a general denial, alleges that on the 7th day of September, 1909, plaintiff made and signed a written application to the St. Louis National Life Insurance Company of St. Louis for a $2,000, twenty-payment cumulative twenty-year settlement life insurance policy, with an annual premium of $63; that, upon the receipt of said application, the St. Louis Life Insurance Company accepted and approved the same, and on the 13th day of September, 1909, issued to plaintiff, on plaintiff's life, in accordance with his application, its $2,000 twenty-payment cumulative twenty-year settlement life insurance policy, with an annual premium thereon of $63.
Defendant further alleges that in the preparation of said policy, the National Life Insurance Company in one place in said policy, through a clerical error of the scrivener who prepared the same, inserted the figures "$2,000," when it intended to and should have inserted therein the figures "$952;" that said clause in said policy was erroneously and mistakenly written as follows: "The Company guarantees that the entire cash value of this policy at the end of twenty years from the date hereof shall be $2,000, if all the premiums have been fully paid, and in addition thereto the profits then apportioned." It is alleged that said clause should have contained the figures $952 instead of $2,000. Defendant alleges that in plaintiff's written application, and in several places in said policy, it clearly appears that said policy was a twenty-payment life cumulative twenty-year settlement policy; that the annual premium of $63 did not and could not entitle the plaintiff to the sum of $2,000 in cash under said policy at the end of twenty years. It is also alleged that if the St. Louis National Life Insurance Company intentionally issued such a policy as it was mistakenly and erroneously written, it would have violated the provisions of section 6139, Revised Statutes 1919; that said error and mistake was a mutual one; that it was the mistake on the part of the plaintiff for the reason that he had in his written and signed application only intended to get and take out a twenty-payment life cumulative twenty-year settlement policy, for which he desired and did pay only an annual premium of $63, with a guaranteed cash settlement at the end of twenty years of $952.
Defendant also alleges that since the issuance of said policy, it has taken over all the rights and liabilities of the St. Louis National Life Insurance Company, and that it now has all the rights and liabilities of said last-named company with reference to said policy.
Defendant alleges further that plaintiff has paid the full twenty annual premiums of $63 each, due and payable under said policy, and that the same is now fully matured and paid up in accordance with the terms of said policy, and that under the terms of said policy, plaintiff is only entitled to the sum of $952 as its cash surrender value, and $177.41, its apportioned profits, which said sum was tendered to plaintiff by defendant several times, and again tendered into court, together with all costs made to date.
Defendant then asks the court to reform said insurance policy so that it will conform to the true intent of both plaintiff and defendant, by striking from the policy the figures $2,000 in the clause above set out, and inserting therein the figures $952.
Plaintiff, in his reply, says the policy should not be reformed, because the same was issued to him more than twenty years prior to the filing of this suit; that if any mistake occured in the policy, it was made by the defendant or one of its agents, and that defendant or its predecessor had waited twenty years before taking any action to have said policy reformed. During all of such time plaintiff paid the premiums as they fell due under the terms of the policy, thinking and believing that at the end of twenty years he would be entitled to the sum of $2,000, plus profits then apportionable; that because of these facts defendant had been guilty of laches, and is barred from any right of recovery, if such right ever existed. The reply also alleges that defendant had knowledge of the terms of such policy, and that ever since the month of June, 1924, defendant had actual knowledge of all the terms of said policy, and that during all that time plaintiff paid the premiums on said policy as they became due. It is further alleged that the defendant or its predecessor, the St. Louis National Life Insurance Company, was guilty of negligence in so executing the same; that therefore the policy is binding on defendant, and defendant is not entitled to have it reformed.
The case was tried before the court, and a judgment was rendered reforming the policy in accordance with the prayer of defendant's answer. From this judgment plaintiff appeals.
The evidence discloses that plaintiff on the dates mentioned in the petition took out the policy, and paid the premium of $63 a year for twenty years. After the policy had been in force about fifteen years, some agent or representative of defendant visited him at his home in Montgomery County, Missouri, and told him that under the terms of his policy, he would not receive $2,000 at the end of twenty years. Plaintiff is a farmer, about forty-seven years of age, and lives in Montgomery county. He testified that he had never seen but two life insurance policies, and had read one of them only partly, and read the other, his policy which is involved in this case, several times. Plaintiff testified that he did not know the difference between a twenty-year life policy and a twenty-year endowment policy, and that he did not know that the loan value and guaranteed cash surrender value under a policy are always the same. He testified that he understood that if he paid a premium of $63 a year, he would receive $2,000 at the end of twenty years; that in June, 1924, some agent or representative of defendant came to him and tried to trade him another policy for the one that he had, and this was the time that he was informed that he would not receive $2,000. He then showed the policy to his brother, who was a lawyer, and after June, 1924, no one from the company, or purporting to be from the company, came to see him or said anything to him about his policy, until he demanded the $2,000 in 1929.
Plaintiff testified that he read this policy several times, and thought he understood it; that at one time he heard some men discuss some life insurance policies, and he got his policy out again, and read it, and read...
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