Bokata v. Illinois Bankers Life Ins. Co.
| Decision Date | 13 May 1946 |
| Docket Number | 20725 |
| Citation | 195 S.W.2d 888 |
| Parties | BOKATA v. ILLINOIS BANKERS LIFE INS. CO |
| Court | Kansas Court of Appeals |
'Not to be published in State Reports'.
R. C Southall, of Kansas City, for appellant.
Maurice J. O'Sullivan, Philip M. Wilson, and John G. Killiger Jr., all of Kansas City, for respondent.
SPERRY PER CURIAM
This is a suit on a life insurance contract issued by The Court of Honor a fraternal insurance company, to Tony Bokata, deceased. Maggie Bokata, plaintiff, is the beneficiary, and Illinois Bankers Life Insurance Company, the reinsurer, is defendant. Trial to the court, sitting as a jury, resulted in a judgement for defendant. Plaintiff prosecutes this appeal.
Defendant contends that the policy lapsed, February 1, 1938, for non-payment of premiums, the reserve thereon having been exhausted through application to the payment of defaulted premiums under the automatic premium loan provisions of the contract. Plaintiff contends that there was sufficient reserve value to carry the policy beyond February 1, 1938; that same was in full force on February 9, 1938, when she paid $ 5.06 as premium; that this payment carried the policy until March, or beyond March, 1938; that she tendered a premium in March, which defendant wrongfully refused to accept; and that the policy was in effect when insured died, April 4, 1944. Plaintiff also contends that if it be conceded (which she does not do) that the policy lapsed on February 1, 1938, prior to the payment on February 9, nevertheless the policy was automatically reinstated on February 9, when defendant accepted premium payments.
There is a sharp conflict in evidence as to whether or not the reserve was exhausted prior to February 1, 1938; but that question is not decisive of the case in view of the fact that plaintiff's counsel, in the trial court, conceded that the policy had lapsed, prior to insured's death if, in fact, plaintiff did not make the payment she claims to have made on February 9, 1938. It is apparent, from colloquy between counsel and the court, as shown by the record, that the court rendered its judgment for defendant on the theory that plaintiff did not pay any premium on February 9, as she claimed. On appeal we will determine the case on the theory upon which it was tried and submitted. Barrows v. Riss & Co., Mo.App., 179 S.W.2d 473, loc.cit. 475; Cox v. Owensville Mutual Benefit Aid Ass'n., Mo.App., 185 S.W.2d 28, loc.cit. 30.
The policy was introduced in evidence. It was issued April 10, 1919, and premiums thereon were payable monthly at the rate of $ 2.53 each.
Plaintiff testified to the effect that she visited the office of defendant February 9, 1938, and paid $ 5.06 in cash, to the lady who was in charge of the office; that the lady was the one to whom she had previously made payments; that she would recognize her if she saw her; that the lady called a man (presumably F. L. Hildebrand) who entered the payments on a premium receipt card issued by defendant, and that he signed said card; that her daughter, Mrs. Racculia, was present; that during the first week in March, following, she and her daughter again visited the office of defendant's agent; that the lady to whom she had made the payment in February was present; that plaintiff offered to make a premium payment but that the lady said the policy was 'no good,' and that defendant would accept no more premium payments thereon. She identified her Exhibit 3, which was introduced in evidence. It is the premium receipt card, issued by defendant, upon which is shown entries of premium payments. The original exhibit is here. Five such payments are shown thereon, each for $ 2.53, each dated. Opposite each entry appears the name 'F. L. Hildebrand.' All of the writing is in ink.
Mrs. Racculia, plaintiff's daughter, testified to the effect that she was present with plaintiff, at defendant's office, on the occasions mentioned by plaintiff, in February and March, 1938. She fully corroborated plaintiff's testimony, relative to what was said and done, in every detail.
Mrs Tosh, on behalf of defendant, testified to the effect that she was in its employ at its Kansas City office during the months of February and March, 1938, and had been so employed for some time prior thereto; that she knew plaintiff; that she had, on several occasions, received payments from her, on the policy in suit; and that she did not receive any such payment on February...
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