Brancato v. Ben Hur Life Ass'n

• Decision Date: 29 May 1939
• Citation: 128 S.W.2d 1108,233 Mo.App. 1193
• Parties: VICTOR BRANCATO, RESPONDENT, v. BEN HUR LIFE ASSOCIATION, APPELLANT
• Court: Kansas Court of Appeals

128 S.W.2d 1108

233 Mo.App. 1193

VICTOR BRANCATO, RESPONDENT, v. BEN HUR LIFE ASSOCIATION, APPELLANT

Court of Appeals of Missouri, Kansas City

May 29, 1939

Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.

Judgment affirmed.

Ira B Burns and A. J. Stanley for appellant.

(1) The court erred in refusing to give defendant's Instruction B at the close of all the evidence for the following reasons (a) Because under the evidence the benefit certificate in the Loyal American Life Association upon which the suit is based had lapsed prior to the death of the insured. (b) Because under the terms of the contract between the Loyal American and the Ben Hur the benefit certificate sued upon was extinguished prior to the death of the insured. Fox et al. v. Windes, 127 Mo. 502, 30 S.W. 323; State ex rel. v. Citizens State Bank, 274 Mo. 60, 202 S.W. 382; Goodman et al. v. Regent Laundry Company et al., 196 Mo.App. 627, 190 S.W. 951; Sage v. Finney et al., 156 Mo.App. 30, 135 S.W. 996; 33 C. J. 52; Hatcher v. National Annuity Company, 153 Mo.App. 538, 134 S.W. 1; Roper v. Columbian Circle, 113 Kan. 280; Miller v. Columbian Circle, 113 Kan. 285; Lovell v. St. Louis Mutual Life Ins. Company, 111 U.S. 264, 4 S.Ct. 390; Casteel v. Ky. Home Insurance Company, 258 Ky. 304, 79 S.W.2d 941. (2) The court erred in admitting testimony of witness Margaret G. Pollock. Sprague v. Rooney, 82 Mo. 493; Robinson v. Korns, 250 Mo. 663, 157 S.W. 790; Gimble Bros. v. Mitchell, 203 Mo.App. 610, 219 S.W. 676. (3) The court erred in giving Instruction No. 1 on behalf of the plaintiff for the following reasons: (a) Because said instruction instructed the jury to disregard the liquidation contract between the Loyal American and the Ben Hur in the event they found the notice thereof had not been given the insured. (b) Because the instruction did not require the jury to find the benefit certificate sued upon was in force and effect in accordance with the terms of the liquidation contract between the Loyal American and the Ben Hur. (c) Because there was insufficient evidence to prove that the benefit certificate sued upon was in force and effect at the time of the death of the insured. (4) The court erred in refusing to give defendant's Instruction D. (5) The court erred in refusing to give defendant's Instruction E as submitted and erred in giving the Instruction E after amendment thereof by inserting herein the following words: "Provided insured had notice of said contract as provided therein." Mo. Cattle Loan Company v. Great Southern Life Ins. Co., 52 S.W.2d l. c. 11; State ex rel. Moss v. Hamilton, 303 Mo. l. c. 17, 260 S.W.2d l. c. 470; Thompson v. Lindsay, 242 Mo. l. c. 86, 145 S.W. 472; Coleman v. Insurance Company, 273 Mo. 620, 201 S.W. 544. (a) Notice of the liquidation contract was given the insured. McFarland v. U. S. Mutual Accident Ass'n, 124 Mo. 204, 27 S.W. 436; Armour & Company v. American Automobile Ins. Co., 80 S.W.2d l. c. 689; Clark v. Cole County, 272 Mo. 135, 197 S.W. 905. (b) The defendant company did not assume all of the liabilities and obligations of the Loyal American and it also made provision in the contract concerning the property and liabilities of the Loyal American. Thompson v. Abbott, 61 Mo. 176; Lincoln Safe Deposit Co. v. Continental Life Ins. Co., 213 Mo.App. 561, 249 S.W. l. c. 680. (c) The lien against the Loyal American certificate was not in contravention to the provisions of the Missouri non-forfeiture statute, section 5741, R. S. Mo. 1929. (d) Plaintiff cannot recover on the grounds of estoppel. Rice v. Bunce, 59 Mo. 231; McFarland v. McFarland, 211 S.W. 23; Shepard v. Metropolitan Life Ins. Co., 99 S.W.2d 144; Missouri Cattle Loan Co. v. Great Southern Life Ins. Co., 330 Mo. 988, 52 S.W. l. c. 11; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Neelyville Bank v. Lee, 182 Mo.App. 185, 168 S.W. 796; Osborn v. Court of Honor, 152 Mo.App. 652, 133 S.W. 87; Fox v. Windes, 127 Mo. 502, 30 S.W. 323; State ex rel. v. Citizens State Bank, 274 Mo. 60, 202 S.W. 382; Sage v. Finney, 156 Mo.App. 30, 135 S.W. 996. (e) The case of Helm v. Ben Hur, 107 S.W.2d 844, and the case of Hall v. American Insurance Union, 27 S.W.2d 1076, are not authority in this case.

Samuel M. Carmean and Edw. E. Naber for respondent.

(1) The court did not err in refusing defendant's demurrer offered at the close of the evidence. (a) Because on July 14, 1934, when the merger agreement was entered into between the defendant and the Loyal American Life Association, the policy of insurance sued upon was in full force and effect, all premiums thereon having been paid, and remained so to the time of the death of the insured, and at no time did the defendant give to Sam Brancato nor to his beneficiary notice of the merger agreement or the terms thereof. Helm v. Ben Hur Life Ass'n, Opinion of the Kansas City Court of Appeals on June 14, 1937, not yet reported; Hall v. American Ins. Union (Mo. App.), 27 S.W.2d 1076, l. c. 1078; Wherman v. International Life Ins. Co., 236 S.W. 634, l. c. 640, 291 Mo. 139; Coleman v. Central Mutual Life Ins. Co. (Mo. App.), 52 S.W.2d 22, l. c. 23; Missouri Cattle Loan Co. v. Great Southern Life Ins. Co. (Mo.), 52 S.W.2d 1; Anderson v. Merchants & Mechanics Mutual Aid Soc. (Mo. App.), 65 S.W.2d 140; Peterson v. Nat'l Council, Knights & Ladies of Security, 189 Mo.App. 662, 175 S.W. 284; Ragsdale v. Brotherhood (Mo. App.), 80 S.W.2d 272, l. c. 275; Sec. 6005, R. S. Mo., 1929; Sections 5990, 5991 and 5992, R. S. Mo., 1929; W. O. W. v. Downing (Mo. App.), 201 S.W. 591; Newland v. M. W. A., 168 Mo.App. 311, 153 S.W. 1097; Murphy v. Brotherhood (Mo. App.), 199 S.W. 730; Nastav v. Mo. Mutual Ass'n, 47 S.W.2d 166, l. c. 168; Aloe v. Fidelity Mut. Life Ins. Co., 164 Mo. 675, l. c. 686; Lee v. Missouri State Life Ins. Co., 303 Mo. 492, l. c. 500; Craven v. Insurance Co., 148 Mo. 583, l. c. 604; Sec. 5741, R. S. of Mo., 1929; Burridge v. New York Life Ins. Co., 211 Mo. 158, 178. (b) Because the defendant, in consideration of the Loyal American Life Association assigning and transferring to it all of its assets of every kind, assumed and agreed to carry out the contract of insurance issued by the Loyal American Life Association to Sam Brancato, sued on in this action. The insured paid all premiums on said policy of insurance to December 31, 1932, from which time according to the terms of said contract of insurance there was extended insurance for the whole amount of $ 2,000 to May 21, 1935, which carried it beyond the date of death of Sam Brancato, April 5, 1935. Helm v. Ben Hur Life Ass'n, Opinion of the Kansas City Court of Appeals on June 14, 1937, not yet reported; Hall v. American Ins. Union, supra; Francis and Hunter v. A. O. U. W., 150 Mo.App. 347, 355. (c) Because the defendant pursuant to the terms of said merger agreement, assumed all of said insurance contracts as its own, and agreed to carry out the same, and received from the Loyal American Life Association sufficient reserve on the contract of insurance sued upon to carry it as extended insurance from December 31, 1932, to the death of Sam Brancato, April 5, 1935, and the insured had vested rights under said contract of insurance which could not be impaired by said merger agreement without notice to him and his consent thereto. (2) The court did not err in admitting the testimony of witness Margaret G. Pollock. (3) The court did not err in giving plaintiff's Instruction No. 1. (4) The court did not err in refusing defendant's instruction "D." (5) The court did not err in refusing defendant's instruction "E" as requested and in giving it as modified. (a) The question of notice of the merger contract was for the jury. Its finding that notice was not given is conclusive. Lovins v. City of St. Louis et al., 90 S.W.2d 430-433; Godfrey v. St. Paul Fire & Marine Ins. Co. (Mo. App.), 232 S.W. 231; Lefferty v. Kansas City Casualty Co. (Mo.), 229 S.W. 750-753. (b) The merger agreement was not binding on insured. (c) The non-forfeiture statutes of Missouri cannot be waived, evaded or whittled away by agreement of parties. Section 5741, R. S. Mo. 1929; Cravens v. Ins. Co., 148 Mo. 583, 604; Gooch v. Metropolitan Life Ins. Co. (Mo.), 61 S.W.2d 843-846. (d) The defendant was estopped by failure to give the insured notice of the merger agreement. Ash Grove Lime & Portland Cement v. Southen Surety Co. (Mo. App.), 39 S.W.2d 434-441; Paetz v. London Guaranty & Acc. Co. (Mo. App.), 71 S.W.2d 826; Travis v. Continental Ins. Co., 32 Mo.App. 191; Carroll v. Union Marine Ins. Co. (Mo. App.), 249 S.W. 691-692.

OPINION

KEMP, J.

Upon a trial of this case in Division 4 of the Circuit Court of Jackson County, there was a verdict in favor of the plaintiff for $ 2000, upon which judgment in said amount was duly entered. From this judgment defendant appeals.

Following our previous ruling upon this appeal, we granted defendant's motion for rehearing and in the case is now before us for our reconsideration.

This is a suit on an insurance policy issued on May 2, 1930, at Kansas City, Missouri, by the Loyal American Life Association (hereinafter referred to as Loyal American) to one Sam Brancato, now deceased, whereby the life of Sam Brancato was insured in the sum of $ 2000, in consideration of the payment by him of annual, semi-annual, quarterly or monthly premiums to be made thereon as provided therein. Under an agreement dated July 14, 1934, between defendant and the Loyal American, defendant acquired all of the properties and assets of the Loyal American and, subject to the conditions of said agreement, assumed its liabilities and agreed to discharge its obligations under its outstanding policies of insurance.

The plaintiff (respondent herein) was the son of assured and was...