Caldwell v. Missouri Ins. Co.
| Citation | 192 S.W.2d 23,239 Mo.App. 258 |
| Parties | Vonnette Busey Caldwell, v. Missouri Insurance Company |
| Decision Date | 14 January 1946 |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Jackson County; Hon. Thomas J. Seehorn Judge.
Reversed and remanded (with direction).
Watson Ess, Groner, Barnett & Whittaker, Douglas Stripp, Kansas City, for Appellant.
(1) The paid-up endowment insurance provided by the policy constituted "paid-up insurance" within the meaning of Sec. 5855, R. S. 1939. Therefore, Sec. 5852 providing for extended temporary insurance in the face amount of the policy was inapplicable and the court erred in holding to the contrary and in rendering judgment for the plaintiff in the face amount of the policy. Sections 5852-5855, inclusive, R S. 1939; Nichols v. Mutual Life Ins. Co., 176 Mo. 355, 379, 380, 75 S.W. 664; State ex rel. Clark v. Becker, 335 Mo. 785, 73 S.W.2d 769, 771, 772, 773; Carr v. Hamilton, 129 U.S. 252; Bothmann v. Metroplitan Life Ins. Co., 299 Mo. 269, 252 S.W. 652; Fahle v. Connecticut Mut. Life Ins. Co., 155 Mo.App. 15, 134 S.W. 60. (2) It was agreed by the parties that the net value of the paid up endowment insurance provided by the policy was equal to or in excess of the statutory net value. The parties also agreed that the sole issue for decision was whether paid-up endowment was "paid-up insurance" within the meaning of Sec. 5855. Therefore the court erred in holding that the table in the policy provided less paid-up insurance than was required by the statute. Sections 5852 and 5855, R. S. 1939; Facts agreed by the parties; Hanchett Bond Co. v. Glore, 208 Mo.App. 169, 232 S.W. 159. (3) The court erred in holding that the policy did not provide for unconditional commutation into non-forfeitable paid-up insurance because the parties agreed there was no such issue in the case and the holding was contrary to law. Section 5855, R. S. 1939; Cave v. Missouri Ins. Co., 102 S.W.2d 755. (4) The court erred in awarding plaintiff any penalties for vexatious delay under Sec. 6040, R. S. 1939. Howard v. Aetna Ins. Co., 350 Mo. 17, 164 S.W.2d 360, 366; Delametter v. Home Ins. Co., 233 Mo.App. 645, 126 S.W.2d 262, 271; Bouligny v. Metropolitan Life Ins. Co., 179 S.W.2d 109, 112.
Carl L. Anderson, John J. Cosgrove for Respondent.
The paid-up endowment insurance provided by the policy did not constitute paid-up insurance within the meaning of Sec. 5855, R. S. Mo., 1939, therefore Section 5852 providing for extended temporary insurance for the face amount of the policy applies, hence the court did not err in finding for the plaintiff. State ex rel. v. Allen, 343 Mo. 1191, 125 S.W.2d 854; Bothman v. Metropolitan Ins. Co., 299 Mo. 269, 252 S.W. 562; Milburn v. Royal Union Mut. Life Ins. Co., 209 Mo. 228, 234 S.W. 378; Ross v. Insurance Company, 205 App. 243, 228 S.W. 889; Secs. 5852-58, inclusive, R. S. Mo., 1939; Talcott v. Field, 52 N.W. 400; May on Ins., Sec. 458; Ellison v. Straw, 97 N.W. 168; Central States Life Ins. Co. v. Morris, 155 S.W.2d 333; Industrial Life Ins. Co. v. Hunt, 6 A.2d 781.
This is an action on a life insurance policy, in the sum of $ 249, issued by the defendant, on the 10th day of February 1936, upon the life of Anna Mae Johnson. Plaintiff was named in the policy as beneficiary. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of plaintiff in the amount of the policy, with interest, together with a penalty of 10% for vexatious delay and $ 125 attorney's fees, or an aggregate sum of $ 418.82. Defendant has appealed.
The policy lapsed on November 24, 1941 on account of nonpayment of premiums. Insured died on June 20, 1943. The policy was for endowment insurance endowing insured at the age of 80 but the amount of the policy was made payable to the beneficiary in the event of the prior death of the insured.
It was agreed at the trial: "That the sole issue for decision on the merits of this cause is whether the paid-up endowment at age 80 insurance provided by said policy is 'paid-up insurance' within the meaning of that term as used in Sec. 5855 R. S. 1939, so as to make Sec. 5852 R. S. Mo. 1939, inapplicable to said policy".
Sections 5852 to 5855, inclusive, R. S. Mo. 1939, comprize what are known as the nonforfeiture statutes. Section 5852 provides that, after the payment of three annual premiums, a life policy shall not be forfeited for nonpayment falling due thereafter, but the net value of the policy computed under mortality tables (under conditions therein named) shall be taken as a net single premium for temporary insurance for the full amount of the policy, "provided that if the original policy shall be an endowment, payable at a certain time or at death, if it should occur previously, then if the net single premium available for temporary insurance as aforesaid shall exceed the net single premium for temporary insurance granted for the remainder of the endowment term, such excess shall be considered as a net single premium for pure endowment of as much as said excess of premiums will purchase, determined by the attained age of the insured at date of default in the payment of premiums on the original policy, and the table of mortality and interest aforesaid, which amount of pure endowment shall be paid at the end of the original term of endowment if the insured shall then be alive".
Section 5853 establishes an optional provision for a reduced amount of insurance paid up for life which the policyholder may exercise by demand, within 60 days from the beginning of the extended insurance provided in section 5852, and provides: "In case of a limited payment life policy, or of a continued payment endowment policy, payable at a certain time, or at death, it shall be for an amount bearing such proportion to the amount of the original policy as the number of complete annual premiums actually shall bear to the number of such annual premiums stipulated to be paid".
Section 5855 provides: "The three preceding sections (including secs. 5852 and 5853) shall not be applicable in the following cases, towit: If the policy shall contain a provision for an unconditional surrender value, at least equal to the net single premium, for the temporary insurance provided for hereinbefore, or for the unconditional commutation of the policy for nonforfeitable paid-up insurance, or if the legal holder of the policy shall, within sixty days after default of premium, surrender the policy and accept from the company another form of policy, or if the policy shall be surrendered to the company for a consideration adequate in the judgment of the legal holder thereof, then, and in any of the foregoing cases, this article shall not be applicable: Provided: that in no instance shall a policy be forfeited for nonpayment of premiums after the payment of three annual payments thereon; but in all instances where three annual premiums shall have been paid on a policy of insurance, the holder of such policy shall be entitled to paid-up or extended insurance, the net value of which shall be equal to that provided for in this article".
It is agreed, if section 5852 applies, that, under the statute, there was extended temporary insurance for the face of the policy for a period beyond the date of the death of the insured.
The policy provided, in the event of lapse, for its automatic commutation into paid-up insurance of the same type, being endowment at age 80, in amounts determinable from a table in the policy, or, in this instance, paid-up insurance in the sum of $ 20.597. Defendant tendered plaintiff $ 20.84 as the amount of the paid-up insurance on the policy, said amount being somewhat in excess of $ 20.597; it being stated, in the brief, that the error in favor of plaintiff was made in calculating the fractional year from the table. When suit was filed, defendant again tendered $ 20.84 to plaintiff and deposited said sum with the clerk for the use and benefit of the plaintiff, alleging that this was the amount owing by it. Three-fourths of the net value of the policy on the date of its lapse, calculated on the mortality table and at the interest rate specified in the statutes, is $ 5.43. This sum, if applied as a net single premium at the attained age of the insured on the date of lapse, calculating said premium on said statutory basis, was sufficient to purchase paid-up endowment, at age 80, in the sum of $ 20.565. Had the policy been ordinary whole life insurance it would have purchased insurance in the sum of $ 20.77, or more than the amount provided for in the policy, it being not one of ordinary or whole life but an endowment policy.
It is insisted by the defendant that the court erred in rendering the judgment for plaintiff; that the only judgment plaintiff is entitled to is one for $ 20.84, the amount of paid-up insurance ($ 20.597), as agreed under the terms of the policy.
Plaintiff's theory can best be stated in her own words, as follows ...
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