Carpenter v. St. Joseph Life Insurance Company, a Corp.
| Decision Date | 04 December 1922 |
| Citation | 246 S.W. 623,212 Mo.App. 336 |
| Parties | MYRTLE CARPENTER, Respondent, v. ST. JOSEPH LIFE INSURANCE COMPANY, a Corporation, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County.--Hon. L. A Vories, Judge.
REVERSED.
Judgment reversed.
W. K Amick for respondent.
R. A Brown and R. L. Douglas for appellant.
Plaintiff, as the widow of Charles M. Carpenter, deceased, brought this action on an alleged contract of insurance by defendant on the life of her husband in which she was the beneficiary. The petition alleged vexatious refusal to pay and prayed for a reasonable attorney's fee and ten per cent damages for such refusal.
The defense was, and is, that no contract of insurance ever came into existence because the policy was never delivered, nor was the contract completed in any other way. The reply pleaded that the provision relied upon, requiring delivery of the policy, was waived by the company, and that, by reason of its retention of the premium and its failure to return the same within a reasonable time, the company is estopped to deny that the policy was in force.
The trial resulted in a verdict and judgment for plaintiff in the sum of $ 1099.50, the amount of the policy and interest, with $ 50 damages and $ 200 attorney's fees for vexatious refusal to pay. Defendant appealed.
After signing the application, Charles M. Carpenter executed his note, due in ninety days, for the first premium and delivered it, with the application, to the soliciting agent.
The application and note accompanying it were received at the Home Office of the Company, the Medical Director approved the application, the policy was written up and signed by the Company and then sent by it to the Insurance Department at Jefferson City for registration. It was duly registered there on May 25, 1920, and returned to the Home Office of the Company on May 27, 1920, and in the afternoon of that day the Company turned the policy over to the soliciting agent to be delivered.
The next morning, Friday, May 28, 1920, the soliciting agent, with the policy in his possession and while on his rounds delivering policies, passed within two blocks of Carpenter's home, but as Carpenter was then away at his work, and as Mrs. Carpenter had objected to her husband taking out the policy, the agent decided that he would wait until night when Carpenter would be at home and delivery of the policy to him in person could be made.
At this time Carpenter was alive and in good health. However at 7 o'clock that evening (Friday, May 28, 1920), and before the agent had completed his rounds or had gotten back to deliver the policy, Carpenter was accidentally killed. The soliciting agent says that he was late in getting back home from the rounds that day and upon doing so learned that Carpenter was dead and did not deliver the policy but the next day, May 29th, returned it to the Company with the report that Carpenter was dead. There is no question but that the policy was never delivered.
Over the objections of defendant, plaintiff introduced evidence to the effect that on Monday, May 31st, the soliciting agent, to whom the policy, on Thursday, May 27th, had been given for delivery, came to plaintiff and told her that the policy came back from Jefferson City on Thursday and was given to him on that day to deliver to her husband; that on Saturday he saw a notice of her husband's death in the paper, but there was no need of his bringing the policy down as it was absolutely in full force at the time he was killed.
Plaintiff further introduced, over the objections of defendant, evidence to the effect that on Saturday, May 29th, the soliciting agent, in attempting to get certain of plaintiff's relations to take out insurance, told them that he then had the Carpenter policy with him and that his widow (the plaintiff herein) would get her insurance.
On Wednesday, June 2, 1920, defendant, according to its evidence, turned the premium note over to the soliciting agent and directed him to return it, at the same time taking the agent's receipt therefor, dated June 2, 1920, saying the note was received "for return to his widow." This receipt was introduced in evidence. The evidence in behalf of defendant is further that the soliciting agent either on the same day or the next, June 3rd, took the note to plaintiff and tried to return it on the ground that the policy was never in force not having been delivered; but that plaintiff refused to accept it, and the agent then took the note back to the company and reported her refusal to receive it. On June 10, 1920, the company, after consultation with its counsel, sent a letter, signed by the soliciting agent, to plaintiff by registered mail, in which the note was inclosed and it was stated that the note was returned because the policy, not having been delivered during the lifetime and good health of plaintiff's husband, was never in force.
Owing to the fact that plaintiff had gone to the residence of one of her relatives, this registered letter was not delivered to her until June 18th, a period of twenty or twenty-one days after the Company had learned of her husband's death and that the policy had not been delivered. Plaintiff refused, however, to receive the note and sent it back to the Company.
On June 22, 1920, the Company having marked the note cancelled, wrote plaintiff to that effect and stated that it was ready to deliver the cancelled note to her at any time. The note was introduced in evidence and across its fact in red ink it bore the words "Cancelled on account of non-delivery of policy."
Afterward, when the due date of the note arrived in August, 1920, plaintiff went with her counsel to the Company and offered to pay it but the Company refused to accept payment on the ground that the policy never went into effect and that nothing was owed defendant.
The soliciting agent denies that he ever told plaintiff or her relatives that the policy was in force and would be paid, but says that, on the contrary, the note was offered to her on June 2nd as heretofore stated. The plaintiff, however, denies that any offer to return the note was made to her until on the 18th of June she received it in the registered letter and returned the note as heretofore stated.
The defendant demurred to the evidence both at the close of the plaintiff's evidence and at the close of all the evidence in the case. These the trial court overruled.
In behalf of plaintiff, the court instructed the jury that if they believed from the evidence that defendant, after knowledge of Carpenter's death, did not "promptly return or offer to return" the premium note, but retained said note "for an unreasonable length of time" after the death of said Carpenter, then the verdict should be for plaintiff for the full amount of the policy.
The court refused an instruction, asked by defendant, to the effect that if the premium note was delivered by defendant to the soliciting agent on June 2nd with instructions to deliver it to plaintiff, then verdict should be for defendant.
It is well settled that where the parties agree in the application that the contract shall not take effect until the delivery of the policy during the lifetime and good health of the insured, such agreement will be enforced, since it is one the parties have the undoubted right to make. [Cravens v. New York Life Ins. Co., 148 Mo. 583, 599, 601, 50 S.W. 519; Yount v. Prudential Life Ins. Co., 179 S.W. 749; Kirk v. Woodmen of the World, 169 Mo.App. 449, 456, 155 S.W. 39.]
But, while such provisions are conditions precedent to liability, they may be waived; and are waived when the insurer so conducts itself as to indicate that it has treated the contract as existing. [Rhodus v. Kansas City Life Ins. Co., 156 Mo.App. 281, 137 S.W. 907; Pierce v. New York Life Ins. Co., 174 Mo.App. 383, 390, 160 S.W. 40.]
The question then is, was any evidence of such waiver shown?
Now, so far as the alleged statements by the soliciting agent to the plaintiff and her relatives are concerned, they cannot be relied upon to constitute waiver, since...
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