Chandler v. The John Hancock Mutual Life Ins. Co.
| Decision Date | 01 June 1914 |
| Citation | 167 S.W. 1162,180 Mo.App. 394 |
| Parties | LEVI H. CHANDLER et al, Respondents, v. THE JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Harris & Finley, Frank H. Sullivan and Leahy, Saunders & Barth for appellant.
(1) As notice of claim and proofs of death were not furnished within ninety days, as required by the statute (R. S. 1899, Sec 7899, R. S. 1909, Sec. 6948), the plaintiffs were not entitled to recover. (2) Net value defined. Rose v. Ins Co., 153 Mo.App. 98. (3) Parties cannot annul the provisions of the statute by their executory agreement contemporaneous or subsequent. Smith v. Ins. Co., 173 Mo. 141; Burridge v. Ins. Co., 211 Mo. 178; Head v. Ins. Co., 241 Mo. 418; Christensen v. Ins. Co., 155 Mo.App. 193. (4) One suing upon a statutory cause of action must bring himself within the statute. Taylor v. Railroad, 207 Mo. 500; Kingston v. Newell, 125 Mo.App. 391. (5) A qualified denial of liability is no waiver of proofs. 19 Cyc. 87; Ins. Co. v. Winfield, 6 Kas. App. 531. (6) An unqualified denial of liability after the time for proofs has expired is no waiver of the failure to furnish them. Erwin v. Ins. Co., 24 Mo.App. 151; Gale v. Ins. Co., 33 Mo.App. 672; Bolan v. Ass'n, 58 Mo.App. 231; Cohn v. Ins. Co., 62 Mo.App. 275; Boren v. Brotherhood, 145 Mo.App. 137; 4 Cooley Br. Ins., p. 3537 and cases cited; Brink v. Ins. Co., 70 N.Y. 594; Ins. Co. v. Waldron (Ark.), 114 S.W. 210. (7) Accepting proofs after the time has expired for furnishing them, is no waiver. Ins. Co. v. Kyle, 11 Mo. 290; Cohn v. Ins. Co., 62 Mo.App. 276. (8) The request for proofs in connection with the paid-up insurance was no waiver of the failure to furnish them within the time allowed by law for extended insurance. Gale v. Ins. Co., 33 Mo.App. 672; Cohn v. Ins. Co., 62 Mo.App. 277; Crenshaw v. Ins. Co., 63 Mo.App. l. c. 681. (9) The policy provided for an unconditional right to paid up insurance in excess of the value secured by our statute, and hence the policy is exempted from our non-forfeiture law. R. S. 1899, Sec. 7900; R. S. 1909, Sec. 6949; Stark v. Ins. Co., 176 Mo.App. 574.
McBaine & Clark and H. A. Collier for respondents.
(1) It is legally competent for an insurance company to waive the right to require notice to be given within ninety days as required by section 7899, R. S. of Mo. 1899, relating to temporary insurance. See sections 7899, R. S. of Mo. 1899; Ibid., section 6948, R. S. of Mo. 1909; Nicholas v. Iowa Merchants Ins. Co., 101 N.W. 115. (2) The appellant company by its conduct in requiring the beneficiaries to furnish additional proof of death, and in incurring expense to furnish the same, and in not refusing to pay the claim upon the ground that it was not so furnished, waived the right to defeat the claims because notice and proof were not furnished within ninety days. Meyers v. Casualty Co., 123 Mo.App. 682; Keys v. National Council, etc., 161 S.W. 345. (3) This exception, to the law relating to term insurance, did not exist after 1899. It was created by an act of the legislature in 1895 and expressly repealed in 1899. Laws of Missouri, 1895, pp. 197-8; Laws of Missouri, 1899, p. 248; Epperson v. Insurance Co., 90 Mo.App. 432; Head v. Ins. Co., 241 Mo. 403.
This is a suit upon a policy of life insurance. Plaintiffs are the minor children of Walter T. Chandler deceased, and, as beneficiaries in the policy, brought this action, by next friend, to recover the amount of the policy. They recovered judgment for the amount asked. Defendant has appealed.
The case was tried before the court, a jury having been waived. It was tried partly upon an agreed statement of facts and partly upon certain oral and documentary evidence offered by plaintiffs. No testimony was offered by defendant.
The defendant was, and is, a Massachusetts corporation authorized to do, and doing, business in Missouri. On June 4, 1904, it issued to Walter T. Chandler the policy in question whereby, in consideration of the payment of an annual premium, it promised to pay plaintiffs the face value of the policy upon satisfactory proof of death of the insured. Chandler paid the initial and succeeding annual premiums until six were paid but failed to pay the premium due on June 4, 1910, and the premiums due thereafter. On said date, June 4, 1910, the net value of the policy, under our statute (Sec. 6946, R. S. Mo. 1909), was sufficient to extend the insurance to a period beyond the date of the death of the insured, which occurred on February 11, 1912. The death having occurred within the terms of temporary insurance covered by the net value of the policy, plaintiffs brought suit claiming the benefit of Section 6948, Revised Statutes of Missouri, 1909, which provides that "if no condition of the insurance other than the payment of premiums shall have been violated by the insured, the company shall be bound to pay the amount of the policy, the same as if there had been no default in the payment of premium, anything in the policy to the contrary notwithstanding."
No question is raised over the execution and delivery of the policy, the payment of the premiums as stated, the death of the insured within the term of the extended insurance, or that the policy was applied for, and was delivered, and the premiums thereon paid, in Missouri.
It is contended by defendant that plaintiffs are not entitled to extended insurance as given by Sections 6946 and 6948, Revised Statutes of Missouri, 1909. This claim is based upon several grounds, only one of which is required to be noticed now. That ground is that no notice of the claim and proof of death was submitted within ninety days thereafter as required by the first proviso in said Section 6948.
Plaintiffs' answer to this is that notice and proof of death within that time were waived by the company. Defendant's rejoinder to this is two fold. First, that as the requirement of notice and proofs to be furnished in ninety days is a part of the statute, the furnishing thereof within that time is a condition precedent to the cause of action, and plaintiffs must allege and prove that they have complied with it before recovery can be had thereunder; second, that no waiver, nor evidence tending to show waiver, was shown.
As to the first part of this contention, it may be said it is but another way of saying that defendant cannot waive the failure to furnish proofs within the ninety days. No authority is cited in support of such a view and we know of none. It is true that, where the statute makes a provision for the benefit of the insured, the parties to the insurance contract cannot contract away that right, since that would enable the insurer, by properly drafting its policy, to nullify the statute. But the proviso in question was enacted for the benefit of the company which it can insist upon or waive as it chooses. No law or rule of public policy is violated by permitting the beneficiaries of an insured to collect and receive the insurance called for by the policy without furnishing proofs in a fixed and specified time. The statute was not passed to create a cause of action and does not of itself do so. It was passed for the purpose of writing into insurance contracts a provision for extended insurance for the benefit of the insured, and contains the proviso for the benefit of the insurer. The contracting parties are not on an equal footing. The legislature can provide what sort of contracts insurance companies may make with the people of the State. [State ex rel. v. Vandiver, 222 Mo. 206, 121 S.W. 45; 22 Cyc. 1387.] Especially is this true of foreign insurance companies. [Whitfield v. Ins. Co., 205 U.S. 489, 51 L.Ed. 895, 27 S.Ct. 578.] When, therefore, the insured and defendant entered into this contract, the statute wrote itself into and formed a part of the contract, and the cause of action is not strictly created by the statute, but by the contract containing the statute as one of its provisions. No law or rule of public policy requires the company to be protected to the extent that it cannot waive a requirement imposed on the insured as to the time in which notice is to be given. A statutory right or benefit given for its protection can be waived the same as any other right. [Nicholas v. Iowa, etc., Ins. Co., 101 N.W. 115, l. c. 118.]
But the question remains was any waiver shown? It is conceded no notice was given nor proofs furnished within the ninety days. The acts relied upon as constituting waiver occurred after the ninety days had elapsed. Nothing was done by the insurer, during the time in which notice should have been given, which in any way influenced or induced the failure to give notice or furnish proofs. Where the act relied upon to constitute waiver occurs after the time for furnishing proof of death has expired, such act must be in the nature of, or possess some elements of, estoppel, that is, must be such as induced insured's beneficiaries to change their position, for example, go to some additional expense. [Boren v. Brotherhood, 145 Mo.App. 136, 129 S.W. 491; Bolan v. Fire Association, 58 Mo.App. 225; Myers v. Maryland Casualty Co., 123 Mo.App. 682, 101 S.W. 124, l. c. 687.] Unless, therefore, the plaintiffs were misled by the acts relied upon as waiver and were thereby induced to change their position, no waiver exists.
The policy itself provided that after the payment of premiums for six full years it would, without any action on the part of the insured, continue the policy as participating paid-up insurance payable at death of insured. This amounted to $ 219, according to one way of figuring, or to $...
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