Cleaver v. Central States Life Ins. Co.

• Citation: 142 S.W.2d 474,346 Mo. 548
• Decision Date: 09 July 1940
• Docket Number: 36981
• Parties: Mary Cullen Cleaver v. Central States Life Insurance Company, a Corporation, Appellant
• Court: Missouri Supreme Court

142 S.W.2d 474

346 Mo. 548

Mary Cullen Cleaver v. Central States Life Insurance Company, a Corporation, Appellant

No. 36981

Supreme Court of Missouri

July 9, 1940

Appeal from Macon Circuit Court; Hon. Harry J. Libby Judge.

Remanded (with directions to strike out an item for damages and attorney's fees).

Walter C. Goodson, Jones, Hocker, Gladney & Grand and James C. Jones, Jr., for appellant.

(1) The automatic premium loan clause of the policy is in contravention of Section 5741, Revised Statutes 1929, and consequently the policy lapsed for the nonpayment of the premium due July 6, 1934. Heuring v. Central States Life Ins. Co., 232 Mo.App. 731, 120 S.W.2d 176. (2) Death from carbon monoxide is a death from poison within the exception of the double indemnity benefit. Urian v Scranton Life Ins. Co., 165 A. 21; United Fidelity Life Ins. Co. v. Roach, 63 S.W.2d 723; Webster's Collegiate Dictionary (5 Ed.); Webster's International Dictionary; Century Dictionary and Cyclopedia; Wharton & Stille's Medical Jurisprudence, secs. 321, 669, pp. 281 622; Columbia Encyclopedia (1938 Ed.); Funk & Wagnalls The Collegiate Standard Dictionary (1939 Ed.); 5 Encyclopedia Americana (1922 Ed.), p. 592; Gonzales, Vance & Helpern, Legal Medicine & Toxicology, p. 458; Dorland's, The American Illustrated Medical Dictionary (13 Ed.); Herzog's, Medical Jurisprudence, sec. 1272, p. 878; Reed & Emerson, The Relation Between Injury and Disease, pp. 42, 413; Peterson, Hames & Webster, Legal Medicine & Toxicology, p. 791; Roscoe N. Gray, M. D., Attorneys' Textbook of Medicine, pp. 75-94; Glaister (5 Ed.), Medical Jurisprudence & Toxicology; 2 Reference Handbook of The Medical Sciences by Wm. H. Woods & Co., p. 624. (a) Opinion evidence is not admissible on matters of common knowledge. Reid v. Piedmont, etc., Life Ins. Co., 58 Mo. 421; Lee v. Knapp & Co., 155 Mo. 610, 56 S.W. 458; Rogers v. Modern Brotherhood of Amer., 121 Mo.App. 353, 111 S.W. 518; Parsons v. Phillips Petroleum Co., 231 Mo.App. 585, 107 S.W.2d 167. (3) There was no evidence that the defendant's refusal to pay the double indemnity benefit of the policy was vexatious. State ex rel. Mo. State Life Ins. Co. v. Allen, 295 Mo. 321, 243 S.W. 839; State ex rel. Gott v. Fidelity & Deposit Co., 317 Mo. 1078, 298 S.W. 83; Grand Lodge v. Mass. Bonding Co., 324 Mo. 938, 25 S.W.2d 783; State ex rel. Met. Life Ins. Co. v. Shain, 334 Mo. 385, 66 S.W.2d 871; Camdenton Consol. School Dist. v. New York Cas. Co., 340 Mo. 1070, 104 S.W.2d 319; Stahl v. Amer. Natl. Assur. Co., 70 S.W.2d 78.

Cullen, Storckman & Coil and Waldo Edwards for respondent.

(1) The automatic premium loan agreement, as contained in this policy, is valid and not in conflict with Missouri statutes, because (a) During the time the policy was in force, which includes the grace period, the insured, Thomas Cleaver, had the right to use the reserve or cash value of his policy to pay premiums, to borrow on, or to use in any way he desired within the limits of his agreement with the insurance company. Secs. 5741-5744, R. S. 1929; Barthel v. Sovereign Camp, W. O. W., 93 S.W.2d 285; Mutual Ben. Life Ins. Co. v. Commr. of Ins., 115 N.W. 707; 3 Couch on Insurance 2071, sec. 640; Lanrigan v. Mo. State Life Ins. Co., 234 S.W. 1042; 32 C. J. 1310; 3 Couch on Ins., p. 2032, sec. 633a; Swanson v. Spencer, 177 Mo.App. 128; Arnot v. Union Salt Co., 79 N.E. 721, 186 N.Y. 501; Thomson v. Poor, 42 N.E. 13, 147 N.Y. 409; Toplitz v. Bauer, 55 N.E. 1059, 161 N.Y. 333; Heuring v. Central States Life Ins. Co., 120 S.W.2d 176. (b) An insurance contract should be construed in favor of its validity in order to extend the coverage and defeat a forfeiture, and where the policy provision is more favorable to the insured than the remedy provided by a statute, the courts will apply the policy provisions. Gooch v. Met. Life Ins. Co., 61 S.W.2d 707; Clark v. Hancock Life Ins. Co., 230 Mo.App. 593, 58 S.W.2d 484; Heuring v. Central States Life Ins. Co., 120 S.W.2d 183; Payne v. Minnesota Mut. Life Ins. Co., 191 S.W. 697; Prudential Ins. Co. v. Pearson, 24 F.Supp. 313; Cooper v. N. Y. Life Ins. Co., 211 S.W. 548. (c) The nonforfeiture statutes, Sections 5741-5744, are remedial statutes enacted for the purpose of securing for the policyholder the benefit of the policy reserves or cash values, and in cases where the insured has the full benefit of the policy coverage by reason of a private agreement with the company the statutes should not be invoked. 59 C. J. 1107; Cooperative Live Stock Comm. Co. v. Browning, 168 S.W. 934, 260 Mo. 324; 3 Couch on Ins., 2069, sec. 639; Elms v. Life Ins. Co., 211 Mo.App. 524; Westerman v. Supreme Lodge, K. of P., 196 Mo. 711. (d) The contract provision for an automatic premium loan does not involve moral turpitude and, at most, was merely unauthorized, and its effect in this case is to extend the coverage and defeat a forfeiture, and where such is the case the contract may be enforced if justice plainly requires it. 17 C. J. S. 667, sec. 278c; McCall v. International Life Ins. Co., 193 S.W. 865; McGinnis v. Aetna Life Ins. Co., 78 S.W.2d 501; Rick v. Hancock Life Ins. Co., 93 S.W.2d 1126. (2) Even if the court were to hold that a default in the payment of premiums existed within the meaning of Section 5741, the automatic premium loan provision of the policy would be valid as coming within the first exception of Section 5744 in that the policy contained a provision for a surrender "value" at least equal to the net single premium for temporary insurance, and its use under the automatic premium loan provisions was more favorable to the insured than the statutory provision, and it took effect unconditionally without any action on the part of the insured. Secs. 5741, 5744, R. S. 1929. (3) The right to have the double indemnity provisions of his insurance contract continued in force by payments out of the cash reserves of the policy, together with the right to continue the policy in force by resuming premium payments without re-examination and without reinstatement of the policy are valuable personal and property rights of which the insured would be deprived if the automatic premium loan provision is construed to be illegal and void and if Sections 5741 to 5744 are construed to prevent the insured from using his cash reserve to keep his primary insurance in force, the statutes are unreasonable and unconstitutional in that they would deprive the insured of his property, privileges, liberty and immunities without due process of law. Mo. Const., Art. II, Sec. 30; U.S. Const., Amend. 14; 16 C. J. S. 1167, 1205. (4) Where the premiums are actually paid, whether by loans from the cash reserve of the policy or otherwise, and the contract is fully performed, the company cannot take advantage of the provisions of Section 5741, and is estopped to contend that the policy was not in force or that its coverage was limited, and will be held to have waived the protection afforded it by the nonforfeiture statutes. Heth v. Hancock Mut. Life Ins. Co., 136 S.W.2d 392; Liebing v. Mut. Life Ins. Co., 191 S.W. 253, 269 Mo. 509; American Natl. Ins. Co. v. Tobor, 230 S.W. 397. (5) Since the policy did not specifically exclude liability for double indemnity death benefits for death occurring while the policy was running on extended insurance, the defendant cannot now, after the death of the insured, have the policy construed in its favor so as to exclude such accidental death benefits. Fletcher v. Met. Life Ins. Co., 137 S.W.2d 624; Salamone v. Prudential Ins. Co., 103 S.W.2d 507; Lamport v. Assur. Corp., 272 Mo. 38. (6) Even if the automatic premium loan provision were in contravention of the nonforfeiture statutes and illegal, the insured and his beneficiary are not at fault in that the contract was prepared and sponsored by the company, and where the parties are not in pari delicto the more excusable of the two will be granted relief. 17 C. J. S., pp. 660, 679, secs. 274, 291; 3 Couch on Ins., p. 1881, sec. 586; Quast v. Fidelity Mut. Life Ins. Co., 226 N.Y. 270, 123 N.E. 494; Brown v. Stotts City Bank, 38 S.W.2d 723; Wellston Trust Co. v. Amer. Surety Co., 13 S.W.2d 24; Landau v. N. Y. Life Ins. Co., 199 Mo.App. 544; Laun v. Pacific Mut. Life Ins. Co., 111 N.W. 660, 9 L. R. A. (N. S.) 1024. (7) The issue of whether the death of Thomas Cleaver was covered by the provisions for double indemnity death benefits was properly submitted to the jury because: (a) Whether a death by suffocation or asphyxiation due to inhaling carbon monoxide gas is death by poison is a question of fact and for the jury. Brock v. Amer. Central Life Ins. Co., 44 S.W.2d 200; Tennison v. Manufacturers Coal & Coke Co., 220 Mo. 596; Morfit v. Thompson, 219 Mo.App. 516; State ex rel. v. Hostetter, 104 S.W.2d 675. (b) The words "death by poison" must be given their ordinary and popularly accepted meaning and not a strained, technical or scientific definition. 17 C. J. S. 718, sec. 301; Northwestern Mut. Life Ins. Co. v. Wiggins, 15 F.2d 646. (c) The burden is upon defendant to prove that the death of Thomas Cleaver was within one of the exceptions to the provision for double indemnity benefits in the event of accidental death. Bennett v. Natl. Union Fire Ins. Co., 230 Mo.App. 939, 80 S.W.2d 914.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action on an insurance policy for $ 10,000, with interest and damages for vexatious delay including attorney's fee. Plaintiff had verdict and judgment for the total amount of $ 11,500, and defendant has appealed.

By the policy, issued October 6, 1928, defendant agreed to pay to plaintiff as beneficiary "immediately upon receipt of due proof of death of Thomas E. Cleaver, the insured, the sum of Ten Thousand Dollars, which is the face amount...