Crowder v. Continental Casualty Co.

• Decision Date: 04 December 1905
• Citation: 115 Mo. App. 535,91 S.W. 1016
• Parties: CROWDER v. CONTINENTAL CASUALTY CO.
• Court: Missouri Court of Appeals

91 S.W. 1016

115 Mo. App. 535

CROWDER v. CONTINENTAL CASUALTY CO.

Kansas City Court of Appeals. Missouri.

December 4, 1905.

Rehearing Denied January 8, 1906.

1. INSURANCE — PREMIUMS—WAIVER OF PAYMENT — EVIDENCE.

A policy payable on the death of insured provided for yearly periods at $36 premiums, with provisions for renewal at four premium payments, and that default in payment would avoid the policy. Insured did not pay the first installment on a renewal until a few days before the second one fell due, and at the time told defendant's agent that he would get some money in a few days and make the second payment, asking the agent to "square him up" for both payments. The agent replied "All right," and marked both installments as paid in an account book which he kept of his business with defendant. Held, that the acts of the agent operated as a waiver of prompt payment.

2. SAME — AUTHORITY OF AGENT.

An agent of an insurance company authorized to issue policies and collect premiums had authority to waive payments of the premiums at the time specified in the policy, and thus prevent forfeiture thereof for nonpayment.

3. SAME — SETTLEMENT OF CLAIM — ACTION TO SET ASIDE — RETURN OF CONSIDERATION.

Where a policy provided that nonpayment of premiums when due thereunder would avoid the same, and subsequent to the death of insured a premium claimed by defendant's adjuster to have been received by defendant's agent without authority, by reason of the fact that it was past due, was returned to plaintiff beneficiary, who thereupon signed an indorsement on the policy reciting the receipt of said sum in full settlement, the payment of such sum was no consideration for the discharge of the liquidated amount of the policy, and plaintiff was not bound to return the same as a condition precedent in an action on the policy to asking the setting aside of the settlement.

4. SAME — NOTICE OF DEATH — NOTIFICATION BY AGENT — SUFFICIENCY.

Where a policy required notice of death to be given within 15 days after its occurrence, written notification to the insurer by its agent, at the beneficiary's request, within the time required, was sufficient.

5. SAME — ACQUIESCENCE BY COMPANY — EXAMINATION OF LOSS — EFFECT.

Where a policy required notice of death to be given within 15 days after the occurrence thereof, the insurance company by entering on an examination of the loss acquiesced in the sufficiency of the notice given.

6. SAME — PAYMENT OF PREMIUM — DEFAULT— EVIDENCE.

Where, in an action on a policy, defendant set up default for nonpayment of the premium when due, and its agent testified that he had no regular time for sending in money collected for premiums, plaintiff beneficiary was properly permitted to ask the witness whether objection was made by defendant when money collected for premiums was not sent in time.

7. SAME.

Such question was also proper as tending to show that defendant was not enforcing strictly prompt collection of premiums as they became due.

Appeal from Circuit Court, Gentry County; W. C. Ellison, Judge.

Action by Mary Crowder against The Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Judgment reduced, and as reduced affirmed.

McCullough, Aleshire & Showen, for appellant. Peery, Lyons & Wood, for respondent.

ELLISON, J.

The plaintiff's husband took from defendant an insurance policy for $1,000, which in case of his death, as the result of an accident, was to be paid to plaintiff. Her husband was a railroad employé, and was killed in a wreck on August 1, 1903. Defendant refusing to pay, suit was brought, and judgment recovered in the trial court. It appears that the policy was for yearly periods at $36 premiums, with provisions for renewal, and that deceased had taken it out something more than a year prior to his death. It was renewed in accordance with its terms for another year. The renewal provided for four payments of premium of $9 each, which were to be paid on the 25th of June, July, August, and September, 1903. The policy and renewal provided that a default in payment avoided the policy. Deceased paid all premiums for the previous year, but did not pay the first installment on the renewal until a few days before the second one became due. When in the act of paying this to defendant's agent, who issued the policy to him, the agent remarked that the second, or July, installment was about due, and that he should really pay $18. Deceased replied that: "My wife will get some money in a few days, and I will give you the other. I don't know just exactly when, but you square me up for both of them. If you have to send it away, or have not sent it away, I will pay you anyway. I may pay you before you send it." To this the agent replied, "All right." The agent marked both installments as paid on a book of account, which he kept of his business with the defendant company, though he stated it to be his private book, and not that of the company. As before stated, deceased was killed on August 1st. On the next day after his death the agent met a fellow employé of deceased and stated to him that he was sending in his report to the company of premiums collected, and that he had extended credit to deceased for his July premium of $9, and was not certain that he had sufficient money in bank to pay it. The result was the next day McGinnis and another advanced the amount of the installment, and the agent included it in the amount he sent in to the company August 3d. The policy required notice of death to be given within 15 days after its occurrence. No report of the death of deceased was made at that...