Daniel v. Aetna Life Ins. Co.

• Citation: 36 S.W.2d 688,225 Mo.App. 357
• Parties: JULIA E. DANIEL, RESPONDENT, v. AETNA LIFE INSURANCE CO., APPELLANT
• Decision Date: 23 February 1931
• Court: Missouri Court of Appeals

36 S.W.2d 688

225 Mo.App. 357

JULIA E. DANIEL, RESPONDENT, v. AETNA LIFE INSURANCE CO., APPELLANT

Court of Appeals of Missouri, Springfield

February 23, 1931

Appeal from the Mississippi Circuit Court.--Hon. Frank Kelly, Judge.

AFFIRMED.

Judgment affirmed.

J. M Haw, Ray B. Lucas, Jones, Hocker, Sullivan & Angert and Raymond J. Lahey, for appellant.

(1) Where the undisputed and uncontradicted evidence shows that the premium necessary to keep the policy in force was not paid, the court should either so instruct the jury or direct a verdict for the defendant. Yarber v. Connecticut Fire Ins. Co. (Mo. App.) 10 S.W.2d 957; Kagee v. Kansas City Life, (Mo. App.) 217 S.W. 340; Reichenbach v Ellerbe, 115 Mo. 588. (2) Where liability on the policy involved is denied, the proper request of the insurer for proofs under another policy which was furnished by the beneficiary and made to include a claim under both policies without additional expense, does not waive a forfeiture of the policy involved. 14 R. C. L., Section 376; 37 C. J 538-539; Cooley's Briefs on Insurance, pp. 4476-4477; Holt v. National Life Accident Ins. Co., (Mo. App.) 263 S.W. 524; Schwab v. Brotherhood of American Yeoman, 305 Mo. 148; Sharpe v. Commercial Travelers (Ind.), 37 N.E. 353; Western Life Indemnity Co. v. Couch (Ind.), 123 N.E. 11; National Aid Ass'n v. Brachter (Nebr.), 91 N.W. 379; Boyd v. Vanderbilt Ins. Co. (Tenn.), 16 S.W. 470. (3) The policy provision that only certain executive officers of the insurer can bind it, and no other person can alter or waive any of the conditions of the policy or make any agreement which shall be binding upon the company is valid and binding as to the beneficiary. The soliciting agent, Walker, did not, and had no authority to waive the lapse of the policy. Beswick v. National Casualty Co., 206 Mo.App. 67; Rhodus v. Kansas City Life Ins. Co., 156 Mo.App. 281; Foscue v. Greensboro Mutual Life (N.C.), 144 S.E. 689; Parrol v. Guaranty Fund Life Ass'n (Mo. App.) 224 S.W. 77.

M. E. Montgomery and Ward & Reeves for respondent.

(1) Forfeitures are abhorred at law, particularly in insurance cases. Frances et al. v. A. O. U. W., 150 Mo.App. 347, 356; Settle v. Ins. Co., 150 Mo.App. 520, 527; Shearlock v. Ins. Co., 193 Mo.App. 430, 436; Roseberry v. Ins. Co., 142 Mo.App. 552, 560; McFarland v. Ins. Co., 124 Mo.App. 217. And only slight evidence is required to establish a waiver of the grounds for forfeiture. Frances et al. v. A. O. U. W., 150 Mo.App. 347, 356; Shearlock v. Ins. Co., 193 Mo.App. 430, 436; Keys v. Ins. Co., 174 Mo.App. 671, 680; Thomas v. M. B. A., 189 Mo.App. 15, 21-22. (2) An insurance agent is the alter ego of his company and his acts are the acts of the company. Nickel v. Ins. Co., 114 Mo. 420, 430-432; Sheets v. Ins. Co., 153 Mo.App. 620, 632; Smith v. Ins. Co., 272 S.W. 700; Parsons v. Ins. Co., 132 Mo. 583, 594-599; Laundry Co. v. Ins. Co., 151 Mo. 90, 98-99; Bush v. Ins. Co., 85 Mo.App. 153, 158; James v. Ins. Co., 148 Mo. 1, 11; Shook v. Ins. Co., 154 Mo.App. 394, 402-407; Franklin v. Ins. Co., 42 Mo. 456, 461; Shutts v. Ins. Co., 159 Mo.App. 436, 441; Breckinridge v. Ins. Co., 87 Mo. 52, 71. (3) Very slight circumstances and small matters will suffice to raise a presumption of ratification of such unauthorized act, where the relation of principal and agent is shown to exist. Madison v. Williams, 16 S.W.2d 626; Woolen Co. v. Tailoring Co., 267 S.W. 969; Plumber v. Knight, 156 Mo.App. 321, 342-343. And such ratification is retroactive and adopts all of such persons' actions and makes them the acts of the principal as from the beginning. Plumber v. Knight, 156 Mo.App. 321, 343; Savings Ass'n v. Morrison, 48 Mo. 273, 275-276; Kirkpatrick v. Pease, 202 Mo. 471, 490; Griswold v. Haas, 277 Mo. 255, 263; Beagles v. Robertson, 135 Mo.App. 306, 325; Shook v. Ins. Co., 154 Mo.App. 394, 404. (4) Where the insurer after knowledge of the facts that would cause a forfeiture, induces the insured to go to any trouble or incur any expense to comply with the requirements of the policy, the forfeiture is waived. Schusterman v. Ins. Co., 252 S.W. 91; Painter v. Ins. Co., 256 S.W. 531; Shearlock v. Ins. Co., 193 Mo.App. 430, 434-439; Keys v. Ins. Co., 174 Mo.App. 671, 678-690; Pace v. Ins. Co., 173 Mo.App. 485, 505-506; Ceresia v. Mut. Aid Men's Ass'n, 211 S.W. 81; Fink v. Ins. Co., 66 Mo.App. 513, 514-515; Bowen v. Ins. Co., 69 Mo.App. 272, 275-278; Dolan v. Ins. Co., 88 Mo.App. 666, 674; Block v. Ins. Co., 290 S.W. 429.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

Plaintiff brought suit as beneficiary on a life insurance policy dated May 20, 1921, issued by defendant to plaintiff's son, Archie B. Daniel, who died August 31, 1928. The petition is in the usual form, praying to recover the face value of the policy, to-wit: the sum of $ 2500. The cause originated in Scott county and on change of venue was sent to Mississippi county. Defendant's answer admitted the execution and delivery of the policy and the death of Daniel as alleged but set up as a defense that the policy had lapsed, according to the terms of the policy, for failure to pay a premium in the sum of $ 61.85, due May 20, 1928, or within thirty-one days there-after, and alleged there was no liability under the policy at the time of the death of Archie D. Daniel, except for $ 17.50, the cash surrender value of the policy, after deducting outstanding indebtedness against the same.

Plaintiff's reply was a general denial and a further plea that, "such facts do not constitute any defense to this action, for the reason that after defendant was informed thereof said defendant waived such defense attempted to be set up aforesaid by not acting thereon, and by holding out to this plaintiff that the policy sued upon was good and valid and binding upon defendant, and by requiring plaintiff to expend much time and money making proof of loss and in getting up further data required by defendant, and by remaining silent as to such defense now alleged, and by requiring plaintiff to expend her time and money, as aforesaid, under the belief that the said policy was valid and binding."

Upon the issues thus drawn, trial was had to a jury, resulting in a verdict and judgment for plaintiff in the sum of $ 2339.88, from which judgment, defendant has appealed.

At the close of all the evidence defendant offered an instruction in the nature of a demurrer thereto, which was by the court refused. Defendant assigns this as error because: "(a) The evidence showed that the policy had lapsed for the non-payment of the premium due May 20, 1928. (b) The evidence showed that the lapse of said policy was never waived by the defendant. (c) The evidence showed that W. E. Walker, the soliciting agent, did not and had no authority to waive the lapse of said policy."

We shall consider these different phases of the question in order. It is well to first re-assert certain familiar principles to be applied in such cases. After verdict for plaintiff the propriety of the trial court's refusal to sustain a demurrer to the evidence must be decided upon the hypothesis that all evidence favorable to plaintiff shall be taken as true and that she is entitled to all favorable inferences reasonably deducible therefrom, but at the same time all inferences favorable to defendant must be rejected. [Thomas Cusack Co. v. Refining Co., 261 S.W. 727.]

It is also well settled that where the affirmative defense of non-payment of a premium on an insurance policy is relied upon, the defendant has the burden of proving such non-payment. [Lafferty v. Kansas Casualty Co., 229 S.W. 750, 287 Mo. 555.]

In the case at bar defendant offered evidence tending to prove failure of insured to pay the premium due on May 20, 1928. Whether or not defendant produced evidence sufficient to prove non-payment to such an extent as to justify the trial court in directing a verdict for it upon that theory is not now a question before this court. The demurrer to the evidence offered by defendant was general. It was not specifically directed to the question of the insured's failure to pay the premium due. Defendant did not by its demurrer, attempt to distinguish between the different issues in the case, but thereafter submitted the question of non-payment of the premium in its Instruction No. 4. Defendant is now estopped from saying that the question of non-payment of the insurance premium was not for the jury after having itself submitted the question under such circumstances. [Torrance v. Pryor et al., 210 S.W. 430, 432; Seewald v. Gentry, 286 S.W. 445, 453; Union Station Bank v. Wangler, 254 S.W. 739; Everhart v. Bryson, 244 Mo. 507, 149 S.W. 307.]

Moreover, if the question of waiver remained in the case, the court could not have directed a verdict even if the evidence did show beyond the shadow of a doubt that the policy had lapsed. We therefore deem it unnecessary to review the evidence on that point, the documentary portion of which, consisted of defendant's card system record tending to show non-payment of the premium on July 20, 1928, to which date payment had been extended. In fact the jury found the issue as to the lapse of the policy for defendant, as their verdict clearly indicates. We rule defendant has waived the point that plaintiff's prima-facie case, made by the introduction of the policy, was destroyed by evidence of non-payment of the premium.

We come now to defendant's point (b) on the demurrer to the evidence, i. e., that the evidence showed the lapse of said policy was never waived by defendant. Plaintiff's testimony on this question was as follows:

"That she was the mother of the deceased Archie D. Daniel; that she lived at Benton; that her son died on August 31, 1928; that she made proof...