Darby v. Northwestern Mutual Life Insurance Co.
| Decision Date | 14 March 1922 |
| Citation | 239 S.W. 68,293 Mo. 1 |
| Parties | CHARLES M. DARBY, Administrator of Estate of SAMUEL E. DARBY, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Stoddard Circuit Court. -- Hon. W. S. C. Walker, Judge.
Reversed and remanded.
Nagel & Kirby for appellant.
(1) Time is of the essence of a contract of insurance and the failure to pay premiums when due works a forfeiture, if the policy so provides. Ashbrook v. Life Ins. Co., 94 Mo. 72; Suess v. Life Ins. Co., 193 Mo. 564; Gaterman v. Life Ins. Co., 1 Mo.App. 300; Sick v. Life Ins. Co., 79 Mo.App. 609. (2) The court admitted evidence immaterial and irrelevant and prejudicial to appellant. (3) The instruction of the court given at the request of the plaintiff was erroneous, because there is no evidence in the record to support the submission to the jury of certain questions of fact. Dakan v. Mercantile Co., 197 Mo. 264. (4) The death of Samuel E. Darby did not render appellant's agent incompetent to testify to conversations and transactions between himself and deceased. Clark v. Thias, 173 Mo. 628; Inv. Co. v. Lead Co., 251 Mo. 721; Wagner v. Binder, 187 S.W 1152; Allen v. Jessup, 192 S.W. 720; Prindle v Fid. & Cas. Co., 233 S.W. 252. (5) There is no evidence in the record that appellant waived the forfeiture or any of the provisions of the policy. Nelson v. Life Ins Co., 190 P. 927; Clark v. Life Ins. Co., 106 Mich. 160; Hoyle v. Life Assur. Assn., 183 N.W. 50; Gould v. Life Assur. Soc., 231 N.Y. 208; Realty Co. v. Kelly, 278 Mo. 472.
Wammack & Welborn for respondent.
(1) The acceptance of the payment of the premium on a life insurance policy after it is due, and after the expiration of the days of grace, waives the failure to pay such premium within the allowance of time. Andrus v. Ins. Co., 168 Mo. 151; Jaggi v. Ins. Co., 191 Mo.App. 384; Spencer v. Life Ins. Co., 200 S.W. 80; James v. Life Assn., 148 Mo. 1; Thompson v. Ins. Co., 104 U.S. 252; Andre v. Modern Woodmen, 102 Mo.App. 377; Godwin v. K. L. S., 166 Mo.App. 297; Nichols v. Ins. Co., 170 Mo.App. 437; Wichmann v. Ins. Co., 120 Mo.App. 51; Reed v. Bankers Union, 121 Mo.App. 419; Francis & Hunter v. A. O. U. W., 150 Mo.App. 347; Manning v. Ins. Co., 176 Mo.App. 678; Wright v. Life Ins. Co., 204 Mo.App. 124. (2) If the agent of an insurance company takes a note in payment of a premium and treats the same as a payment of the premium, this constitutes a payment of the premium so as to bind the company issuing the policy. Berryman v. Surety Co., 227 S.W. 96; Kimbro v. Life Ins. Co., 134 Iowa 84; McGee v. Felter, 135 N.Y.S. 267; Clark v. Ins. Co., 61 S.E. 80; Life Ins. Co. v. Hairston, 108 Va. 832; Ins. Co. v. Norton, 96 U.S. 234; Malone v. Life Ins. Co., 202 Mo.App. 499. (3) The law abhors a forfeiture and where there is substantial evidence of facts from which it may be found that an insurer has waived a forfeiture clause in its policy, the matter is one to be referred to the jury under appropriate instructions. Barber v. Ins. Co., 279 Mo. 331; Jaggi v. Ins. Co., 191 Mo.App. 391. (4) If the evidence is sufficient to show waiver on the part of the one against whom it is invoked, it is not necessary that the insured even know of it. Watkins v. American Yeomen, 188 Mo.App. 636; Galvin v. Knights, 169 Mo.App. 511; Stiepel v. Life Assn., 55 Mo.App. 233; Equitable Life Ins. Co. v. Ellis, 147 S.W. 1152.
This is an action upon a policy of insurance for $ 10,000, issued by defendant on the life of Samuel E. Darby, payable to the estate of said Darby. Suit was brought by plaintiff as administrator of the said estate. On a trial before a jury a verdict was returned in favor of plaintiff for the sum of $ 10,600. From a judgment rendered thereon defendant has appealed.
The petition is conventional, alleging the execution and delivery of the policy on April 27, 1918; the payment by the insured of the premiums accrued and due; the death of the insured from influenza and pneumonia; the request for blank forms for making proof of death and the refusal of defendant to furnish same; the denial by defendant of liability; and the non-payment of the amount of the policy.
The answer, after admitting the execution and delivery of the policy, denies that at the time of the death of Samuel E. Darby it was in force and effect, but avers that the semi-annual premium of $ 133.10 due on October 27, 1918, was not paid by the insured, or anyone in his behalf, on that date, or at any time thereafter, and that by reason thereof the said policy lapsed 31 days thereafter, to-wit, on November 27, 1918, and remained null and void at all times thereafter. The answer further denies each and every allegation of the petition.
The reply admits that the semi-annual premium due October 27, 1918, was not paid when due, or within thirty-one days thereafter; denies that the policy thereby lapsed and became null and void; and avers that on January 3, 1919, pursuant to an arrangement then and there made between one A. V. Bayley, Jr., as the agent and representative of defendant, and Samuel E. Darby, the insured, the said Darby executed and delivered to the said Bayley, as the agent and representative of defendant, his promissory note for $ 70.20 to cover the payment of a quarterly premium on said policy and certain other charges of defendant, and to renew and continue in force the said policy until January 27, 1919, and thirty-one days thereafter. The reply further alleges that said Samuel E. Darby, at the request of the said Bayley, went with the said Bayley on January 3, 1919, to the office of defendant's medical examiner at Essex, Missouri, to submit to a medical examination, but that the said doctor was not at his office and the examination could not be had that day, and thereupon the said Bayley retained said note and went away from Essex without having obtained such examination; that on said day the insured was in good health, but that on January 6, 1919, he was seized with an acute attack of influenza and pneumonia and died on January 12, 1919, leaving sufficient property to pay all demands against the estate; that said Bayley turned the note aforesaid over to defendant in payment of the quarterly premium, and that defendant retained possession of said note and was in possession thereof at the time of the death of the insured; that plaintiff has offered, and now renews his offer, to pay the amount of said note, but that defendant has refused to accept payment thereof; that by the acts of defendant, and by the giving of said note, defendant waived the prompt payment of the semi-annual premium aforesaid, and the said policy was thereby renewed and continued in full force and effect, and was in force and effect at the time of the death of the insured.
The policy, which was filed with the petition, provides that premiums may be paid semi-annually or quarterly, in advance; that no premium after the first will be considered paid (except it be charged as a premium loan) unless a receipt, signed by the president or secretary of the company, and countersigned by an agent authorized to receive such premium, shall have been given therefor; that "upon default in the payment of any premium this policy shall cease and determine except as hereinafter provided;" that a grace of thirty-one days shall be allowed for the payment of every premium except the first; and that the policy "may be reinstated at any time within five years succeeding default in premium payment, upon evidence satisfactory to the company of the insurability of the insured and payment of all premium arrears with interest at the rate of five per cent per annum." (Italics ours).
Iva E. Darby, widow of Samuel E. Darby, testified that she remembered the circumstances of her husband taking out the policy sued on; that A. V. Bayley, Jr., represented defendant when the policy was written; that on January 3, 1919, Mr. Bayley "came there to get my husband to renew his insurance;" that on that day her husband gave Bayley a note which was returned to her after her husband's death; that on January 3, 1919, her husband's health was good; that on January 4th he went to Bloomfield where he spent most of the day, and on January 5th he was at home until in the afternoon, and that during that day he left the house for the purpose of going to Dr. Brandon's office to see the doctor; that her husband had no dealings with anyone except Mr. Bayley about the insurance in question; and that she did not know the scope of Bayley's powers.
Dr. J P. Brandon testified on behalf of plaintiff that in January, 1919, and for several years prior thereto he was the medical examiner of defendant at Essex, Missouri; that he had been the family physician of Samuel E. Darby, the deceased; that along about the first or second of January A. V. Bayley, Jr., came into his office alone, bringing a short form examination blank, and asked him if he would examine Mr. Darby; that it was late in the afternoon and Mr. Bayley "seemed to be in a hurry and wanted to get away on the train, I suppose;" that witness never made a medical examination of Mr. Darby after that time and never saw him at his office, but was called on the morning of January 6th to attend him in his last illness; that after Bayley had requested him to examine Darby, witness met the latter on the street on Saturday at noon and Darby said: "I'm coming up to have that blank filled out;" that witness told him to come up the next morning, which was Sunday, and that witness was in his office at nine o'clock that day and most of the day thereafter; that on Saturday when witness saw Darby he seemed to be in perfect health. On cross-examination witness stated that on the first or second day that...
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