Dempsey v. John Hancock Mut. Life Ins. Co.

• Decision Date: 02 January 1923
• Docket Number: No. 17307.,17307.
• Parties: DEMPSEY v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Missouri Court of Appeals

248 S.W. 17

DEMPSEY v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 17307.

St. Louis Court of Appeals. Missouri.

January 2, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by Vincent Dempsey, administrator of the estate of Charles J. Donohoe, or Donohue, deceased, against the John Hancock Mutual Life Insurance Company. From judgment for plaintiff in insufficient amount, he appeals. Affirmed.

Claude O. Pearcy, of St. Louis, for appellant.

Leahy, Saunders & Walther, of St. Louis, for respondent.

DAUBS, J.

An action on a policy for life insurance. The petition is in usual form containing the formal allegations upon a policy of life insurance for $1,000 issued by the defendant insurance company. Defendant's answer, inter alia, sets up the following provisions of the policy, to wit:

"In case any subsequent premium on or installment thereof is not paid when due, * * * this policy shall become void except as hereinafter agreed.

"After three full annual premiums shall have been paid hereon, then, in case of default in the payment of any subsequent premium or installment thereof, the company will, after payment of premiums for eleven full years, pay on legal surrender on any anniversary of its issue a cash value of $193.82.

"Without any action on the part of the insured, continue this policy as participating paidup insurance payable at death for $523.00."

The reply is a general denial.

The case being tried to a jury, at the close of all the evidence the court on its own motion gave a peremptory instruction to the jury to find for the plaintiff in the sum of $565.61, which sum represents insurance and interest due under defendant's theory, including court costs up to the time of the defendant's tender. In due course plaintiff appealed.

The policy was issued January 18, 1905, to Charles J. Donohoe, who died January 24, 1918. Premiums were paid on January 18th each year until January 18, 1916, when insured defaulted in the payment of premiums, and so continued in default until his death. The suit is brought by appellant as administrator of the estate of Charles J. Donohoe, deceased. The sole question in the case is one of law, and involves a construction of the policy. If the policy is found to contain a provision for an unconditional commutation of the policy for nonforfeitable paid-up insurance, as mentioned in section 6154, R. S. 1919, then the defendant made a correct tender by paying into court the said amount as due the beneficiary under the policy. If, on the other hand, the insurance policy does not contain a provision for the unconditional commutation of the policy far nonforfeitable Paid-up insurance, then the beneficiary is entitled to the face of the policy, to wit $1,000.

Sections 6151, 6152, and 6153, R. S. 1919, pertain to nonforfeitableness of life insurance) policies, paid-up policies, and the rule of payment on commuted policies. These are followed by section 6154, R. S. 1019, which is as follows:

"The three preceding sections shall not be applicable in the following cases, to wit: If the policy shall contain a provision for an unconditional surrender value, at least equal to the net single premium, for the temporary insurance Provided for hereinbefore, or for the unconditional commutation of the policy for nonforfeitable paid-up insurance, or if the legal holder of the policy shall, within sixty days after default of premium, surrender the policy and...