Eames v. New York Life Ins. Co.
| Decision Date | 01 December 1908 |
| Citation | 114 S.W. 85,134 Mo.App. 331 |
| Parties | EAMES, Respondent, v. NEW YORK LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court.--Hon. Chas. Claflin Allen Judge.
Judgment affirmed.
Judson & Green for appellant.
W. B and Ford W. Thompson for respondent.
(1) We admit that the proposition of law advanced in support of the first assignment of error of appellant is correct, but deny that it has any application to the facts in this case, for the reason that defendant has expressly admitted that the letter of February 1, 1899, written by its agent, Thompson was "an answer" to Eames' letter to the vice-president of the defendant, hence has admitted that he was authorized to make the answer--the very authority which the policy provides that an agent must have--in point of fact, as the letter itself states. Thompson v. Insurance Co., 169 Mo. 24. (2) The letter of Eames, written to Perkins, vice-president of defendant company, of itself, had it remained unanswered, would have created, by reason of silence alone under the circumstances of the case, evidence of an admission of the truth of Eames' contention that if he made no more payments his policy would endure until November 7, 1908, and his other policy until November 21, 1901. Encyclopedia of Law, vol. 16, p. 956. And this, though Eames' letter had remained unanswered. (3) Admissions in the law of evidence have been defined as being concessions, or voluntary acknowledgments, made by a party of the existence of certain facts, and have been said to be "direct" or "express," "implied" or "indirect," or "incidental." Incidental admissions are those made in some other connection, or involved in the admission of some other fact. Bouvier, Law Dictionary; Encyclopedia of Law and Procedure, vol. 16, p. 938. (4) The letter of Thompson, taken in connection with that of Eames to Perkins (to which it is admitted to be an answer), contains an "incidental admission," to this effect: You have made enough payments, if you discontinue at this date (the date is January 16, 1899), to keep your policy in force for nine years and eleven months from December 7, 1898, because your premiums are all paid up to December 7, 1898. Therefore, the one due December 7, 1897, must have been paid. Sugg v. Equitable Life Assurance Society, 94 S.W. 936.
A policy of insurance was issued December 19, 1894, on the life of Charles B. Eames, respondent's husband, and payable to her at his death. The amount of insurance was one thousand dollars written for an annual premium of $ 53.60, falling due December 7th of each year. The insured died December 17, 1905, and this action was instituted to recover the insurance money. Only one issue of fact was joined in the case, i. e., whether the premium which fell due December 7, 1897, was paid when it matured. If it was, it is conceded the policy was in force as extended insurance when Mr. Eames died. If it was not, then the policy had lapsed for non-payment prior to the death of the insured and respondent would not be entitled to recover. It is contended for appellant the evidence adduced to prove payment of the premium was insufficient, and respondent should have been nonsuited; and it is also contended the court erred in ruling on the evidence offered, pro and con, on the issue. The first evidence introduced on the issue by respondent was the following letter written by the deceased to the vice-president of appellant company, under date of January 16, 1899:
It was admitted the paper offered was a carbon copy of the signed original which had been sent by the deceased to Vice-president Perkins, but appellant excepted to its admission for the reason it had no tendency to prove the premium in dispute was paid. Over the exception of appellant the following letter was admitted, written by A. E. Thompson, acting cashier for appellant company in St. Louis, under date of February 1, 1899, and purporting to be in response to the first letter:
One instruction requested by appellant and refused was, that Thompson, the acting cashier of the St. Louis office, whose letter of February 1, 1899, to the insured, was read in evidence, had no power to waive payment of the premium due December, 1897, or to set aside a default or lapse for non-payment, and said letter should be considered only as bearing on the question of whether the premium was paid on December 20, 1897.
1. Appellant has not briefed its exception to the admission of the letter written by deceased to its vicepresident but insists on the exception to admitting the letter in response written by Thompson as acting cashier and sent from the St. Louis office. The objection to this letter is twofold: first, that the statement of an agent unless made while acting within the scope of his agency will not bind his principal as an admission; and, second, the policy in suit expressly declared in one paragraph that no agent had power to make or modify the contract of insurance, extend the time for paying premiums, waive a forfeiture, "or bind the company by making any promises, or making or receiving any representations or information." Said paragraph of the policy contains this further clause: "These powers can be exercised only by the president, vice-president, second vice-president, actuary or secretary of the company, and will not be delegated." The letter written by Mr. Eames to the vice-president, shows previous...
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