Elms v. Mutual Benefit Life Ins. Company
| Decision Date | 03 May 1921 |
| Citation | 231 S.W. 653,211 Mo.App. 514 |
| Parties | EDWARD C. ELMS et al., Appellants, v. MUTUAL BENEFIT LIFE INSURANCE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Glendy B. Arnold, Judge.
AFFIRMED.
Judgment affirmed.
Igoe & Carroll and Anderson & Gilbert for appellants.
The court erred in giving the demurrers to both counts because (1) Even if the policy had provided for forfeiture, it was waived by defendant. See letters from defendant's officials. (2) As construed by defendant the policy was not subject to forfeiture. Brooklyn Ins. Co. v. Dutcher, 95 U.S. 269; Manhattan Ins. Co. v. Wright, 126 F 86. (3) The provision for deducting any indebtedness and unpaid premium is inconsistent with forfeiture and negatives any forfeiture provision. Kline v. Ben. Assn., 111 Ind. 462. (4) The provision requiring a surrender of policy and profits is inconsistent with the claim of forfeiture, and where two constructions are possible that favoring the insured should be given. Kelsey v. Life Ins. Co., 196 F. 195; Ferguson v. Life Ins. Co., 187 Mass. 14. And any doubt is resolved against company, although it may have intended otherwise. Hale v. Ins. Co., 46 Mo.App. 508; Stix v. Ins. Co., 175 Mo.App. 171; Force v. Ins. Co., 43 Mo.App. 518 (5) The interest of the beneficiaries is vested and could not be affected by any action on the company's part, or assured's. Diehm v. Ins. Co., 129 Mo.App. 256; Kelsey v Ins. Co., 196 F. 197. (6) Equitable value is the amount held on the policy. People v. Ins. Co., 78 N.Y. 114; Ins. Co. v. Statham, 93 U.S. 24. (7) No matter how praiseworthy the motives, one cannot spend another's money or make payments for him without his consent. Meier v. Meier, 15 Mo.App. 68 aff'd. 88 Mo. 566; Taylor v. Planet Co., 78 Mo.App. 137.
Jones, Hocker, Sullivan & Angert for respondent.
(1) It is the duty of courts to give effect to contracts as written. It is not within the province of the courts to make contracts for the parties or to change those which the parties have already entered into. Arensmeyer v. Insurance Co., 254 Mo. 313; West v. Insurance Co., 186 Mo.App. 2; Mitchell v. Insurance Co., 179 Mo.App. 1; Miller v. Insurance Co., 168 Mo.App. 330. (2) Where the policy in clear and unequivocal language provides for forfeiture for the non-payment of premiums, the courts must sustain the forfeiture and enforce the contract. Ashbrook v. Insurance Co., 94 Mo. 72; Smoot v. Insurance Co., 138 Mo.App. 438; Barnes v. Insurance Co., 30 Mo.App. 539; Mooney v. Insurance Co., 92 Mo.App. 92. (3) Where the policy by its terms makes the right to paid-up insurance conditional upon a demand being made therefor by the insured within a specified period, it is a condition precedent to the right to such paid-up insurance that a demand be made therefor within the prescribed period. Knapp v. Insurance Co., 117 U.S. 411; Cravens v. New York Life Ins. Co., 148 Mo. 583; Inloes v. Prudential Life Ins. Co., 109 Mo.App. 104. (4) In the absence of some provision of the policy or some statute giving the insured the benefit of the reserve of the policy upon its lapse, such reserve belongs to the company and not to the insured. Wilhelm v. Prudential Ins. Co., (Ms. Op.); State ex rel. Supreme Lodge v. Vandiver, 213 Mo. 187; Payne v. Minnesota Mutual Life Ins. Co., 195 Mo.App. 512.
This is an action upon a policy of life insurance. The policy in the sum of $ 1,000 was issued upon the life of Rossington Elms and was dated March 31, 1871. The premiums were paid until March 3, 1906. The one due that day was not paid nor was any subsequent premium paid. The insured died in October, 1912.
The petition is in two counts, the first being a straight suit on the policy and the second on the theory of a conversion of the reserve standing to the credit of the policy at the time it lapsed, which is alleged to have been the sum of $ 765.49.
The answer to the first count after denying the performance of the terms and conditions of the policy on the part of the plaintiffs, set up that the insured failed to pay the premium of $ 44.46 due on March 3, 1906, and as a result the policy lapsed and under its terms the company became exempted from the payment of any sum. It is further averred that under the policy it was provided that after two or more premiums had been paid the company upon the lapse of the policy for the non-payment of any subsequent premium would issue a paidup policy insuring an equitable sum, payable at death, provided application was made for such paid-up insurance and the policy surrendered to the company within three months after its lapse. It is then averred that no application was made nor was the policy surrendered for paid-up insurance within three months after its lapse for the non-payment of the premium due March 3, 1906.
Defendant's answer to the second count denied that on March 3, 1906, or at any time there was a reserve or cash value standing to the credit of the policy of $ 765.49 as alleged by plaintiffs and denied that either the insured or plaintiffs were entitled to any reserve or cash value under said policy upon its lapse for the non-payment of the premium.
The cause was tried by the court sitting as a jury and upon request of the defendant at the close of the case the court declared the law to be that plaintiffs were not entitled to recover under either count of the petition. Following the usual preliminaries plaintiffs have appealed.
No question of pleading arises in the case and the facts are undisputed. The foregoing statement and substantive portions of the pleadings may be considered as facts established in the case the parties however differing only as to the legal effect of the policy stipulations and subsequent action of the company after the lapse of the policy following the default in the payment of premiums. It was conceded that the defendant was duly notified and denied liability for any sum and that all premiums were paid from 1871 to the premium due March 3, 1905, but that no further premiums were paid by the assured or by any one. It was further admitted no demand was made within three months after the lapse or at any time for the paid-up insurance provided in the policy. The provisions of the policy material to the issues are as follows:
The forfeiture provision is as follows:
It was further shown that in the year 1879 and in 1895 the company adopted new forfeiture systems which were applied to all future policies of the company and were also made applicable to all prior policies which had been issued. By these systems the insured in the event of a lapse was given in lieu of the paid-up insurance provided in the policy the right or option of withdrawing the reserve on the policy either in cash or having the reserve applied to the purchase of extended insurance, upon condition however of a demand being made therefor and a surrender of the policy to the company within three months after lapse. It was provided in the system that in the event of a failure to make demand or surrender the policy within three months for paid-up insurance provided in the policy or for the cash surrender value or for extended insurance the reserve should be applied to the purchase of extended insurance.
It was further undisputed as was shown by certain letters written to plaintiffs' counsel and by other evidence that in June, 1906, after the policy in the instant suit had lapsed on March 3, 1906, that in view of the fact that the policy was not surrendered or any demand made for the cash or for a paid-up policy that the company applied the reserve on the policy to the purchase of extended insurance which resulted in the policy being continued in force for the full amount of $ 1,000 for a period of four years and twenty-four days or until March 27, 1910, more than two years prior to the death of the assured.
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