Evans v. Equitable Life Assur. Soc.
| Decision Date | 07 July 1937 |
| Docket Number | No. 18929.,18929. |
| Parties | EVANS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
"Not to be published in State Reports."
Action by Miriam M. Evans against the Equitable Life Assurance Society of the United States. From a judgment for defendant upon the pleadings, plaintiff appeals.
Affirmed.
John F. Cell and C. O. French, both of Kansas City, for appellant.
Ralph M. Jones and Michaels, Blackmar, Newkirk, Eager & Swanson, all of Kansas City, and Alexander & Green, of New York City, for respondent.
SPERRY, Commissioner.
Plaintiff below was beneficiary in a life policy issued by defendant to Frances S. H. McC. Morse. The parties will be referred to herein as plaintiff, defendant, and insured, as they were respectively denominated in the circuit court.
All of the facts material to the case are pleaded in the petition and answer, the parties hereto agreeing that such facts are true. The case was tried by the court without a jury and judgment was for defendant upon the pleadings. Plaintiff has appealed.
Insured made written application to defendant for a $10,000 policy of insurance on September 13, 1929, it being numbered 7,820,530. The policy was dated September 21, 1929, bearing "register date," "policy year date," and "Premium paying date" September 21, 1929. The policy provided that it should not become effective until date of delivery and payment of the first premium thereon, which was October 31, 1929, 41 days after the premium paying date. The application and medical examiner's report were attached to the policy and formed a part of the contract of insurance. Premiums were to be paid thereon semiannually in the amount of $252.10, on the 20th day of September and of March of each policy year, which method of premium payments was later, upon application, changed to monthly payments of $43.03 per month. The policy provided a cash surrender value of $59 per $1,000 of insurance, a total of $590, after it should have been in effect for 3 full years. Insured's age for purposes of the policy, was 50 years, and premiums were charged as of that age.
On September 19, 1932, insured filled out a form furnished by defendant for such purposes, which form, in full reads as follows:
To be filled in if evidence of insurability other than Form T examination is offered for change.
As an inducement to the Society to grant the change herein applied for I offer the answers to the questions contained in Part II of my application, dated ____ 19 __, for a policy of insurance with the Society. All of said answers are true and I hereby agree that they shall constitute a part of this application as fully as if recited at length herein.
Whereupon defendant issued and delivered to insured the following policy:
The EQUITABLE LIFE ASSURANCE SOCIETY
NUMBER OF THE UNITED STATES FACE
7,820,530 A Mutual Company Organized July 25, 1859 AMOUNT
$2,000
Hereby Insures the Life of
—FRANCES S. H. MC C. MORSE—
(herein called the Insured)
And agrees to pay at its Home Office in the City of New York
Subject to loan or advance made by the Society and the Terms of Agreement on file
in connection therewith
—TWO THOUSAND— Dollars
(herein called the face amount)
to the Insured's daughter, —MIRIAM M. EVANS— beneficiary
(with the right to the Insured to change the beneficiary or assign this policy)
upon receipt of due proof of the death of the Insured, provided premiums have been
duly paid and this policy is then in force and is then surrendered properly released
This insurance is granted in consideration of the payment in advance of
$282.80 and of the payment on or before August 20th, 1932 of $8.56 and of the
payment quarterly thereafter of Twenty-five and 70/100 Dollars
upon each Twentieth day of
September, December, March and June until the death of the Insured
The Provisions of the subsequent pages hereof form a part of this contract as fully as
if recited at length over the signatures hereto affixed
This policy is executed at the Home Office of the Society in New York on its date of
issue, the Twenty-first day of September, 1929
Rewritten September 23rd, 1932. See endorsement changing beneficiary
(Italics ours.)
A comparison of the original policy with the one herein set out, shows them to be identical except as to amount, name of beneficiary, method of payment, and amount of premiums (the rate of premium per $1,000 of insurance remaining the same), excepting that portion which we have italicized therein, which did not appear in the original policy. To this new policy was attached the original application and the medical report which had been attached to the original policy; and also the above application for change.
Coincident with issuance and delivery of this policy, defendant calculated the cash value of the original policy at $590, credited the new policy with its proportionate part thereof, one-fifth of the total, or $118; and out of the balance due insured on account of the cash value of the $8,000 of insurance "given up," which was stated by defendant at the time to be $472, deducted $240.73 for premiums in arrears and premium due for the first quarter under the new policy and for four-fifths of the amount of a loan then outstanding against the original policy; and paid to insured the balance thereof in cash, $231.27. The remaining amount of said old loan, in the sum of $118, was charged as a loan against the reissued policy.
No medical examination was had at the time of this transaction, nor was any new application submitted by insured, other than the form, "Request for Change of Policy," above quoted.
Thereafter, the policy lapsed twice for nonpayment of premiums but upon each occasion was reinstated and premiums paid. Two policy loans were made on this policy after same was "reissued" as aforesaid. Insured notified defendant she could not pay premium due on December 20, 1934, and, failing to pay same within 31 days thereafter, defendant, in due time (after deducting the amount of indebtedness due thereon), placed said policy in force as nonparticipating paid-up extended term insurance in the amount of $1,774.12, which is the amount sued for, for a period of 126 days from December 20, 1934, which period expired April 25, 1935, at midnight. Insured was notified of this action and made no objection.
It is plaintiff's contention that insured's original policy, by its terms, did not become effective until she paid the first premium thereon, 41 days after the premium paying date specified therein, which was October 31, 1929, instead of September 20, 1929; that the policy as sued on was and is merely the same policy as the original policy issued except for the amount thereof; and that the paid-up extended insurance to which she was entitled began 41 days later than defendant calculated, and, therefore, did not expire until after death of insured. Defendant denies this to be the law but admits that if it is the law then plaintiff is entitled to recover.
This insurance was solicited, applied for, and delivered to insured in Missouri, and is, therefore, a Missouri contract. Johnson v. American Central Life Insurance Co., 212 Mo.App. 290, loc.cit. 306, 249 S.W. 115. It being a Missouri contract, the law of Missouri is as much a part of it as though it were written in the policy itself. Gooch v....
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