Floyd v. Life & Casualty Ins. Co.

• Decision Date: 04 March 1941
• Docket Number: No. 25,551.,25,551.
• Citation: 148 S.W.2d 620
• Court: Missouri Court of Appeals
• Parties: FLOYD et al. v. LIFE & CASUALTY INS. CO.

148 S.W.2d 620

FLOYD et al. v. LIFE & CASUALTY INS. CO.

No. 25,551.

St. Louis Court of Appeals. Missouri.

March 4, 1941.

Rehearing Denied March 21, 1941.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Judge.

"Not to be reported in State Reports."

Action by Bertha Manns Floyd and another against the Life & Casualty Insurance Company on an industrial policy of life insurance. From a judgment for plaintiffs in the circuit court on appeal by defendant from a justice court, defendant appeals.

Reversed and remanded with directions on condition of remittitur.

Louis J. Portner, of St. Louis, for appellant.

McLemore & Witherspoon, of St. Louis, for respondents.

McCULLEN, Judge.

This suit was brought by respondents, as plaintiffs, against appellant, as defendant, in a justice of the peace court to recover on what is known as an industrial policy of life insurance. There was a judgment for plaintiffs against defendant in the justice court and defendant appealed to the St. Louis Circuit Court where a trial before the court, a jury having been waived, resulted in a judgment in favor of plaintiffs and against defendant and against Fidelity & Deposit Company of Maryland, surety, for $715.62 representing the face amount of the policy with interest, as well as damages and attorney's fees for vexatious refusal to pay. After an unavailing motion for a new trial, defendant duly appealed.

The petition of plaintiffs alleged that, on or about July 11, 1932, defendant issued its policy of life insurance upon the life of Mollie Manns and promised, upon her death, in consideration of the payments of premiums, to pay plaintiffs the sum of $385; that Mollie Manns died on the 18th of July, 1935, and at the time of her death had complied with all of the requirements of said policy; that after her death plaintiffs furnished notice and proofs of death to the defendant and demanded payment of the policy, but defendant vexatiously refused to pay.

No answer was filed by defendant either in the justice court or in the circuit court.

By stipulation of the parties, the cause was tried in the circuit court on an agreed statement of facts. On the day of the trial, defendant made a tender into the registry of the court of fifty cents, representing the last weekly premium payment which it had received.

The agreed statement of facts sets forth that defendant issued its policy of insurance on July 11, 1932, insuring the life of Mollie Manns in favor of Mildred Manns, beneficiary; that said policy of insurance was identical with a photostatic copy of a specimen policy attached to the agreed statement of facts and marked plaintiffs' exhibit A; that the principal sum of said insurance was $380, and that the premium therefor was fifty cents per week; that the insured died on July 18, 1935; that timely notice of death was given to defendant and proof of same furnished by plaintiffs and demand made for payment; that defendant refused to pay the same for the reason that the said policy was more than four calendar weeks in arrears in premium payments at the time of insured's death; that said policy provided as follows: "Period of Grace — A grace of four calendar weeks shall be granted for the payment of all weekly premiums, during which time this policy will remain in force subject to the terms hereof. After the expiration of the period of grace, all liability under this policy shall cease, except as to the nonforfeiture privileges hereinafter set out."

The agreed statement of facts states that plaintiffs' exhibits B and C, a premium receipt card and premium receipt book, respectively, are true copies of the records of premium payments on the policy in question. Said exhibits were attached to the agreed statement of facts, which states that exhibit C shows that the last premium was paid on July 13, 1935, and that this was a payment for the period ending June 10, 1935; that all of the entries of premium payments shown on exhibits B and C were made to defendant's agents who were in charge of the debit of the assured and authorized to make collections on behalf of defendant company; that the premium payment made on July 13, 1935, was made by plaintiff or some other relative of the assured; that the assured was on that day confined to bed in Chicago, Illinois, in her last illness, and that the agent who collected said premium for the defendant was not advised of this situation at the time said premium was tendered to him; neither did the agent inquire as to the health of the insured at the time the premium on July 13, 1935, was tendered and received; that the assured died in the City of Chicago, Illinois, on July 18, 1935, thereafter of said last illness; that thirty-eight calendar days elapsed between June 10, 1935 and July 18, 1935.

The agreed statement of facts further states that all exhibits referred to therein are to be considered by the court as having been introduced in evidence and made part of the record. The parties further agreed in their statement that, in the event the court should find defendant's refusal to pay had been vexatious, then the amount of attorney's fees to be allowed should be left to the court's discretion.

The policy contained the following provision: "Reinstatement — If the policy lapse for non-payment of premiums it may be reinstated upon application of assured made within one year from the date to which premiums have been duly paid and upon payment of all arrears, provided evidence of insurability of the assured satisfactory to the company be furnished, but such reinstatement shall not take effect unless at the date thereof the assured is living and in sound health."

Defendant contends that the trial court erred in giving plaintiffs' declarations of law numbered 1, 2 and 3, for the reason that the policy was not in force at the time of the insured's death because the policy expired within four weeks from June 10, 1935, and more that four weeks had elapsed from that date; and that the court erred in ruling that there had been a waiver by defendant of prompt payment of premiums because there was nothing in the case on which a waiver could be based.

In plaintiffs' declaration of law No. 1 the court declared the law to be that the prompt payment of premiums on a policy of life insurance is for the benefit of the insurance company; and that the company may waive or suspend the prompt payment of the same, and that said waiver may be express or implied, that is by it or its duly authorized agents in express terms or by its conduct or course of dealing with the insured.

Plaintiffs' declaration of law No. 2 declared the law to be that, if the defendant made a habit of knowingly accepting overdue premiums from the insured without requiring the insured to sign reinstatement applications and furnishing satisfactory proof of insurability, then said defendant had waived its requirement for prompt payment of premiums and had waived its requirements of good health of the insured and was by such conduct estopped from declaring a forfeiture of the policy after death had occurred.

Plaintiff's declaration of law No. 3 declared the law to be that if defendant, after knowledge of the lapse of the policy, received the premiums and entered them in the premium receipt book or made a habit of collecting overdue premiums, or did any act or conducted any negotiation with the insured which led or was calculated to lead the insured to believe that the defendant regarded the policy as still in force, then defendant was estopped from asserting a forfeiture after death had occurred.

Defendant argues that it was an essential part of plaintiffs' case that the policy be in force at the time of the insured's death; that the insured having died on July 18, 1935, and the weekly premiums having been paid only up to June 10, 1935, and allowing for the four weeks of grace provided for in the policy, the proof showed that the death occurred after the expiration of the four weeks' grace period at a time when the policy was not in force, and therefore the defendant was not liable under the terms of the policy. In support of this contention defendant cites Jones v. Prudential Ins. Co., 208 Mo.App. 679, 236 S.W. 429, and Shepard v. Metropolitan Life Ins. Co., 231 Mo.App. 148, 99 S.W.2d 144. We have examined the cases cited and find nothing therein to warrant us in holding that the court erred in the case at bar. In the Jones case, supra, the appellate court in its opinion declared that the fundamental question to be determined under the facts was whether the policy was what is ordinarily known as an industrial life policy or an accident policy, or a combination of both. There was no evidence whatsoever of acceptance of premiums past due, whereas, in the case at bar, the evidence shows a course of conduct by defendant in accepting, unconditionally and without objection, and retaining past due premiums, which fully warranted the court in giving the declarations of law on waiver requested by plaintiffs. There was no waiver involved in either the Jones case or the Shepard case relied on by defendant, hence they are not in point here.

Plaintiffs contend that the policy was in full force at the time of the death of the insured because the policy contained a provision that "this policy shall not take effect prior to the date of the same, nor unless the first premium shall have been paid in cash and the contract delivered and accepted during the lifetime and sound health of the assured." They argue that although the policy was dated July 11, 1932, it did not go into effect, under the above provision, until seventeen days later when the first premium was paid on July 28, 1932. Plaintiffs did not try the case in the circuit court on such theory. However, in the view which we take of this case, we think it is unnecessary to discuss this point further than to say that plaintiffs are not entitled to be heard in this court on a theory different from that on...