Fulton v. Kansas City Life Ins. Co.
| Decision Date | 27 January 1941 |
| Citation | 148 S.W.2d 581,236 Mo.App. 78 |
| Parties | MARY C. FULTON, RESPONDENT, v. KANSAS CITY LIFE INSURANCE COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Saline County.--Hon. Charles Lyons Judge.
AFFIRMED.
Judgment affirmed.
Johnson & Bacon and McAllister, Humphrey, Pew & Broaddus for appellant.
The trial court erred in not giving defendant's declaration of law that, under the law and the evidence in this case plaintiff was not entitled to recover for the reason the statement, contained in defendant's letter of September 27, 1932, to insured that the period of extended insurance expired December 14, 1939, was only an admission and was conclusively shown to have been a mistake, and there was no substantial evidence offered by plaintiff to sustain her plea of estoppel. Kimball v. New York Life Ins. Co., 94 Vt. 100, 108 A. 921; Duncan v. Matney, 29 Mo. 368; Bailey v. American Life Ins. Co. (Mo. App.), 96 S.W.2d 903; Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 359; Fisher v. Dry Goods Co. (Mo App.), 46 S.W.2d 902; Phillips v. Travelers Ins. Co., 288 Mo. 175, 231 S.W. 947; Ginsberg v. Eastern Life Ins. Co., 118 N.J.Eq. 223, 178 A. 378, affirmed 120 N.J.Eq. 110, 184 A. 348; Kentucky Home Life Ins. Co. v. Kittinger (Ky.), 90 S.W.2d 673; State ex inf. v. Missouri Utilities Co. , 331 Mo. 337, 53 S.W.2d 401; Sec. 5729, R. S. Mo. 1929; Blair-Baker Horse Co. v. Ky. Co. (Mo. App.), 200 S.W. 110; Kimball v. New York Life Ins. Co., 98 Vt. 192, 126 A. 553.
Lamkin James and W. T. Bellamy for respondent.
(1) This was a lawsuit, tried to the court, a jury being waived. No declarations of law were asked or given and no finding of facts was requested or made. There is substantial evidence to support the judgment and it should be affirmed. Gardner v. North Kansas City Alfalfa Mills, 61 S.W.2d 374; State ex rel. v. Trimble, 327 Mo. 773, 39 S.W.2d 372; Shutts v. Tower Grove Bank, 74 S.W.2d 489; Sawyer v. French, 290 Mo. 374, 235 S.W. 126; Bailey v. Jamestown School Dist., 77 S.W.2d 1017; Dennis v. Grand River Drain. Dist., 118 S.W.2d 113; Cave v. Mo. Ins. Co., 102 S.W.2d 755; St. Louis-San Francisco Railway Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034. (2) The defendant having notified insured that his policy of insurance would continue in force until December 14, 1939, and insured having relied and acted thereon, defendant is now estopped, after insured's death prior to December 14, 1939, to deny that the policy was not in force when he died. Hetchler v. Am. Life Ins. Co., 266 Mich. 608, 254 N.W. 221; Steele v. St. Louis Mutual Life Ins. Co., 3 Mo.App. 207; Matthews v. Mutual Life Ins. Co. of N. Y., 271 N.Y.S. 321; Knotts v. Sentinel Life Ins. Co., 228 Mo.App. 353, 67 S.W.2d 798; Crabtree v. Bankers Life Ins. Co., 128 S.W.2d 1089. (3) The facts necessary to prove plaintiff's case do not depend upon building inference upon inference. Wills v. Berberich Delivery Co. (Mo.), 134 S.W.2d 125, 129; State ex rel. v. Hostetter (Mo.), 139 S.W.2d 939, 941; American Veterinary Laboratories v. Glidden Co., 227 Mo.App. 799, 59 S.W.2d 53, 60; Kelly v. Kansas City Building & Loan Assn., 229 Mo.App. 686, 81 S.W.2d 440; Beaber v. Kurn, 231 Mo.App. 22, 91 S.W.2d 70, 77; Smith v. Western Union, 57 Mo.App. 259, 266; Allen v. Chicago, Rock Island & P. Ry. Co., 227 Mo.App. 468, 54 S.W.2d 787, 793. (4) Section 5729, R. S. Mo. 1929, prohibiting discrimination by insurance companies, constitutes no defense in this case. Landau v. New York Life Ins. Co., 199 Mo.App. 544, 203 S.W. 1003; O'Maley v. Northwestern Mutual Life Ins. Co., 231 Mo.App. 39, 95 S.W.2d 852, certiorari denied 288 U.S. 585, 81 L.Ed. 431; National Fidelity Life Ins. Co. v. Gerard, 175 Okla. 219, 52 P.2d 1; Hayes v. Travelers Ins. Co., 93 F.2d 568; New York Life v. Street (Tex. Civ. App.), 265 S.W. 397; Kaufman v. New York Life Ins. Co., 315 Pa. 34, 172 A. 306.
--This is a suit on a life insurance policy issued by the defendant upon the life of Craven E. Fulton. The plaintiff is the beneficiary. The policy was first issued November 22, 1922, on a five year term convertible plan. Near the end of that term, the insured converted the policy to a whole life policy and paid all the premiums required for that purpose. The annual premium under the whole life plan was $ 386.70, or if paid semi-annually, $ 201.08. The premiums were paid on or about due dates until the semi-annual premium, which was due in November, 1931. In making that payment, the insured, on December 26, 1931, paid in cash $ 96.08, and gave his note for the balance of $ 105, due March 23, 1932. This note was not paid when due and the policy was lapsed, but on or about May 24, 1932, insured applied for reinstatement and after proper investigation, the policy was reinstated, and all payments which were then due were made as of May 22d. The insured was notified that there was a semi-annual payment due on the premium as of May 22, 1932, and that this payment should be made on or before June 22d. That semi-annual payment was not made, and on September 30, 1932, the defendant wrote the insured the following letter:
It is admitted by the defendant that the above letter was written and mailed to insured and that he received it about October 1, 1932. There was no further correspondence between the parties and no action taken looking to reinstatement of the policy on any different basis. He died January 14, 1938.
The policy provided that, in case of default in the payment of subsequent premiums, after three annual premiums have been paid, insured would be entitled to certain surrender and loan values, paid up insurance, or extended insurance, in accordance with the number of annual premiums that have been paid, and if there was any indebtedness against the policies, this indebtedness should first be deducted. At the time of this default, and for a year or more prior thereto, the policy had been in the possession of the defendant.
The particular facts giving rise to this suit are as follows:
On or about February 23, 1931, the insured requested from the defendant a loan of $ 2,000, as provided by the terms of the policy, and within a short time, he executed his policy loan note payable to the company for that amount and deposited the policy as security and received the money on the loan. The interest on this loan was paid to November 22, 1931. When the policy was reinstated as of May 22, 1932, as above mentioned, the cash surrender or loan value was $ 2438.45. The total amount of the loan, including interest on that date, was $ 2060, thereby leaving a cash value balance in the policy of $ 378.45, which amount was sufficient to purchase extended insurance for a period of one year and 128 days from May 22, 1932, as provided in the policy. However, in August, 1932, and after the semi-annual premium was not paid as of May 22, 1932, the defendant, in calculating the then cash value of the policy and the time for which it would extend the life of the policy, made a mistake and calculated that the life of the policy would be extended to "mid-day, December 14, 1939," and entered on its records in its office the time of such extension. On September 30, 1932, the company wrote the insured the above letter, advising him of the time such policy would be extended. This mistake was not discovered until after the death of the insured and the defendant had received proof of death on blanks furnished by it. Other facts will be discussed in the opinion.
Plaintiff's petition was in the usual form for suit on a life insurance policy. Defendant's answer admitted the issuance of the policy, that plaintiff was the named beneficiary, and that insured died January 14, 1938, then alleged that in truth and fact the policy expired on September 27, 1933, by virtue of the terms thereof, and pled the facts concerning the mistake heretofore mentioned, and prayed for a reformation of its records to show the true facts, and asked to be discharged. After the cause was tried and submitted to the court, the defendant amended its answer by striking out the prayer for reformation of its records, and that question is no longer in the case.
Plaintiff's reply, after admitting certain allegations concerning the insurance policy and the terms and provisions thereof for extended insurance in case of failure to pay premiums, pled in substance that under the terms and provisions of the insurance policy and of the policy loan note, it was the duty of the defendant to notify the insured when said policy would be terminated and cancelled, if it desired to cancel it by reason of having made a loan and the failure of the insured to pay the same; that the policy was not in possession of the insured and he had no knowledge or information of the time of its...
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