Garvin v. Union Mut. Life Ins. Co.
| Decision Date | 05 March 1935 |
| Citation | 79 S.W.2d 496,231 Mo.App. 904 |
| Parties | JULIA MARIE GARVIN, RESPONDENT, v. UNION MUTUAL LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of City of St. Louis.--Hon. Granville Hogan, Judge.
AFFIRMED.
Judgment affirmed.
Jones Hocker, Sullivan, Gladney & Reeder and Warren F. Drescher Jr., for appellant.
(1) An agreement between a policy holder and an insurance company by which title to the contract of insurance is transferred to the insurance company as collateral security for a loan, with provision that if at any time the amount of indebtedness should equal or exceed the value of the contract of insurance, the liability of the insurance company on the policy should terminate, is valid. Hammond v. Volunteer State Life, 170 S.E. 681 (Ga.App.); Cory v. Mass. Mutual, 170 A. 494, (R. I.); Penn. Mutual Life v. Bancroft, 93 So. 566, 207 Ala. 617, 28 A. L. R. 1103; Jones v. Mutual Life Ins. Co., 113 So. 314, 216 Ala. 437, 54 A. L. R. 1068-1070; Salvidge v. Mutual Life, 191 N.W. 862, 195 Ia. 156, 159, 161; Stevens v. Mutual Life, 125 N.E. 682, 227 N.Y. 524, 18 A. L. R. 1141, 1143, 1144; Ruane v. Manhattan Life, 186 S.W. 1188, 194 Mo.App. 214; McCall v. Int'l. Life, 193 S.W. 860, 196 Mo.App. 318; Widdecombe v. Penn Mutual, 241 S.W. 437 (Mo. App.); Davis v. Equitable Life, 275 S.W. 353 (Mo. App.). (2) The company by notifying the insured of his default under his loan agreement did not waive its right of performance of loan contract. Penn Mutual v. Bancroft, 93 S.W. 566, 207 Ala. 617, 28 A. L. R. 1102; Stevens v. Mutual Life Ins. Co., 125 N.E. 682, 227 N.Y. 524, 18 A. L. R. 1141. (3) The company by furnishing proof of death blanks to the beneficiary did not waive any of its defenses under the policy in suit, and particularly did not waive its right to claim a "forfeiture" or insist upon the performance of the loan contract, or termination of the policy contract. Loesch v. Union Ca. & Sur. Co., 176 Mo. 654, 75 S.W. 621; Allman v. Commercial Travelers, 277 Mo. (l. c. 690); Wintegerst v. Court of Honor, 185 Mo.App. (l. c. 397); Wenom v. Knights & Ladies of Security, 204 Mo.App. 547, 223 S.W. 824; Rowland v. Mo. St. Life, 48 S.W.2d 31.
John P. Griffin for respondent.
(1) The defendant is relying on a forfeiture to defeat the plaintiff's case, therefore it must be content with the rule that forfeitures are not favorites of the law and slight evidences is sufficient to defeat a forfeiture. Daniel v. Aetna Life Ins. Co. (Mo. App.), 36 S.W.2d 688, l. c. 692; Keys v. Knights & Ladies of Security, 174 Mo.App. 671, l. c. 680, 161 S.W. 345, 348; Francis v. A. O. U. W., 150 Mo.App. 347, l. c. 356, 130 S.W. 500. (a) The policy could not be forfeited after the death of the insured. McDonnell v. Hawkeye etc. Ins. Co., 64 S.W. 748 (Mo. App.). (2) Plaintiff is entitled to every favorable inference from all the evidence in her favor, and where the defendant's evidence contradicted the plaintiff's evidence it must be rejected. Bowdern v. Rowland et al. (St. L. Ct. of App.), 21 S.W.2d 899, l. c. 900; Daniel v. Aetna Life Ins. Co., 36 S.W.2d (Mo. App.) 688, l. c. 689-90; Connole v. Illinois Central R. R. Co. (Mo. App.), 21 S.W.2d 907. (3) Even if the defendant was entitled to forfeit the policy, the evidence is overwhelming that it waived same as it was customary and usual for it to do, and particularly by its general agent and manager writing the letter of November 7, 1930, to the insured calling his attention to the fact that the interest was overdue, the exact amount of same, and that there was no grace period, and preparing and requiring the plaintiff to fill out proofs of death without any claim of a forfeiture of the policy, and by its customary conduct for many years of renewing the loan after it became delinquent. O'Donnell v. Kansas City Life Ins. Co. (Mo. App.), 277 S.W. 973, l. c. 975; Certiorari quashed, waiver discussed, 276 S.W. 1020; Daniel v. Aetna Life Ins. Co. (Mo. App.), 36 S.W.2d 688, l. c. 692; Britton v. Junior Life Ins. Co., 290 S.W. 88, l. c. 89; O'Donnell v. Kansas City Life Ins. Co., 222 S.W. 920. (4) On October 15, 1930, according to the stipulation offered in evidence, the insured had almost outlived his expectancy and this being a paid-up policy there were no further conditions to be complied with but the payment by the defendant of $ 2000 at his death, therefore the forfeiture of the policy on the loan agreement for $ 1272 would allow the defendant a greater rate of interest than six per cent on its loan, therefore the loan agreement with reference to the forfeiture is usurious and void. Emig, Adm., v. Mutual Benefit Life Ins. Co., 127 Ky. 588, l. c. 596, 106 S.W. 230; Palmer v. Mutual Life Ins. Co., 121 Minn. 395, l. c. 403.
Becker, J., not sitting.
This suit was brought by respondent (plaintiff) to recover a death benefit under a policy of insurance issued by appellant (defendant) on the life of Edward L. Huthsing, plaintiff's father. Upon the trial of the cause before the court and a jury, there was a verdict for plaintiff and against defendant in the sum of $ 824.39. From the judgment rendered thereon defendant appeals.
Plaintiff's petition alleged that defendant, a Maine insurance company duly licensed to do business in this State, issued its policy of insurance No. 119809 on the life of Edward L. Huthsing, wherein it promised to pay to Mary Huthsing, wife of Edward L. Huthsing, the sum of $ 2000 in the event of the death of Edward L. Huthsing while said policy was in force; that Mary Huthsing died and that on the 4th of October, 1929, plaintiff, the insured's daughter, was named as beneficiary in the policy.
The petition alleged that the policy was issued to the insured in consideration of the payment of premiums of $ 61 per year, and that after the premiums were paid for twenty years no further premiums should be due or payable, and that said insurance would then be paid up; that the insured paid the premiums on the policy for twenty years, and in October, 1916, no further premiums were due thereon.
The petition alleged that the insured died on November 14, 1930; tha plaintiff notified defendant of the insured's death and made proof of same, but that defendant refused to pay the claim; that defendant had the policy in its possession, and, therefore, plaintiff was unable to file it with the petition.
The petition further alleged that the insured borrowed from the defendant the sum of $ 1223.26 on January 15, 1929, and forwarded to defendant, as security therefor, the policy described, and that the net interest due defendant on said loan amounted to $ 48.78, making a total of loan and interest of $ 1272.04, leaving a net balance due plaintiff on the policy of $ 727.96 for which amount plaintiff prayed judgment with interest thereon at six per cent. Plaintiff also asked for ten per cent of the amount of said claim as damages, and $ 300 as a reasonable attorney's fee because of defendant's vexatious refusal to pay the claim.
Defendant filed an answer in which it admitted the issuance of the policy; that plaintiff was the beneficiary; that the insured paid the premiums on the policy for twenty years, and that it became fully paid up on October 15, 1916. The answer also admitted that the insured borrowed from the defendant on the policy the sum of $ 1223.26 on January 15, 1929, and that the insured died on November 14, 1930. Following the above admissions, defendant's answer denied each and every other allegation in plaintiff's petition.
For further answer, the defendant alleged that on January 15, 1929, the insured requested defendant to loan him under the policy the sum of $ 1223.26, which was the amount of the loan value or reserve on the policy on that date; that the insured executed and delivered to defendant a loan agreement evidencing said loan, which was attached to the answer and marked Exhibit A. It was alleged that the insured assigned and transferred the policy to defendant in conformity with the loan agreement, whereupon the defendant loaned the insured the sum of $ 1223.26 on the policy.
The answer further alleged that it was expressly stipulated and agreed by the insured in the loan agreement that if the interest on the loan was not paid when due the defendant would apply the loan value of the policy to the payment of the interest as it became due, until such time as the full amount of the loan, with interest, should equal the then cash value of the policy, whereupon the policy should become forfeited to defendant.
It was further alleged in the answer that no interest was ever paid on the loan either by the insured or by any one for him; that the interest due on the loan on October 15, 1930, amounted to $ 61.16; that on that date there was apportioned to said policy as a dividend thereon the sum of $ 12.38 which defendant allowed and applied as a credit on the interest due under the terms of said loan agreement, and that after allowing such credit said loan, with interest thereon, on October 15, 1930, amounted to the sum of $ 1272.04; that the cash value of the policy on the last named date amounted to the sum of $ 1272 and that as the amount of said loan, with interest, on October 15, 1930, after allowing as a credit thereon the aforesaid dividend of $ 12.38, was equal to and in excess of the cash value of the policy on that date, the policy, in conformity with the loan agreement, was forfeited to the defendant company on that date and was not in force on November 14, 1930, the date of the death of the insured.
Plaintiff filed a reply in which she denied each and every allegation in defendant's answer, and for further reply alleged that the policy issued...
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