Gibson v. Texas Prud. Ins. Co.

• Decision Date: 07 October 1935
• Docket Number: No. 5536.,5536.
• Citation: 86 S.W.2d 400
• Parties: ANNA E. GIBSON, RESPONDENT, v. TEXAS PRUDENTIAL INSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

86 S.W.2d 400

ANNA E. GIBSON, RESPONDENT, v. TEXAS PRUDENTIAL INSURANCE COMPANY, APPELLANT.

No. 5536.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court of Greene County. — Hon. Warren L. White, Judge.

REVERSED.

Levy & Levy and Mann, Mann & Miller for appellant.

While generally in a suit upon an insurance policy, where the defense is that the policy lapsed for nonpayment of premiums subsequent to the first premium, the burden of proving nonpayment of premium rests upon defendant, yet, the burden of proving the payment of all premiums keeping the policy in force to the date of death may be assumed by plaintiff and where plaintiff assumes that burden, she must, in order to recover, fully discharge this burden by proving payment of all premiums. Conduitt v. Trenton G. & E. Co., 31 S.W. (2d) 21, 25; Carpenter v. Burmeister, 217 Mo. App. 104, 273 S.W. 418. The case must be tried in the appellate court upon the theory below. Pinnell v. St. Louis-S.F.R. Co., 263 S.W. 182, 186; Degonia v. St. Louis, I.M. & S.R. Co., 224 Mo. 564, 588; O'Hara v. Laclede G.L. Co., 244 Mo. 395, 403. Life insurance is a cash business and premiums are payable only in money. Hoffman v. J. Hancock M.L.I. Co., 92 U.S. 161, 23 L. Ed. 539, 541. A soliciting agent of an insurance company whose authority is limited to the solicitation for and delivery of policies and the collection of premiums, as distinguished from a general agent, has no power to waive any condition of the insurance policy subsequent to its delivery. 32 Corpus Juris, p. 1065, Sec. 142, p. 1067, Sec. 145. An agreement to accept part or all of a premium in merchandise would be in violation of the statute prohibiting rebates. Secs. 5729, 5730, R.S., 1929. The burden of proof rests upon plaintiff to show that the act of an agent is within his express authority or within that which is fairly implied by the authority given. 2 C.J. p. 926, Sec. 669; Johnson v. Hurley, 115 Mo. 513, 519.

Fred W. Carden and Haymes & Dickey for respondent.

The defendant must plead, and did plead, the defense of nonpayment of premiums which is an affirmative defense, and the burden of proving such nonpayment is upon defendant. Gibson v. Insurance Co., 181 Mo. App. 302; Harris v. Insurance Co., 248 Mo. 304. The fact that plaintiff, after making a prima facie case, introduced additional evidence to show payment of premiums is merely anticipatory of defendant's pleaded defense and does not change burden of proof. The burden is a continuing one throughout the trial. Hay v. Bankers' Life Co., 207 Mo. App. 277; Waters v. Bankers' Life, 50 S.W. (2d) 183. Crone solicited the insurance, signed the application, admittedly collected the first quarterly premium, and was instructed by defendant company to collect future premiums. He was the alter ego of defendant company. Section 5733, R.S. Mo. 1929; Madsen v. Prudential Ins. Co. of America, 185 S.W. 1168. The policy would be valid and remain in force even though the agent collected nothing but gave insured credit. Joyce on Insurance, Sec. 1141; Homestead Fire v. Ison, 65 S.E. 463; Cooley's Briefs, Vol. I, pp. 481-484.

SMITH, J.

This case comes to the writer on reassignment. The suit is based upon a life insurance policy issued by the defendant, upon the life of Harry E. Gibson, now deceased, who was the husband of the plaintiff.

There is no controversy here, over the pleadings. The petition is formal, alleging that the policy was issued for one thousand dollars, upon the life of Harry E. Gibson on the 19th day of February, 1932, and that on or about that date, in consideration of the sum of $3.71 "to it paid as the first quarter annual premium due thereon" the defendant executed and delivered to Harry E. Gibson the policy of insurance involved in this suit, in which the plaintiff was named beneficiary.

The petition alleged the payment of the first quarter annual premium of $3.71 and the delivery of the policy to Harry E. Gibson, and that he thereafter performed and fully complied with the terms of said policy, and that the plaintiff has performed all the obligations required of her by said policy.

The petition alleged that while said policy was in full force and effect the said Harry E. Gibson was killed in an automobile accident, on the 12th day of March, 1933; that plaintiff notified defendant of the death of Harry Edward Gibson and requested proper forms for the making of proof of death and presentation of her claim under said policy, but that the defendant failed and refused to furnish said proper forms and declared that said policy was not in force at the time of said death and that such failure and refusal and such declaration on the part of the defendant was on the 5th day of April, 1933. Plaintiff states that by reason of all the above, the defendant became liable to her under said policy in the sum of $1,000; that it has paid her nothing at all; that defendant has without just cause or excuse failed and refused and still fails and refuses to pay her the amount due under said policy; that defendant's failure to pay her the amount due under said policy is and was willful and vexatious and without any just or legitimate cause or excuse; that the plaintiff was compelled to and has employed an attorney to bring and prosecute this suit to collect the amount due her under said policy and has agreed to pay said attorney a reasonable fee for his service herein.

The petition closed with a prayer for judgment for $1,000, with interest thereon at the rate of six per cent per annum, from the 5th day of April, 1933, and for damages of $100 for vexatious failure and refusal to pay said policy and for a reasonable attorney's fee.

The answer, caption and signature omitted, is as follows:

"Comes now defendant and for its answer to plaintiff's petition herein:

"Admits that on or about the 19th day of February, 1932, it executed its policy of insurance No. 22158 in the sum of one thousand ($1,000) dollars, upon the life of Harry Edward Gibson, the same being the policy of insurance filed with and made a part of plaintiff's petition.

"Admits that said policy provided that it was issued in consideration of a quarterly premium of three and 71/100 ($3.71) dollars and that the first quarterly premium of three and 71/100 ($3.71) dollars, keeping said policy in force for a term of three months from the date thereof, was paid.

"Denies that the said Harry Edward Gibson fully performed and complied with the terms and conditions of said policy and that the said policy was in force at the time of the death of the said Harry Edward Gibson on the 12th day of March, 1933, or that there was any existing policy or contract of insurance executed by this defendant on the life of the said Harry Edward Gibson at the time of his death.

"Alleges that under the terms of the policy of insurance aforesaid and the application therefor it was, among other things, provided that:

"`This insurance is granted in consideration of the payment of three and 71/100 ($3.71) dollars, the receipt of which is hereby acknowledged and the voluntary payment of a like sum in advance on or before the 19th day of each February, May, August and November during the continuance of this policy, and in consideration of the application for this policy, which is hereby made a part of this contract.'

"That it was further provided in said policy:

"`All premiums are payable at the Company's Home Office in Galveston, Texas. The Company may designate a collector to receive them elsewhere on or before the due dates, but no person is authorized to receive any premium on behalf of the Company, except in exchange for regular receipt signed by its President, Vice-President or Secretary, and countersigned by the designated collector. No notice of a premium, and no acceptance of a premium after maturity or elsewhere than at its Home Office (and then only by one of the above-named officers), is to be deemed a precedent or a waiver of any provision of this Contract, no matter how often repeated.

"`Except as herein otherwise provided, this Policy shall lapse in event of non-payment of any premium or installment thereof.'

"Alleges that the said Harry Edward Gibson paid the first quarterly premium of three and 71/100 ($3.71) dollars at the time of making application for said policy and before delivery thereof; that no premium, after the first quarterly premium, was ever paid by or on behalf of the said Harry Edward Gibson, on said policy; that the second quarterly premium was due and payable under the terms of said policy long prior to the death of the said Harry Edward Gibson and that upon the failure to pay said second quarterly premium and because of said failure, said policy lapsed, according to its terms aforesaid and was therefore not in force as a binding contract of insurance upon this defendant at the time of the death of the said Harry Edward Gibson.

"Denies each and every other allegation in plaintiff's petition contained and having fully answered, prays to be discharged with its costs."

The record shows no reply to the answer was filed, but the case was tried as if the reply was filed.

The case was first tried to a jury on October 27, 1933, at which time the jury was unable to agree upon a verdict, and the cause was continued to the next term of court. A trial was had at the March Term, 1934, and the jury returned a verdict for the plaintiff, in the sum of $1,054.67, and judgment was entered accordingly. Motion for new trial was filed and overruled, and the case was appealed to this court. After argument the case was passed upon by this court. A motion for rehearing was sustained and there was a reargument, and the case is again for consideration.

Several assignments of error are set out in the appellant's brief, but they really may be considered under two heads, viz.: that there is error in failing to sustain the demurrer to the evidence, and error in giving...