Girvin v. Metropolitan Life Ins. Co., 5513.

• Decision Date: 27 June 1935
• Docket Number: No. 5513.,5513.
• Citation: 84 S.W.2d 644
• Parties: GIRVIN v. METROPOLITAN LIFE INS CO.
• Court: Missouri Court of Appeals

84 S.W.2d 644

GIRVIN v. METROPOLITAN LIFE INS CO.

No. 5513.

Springfield Court of Appeals. Missouri.

June 27, 1935.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Suit by Julia Girvin against Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

See, also (Mo. App.) 75 S.W.(2d) 596.

Oliver & Oliver of Cape Girardeau, for appellant.

Ward & Reeves, of Caruthersville, for respondent.

BAILEY, Judge.

This is a suit on an insurance policy issued upon the life of Walter W. Girvin, deceased, by the beneficiary named in the policy, Julia Girvin, the wife of the insured. The cause originated in New Madrid county, but was transferred to the circuit court of Dunklin county on an application for change of venue. The amount claimed to be due in the petition is the face of the policy, to wit, $3,000, less the amount of a loan against the policy amounting to approximately $500.

The petition is in conventional form based upon defendant's policy dated November 21, 1922, and alleges that the insured died on the ____ day of February 1933; that "up to the time of his death all premiums on said policy were duly paid."

Defendant, in its answer, denied generally all the allegations of the petition, and further pleaded that the policy had lapsed for nonpayment of the annual premium due on November 21, 1929, and continued lapsed until the death of said Walter Girvin; that said policy was not in force at the time of the death of the insured and that it had no value except the sum of $78; that said Walter Girvin breached said policy contract by the nonpayment of the annual premiums due on November 21, 1929, and thereafter; that the insured had borrowed from defendant the sum of $523.73 against the policy and that the net value of the policy at the time it lapsed was $22.27; that this sum, together with the dividend of $26.34, due on that date, would purchase insurance in the sum of $78 under the terms of the policy, which amount had been tendered to plaintiff and had been refused; and that defendant again tendered that sum to plaintiff. The reply was a general denial. The trial was to a jury and resulted in a verdict and judgment in favor of plaintiff in the sum of $2,409.37, from which judgment defendant has appealed.

In its assignment of errors defendant asserts that since plaintiff pleaded affirmatively that the premiums on this policy were all paid at the time of insured's death, the burden was cast upon her to prove such allegation, and since she offered no proof in support thereof she was not entitled to recover. The only authority cited in support of that contention is Adams v. Metropolitan Life Ins. Co., 74 S.W.(2d) 899, a decision by this court. We do not find that question was passed upon in the Adams Case. The Supreme Court of this state has, however, settled any question in regard thereto against defendant's contention. In the case of Smith v. Ohio Millers' Mut. Fire Ins. Co., 330 Mo. 236, loc. cit. 246, 49 S. W.(2d) 42, 45, it is held in fire insurance cases as well as in life insurance cases that an "allegation in the petition that plaintiffs paid the premium was unnecessary. It was surplusage, for without such allegation the petition stated a cause of action. [Citing authority.] In its answer defendant pleaded failure of consideration, in that plaintiffs did not pay the premium. It was proper to do so, for the defense was affirmative, and the burden was not on plaintiff to prove payment of the premium, but on defendant to prove nonpayment." In its brief defendant asserts that the rule in this state, as to what is required of plaintiff to make out a prima facie case, is wrong. We shall not discuss that question. If it is wrong in an insurance case, then it is for the Supreme Court or the Legislature to change the rule; but it is not within our powers.

At the close of the whole case defendant offered an instruction in the nature of a demurrer to the evidence, which was overruled. In its assignment of errors defendant does not specifically assign this action as error, but does state that "the verdict is inherently wrong. It takes from defendant and gives to plaintiff that which is obviously not hers; it permits a jury, swayed by sympathy, prejudice and passion, to wrongfully take from defendant and give to this plaintiff that for which neither she nor her husband paid." It is further charged that the verdict is without any evidence to support it and is in the teeth of the undisputed documentary evidence. We shall construe these assignments as raising the question as to whether or not the trial court erred in refusing defendant's instruction in the nature of a demurrer.

Plaintiff to maintain the issues on her part offered in evidence the insurance policy in question, proved the death of the insured and that she was the beneficiary named in the policy; also, that due proof and notice had been made and given and that payment of the policy had been refused. Under all the authorities in this state this evidence was sufficient to make a prima facie case for plaintiff. Rasch v. Bankers' Life Ins. Co. (Mo. App.) 201 S. W. 919; Harris v. Security Life Ins. Co., 248 Mo. 304, loc. cit. 318, 154 S. W. 68, Ann. Cas. 1914C, 648. The burden of proving the defense of nonpayment of premiums and lapse of the policy was therefore cast upon defendant. Girvin v. Metropolitan Life Ins. Co. (Mo. App.) 75 S.W.(2d) 596, loc. cit. 597.

The evidence offered in support of the defense that the policy in question had lapsed for failure to pay certain premiums is about the same as was produced in the case of Girvin v. Metropolitan Life Ins. Co., supra, a suit between the same parties but on a different policy. It is urged, however, that the evidence in this case is much stronger than in the case above referred to. To this we will agree in so far as the parol evidence is concerned. Defendant's agent who sold the policy in question to deceased, and who collected the premiums for the years 1922, 1923, and 1924, testified in effect that Girvin, the insured, paid no premiums to him in cash after those years, but that he assisted him in procuring a loan upon the policy from defendant for the purpose of paying the annual premiums due thereon including the year 1927; that after 1927 he had no authority to collect the premiums on the policy for the reason Girvin had moved from Caruthersville to Portageville, which was out of his territory, and he had no knowledge as to whether or not any premiums were paid after 1927.

Gertrude Budd testified that she was cashier of the Poplar Bluff office of defendant and had been connected with that office for fifteen years; that as such cashier she received the collections of the agents in that district, which included Caruthersville and Portageville; that she kept a record of what money was paid into the office by Walter Girvin on the policy in question; that the premiums were paid in cash for the years 1922, 1923, and 1924; that the premiums were paid after that date by loan; that the record shows the premiums were paid for the years 1925, 1926, 1927, and 1928; that the record does not show any premiums were paid after 1928. This record was not introduced in evidence.

There was further evidence to the effect that defendant collected the premiums due on its policies in this district...