Goedecke v. Metropolitan Life Ins. Co.

• Decision Date: 24 April 1888
• Parties: WILLIAM GOEDECKE, Guardian, etc., Respondent, v. THE METROPOLITAN LIFE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 601

WILLIAM GOEDECKE, Guardian, etc., Respondent, v. THE METROPOLITAN LIFE INSURANCE COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the St. Louis Circuit Court, HON. DANIEL DILLON, Judge.

Affirmed.

REYNOLDS & LEWIS, for the appellant: There was nothing said or done by the agents of the defendant to induce plaintiff to believe that a forfeiture would not be insisted on. There was no waiver in this case at any time. Bergmann v. Ins Co., 2 Mo.App. 262. The breach of conditions of a contract are never considered waived unless intended, or unless the party against whom waiver is set up has so acted as to mislead the other party to his prejudice, thereby working an equitable estoppel. Diehl v. Ins. Co., 58 Pa.St. 443. " Though a life insurance company had been accustomed to give notice when the premium was due, yet a failure to give such notice furnished no ground for claiming relief from a forfeiture for non-payment of the premiums." Gaterman v. Ins. Co., 1 Mo.App. 300. Payment was a condition precedent to a continuance of the policies, and there is no testimony of any agreement or custom amounting to an agreement that the policies would not be forfeited. Hanel v. Ins. Co., 44 N.Y 276. The notice at the bottom of the policy, when accepted by the insured, became part of the policy, and plaintiff will be held bound by it as well as other conditions or recitals therein. Railroad v. Levy, 17 Mo.App. 501.

MUENCH & CLINE, for the respondent: The right to forfeit a policy of insurance may be waived as stated in the instruction in the manner as set forth therein. Thompson v. Ins. Co., 52 Mo. 469; Harley v. Life Association, 69 Mo. 380; Hawthorne v. Ins. Co., 5 Mo.App. 77; Hayward v. Ins. Co., 52 Mo. 187.

OPINION

THOMPSON J.

This action is brought by the plaintiff as the guardian of six minor children of William Dille, deceased, upon two policies of life insurance, insuring the life of Dille. There were two defences: (1) That Dille died by his own hand. This was abandoned under the statute and need not be further considered. (2) That the premiums, which were payable weekly were more than four weeks in default, whereby, under the terms of the policy, the policy had become forfeited; that, after the policy had become so forfeited and after the death of Dille, a person not named (who afterwards turned out to be the plaintiff in this action) tendered to the agent of the defendant the premiums which were in arrears, falsely and fraudulently representing that Dille was alive and in good health, which premiums were received on the faith of such representation; and further alleging that the revival application was never approved at the home office of the defendant in New York, as is required by the terms of the policies. To this answer the plaintiff filed a reply which, so far as material to be considered, set up that, ever since the issuing of the policies and up to the time of the death of the assured, the defendant represented to him and caused him to believe that the defendant would regularly send to him one of its agents for the collection of the weekly premiums; that further to induce the deceased to rely upon such representations the defendant did send its agent for the collection of the weekly premiums until the twenty-first day of February, 1887, from and after which time the assured, as the defendant well knew, was unable to bring or to send his weekly dues to the defendant's agent, or to its superintendent or home office, but had reason to believe, and did believe, that the defendant would send for said premiums; that, from and after the twenty-first of February, 1887, the defendant failed further to send any agent for the collection of the premiums, and the plaintiff, then acting in behalf of Dille, did nevertheless search out an agent of the defendant in this city, and did at once, to-wit, on the twenty-ninth of March, 1887, pay to said agent, in behalf of defendant, seven weekly premiums or dues (being one week more than was then payable) upon said policy; that said payment was made without any representation made or warranty required whatever, as to the health or condition of the assured; and that the sum so paid was received by the defendant as the premiums upon said policies, and has ever since been retained and used by it. Wherefore the plaintiff says that the said payment of premiums has been fully ratified, and that the defendant has waived, and should now be estopped from asserting any forfeiture of said policies by reason of any alleged delay in making the payment of the weekly premiums.

The evidence at the trial showed that the policies were made in pursuance of a scheme of life insurance called " industrial life insurance" , under which scheme the premiums, amounting to very small items (in this case but fifteen cents) were payable weekly; that the defendant has some fifty thousand policy-holders in St. Louis; that it is the practice of the company to send its collectors weekly to the houses of its policy-holders to collect these small sums, to save them from the delay and expense of going to the company's office, to pay them; that the company is able to do this with less expense than would be entailed upon the policy-holders from the fact that many of its policy-holders reside in a single neighborhood, and can, therefore, be visited by its collectors in a short time. The evidence further tended to show that Dille, the assured, on the eighteenth of January, 1887, killed his wife, and also attempted to cut his own throat, but only succeeded in severing his windpipe, so that his wound was not immediately fatal; that he was thereafter taken, first to the hospital, and, on sufficiently recovering, to the jail, where, after his wound had healed, he died, on the morning of March 26, 1887, from gangrene of the lungs, produced by the blood passing down into the lungs before his wound had healed. The plaintiff also gave evidence tending to show that, after Dille had thus killed his wife and wounded himself, the plaintiff's wife went to the office of the defendant, paid the premiums down to the twenty-first of February, took with her the premium receipt book, and requested the agent to note the change in the street and number at which their collector should thereafter call for premiums, which the agent did, promising her that she would not have " any further trouble after this" , but that their collector would call at the new number, which was her house. The defendant's collector never called upon her for the purpose of collecting the premiums, although, testifying as a witness, he admitted that he had called at that street and number, but claimed that it was to see a man named William or Williams.

The plaintiff's testimony tended to show that the plaintiff and his wife, as well as the little daughter of the deceased understood the circumstances attending Dille's life insurance; that the plaintiff was the brother of Mrs. Dille; and that, after the unfortunate occurrence of January 18, 1887, the six children of Dille were taken to the plaintiff's house; that the plaintiff and his wife fully intended to keep the policies of insurance alive; and that, for this purpose, the plaintiff went once himself to pay the premiums, but was unable to find the office; so that more than four weeks elapsed and the policy, according to its letter, became forfeited prior to the death of Dille. The policy having thus, by its terms, lapsed unless there is a waiver or estoppel created by the circumstance of the agent not calling to collect the premiums, the plaintiff, on the twenty-eighth of March, 1887, after Dille had died in the jail, went to the defendant's office and paid the premiums which were in arrears, $1.75. On the following day he again went to the defendant's office and notified them of the death of Dille, whereupon they tendered back to him the $1.75, which he refused to receive. Although the plaintiff endeavored to shuffle around that fact, the evidence clearly showed, we think, that, at the time when he paid the arrears of...