Hanley v. Life Ass'n of America

• Decision Date: 30 April 1879
• Citation: 69 Mo. 380
• Parties: HANLEY v. THE LIFE ASSOCIATION OF AMERICA, Appellant.
• Court: Missouri Supreme Court

69 Mo. 380

HANLEY

v.THE LIFE ASSOCIATION OF AMERICA, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

Suit by Eliza Hanley, widow of Wm. Hanley, deceased, on a policy of insurance in the defendant company for $10,000, insuring the life of said Wm. Hanley for the term of fifty-two years. The policy was issued February 1st, 1870, and deceased died November 17th, 1872. Deceased was secretary of the defendant company during this time. The policy contained the following clause: “If, after having received two or more annual premiums, the said assured shall fail to make payment of any other premium when due, or if he shall fail to pay the interest or any lien which may exist against this policy, and in either of such cases, this policy shall, by virtue of such failure to pay, become a paid-up policy for a sum equal only to as many fifty-second parts of the sum hereby insured as there shall have been annual premiums paid; such commuted policy being subject to all the conditions, liens and liabilities of this policy.”

The company defended on the ground that the premium due August 1st, 1872, had never been paid, in consequence of which, the policy had become commuted under this clause; and that plaintiff had received the full amount due as upon a commuted policy, and had given the company a receipt in full. To this plaintiff replied that defendant had, by its course of dealing with deceased, waived the benefit of this clause and precluded itself from taking advantage of it, and that the receipt had been given by her without any intention of discharging the company, and if it was a receipt in full she had been led to sign it in ignorance and by the misrepresentations of the officers of the company.

The evidence given at the trial, tended to show that deceased had paid his premiums as follows: The first premium February 4th, 1870. The next premium was due the next August, and was paid the day before it became due. The next premium was due February 1st, 1871. He gave a note at two months for that. That note was paid April 29th, a day or two before it was due. The next premium was due August 1st, 1871. For this also he gave a note, which he paid December 5th, 1871. The next premium was due February 1st, 1872, and was paid on that date. The next premium was due August 1st, 1872, and was not paid. There was evidence to show that after that date the proper officer of the company called upon deceased for payment, and told him he could give a note for the amount, but he declined, and when reminded that his policy would have to be reported as lapsed, he replied he was aware of the rules; that at another time when informed by the assistant secretary of the company that his policy had been handed to him as lapsed, and asked if he wanted it marked off just then, he said: “Don't mark it off just now.” That in point of fact it never was marked off until after his death; that Hanley had told plaintiff he did not consider the policy lapsed; that, however, the practice of marking off policies was a mere matter of convenience in bookkeeping; that as soon as a renewal receipt for a premium was transferred to the assistant secretary it was considered by the company as canceled, and that fact was well known to Hanley as secretary of the company; and that the renewal receipt for the premium due August 1st, 1872, on his policy was so transferred to the assistant secretary.

The court instructed the jury as follows: 1. If the jury are satisfied from the evidence that it had not been the practice of the defendant to exact prompt payment of premiums when due; that it had allowed premiums to remain several days or weeks after they became due, and then accepted payment of the same, these are facts from which the jury may find that the defendant waived a literal compliance with the condition as to punctual payment. 2. If the defendant gave to William Hanley credit on the payment of the last premium, or if they extended the time of such payment, and acted in such a manner in reference to the policy as to lead said...