Hanley v. Life Ass'n of America

• Citation: 4 Mo.App. 253
• Parties: ELIZA HANLEY, Respondent, v. LIFE ASSOCIATION OF AMERICA, Appellant.
• Decision Date: 19 June 1877
• Court: Court of Appeal of Missouri (US)

4 Mo.App. 253

ELIZA HANLEY, Respondent,

v.LIFE ASSOCIATION OF AMERICA, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 19, 1877.

1. A condition of a life insurance policy that the failure to pay the premium when due shall foreit the policy may be waived by the insurer's habit of receiving premiums after they become due.

2. It is not necessary to prove an express waiver, but slight acts will be sufficient to show a waiver where the annual premium receipt remains uncancelled in the hands of the insurer, for the purpose of keeping the contract in such a condition that the power of declaring a forfeiture may be waived or not.

3. Where a waiver is shown, a recovery is not barred by reason of the fact that no tender of the premium was made after the death of the insured.

4. Where a witness for defendant, in a suit on the policy, has given his version of a conversation with plaintiff, the widow of deceased, in which she repeated what her husband told her, it is competent for her to give the whole conversation, though as a statement of deceased it is not evidence.

APPEAL from St. Louis Circuit Court.

Affirmed.

IRWIN Z. SMITH, for appellant: The custom of the defendant could not be shown to do away with the provisions of a contract.--2 Pars. on Con. 59; Atkinson v. Allen, 29 Ind. 375; Raffert v. Scroggins, 40 Ind. 195; King v. Enterprise Ins. Co., 45 Ind. 43.

PATTISON & DOOLEY, for respondent: Where the insurer does nothing, up to the time of the death of the insured, to indicate that he considers the policy lapsed or commuted, it is then too late to insist upon a forfeiture. The right of forfeiture may be considered as waived.-- Thompson v. St. Louis Life Ins. Co., 52 Mo. 469; Manhattan Life Ins. Co. v. Warwick, 20 Gratt. 620; New York Life Ins. Co. v. Statham, 93 U. S. 24, 30; Young v. Mutual Life Ins. Co., 2 Ins. L. J. 289; Ruse v. Mutual Benefit Life Ins. Co., 26 Barb. 556; Mayer v. Mutual Ins. Co., 38 Iowa, 308, 309; Miller v. Brooklyn Life Ins. Co., 2 Big. Life Ins. Cas. 35; 12 Wall. 285; May on Ins. 505; Teutonia Life Ins. Co. v. Anderson, 77 Ill. 384; Dean v. Ætna Life Ins. Co., 62 N. Y. 642; Pilkington v. National Ins. Co., 55 Mo. 172. If the company so deal with the assured as to induce a belief that the claim of forfeiture will not be insisted on, and thus put the assured off his guard, the company cannot take advantage of a default which they encouraged.--May on Ins., sec. 361; Helme v. Philadelphia Life Ins. Co.,61 Pa. St. 107; Viele v. Germania Ins. Co., 26 Iowa, 9, 54; Baker v. Union Life Ins. Co., 6 Robt. 395; Goit v. National Protection Ins. Co., 25 Barb. 189, 192; Heaton v. Manhattan Fire Ins. Co., 7 R. I. 506; Garber v. Globe Mutual Life Ins. Co., 5 Big. Life Ins. Cas. 221.

HAYDEN, J., delivered the opinion of the court.

This is an action on a policy of life insurance, admitted to have been issued by the defendant on the life of the husband of the plaintiff. The petition alleged that Hanley, in his lifetime, deposited the policy with the defendant, as security for a debt of $600, which had been fully paid, and that the policy was in the possession of the defendant; that $481 had been paid on the policy, and that the balance of $10,000, the amount of the policy, was due. The answer alleged that the $10,000 was to be paid only on the condition that the semi-annual premiums, to be paid, by the policy, on the first days of February and August in each year, were met by the respondent as they became due; that when the semi-annual premium became due on August 1, 1872, it was demanded of Hanley, and that he refused to pay it, upon which the policy became forfeited. The answer then set out a clause in the policy to the effect that, after the receipt of two or more annual premiums, the failure to pay any other premium when due should cause the policy to become a paid-up policy on a proportional basis as provided, and that the commuted policy should be subject to the same conditions, etc.; that Hanley paid five semi-annual premiums, and that, by reason of the failure to pay the then succeeding premium, due August 1, 1872, the policy became a commuted policy, to wit, for $581, subject to certain credits, etc.; that on this basis defendant had paid the policy in full. The reply set up various matters, the allegations being to the effect that the defendant waived the payment of the premiums when due, and gave Hanley time to pay them, and never claimed that the policy had become a commuted policy. The affirmative allegations of the answer were denied.

The evidence it is unnecessary to set forth in detail. It is sufficient to say that there was evidence tending to support the averments as to waiver, so that the court below could not properly have sustained the demurrer to the evidence. There was testimony tending to show that time had been given, by note or otherwise, on occasion of the payment of the previous premiums, and that the conditions of the policy had not been strictly insisted on in regard to the time of such payments; that in case of the renewal receipt for the unpaid premium due on August 1, 1872, the cashier presented it to Hanley, who said, in substance, that he was not ready to pay it; that it was retained thirty days and then turned over, with receipts regarded as uncollectible, to the book-keeper; that he never marked it off as cancelled, though it came to him for that purpose; that up to the time of Hanley's death it was not so marked off, nor until about five weeks after the death; that a conversation took place between Hanley and the book-keeper, while the renewal receipt was in the latter's possession, in the course of which Hanley, in reply to the book-keeper's question whether Hanley desired to have the policy marked off as lapsed, said that he did...