Hartwig v. Security Mutual Life Insurance Co.

• Citation: 151 S.W. 477,167 Mo.App. 128
• Parties: ELIZABETH HARTWIG et al., Respondents, v. SECURITY MUTUAL LIFE INSURANCE COMPANY, Appellant
• Decision Date: 25 November 1912
• Court: Court of Appeals of Kansas

151 S.W. 477

167 Mo.App. 128

ELIZABETH HARTWIG et al., Respondents, v. SECURITY MUTUAL LIFE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 25, 1912

Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.

AFFIRMED.

Judgment affirmed.

H. D Hinman and Sparrow, Page & Rea for appellant.

Busby Bros. & Withers for respondents.

OPINION

ELLISON, J.

--Plaintiffs are the widow and children of John Hartwig, and they instituted this action on a policy of life insurance issued on the 21st of August, 1891, on the life of Hartwig who died in September, 1910. He was to pay premiums semi-annually and he did so up to and including that for the first half of the year, 1906. He failed on the last half of that year, due in August, and the defendant for that reason thereafter declared his policy forfeited and of no further force. He felt that the forfeiture was wrongful, for he insisted there was a custom under which defendant had permitted him, at past times, to pay premiums a few days after they were due, and by such conduct had led him to believe that no serious result would follow the delay in the instance referred to. On the idea that the custom allowed him to delay payment, he based his contention that the policy had been wrongfully forfeited, and realizing that by the forfeiture his insurance was cut off and yet defendant had retained the premiums which he had been paying for about fifteen years, he shortly thereafter brought his action against defendant for damages, being the premiums and interest on each from the time it was paid. He was defeated at the trial and did not appeal.

After Hartwig's death in September, 1910, the present action was begun, as already stated. There was a judgment for plaintiffs in the trial court and defendant has brought the case here.

The theory upon which the action was instituted is based on the statute (Sec. 5886, R. S. 1889), which provides that a life insurance policy shall not be forfeited after the payment of two annual premiums, but its net value shall be computed on the American mortality tables and the amount, less any note or other debt owing to the insurance company on account of premiums, shall be taken as a net single premium for temporary or extended insurance for a length of time to be ascertained by calculation on the mortality tables. Such calculation, considering Hartwig's age, extended his policy to a date beyond the time he lived. In other words, the policy, by force of the statute, was in force at the date of his death.

Defendant presents four defenses: First, that the policy, by its own terms, was forfeited absolutely by defaulting in the premium; second, that the suit for damages which Hartwig instituted, with the judgment in defendant's favor, became res adjudicata and barred the present action; third, that by the institution of that action Hartwig made an election of his remedy, and he cannot now try another; fourth, that he abandoned his contract.

The second and third are all that require serious attention. Res adjudicata, in general terms, means the thing has been once adjudicated. The action here interposed as a former adjudication was based upon an alleged wrongful forfeiture of a life insurance policy, whereby the insured was damaged in the amount of the premiums he had paid, with interest thereon, while this action is by the widow and children of the plaintiff in that case and has for its object a recovery of the amount of the policy. In the former case the cause stated was to recover premiums and nothing on the policy and the issue was whether defendant had not waived a payment of premium and therefore illegally forfeited the policy. This case seeks to recover the whole amount of the policy, and no premiums, and the right to so recover was not necessarily involved in the former action. This case depends upon the policy being kept alive by the statute of extended insurance. The two causes of action are in no sense the same. "When the very cause of action once decided is again brought forward in a subsequent suit between the parties, the judgment in the first action is conclusive and constitutes a perfect bar to the prosecution of the second, as to all matters which might have been litigated therein; whether in point of fact they were or not; for no one ought to be twice vexed about the same dispute or claim. . . . But the judgment in the first case enjoys no such prerogative if the second action is for a different cause of action from that contested is the first one; this is the distinction to be always seized as vital to the right determination of pleas of res judicata, and it will clear up a great deal of the confusion in the multitudinous decisions on the subject. In the second class of cases the judgment only concludes the parties as to points actually determined; that is, as to issues tendered or joined by the pleadings and decided; not those which might properly have been but were not; for the rights of parties ought not to be construed away." [Barkhoefer v. Barkhoefer, 93 Mo.App. 373, 67 S.W. 674; Dickey v. Heim, 48 Mo.App. 114.] A part of the record in the former case was introduced in evidence in this, but it does not prove, nor tend to prove, that this policy did or did not come within the statute of extended insurance. A plausible argument was made by defendant to show that the issue here was found in the other case. But "it is not enough that it may be argumentatively inferred from the judgment that the point was involved in the former case." [Dickey v. Heim, supra.] The rule does not extend to points incidentally or collaterally considered. [Ridgley v. Stillwell, 27 Mo. 128.]

It is next insisted that plaintiffs' present action is barred by the former action, under the rule as to election of remedies. It is said that Hartwig concluded to consider the policy cancelled by defendant's wrongful conduct, and elected to sue for the premiums he had paid. There are several reasons why the rule cannot be allowed application in this case. An election or choice necessarily presupposes two or more things out of which a choice is to be made. There must,...