Head v. New York Life Ins. Company

• Decision Date: 28 March 1912
• Citation: 147 S.W. 827,241 Mo. 403
• Parties: MARY E. HEAD v. NEW YORK LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

147 S.W. 827

241 Mo. 403

MARY E. HEAD v. NEW YORK LIFE INSURANCE COMPANY, Appellant

Supreme Court of Missouri

March 28, 1912

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Lathrop Morrow, Fox & Moore for appellant.

(1) The contract of insurance involved in this controversy is a contract under and to be construed and settled in accordance with law of the State of New York. The Missouri statute has nothing to do with the case. London Assurance v Companhia de Moagens, 167 U.S. 149; Gibson v Insurance Co., 77 F. 561; Indemnity Co. v. Mfg. Co., 95 F. 111; Insurance Co. v. Dingley, 100 F. 408; Life Ass'n v. Harris, 94 Tex. 35; Story on Conflict of Laws, sec. 279a; Schwartz v. Insurance Co., 18 Minn. 448; Insurance Co. v. Phillips, 102 F. 9; Insurance Co. v. Babcock, 30 S.E. 273; Younge v. Society, 30 F. 902; Perry v. Wright, 41 A. 970; 16 Am. & Eng. Ency. Law, 855; Harrington v. Insurance Co., 58 P. 182; Insurance Co. v. Brinkley, 29 L.R.A. 712; Insurance Co. v. Hallock, 72 Am. Dec. 379. (2) The settlement of the policy after the default in 1905 was made in strict accordance with the contract of insurance as it existed under the policy loan agreement, and the policy loan agreement was not a contract entered into in Missouri or in any way affected by the Missouri statutes relating to insurance. (3) The acceptance of the policy endorsed for paid up insurance, resulting in the cancellation of the loan made in 1904, and the retention of the policy by the respondent for a period of some nine or ten months without complaint, was an accord and satisfaction as to the payment of the loan and the adjustment of the beneficiary's rights under the policy. 1 Page on Contracts, sec. 50; O'Bryan v. Kinney, 74 Mo. 125; Snider v. Express Co., 63 Mo. 376. (4) The action of the trial court in refusing to give effect to the contract between the parties, evidenced both by the contract of insurance and the policy loan agreement, was a denial of the rights of appellant as guaranteed by article 1, section 10 of the Constitution of the United States and of the Fourteenth Amendment thereto and of sections 15 and 30 of article 2 of the Constitution of Missouri. Insurance Co. v. Debolt, 16 How. 416; Los Angeles v. Water Co., 177 U.S. 575; Railroad v. Texas, 177 U.S. 66; McCullough v. Virginia, 172 U.S. 109; Havemeyer v. County, 3 Wall. 292; Chicago v. Weldon, 9 Wall. 50; Olcott v. Supervisors, 16 Wall. 678; Bank v. Board, 90 F. 7.

Botsford, Deatherage & Creason for respondent.

(1) The question of the situs of contracts in cases where the question of their validity depends upon the laws of the State where they are made does not depend upon the residence of the parties. If two citizens of Iowa and Illinois come into Missouri and buy a parcel of real estate or personal property, or make any other contract in Missouri, the contract rights of the parties are governed upon the question of the validity of the contract and its construction by the laws of Missouri, the same as if either or both lived in Missouri. Napier v. Insurance Co., 100 N.Y.S. 1072. (2) The contention of appellant's counsel that its offer to pay eighty-nine dollars to satisfy a liquidated indebtedness for which the judgment was given below for about $ 7500, and that that offer of eighty-nine dollars extinguishes plaintiff's liquidated demands, is not supported by anything in the law. 1 Cyc. 319; Wetmore v. Crouch, 150 Mo. 671. (3) The propositions of this case that the policies in suit were and are Missouri contracts and that the loan contracts of 1904 made pursuant to the provisions of the policy were not separate contracts from the policies, are amply supported. Cravens v. Insurance Co., 148 Mo. 583; Insurance Co. v. Cravens, 178 U.S. 389; Insurance Co. v. Clements, 140 U.S. 226; Whitfield v. Insurance Co., 205 U.S. 489; Smith v. Insurance Co., 173 Mo. 329; Moore v. Insurance Co., 112 Mo.App. 696; Insurance Co. v. Russell, 77 F. 94; Insurance Co. v. Twyman, 92 S.W. 335; Capp v. Insurance Co., 94 S.W. 734; Horton v. Insurance Co., 151 Mo. 604; Joyce on Ins., sec. 194; Napier v. Insurance Co., 100 N.Y.S. 1072; Burridge v. Insurance Co., 211 Mo. 158-178. Milliken v. Pratt, 125 Mass. 374; Golden v. Ebert, 52 Mo. 260; Richardson v. DeGiverville, 107 Mo. 422; Ruhe v. Buck, 124 Mo. 178; Reed v. Tel. Co., 135 Mo. 661; Elliott v. Life Assn., 163 Mo. 132; Thompson v. Insurance Co., 169 Mo. 12; Park v. Insurance Co., 26 Mo.App. 511; Clothing Co. v. Sharpe, 83 Mo.App. 385; Pietri v. Sequenot, 96 Mo. 258. (4) The claim that the endorsement of said eighty-nine dollars by appellant on said Mary E. Head policy was the same as a paid-up policy issued under section 5857, Revised Statutes 1889, cannot be sustained. Said eighty-nine dollars was not the amount due as a paid-up policy on said Mary E. Head policy, by virtue of said section 5857, but under the evidence adduced by the appellant was the amount claimed by appellant to be the entire amount due as a paid-up policy under the laws of New York. There was no new policy issued by appellant under section 5857. Appellant cannot claim under both the statutes of New York and Missouri. (5) Equally erroneous is appellant's proposition that the loan contracts of 1904 had the effect of wiping out the policy in each one of these cases. Smith v. Insurance Co., 173 Mo. 329; Burridge v. Insurance Co., 211 Mo. 158; Christensen v. Insurance Co., 152 Mo.App. 551; Bloom v. Insurance Co., 197 Mo. 513; State v. Mer. Co., 184 Mo. 185. (6) In this case, the policies having contained provisions and stipulations for the making of loans and loan contracts, the loans and loan contracts made in these cases in 1904 cannot be considered as separate loans and loan contracts. Burridge v. Insurance Co., 211 Mo. 158; Christensen v. Insurance Co., 152 Mo.App. 551. (7) Respecting the suggestion and argument of appellant's counsel, that appellant had the right to come into Missouri and make contracts in defiance of law, we submit that the right of contract is not an unlimited, unqualified one, but is always subject to the law in force at the time of making the contract. Wilson v. Drumrite, 216 Mo. 325; Villa v. Bodrigues, 12 Wall. 339; State ex rel. v. Insurance Co., 152 Mo. 1; State v. Cantwell, 179 Mo. 245; Holden v. Hardy, 169 U.S. 366; Harness v. Insurance Co., 144 Mo. 413; Havens v. Insurance Co., 123 Mo. 403; Henry v. Evans, 97 Mo. 47.

BOND, C. Graves and Ferriss, JJ., dissent. Brown, C., concurs.

OPINION

In Banc

PER CURIAM.

The following opinion by Bond, C., delivered in Division No. 1, is adopted as the opinion of the Court in Banc.

All concur except Graves and Ferriss, JJ., who dissent.

BOND C. -- Defendant is an insurance company incorporated in New York and duly licensed to do business in the State of Missouri, and for that purpose has established a branch office in Kansas City, Missouri.

Richard G. Head made an application at the Kansas City office of the defendant for two policies of ten thousand dollars each upon his life, payable to his infant son, Richard G. Head, Jr. At the time he made this application, the assured, though born in Missouri, lived on his ranch in Watrous, New Mexico, and was a citizen of that territory. He maintained business interests in Kansas City, Missouri, and was often there attending to the same. He gave the soliciting agent of the defendant a thirty day note, payable to him personally, for an amount equal to the premiums of the two policies. Thereafter the defendant transmitted from its home office to its branch office in Kansas City a policy made out in accordance with this application, dated April 3, 1894, for a twenty year accumulation period and containing the usual stipulations, which, as far as necessary, will be specially adverted to in the opinion.

After these policies had been received at its Kansas City office, they were handed over to the soliciting agent of defendant, who delivered them to Mr. Deatherage, the attorney of the assured, who placed them in his safe, where they remained until the assured returned at the date of the maturity of the note, and took up the note by drawing a draft upon the commission company in which he was a stockholder, in Kansas City, Missouri, which draft he gave to the soliciting agent in exchange for his note, and the soliciting agent turned it over to the cashier of the defendant in charge of its branch office at Kansas City. At this time the assured received his policies from Mr. Deatherage, who subsequently arranged with the company that the future premiums payable thereon might be sent by the assured from his place of residence in New Mexico. This was done in most instances, though some of the subsequent premiums were paid at Kansas City.

A few years thereafter the assured was appointed guardian of his infant son, and as such guardian and under proper authority from the court he assigned one of these policies, No. 599590 to his daughter, Mary E. Head. Thereafter, to-wit, April 3, 1904, upon application of Mary E. Head, in which the assured joined, the defendant made a loan of $ 2270, on said policy under the terms of a loan agreement, which, as far as material, will be adverted to in the opinion. The assured defaulted in the payment of premiums on said policies due April 3, 1905, whereupon certain correspondence between himself and the beneficiary, Mary E. Head, and the defendant took place with reference to the issuance of a paid up policy computed as provided by the statutes of New York. This as far as essential will be referred to in the opinion. Thereupon, the policy in suit was returned to Mary E. Head in the summer of 1905, with an endorsement thereon, that it stood as a paid up policy for eighty-nine dollars. Her father, the assured, died April 8, 1906,...