Helm v. Ben Hur Life Ass'n
| Decision Date | 24 May 1937 |
| Citation | 107 S.W.2d 844,233 Mo.App. 138 |
| Parties | WILLIE BELL HELM, RESPONDENT, v. BEN HUR LIFE ASSOCIATION, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thos. J Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
A. J Stanley and Burns & White for appellant.
(1) The court erred in not sustaining defendant's demurrer offered at the end of the evidence for the following reasons (a) Because plaintiff is bound by the contract of re-insurance and defendant's liability is limited by such contract and under such contract the certificate of insurance sued upon had lapsed before the death of the insured. (b) Because the plaintiff had not shown that under the contract of re-insurance there was any liability on the defendant. (c) Because the action is not the proper action, and if plaintiff had any action it should be for her proportionate share in the assets of the Loyal American under an accounting. Raum v. Kaltwesser, 4 Mo.App. 574; State v. Citizens State Bank, 274 Mo. 60, 202 S.W. 282; Beavers v. Farmers Bank, 177 Mo.App. 100, 163 S.W. 529; Goodman v. Regent Laundry, 196 Mo.App. 627, 190 S.W. 951; Sage v. Finney, 156 Mo.App. 30, 135 S.W. 996; Wilbur v. Wilbur (Mo. App.), 201 S.W. 387; 33 C. J. 52; Hatcher v. National Annuity, 134 S.W. 1, 153 Mo.App. 538; Roper v. Columbian Circle, 113 Kan. 280; Miller v. Columbian Circle, 113 Kan. 285; Burridge v. New York Life Insurance Company, 109 S.W. 560, 211 Mo. 158; Brann v. State Life Insurance Company, 226 S.W. 48; Wilhelm v. Prudential Insurance Company, 227 S.W. 897; Dewerthern v. Reserve Loan Life Insurance Company, 234 S.W. 1048; Casteel v. Kentucky Home Life Insurance Company, 258 Ky. 304, 79 S.W.2d 941; Lovell v. St. Louis Mutual Life Insurance Company, 111 U.S. 264; 4 Supreme Court Reporter 390. (2) The court erred in giving of Instruction No. 1 on behalf of the plaintiff for the following reasons: (a) That the instruction as written is a peremptory instruction and in effect directs a verdict for the plaintiff. (b) That the instruction erroneously bases the right to recover on failure of the defendant or the Loyal American to give notice of the merger contract. (c) Because the instruction declares that the existence of the merger agreement created absolute liability on the defendant and improperly construes the merger agreement. (d) The instruction fails to tell the jury that it must find that the benefit certificate of Mr. Cole was in full force and effect against the defendant under the terms of the merger contract and within the meaning of the merger contract. (e) The instruction omitted to require the jury to find that there was reserve enough after a revaluation of the assets of the Loyal American to have carried the certificate as extended insurance until the death of the insured. (f) Because the instruction submits a charge of intentionally withholding from the insured, information of the merger agreement and submits to the jury the question that such withholding of information caused him to rely upon the benefit certificate when there is no evidence to sustain such submission, and is broader than the petition and the evidence. (g) Because under the evidence, plaintiff was not entitled to recover, and was the wrong party. Herbert v. Mound City Boot and Shoe Company, 90 Mo.App. 305; Rissmiller v. St. Louis and H. Railway Co., 187 S.W. 573; Murdock v. Dunham, 206 S.W. 915; Rouse v. St. Paul Fire & Marine Insurance Co., 219 S.W. 688, 203 Mo.App. 603; State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 229 S.W. 1059, 287 Mo. 139; Rosenthal v. Insurance Company of North America, 158 Wisc. 550, 149 N.W. 155; Rosenberg v. General Accident Fire & Life Insurance Company, 246 S.W. 1009; Edwards v. Perpetual Insurance Company, 7 Mo. 193; Plahto v. M. & M. Insurance Company, 38 Mo. 249; Banks v. Clover Leaf Casualty Company, 233 S.W., l. c. 80; Mathiesan v. St. Louis & S. F. Railway, 219 Mo. 542, 118 S.W. 9. (3) The court erred in refusing to give defendant's Instruction "D" for the reason that the burden of proof always remains with the plaintiff on matters which are a part of plaintiff's case.
Plaintiff sued defendant on a life insurance policy. Judgment was for plaintiff and defendant appeals. Defendant, in oral argument in this court, waived all assignments of error excepting the demurrer to the evidence. Therefore, no other point will be considered in this opinion.
Sidney T. Cole, who will hereafter be known as insured, was issued a policy of life insurance as of date of September 1, 1930, by Loyal American Life Association, hereafter to be known as insurer. Plaintiff was named as beneficiary. The evidence shows that insurer, although nominally known as a fraternal company, actually did business as an old line life insurance company. It did not maintain a lodge system with ritualistic form of work, or a representative form of government, and had not done so from the time this policy was issued; nor is there any pleading or evidence that it ever was admitted as a fraternal company under the laws of Missouri; and the amount of premiums were fixed and certain, as was the benefit neither of which depended in whole or in part upon payment of similar sums by others so situated and the policy provided cash values and non-forfeiture extended insurance. Therefore, we hold the policy to be an old line policy. [Sec. 6005, R. S. Mo. 1929; Aloe v. Fid. Mut. Life Ass'n., 164 Mo. 675, l. c. 687; Nastav v. Missouri Mut. Assn., 47 S.W.2d 166, l. c. 168.] The policy was issued in Missouri to a resident of Missouri, and premiums were paid to agents in Missouri. It was, therefore, a Missouri contract and is governed by our laws. [Ragsdale v. Brotherhood of Railroad Trainmen, 80 S.W.2d 272, l. c. 278, and they are read into and incorporated in the policy, including Sec. 5741, R. S. Mo. 1929; Cravens v. New York Life Ins. Co., 148 Mo. 583, l. c. 604.] On July 14, 1934, defendant took over all of the assets and liabilities of insurer under a contract approved by the insurance departments of Illinois and Indiana, the exact terms of the contract not being material in the view we take of the case. On July 16, or thereabouts, defendant called the Kansas City district manager of insurer to its home office and told him of the merger but did not tell him of the terms thereof. It also instructed his not to tell the policy holders of insurer about the merger but to continue collecting premiums from them as usual until the defendant sent its special representative to this district to accompany insurer's district manager to call on policy holders jointly, at which time policy holders would be told of the merger and steps would be taken to transfer them to defendant company. Pursuant to said instructions, insurer's district manager called on insured on August 4, 1934, and collected the premium due on his policy for the month of August but did not tell him of the merger. On or about August 14, 1934, defendant's special representative and the district manager of insurer called on insured and told him that the assets of the insurer had been wiped out and were gone and there was nothing left and that, because of insured's impaired health, defendant would not accept him into its company. Defendant never gave insured any other notice of the merger nor did it ever offer to take him into its company, or advise him of his rights under the merger, nor tender him any return of any part of the reserve on his policy. Insured never took any steps to be transferred to defendant and never thereafter paid any premiums on the policy. He died June 30, 1935, and plaintiff immediately...
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