Hussey v. Ohio Nat. Life Ins. Co.

• Citation: 119 S.W.2d 455
• Decision Date: 09 September 1938
• Docket Number: No. 24419.,24419.
• Court: Missouri Court of Appeals
• Parties: HUSSEY v. OHIO NAT. LIFE INS. CO.

119 S.W.2d 455

HUSSEY v. OHIO NAT. LIFE INS. CO.

No. 24419.

St. Louis Court of Appeals. Missouri.

September 9, 1938.

Rehearing Denied September 23, 1938.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Suit by Bertha Hussey against the Ohio National Life Insurance Company to recover as beneficiary under a life policy. Judgment for plaintiff, and the defendant appeals.

Judgment reversed.

Jones, Hocker, Gladney & Jones and James C. Jones, Jr., all of St. Louis, for appellant.

Arthur Kreisman, of St. Louis, for respondent.

BECKER, Judge.

Plaintiff obtained judgment as named beneficiary in a policy of life insurance which had been issued by the Bankers Reserve Life Company to Frank N. Hussey, but was subsequently reinsured and assumed by the Ohio National Life Insurance Company, defendant herein, and defendant in due course appealed.

The case was tried without the intervention of a jury and the cause submitted to the court upon an agreed statement of facts, to which the policy and a copy of the application therefor are attached as exhibits.

The application for the policy contained the following provision:

"2. That under no circumstances shall the insurance hereby applied for be in force until the payment in cash of the first premium, and delivery of the policy to the applicant in person during his lifetime and while in good health."

The policy provides that:

"This insurance is granted in consideration of the application therefor, * * * and in further consideration of the sum of $67.05 to be paid in advance to the company on or before the delivery of this policy, and of the payment thereafter of an annual premium of a like sum on or before the 26th day of October in each year during the continuance of this policy. The first year's insurance is term insurance purchased by the whole or part of the premium to be received during the first policy year."

We quote the following from the agreed statement of facts:

"3. After the first policy year the quarterly premium on said policy was $17.78, payable on the 26th day of October, January, April and July in each year, and after the first policy year the said Frank N. Hussey paid the premiums on said policy quarterly.

* * * * * * *

"5. On July 26, 1933, the said Frank N. Hussey paid to defendant the sum of $3.00 on account of the quarterly premium of $17.78 due under said policy marked `Exhibit No. 1' hereto on July 26, 1933, and at his request the defendant extended the time for the payment of the balance of said quarterly premium amounting to the sum of $14.78 to September 26, 1933.

"6. Neither the said Frank N. Hussey nor anyone on his behalf, either on or prior to September 26, 1933, paid or tendered to the defendant the balance of said quarterly premium due July 26, 1933, and the defendant duly notified the said Frank N. Hussey that said policy had lapsed on September 26, 1933, for the nonpayment of the balance of the quarterly premium due July 26, 1933.

"7. Thereafter, and on or about October 22, 1933, the said Frank N. Hussey made written application to the defendant for the reinstatement of said policy," from which application we quote the following:

"I hereby apply for reinstatement of above policy which lapsed for nonpayment of the premium due September 26, 1933.

"It is understood and agreed that this application is made in accordance with and subject to the reinstatement * * * provision of said policy."

"8. Said application for reinstatement, marked `Exhibit No. 2' hereto, was accepted by defendant, and said policy was reinstated by defendant on October 24, 1933.

"9. At the time of its reinstatement of said policy as aforesaid, the defendant demanded of the insured the payment of the balance of the quarterly premium of $17.78 due under said policy on July 26, 1933, but the said Frank N. Hussey only paid to the defendant the further and additional sum of $3.00 on account of the balance of said quarterly premium, and upon said payment the defendant at the request of the said Frank N. Hussey extended the time for the payment of the balance of said quarterly premium due July 26, 1933, amounting to the sum of $11.78 and interest at 17 cents, to November 26, 1933.

"10. If the insured had died between the lapse of said policy on September 26, 1933, and its reinstatement on October 24, 1933, the defendant would have disclaimed any liability thereunder.

"11. On October 28, 1933, the balance of the quarterly premium due under said policy on July 26, 1933, was paid.

"12. Neither the said Frank N. Hussey nor anyone on his behalf, either on or prior to October 26, 1933, or within 31 days thereafter, the period of grace allowed by the policy for the payment of premiums, paid or tendered to the defendant the quarterly premium of $17.78 due under said policy on October 26, 1933; that the defendant thereafter agreed to accept said quarterly premium if the same was paid on or before December 18, 1933, but the same was not paid or tendered to the defendant on or prior to December 18, 1933, or at any time thereafter, either by the said Frank N. Hussey or by anyone on his behalf.

"13. The said Frank N. Hussey died on January 3, 1934.

"14. Following the death of the said Frank N. Hussey, the plaintiff furnished the defendant with proof of his death and made demand upon defendant for the payment of said policy, but the defendant declined and refused to pay said policy, claiming and assserting that it had lapsed for the nonpayment of the quarterly premium due thereunder on October 26, 1933, and was not in force at the time of the death of the said Frank N. Hussey."

In light of the agreed statement of facts the payment by defendant of $11.78 on October 28, 1933, paid the premium in full up to October 26, 1933. The quarterly premium which fell due on October 26, 1933, was not paid on or before November 27, 1933, the last of the thirty-one days' grace allowed under the terms of the policy for the payment of that...