Johnson v. Hartford Insurance Company

• Decision Date: 16 July 1917
• Citation: 197 S.W. 132,271 Mo. 562
• Parties: NANNIE M. JOHNSON v. HARTFORD INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

197 S.W. 132

271 Mo. 562

NANNIE M. JOHNSON v. HARTFORD INSURANCE COMPANY, Appellant

Supreme Court of Missouri, Second Division

July 16, 1917

Appeal from Henry Circuit Court. -- Hon. C. A. Denton, Judge.

Affirmed.

Jones Jones, Hocker & Davis, Wash Adams and Lewis Sperry for appellant.

(1) There is no evidence tending to show that there was any excess in the safety fund, and it was error to permit the jury to find that there was an excess in such fund. The reports to the Insurance Department should have been excluded. Janssen v. Stone, 60 Mo.App. 402; Schwartz v. Frank, 183 Mo. 447. (2) There is no evidence tending to show that there was any excess in the mortuary fund, and it was error to permit the jury to find that there was an excess in such fund. Crossman v Assn., 9 N.E. 753; McGowan v. Int. Council, 76 Hun, 534; Smith v. Cor. Mut., 16 Tex. Civ. App. 593. (3) There is no evidence tending to show what was Dr Johnson's share of the assumed excess in the safety fund and mortuary fund, and it was error to permit the jury to find that his share of this supposed excess "was sufficient to pay the amount of the premium due" by Dr. Johnson. Dresser v. Hartford Life, 80 Conn. 681; Crossman v. Mass. Ben., 9 N.E. 753; McGowan v. Sup. Council, 76 Hun, 534; Smith v. Cor. Mut., 16 Tex. Civ. App. 593; Rosenberger v. Washington Co., 87 Pa. St. 207; White v. Ins. Co., 93 Mo.App. 282; Newcomb v. Jones, 37 Mo.App. 475; 2 Wigmore, Ev., p. 1228, sec. 1058; Sands v. Boutwell, 26 N.Y. 233; White v. Ross, 4 Ab. App. 289; White v. Coventry, 29 Barb. 305. (4) Instruction No. 1 is erroneous, conflicting and misleading, in that it authorizes the jury to find that "there was a sum of money in excess of $ 1,000,000 in the safety fund. . . . and a surplus in the mortuary fund" and that "Dr. Johnson's share in such excess, if any, was sufficient to pay the amount of the premium due." (5) Instruction No. 2 is erroneous in that it put upon the defendant the burden of showing that it was "necessary" for defendant to levy Call 95 and to show that such call or assessment "was made by the directors of the defendant" and to show that said call "was not for a larger amount than was necessary to pay the death losses which had accrued up to that time," and that such call was not for a larger amount than was necessary "after giving Dr. Johnson credit for his pro rata share of the excess in the safety fund and mortuary fund, if any," and because there is no evidence from which the jury could find that the assessment was for a larger amount than was necessary and no evidence from which they could find what was Dr. Johnson's share of the supposed excess in either the safety fund or mortuary fund. (6) Instruction 3 is erroneous in that (a) it makes the defendant liable if the jury shall find that "there was in the hands of the defendant a mortuary fund which had been collected from previous assessments," because necessarily such fund was, in the main, the result of previous assessments and the creation and maintenance of such mortuary fund was the defendant's duty under the contract, and (b) said instruction makes it the duty of the defendant to entirely use up said mortuary fund before it could lawfully levy the assessment or call in question. Said instruction is also erroneous in that it submits no facts for the jury to find, but merely generalities or conclusions. Fee v. National Assn., 110 Iowa 275; Assn. v. Birnbaum, 116 Pa. St. 565; Niblack, Ben. So., sec. 280; Miles v. Mut. Res., 108 Wis. 421; Mee v. Assn., 69 Minn. 210, 212; Van Frank v. Assn., 158 Ill. 565; 2 Cooley's Briefs Ins., p. 1027; Felver v. Railroad, 216 Mo. 195; Ascher v. Schaeper, 25 Mo.App. 1; Gerrans v. Mfg. Co., 51 Mo.App. 618; Glick v. Railroad, 57 Mo.App. 97; Bates v. Railroad, 98 Mo.App. 330; Furber v. Bolt Co., 185 Mo. 302; Stokes v. Burns, 132 Mo. 214; Holland v. Vinson, 124 Mo.App. 417; Kennedy v. Railroad, 128 Mo.App. 299; Turner v. Snyder, 139 Mo.App. 656. (7) The amount of the safety fund or mortuary fund is no factor in determining the validity of Call 95. (8) There was an abandonment of the contract by the insured and acquiescence in the asserted forfeiture. Ryan v. Assn., 96 F. 796; Mutual Life v. Phinney, 178 U.S. 327; Mutual Life v. Sears, 178 U.S. 345; Mutual Life v. Hill, 178 U.S. 347; Mutual Life v. Allen, 178 U.S. 351; Jones v. Ins. Co., 28 Ins. L. J. 834; Haydel v. Assn., 98 F. 200; Smith v. Ins. Co., 63 F. 769; McDonald v. Grand Lodge, 21 Ky. L. 883; Lane v. Ins. Co., 33 Wash. 57; Lavin v. A. O. U. W., 112 Mo.App. 1; Glardon v. Sup. Lodge, 50 Mo.App. 45; Miller v. Grand Lodge, 72 Mo.App. 499; Bange v. Supreme Council, 128 Mo.App. 461; McGeehan v. Insurance Co., 131 Mo.App. 417; Robinson v. Mutual Reserve, 182 F. 860.

Parks & Son and Fyke & Snyder for respondent.

(1) The evidence clearly shows and the jury, under proper instructions, found, that no legal assessment had been made upon deceased. The appellant, to enforce a forfeiture has cast upon it the burden of showing a legal and proper assessment. King v. Ins. Co., 133 Mo.App. 612; Earney v. Modern Woodmen, 79 Mo.App. 305; Agnew v. A. & W. W., 17 Mo.App. 254; Pushman v. Annuity Co., 92 Mo.App. 640; Lewis v. Benefit Assn., 77 Mo.App. 586. Even if an assessment had been made by proper authority, still if the same was excessive, the policy could not be forfeited for failure to pay the same. Peoples v. Ins. Co., 7 Allen (Mass.), 235; Benjamin v. Mut. Reserve, 79 P. 517. Under the terms of the policy levies could be made against members for the purpose only of forming a mortuary fund for the payment of all indemnity matured by "death of members," which assessments to be levied upon all the members in the department wherein this certificate is issued whose certificates are in force "at the dates of such deaths," shall be made according to the table of graduated assessment ratios given herein, and as further determined by their respective ages and the aggregate maximum of indemnity "at the dates of such deaths," with due allowance for discontinuance of membership. So it will be seen that the assessments authorized by the contract are strictly post-mortem assessments. The fact that it may be more convenient for the company to have funds on hand to meet anticipated deaths is no justification or excuse for making ante-mortem calls. Schultz v. Ins. Co., 59 Minn. 308. The company had no right to reserve and keep on hand a large surplus in order that it might pay its future death losses, and any alleged assessment made under such circumstances was null and void. Lee v. Mutual Reserve Fund, 97 Va. 160. Appellant seeks to establish a forfeiture. To do that it must show that it has not departed one jot or tittle from the terms of the contract. (2) There is no question of abandonment or acquiescence in this case for review by this court. Abandonment was not pleaded. There could be no abandonment under the facts in this case. If deceased was called upon to pay more than was due, he was under no obligations to offer to pay what was in fact due, if anything. Gruewell v. National Council, 126 Mo.App. 496; Purdy v. Ins. Co., 101 Mo.App. 91; Hyatt v. Legal Protection Assn., 106 Mo.App. 614. "To constitute an abandonment of the legal right secured, there must be a clear unequivocal and decisive act of the party -- an act done that shows a determination not to have the benefit which is designated for him." 1 Words & Phrases, p. 4. Abandonment is an affirmative defense and must be pleaded, and must be established by proof, and the question if any proof on the subject be offered, is for the jury.

OPINION

WILLIAMS, J.

This is an action upon a policy of life insurance issued by the defendant company, on November 1, 1888, to James T. Johnson, in the sum of five thousand dollars, payable, upon the death of the assured, to Nannie M. Johnson, the named beneficiary therein. The defendant company seeks to avoid payment of the policy on the ground that the policy became forfeited because the assured failed to pay a premium assessment thereon. Trial was had in the circuit court of Henry County, before a jury, resulting in a verdict and judgment in favor of the plaintiff for the full amount of the policy, plus interest, which amounted to the total sum of $ 5556.66. Thereupon the defendant company duly appealed to the Kansas City Court of Appeals, which court (166 Mo.App. 261) affirmed the judgment. The case was certified here by the Kansas City Court of Appeals on the ground that the majority opinion of that court was in conflict with certain decisions of the St. Louis Court of Appeals.

By the pleadings it stands admitted that defendant was a corporation and that it had issued the insurance policy upon which this suit was founded; that the assured died on the 15th day of February, 1907, and that plaintiff is the named beneficiary in said policy and since the death of the assured has complied with all of the requirements of said policy. It was further admitted that plaintiff had made demand for the payment of the policy, which had been refused.

The evidence upon the part of the plaintiff was substantially as follows:

The policy contract was introduced in evidence. Portions of the contract necessary to an understanding of the issues are as follows:

"In consideration of the representations agreements, and warranties made in the application herefor and of the admission fee paid; and of three dollars per annum on each $ 1000 of the indemnity herein provided for, for expense dues, to be paid as hereinafter conditioned, and of the further payment of all mortality calls proportioned to the said indemnity, levied against the herein named member to form a mortuary fund for the payment of all indemnity matured by deaths of members, and to create a safety fund as...