Kansas City Life Ins. Co. v. Elmore

• Decision Date: 01 December 1920
• Docket Number: (No. 1712.)
• Citation: 226 S.W. 709
• Parties: KANSAS CITY LIFE INS. CO. v. ELMORE.
• Court: Texas Court of Appeals

Page 709

226 S.W. 709

KANSAS CITY LIFE INS. CO. v. ELMORE.

(No. 1712.)

Court of Civil Appeals of Texas. Amarillo.

December 1, 1920.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Lipscomb County; W. R. Ewing, Judge.

Suit by the Kansas City Life Insurance Company against Edna R. Elmore to restrain defendant from prosecuting actions at law against plaintiff Company. From a judgment granting the injunction against further prosecution of suits in a particular justice's court, but dissolving the temporary injunction in all other respects, the plaintiff appeals. Reversed and remanded.

Hoover, Hoover & Willis, of Canadian, for appellant.

W. H. Sewell, of Lipscomb, and E. C. Gray and H. L. Adkins, both of Higgins, for appellee.

HUFF, C. J.

This is an appeal from a judgment of the district court of Lipscomb county granting an injunction restraining the appellee, Edna R. Elmore, from further prosecuting suits against appellant insurance company in justice court, precinct No. 4, of said county, but in all other respects dissolving a temporary injunction and granting to appellee thereby authority to resort to such remedies and actions for the recovery of installments thereafter to become due and payable upon a life insurance policy declared on in this case. The decree awarded appellee a recovery upon the monthly installments due under the policy which had accumulated up to the date of the judgment, amounting to $400, the monthly installments being $25, and interest upon the installments from the respective dates of their maturity, and penalty of 12 per cent. on the $400 and $100 attorney's fees. The trial of the case in the district court resolved itself into an inquiry into whether the life insurance policy was forfeited for the nonpayment of the annual premiums within the time and terms of the policy. The appellant, as plaintiff below, in the petition for injunction, in paragraph 2 thereof, alleged:

"That heretofore, to wit, on the 21st day of December, 1917, plaintiff, in consideration of the stipulations, agreements, and representations contained therein, and the payment of the annual premium therein stipulated for, issued its policy of life insurance on the life of Benjamin F. Elmore, agreeing to pay $25 monthly for 240 consecutive months to the defendant, Edna R. Elmore, the designated beneficiary in said policy, the first premium to be made immediately upon receipt of due proofs of death of the insured during the continuance of the policy; that said policy was issued in consideration of the payment by the insured of an annual premium of $77.52, for one year's term insurance from the date of said policy, with the provision that the policy should be continued upon further payment of a like amount on or before the 1st day of December of each year thereafter during the continuance of said policy; that by said policy it was provided that all premiums subsequent to the first premium should be due and payable in advance at the home office of the company, without notice, with the further provision that such premium might be paid to an authorized agent of the company on or before the date when due but only in exchange for a receipt signed by the president, vice president, secretary, or assistant secretary of the company, and signed by such agent, and that upon failure to pay a premium on or before the date when due the policy should become null and void, without any action or notice by the company, and all rights thereunder should be forfeited to the company, except as otherwise provided in the policy, after such policy had been in force for three years; that said policy further provided for a grace of one month (without interest charge) for the payment of all premiums except the first, during which the insurance would remain in full force."

It is also alleged the insured died on the 6th day of January, 1919; that prior to his death he paid the first annual premium on the policy, but did not pay the company, as provided by the terms and provisions of the policy, the second annual premium, which became due thereon on or before the 1st day of December, 1918, or within one month thereafter, or any time before his death, by reason of which the policy became forfeited and of no further force or effect after the expiration of one month from December 1, 1918. Then follows allegations to give the district court jurisdiction to restrain the appellee from the prosecution of the suit in the justice court above mentioned.

The appellee, except as admitted, denies the allegations of the petition. She admits as true all of paragraph 2 above quoted except the allegation that the policy was issued for one year's term. She alleges it was a life policy. The appellee alleged that the appellant waived the payment of the renewal premium at the home office without notice, and that the other exception provided for in the policy did not apply in this case; that Elmore, through those acting for him, paid the premium on the 28th day of December, 1918, to the Laverne State Bank of Oklahoma; that the bank, by an agreement theretofore made with appellant, was its authorized agent to collect and receive renewal premiums, and that appellant had fully ratified the acts of the bank in so doing, and that by such agreement the bank was authorized to collect and remit to appellant the premiums paid to the bank on policies issued by the appellant; that Elmore, the insured, while the policy was in effect and before the expiration of the time allowed by the policy for payment of the premiums, made arrangements with T. N. Stewart to pay the premium for the insured that Stewart did pay to the bank the premium due on the policy; "that T. N. Stewart was the assistant cashier of the Laverne State Bank at the time he paid the premium aforesaid to the bank, at the instance and request of Benjamin F. Elmore and others, acting for him, and he had full knowledge of the arrangement aforesaid with plaintiff and the Laverne State Bank, and, acting upon that knowledge and upon the arrangement aforesaid, and upon the authority of the bank to collect the premiums, he, as representative of said Benjamin F. Elmore, paid the bank, and, as an employee of the bank, accepted the premium through the bank for the plaintiff, and, as the employee of the bank and acting for it, he remitted the premium to the home office at the time and in the manner hereinafter stated."

It is alleged substantially that, after the bank and appellant entered into the arrangements aforesaid, the bank did collect from various and sundry persons premiums and premiums other than the first premium on different policies issued by the plaintiff to various persons which they were otherwise bound to make direct to the home office, and from time to time after the arrangement aforesaid and previous to the particular remittance in question, and after the remittance in question, the appellant, in full recognition of the bank's conduct and with full knowledge of the arrangements and the provisions of its policies requiring the premium to be paid at the home office, accepted said premiums so collected and remitted by the bank, thereby authorizing and empowering the bank to collect at Laverne, Okl., earned premiums on its policies, waiving the express stipulation in the policy that the same should be paid at the home office; that at the time Stewart was requested to pay the premium there was time sufficient remaining in which he could have and would have remitted the premium to the home office at Kansas City, Mo., but for his knowledge of the arrangements aforesaid, and that, if the conduct hereinbefore alleged did not constitute a waiver on the part of appellant as to the place of payment, it was such conduct on its part and knowledge of the same having been brought home to the deceased, through said Stewart for him, as to estop the appellant from now asserting that the policy was forfeited for the reason that the premium was not paid at the home office. And appellee specially pleads all the matters so alleged as an estoppel against appellant to assert the invalidity of the policy, for the reason that the premium was not paid at the home office within the time provided in the policy; but it is alleged in connection therewith that the premium was in fact paid at the home office within the time required by the policy.

It is also alleged that, if the premium was not paid to appellant or its authorized agent, as above alleged, within the time required by the terms of the policy, the appellant, by its conduct, elected to treat the policy as a continuing and binding obligation; that appellant received on December 31, 1918, at its home office, a certificate of deposit issued by the bank as heretofore set out, and had notice at that time and knowledge that this represented a premium due on the policy sued on. It is alleged that subsequent to that time the bank and appellant had a controversy as to remitting the money by deposit slip instead of sending a draft, but appellant never objected to receiving the premium because the policy had lapsed, but was insisting that the money be sent by the usual medium of exchange; that this conduct was several days after the policy would otherwise have been forfeited but for the payment of the premiums. It is urged that it was not then contended there was a forfeiture until after appellant learned of the death of Elmore, all of which is urged as a waiver.

The appellant answered by a supplemental petition, at some length, presenting a general and special exception, denying under oath the agency of the bank as set up by the appellee. It alleged it had no agent at that place except one Compton, whose authority was limited by his contract of agency. It again pleaded the provision of the policy issued in this case with reference to paying premiums. It then pleads that no written receipt was sent the Laverne State Bank, and that the deceased, Elmore, lived near Follett,...