Kazee v. Kansas City Life Ins. Co.

• Decision Date: 06 December 1919
• Docket Number: No. 2510.,2510.
• Citation: 217 S.W. 339
• Parties: KAZEE v. KANSAS CITY LIFE INS. CO.
• Court: Missouri Court of Appeals

217 S.W. 339

KAZEE v. KANSAS CITY LIFE INS. CO.

No. 2510.

Springfield Court of Appeals. Missouri.

December 6, 1919.

Rehearing Denied January 17, 1920.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by Agnes Kazee against the Kansas City Life Insurance Company, a corporation. Judgment for plaintiff, and defendant appeals. Judgment reversed.

Martin & Martin, of Lamar, and George Kingsley, of Kansas City, for appellant.

E. L. Moore and H. W. Timmonds, both of Lamar, for respondent.

BRADLEY, J.

Plaintiff sued to recover on a policy of insurance in the sum of $5,000 issued by defendant to her deceased husband, in which she was named as the beneficiary. A trial before the court and a jury resulted in a judgment in favor of plaintiff for the face of the policy, with interest, and defendant appealed.

The insured, Elias L. Kazee, made application for the policy on April 20, 1916, and the policy was thereafter issued on April 29, 1916, and was delivered May 4, 1916. The application was for an ordinary life policy, but the defendant because of the medical examination declined to issue the kind of policy applied for, but issued a 20-payment life in the same amount as applied for. The annual premium on the policy applied for was $239.90, and the annual premium on the policy issued, delivered, and accepted was $275.35, a difference of $35.45. At the time of the application the insured gave his note, payable to the defendant company for $239.90, due July 1st thereafter. When the policy was delivered on May 4th insured gave another note, payable to W. C. Jones, defendant's agent, who took the application and delivered the policy, and this latter note was for $35.45, and due July 1st thereafter. The note for $239.90 was indorsed on the back, "K. C. Life Ins. Co., by W. C. Jones," and the one for $35.45 was indorsed on back, "W. C. Jones," and both at the time of the death of insured were in the possession of the defendant company, and not marked paid. There was a clause in the policy as follows:

"Upon failure to pay a premium on or before the date when due, or upon failure to pay any premium note when due, this policy will become null and void, without any action or notice by the company, and all rights shall be forfeited to the company except as hereinafter provided."

Insured died September 6, 1916, and defendant refused to furnish blanks upon which to make proofs of death, on the ground that it did not consider the policy issued in force at the time of the death' of the insured.

The petition is in the usual form. The answer admitted that on April 29, 1916, defendant by its policy of insurance No. 111474, the policy sued on, insured the life of Elias L. Kazee in the sum of $5,000, and that plaintiff was the beneficiary in said policy, and that the insured died on or about September 6, 1916. These admissions were followed by a general denial of other allegations. Defendant further pleaded the forfeiture clause above set out, and that the two notes described above were given for the premium, and that no part of either of said notes had been paid, and that no payment whatever was made on the premium for said policy. Plaintiff, replying, alleged that, if the notes were premium notes, defendant had retained said notes, and had never forfeited and annulled the policy under any terms in the policy, and had never asked or insisted upon the payments of the notes during the life of the insured, and that by its course of dealing with the insured had led him to believe that the terms of the policy would not be enforced, and that by such course of dealing had waived its right, if it ever had any, to forfeit the policy.

Plaintiff, to sustain her cause, introduced in evidence a letter concerning the policy sued on, written by her counsel September 30, 1916, to defendant, in which letter it is stated:

"On. September 8th I wrote you and asked you to send me the necessary blanks for making `due proof of the death.' Am I to understand from your letter of the 9th inst. that you are waiving due proofs of the death? If not, will you kindly send me the blanks used by your company in making due proofs of the death ?"

She also offered defendant's reply to this letter, denying liability and declining to furnish the blanks. With this plaintiff rested. Defendant introduced the policy sued on, which shows the annual premium to be $275.35, and contains the forfeiture clause pleaded. Defendant also introduced the application, which shows the annual premium on the policy applied for to be $239.90.

Following the signature of the insured to the application is a blank for the agent to fill out, and this blank, when filled out, among other things, contains this: "Amount collected: Cash $_____; Note $239.90." Defendant also introduced the two notes, and the receipt of the insured for the policy when it was delivered on May 4th. Defendant then proved by the agent who took the application and delivered the policy that the notes were given for the premium on the policy delivered, and that insured paid no part of the premium to him, and nothing to him on either of the notes. Also there was evidence by the secretary of defendant company that no part of either of the notes had been paid, and that the premium on the policy never was paid.

At the close of the case defendant requested a peremptory instruction, which was refused, and the cause submitted to the jury. For plaintiff the court instructed that it was admitted by defendant that by its policy of insurance sued on it did insure the life of Elias L. Kazee in the sum of $5,000, and that plaintiff was the beneficiary in said policy; that the insured died on or about September 6, 1916, and that, if the jury found from the evidence that defendant would not furnish blank proofs of death, because It denied liability, and that the policy was in force at the time of the death of the insured, their verdict world be for plaintiff; that the burden to show that the two notes introduced in evidence were for the first premium, and had not been paid at the time of the death of insured, was upon defendant, and that, unless it was so shown, the verdict would be for plaintiff. For the defendant the court instructed that, if the jury found that the two notes in evidence were given by the insured for the first premium under the policy sued on, and that the notes were not paid, the finding would be for the defendant; and that the fact that the notes in evidence were in the possession of defendant was prima fade evidence that said notes had not been paid.

The record shows that this cause has been tried twice in the trial court, resulting each time in a verdict in favor of plaintiff. The trial court set aside the first verdict on the ground that it was contrary to the weight of the evidence. At the hearing on the motion to set aside the verdict rendered at the second trial plaintiff introduced in evidence the record of the first trial, showing the ground on which the court sustained the motion. This offering was made, we assume, so as to preclude the granting of a second new trial, which is prohibited, with certain exceptions, under section 2023, R. S. 1909. Plaintiff stands on the proposition that, once having made a prima fade case, thereafter the court could never take the same from the jury, no matter what the evidence on the part of the defendant may show tending to destroy the prima facie case so made. In support of this proposition plaintiff in her brief relies on Gannon v. Laclede Gaslight Co., 145 Mo. loc. cit. 516, 46 S. W. 968, 47 S. W. 908, 43 L. R. A. 505, and many other similar cases.

Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, was a suit for damages based on alleged negligence of defendant's chauffeur while operating the master's automobile. Plaintiff there made a prima facie case by showing the automobile which caused his injury was owned by the defendant, and that the chauffeur driving it was in his general employment. The defense showed that at the time of the...