Lange v. New York Life Ins. Company
| Decision Date | 06 January 1914 |
| Citation | 162 S.W. 589,254 Mo. 488 |
| Parties | OTTO LANGE v. NEW YORK LIFE INSURANCE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Henry Circuit Court. -- Hon. C. A. Denton, Judge.
Affirmed.
Lathrop Morrow, Fox & Moore and O. W. Pratt for appellant.
(1) The policy in controversy contains a waiver of notice of maturity of premium and this waiver dispenses with the necessity for compliance with the socalled New York Notice Law even if such law would otherwise be applicable. Life Ins. Co. v Hill, 193 U.S. 551. (2) Even if the New York Notice Law were applicable (which it is not in view of the terms of the policy) notice of the expiration of the forebearance agreement is not required under the said law. Conway v Ins. Co., 140 N.Y. 79; Banholzer v. Ins. Co., 78 N. E. (Minn.) 244. (3) The respondent took his assignment of the policy subject to all its then terms, conditions and burdens, including the agreements which the St. Vrains had made with reference thereto and which are recited in the so-called "blue note" agreement and in the policy loan agreement. (4) The relation of Dooley to the appellant company was such that no estoppel such as is claimed by defendant could arise from his acts and conduct. Moreover, his acts and conduct were such that, regardless of his position with the company, they afford no ground for estoppel. (5) The respondent having acknowledged prior to the death of St. Vrain that the policy had lapsed and having participated in an application for reinstatement, cannot be heard now to complain that the policy had not lapsed. (6) The motion of the defendant below to require the plaintiff to elect as to the count under which he would proceed should have been sustained. Roberts v. Railroad, 43 Mo.App. 287; Soap Works Co. v. Sayers, 51 Mo.App. 314; Purdy v. Pfaff, 104 Mo.App. 331; Liese v. Myer, 143 Mo. 547; Scoville v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. 621; Holt Co. v. Cannon, 114 Mo. 519.
Botsford, Deatherage & Creason for respondent.
(1) There being no inconsistency in point of fact between the matters stated in the three counts of plaintiff's amended petition, plaintiff was entitled to proceed and have the finding and judgment of the circuit court without an election, and that court did right in denying the motion to elect. Brinkman v. Hunter, 73 Mo. 172; Fadley v. Smith, 23 Mo.App. 88; Staub v. Eddy, 47 Mo.App. 189; Rinard v. Railroad, 164 Mo. 270; Light & Heat Co. v. Dowd, 47 Mo.App. 439; Seiter v. Bischoff, 63 Mo.App. 157; Nelson v. Brodhack, 44 Mo. 596; Bankson v. Railroad, 196 F. 171. (2) On the facts pleaded in the second count of the amended petition and proven in evidence and especially on and as a result of the correspondence between plaintiff and defendant's agent and branch office in New Mexico, during the latter part of 1905 and the early part of 1906, defendant is estopped from claiming against the assignee, plaintiff, that there was any default in the payment of any premium at the time of the insured's death. Acton v. Dooley, 74 Mo. 63; Cornwall v. Ganser, 85 Mo.App. 678, 679; Sav. Ass'n v. Kehlor, 7 Mo.App. 158; Rice v. Bunce, 49 Mo. 231; Bank v. Frame, 112 Mo. 502; Moore v. Bank, 52 Mo. 377; Melton v. Smith, 65 Mo. 315; Ellerbe v. Bank, 109 Mo. 445; Anderson v. Baumgartner, 27 Mo. 80; Arnold v. Ins. Co., 60 S. E. (Ga.) 470; Insurance Co. v. Smith, 44 Ohio St. 156; Insurance Co. v. Allen 212 Ill. 134; Newton v. Life Ass'n, 116 Iowa 311; De Frece v. Ins. Co., 136 N.Y. 144; Carter v. Ins. Co., 110 N.Y. 15. (3) Appellant having received, retained and appropriated the proceeds and avails of its agent Dooley's collections from plaintiff, and having approved the previous assignment to plaintiff sent to defendant through its branch office and agent, Dooley, thereby ratified and became bound by said Dooley's acts. Defendant cannot ratify that part of Dooley's acts which are beneficial to it, and at the same time disaffirm and repudiate that part of the same series of acts which are not beneficial to defendant. Cline v. Woodmen, 111 Mo.App. 601; James v. Mutual Res. Ass'n, 148 Mo. 2; Porter v. Woods, 138 Mo. 539. (4) Appellant cannot claim that there was default in the payment of the premiums at the time of St. Vrain's death, because of the admitted want of notice by defendant to plaintiff as assignee of the time the premium represented by the blue note would become due, as required by the New York statute. Baxter v. Ins. Co., 119 N.Y. 450; Stokes v. Amerman, 121 N.Y. 343; Fisher v. Ins. Co., 167 N.Y. 183; Insurance Co. v. Orlopp, 61 S.W. 336; Ins. Co. v. English, 67 S.W. 884; Ins. Co. v. Berwald, 72 S.W. 436; Ins. Co. v. Hallum, 73 S.W. 554; Rowe v. Ins. Co., 38 N.Y.S. 621; Carter v. Ins. Co., 110 N.Y. 15; Phelan v. Ins. Co., 113 N.Y. 147; McDougall v. Society, 135 N.Y. 551; Strauss v. Ins. Co., 70 N.Y.S. 1149, 170 N.Y. 349; Barnes v. Insurance Co., 45 N.H. 21; Strauss v. Ins. Co., 67 N.Y.S. 509. (5) The law of the contract of insurance sued on and the laws of New York in regard to requirement of notice, could not be and were not changed or repealed, or in anywise affected or modified, by either the blue note or the loan contract, or by any other contract either in the policy or in any other contract between the insurance company and the St. Vrains, or the plaintiff. Those laws could not be set out by contract. Smith v. Ins. Co., 173 Mo. 329; Society v. Clements, 140 U.S. 226; Hicks v. Ins. Co., 60 F. 690, 9 C. C. A. 215; Phinney v. Ins. Co., 67 F. 493; Life Ass'n v. Nixon, 81 F. 796, 26 C. C. A. 620; Life Ass'n v. Trimble, 83 F. 85, 27 C. C. A. 404; Harrington v. Ins. Co., 58 P. 180; Griffith v. Ins. Co., 36 P. 113; Burridge v. Ins. Co., 211 Mo. 158; Head v. Ins. Co., 241 Mo. 403.
This is an action upon a life insurance policy. Trial was had in the circuit court of Henry county, Missouri, before the court, without a jury, resulting in a judgment for plaintiff, on the second count of his petition, for $ 5067.43, from which judgment (on the theory that certain constitutional questions are involved) defendant perfected its appeal to this court.
The facts disclosed by the evidence are substantially as follows:
Plaintiff is the assignee of the insurance policy. On November 24, 1891, defendant issued a twenty-payment tontine policy for $ 5000 upon the life of one Paul D. St. Vrain. The policy was delivered and first premium paid in the Territory of New Mexico, where the insured was then living. The policy provided for the payment of an annual premium of $ 135 on the 24th day of November of each year. Two years later, by separate contract agreement between the insured and the insurance company, the premiums were made payable semiannually, in November and May of each year. In 1893 the insured duly assigned the policy to his wife, and thereafter, in the same year, Mrs. St. Vrain applied for and procured from the company a loan in the sum of $ 810, delivering and pledging the said policy and its accumulations as security for the loan. This loan was never repaid; and the trial court in giving judgment deducted the amount of the loan from the amount which the court found due on the policy. The interest on the loan was paid each year until the insured's death. The insured paid all premiums on said policy for the fourteen years from its issue up to but not including November 24, 1905. On this latter date there was due the company, as interest on the loan, the sum of $ 40.75, and also the semiannual payment of $ 70.30, both falling due at the same time. The policy itself provided thirty days' grace for the payment of the premium on November 25, 1905. The insured resided at Clinton, Henry county, Missouri, and Otto Lange, who afterwards became the assignee of said policy, and is plaintiff in this action, then resided at Watrous, New Mexico. On said date the insured, in order to pay the interest of $ 40.75 due on the policy loan, drew a draft on said Lange payable to the order of one J. F. Dooley, agent of the defendant company, at Albuquerque, New Mexico. This draft the plaintiff paid when it was presented. The evidence discloses that the insured had at different times borrowed from Lange various sums of money, totaling about $ 1000. Some of this borrowed money had been used by the insured in paying parts of the premiums on said policy. Lange had been in correspondence with Dooley, defendant's agent, from October 20, 1905, concerning the loan value and different features of the policy and the advisability of taking an assignment of the policy and carrying it until matured. When Lange paid the draft for $ 40.75 which was used to pay the interest he did not know that the semiannual premium, which was due November 25, 1905, had not been paid. With reference to that premium, the defendant company made an arrangement with the insured, St. Vrain, and his wife, the then assignee, whereby they were to pay the sum of $ 18.30 in cash and execute an instrument called a "blue note," providing for the payment of the balance of said premium, to-wit, fifty-two dollars, on or before February 24, 1906. Said blue note, in words and figures, was as follows:
Pol. No. 431209. 78873. Nov. 24, 1905.
On or before Feb. 24, 1906, after date, without grace, and without demand or notice, I promise to pay to the order of the New York Life Insurance Company, fifty-two and no-100 dollars at First National Bank, Albuquerque, N. M., value received, with interest at the rate of five per cent per annum. This note is accepted by said company at the request of the maker together with eighteen and 30-100 dollars in cash, on the following express agreement: That although no part of the premium due on the 24th day of November, 1905, under Policy No....
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