Lee v. Missouri State Life Ins. Company

• Decision Date: 07 April 1924
• Docket Number: 23654
• Citation: Lee v. Missouri State Life Ins. Company, 261 S.W. 83, 303 Mo. 492 (Mo. 1924)
• Parties: LEROY M. LEE, Administrator of Estate of LEROY M. LEE, Deceased, v. MISSOURI STATE LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Supreme Court

261 S.W. 83

303 Mo. 492

LEROY M. LEE, Administrator of Estate of LEROY M. LEE, Deceased, v. MISSOURI STATE LIFE INSURANCE COMPANY, Appellant

No. 23654

Supreme Court of Missouri

April 7, 1924

Motion for Rehearing Overruled April 7, 1924.

Transferred from St. Louis Court of Appeals.

Reversed.

Jourdan Rassieur & Pierce for appellant.

(1) The certificate is an assessment policy because it provides that the insured shall be paid out of a benefit fund and a safety fund raised by moneys paid by the members of the association from a pro rata assessment on the members for mortuary purposes, and therefore is in some manner or degree dependent upon the collection of an assessment upon persons holding similar contracts. It certainly is not an old-line or level-rate policy. R. S. 1919, sec. 6155; Ficklin v. Mo State Life Ins. Co., 205 Mo.App. 452; Moran v Franklin Life Ins. Co., 160 Mo.App. 407; Elliott v. Des Moines Life, 163 Mo. 132, 155; Hanford v. Mass. Benefit Assn., 122 Mo. 50; Williams v. St. Louis Life, 97 Mo.App. 449; Kribs v. United Order of Foresters, 191 Mo.App. 524, 549; Morrow v. National Life Assn., 184 Mo.App. 308, 315. (2) Failure to pay a premium or assessment when due forfeits the policy. Bondurant v. Mo. State Life Ins. Co., 198 S.W. 74; Ashbrook v. Phoenix Mutual Life Ins. Co., 94 Mo. 72; Gatermann v. American Life Ins. Co., 1 Mo.App. 300; Pope v. N. Y. Life Ins. Co., 192 Mo.App. 383; Smoot v. Bankers Life, 138 Mo.App. 468; Marshall v. Ins. Co., 148 Mo.App. 677. (3) The failure to pay or tender assessments or premiums upon a life insurance policy of any sort for a period of fourteen years constitutes an abandonment of such certificate or policy by the holder thereof. Lavin v. Grand Lodge, 112 Mo.App. 1; Bange v. Supreme Council, 128 Mo.App. 461.

Derwood E. Williams, Joseph R. Palmer and Abbott, Fauntleroy, Cullen & Edwards for respondents.

(1) There is nothing in the policy to indicate that the parties understood that the payment of the insurance was to depend upon the success that might attend the efforts of the corporation to collect assessments. The policy contains an unconditional promise to pay a fixed sum for a fixed premium. Hence, the right to pay at the old rate was one of the rights provided for and that the insured contracted for. It was a vested right, immune from change by amendment, in the absence of a specific reservation of power to amend in that particular. (2) The policy is complete in itself and does not refer to the by-laws, and, front and back, exclude the plea that it is controlled by matter aliunde. (3) There is no provision made in the policy for the collection of premiums to pay losses of the company by assessments. (4) The provision on the back of the certificate that the indemnity shall be paid from the benefit fund, which consists of all moneys paid by the members not previously transferred to the safety fund, except certain expense, and that in the event that there is not sufficient money in the benefit fund, then all or any part thereof shall be paid from the safety fund, contains nothing which conveys the idea that assessments are to be levied. Indeed, the idea there expressed is the sum shall be paid absolutely by the company, in the first instance, out of a certain fund of the defendant company, and if that is not sufficient then it shall be paid out of another one of the company's funds. This is an unconditional promise to pay by the company out of its own funds. (5) The right to assess members must be clearly given and the language conferring it is strictly construed. Craig v. Insurance Co., 136 Mo.App. 5. (6) The agreement of the insurance company, as plainly written in its policy, is that it will pay the amount stated in the policy, "subject to the provisions and requirements on the back of this certificate, which are hereby referred to and made a part hereof." It is a rule of universal application that the mention of one thing or the specification of one thing excludes all others. This policy was issued and the agreement made to pay, subject only to the provisions and requirements stated in the certificate. There is nothing in these provisions which authorized the association to so increase the premium as to practically destroy the value of the insured's certificate. (7) There was no forfeiture and no abandonment of the policy under our decisions. Rosch v. Bankers Life, 201 S.W. 919; Wayland v. Indemnity Co., 166 Mo.App. 221; Murphy v. Brotherhood, 199 S.W. 730; Easter v. Yeoman, 172 Mo.App. 298.

OPINION

WALKER, J.

This is an action on a life insurance certificate or policy. It was issued in December, 1894, to Leroy M. Lee, for $ 2000, by the Safety Fund Life Association, then organized and doing an insurance business in this State under the authority of Chapter 89, Article 3, Revised Statutes 1889, now Chapter 50, Article 3, Revised Statutes 1919, providing for the incorporation of life insurance companies on the assessment plan. The insured died in March, 1917, and his wife, who was the beneficiary first named, having predeceased him, his legal representative became, under the terms of the policy, his beneficiary. This suit was therefore brought by the administrator of the estate of the insured, in the Circuit Court of Lincoln County in December, 1918, and upon a trial by that court, a jury having been waived, a judgment was rendered in favor of the plaintiff in December, 1919, in the sum of $ 1644. From this judgment the defendant appealed to the St. Louis Court of Appeals (238 S.W. 858) which affirmed the judgment of the circuit court, but certified the case to the Supreme Court on the ground of a conflict in its ruling with that of the Kansas City Court of Appeals in Ficklin v. Missouri State Life Insurance Company, 205 Mo.App. 452.

In 1899 the Safety Fund Life Association changed its charter, but not its name, to conform to the requirements of an act of the Legislature approved March 27, 1899, now Chapter 50, Article 4, Revised Statutes 1919, providing for the organization of insurance companies on the Stipulated Premium Plan. Subsequently the name of the Association was changed to that of the Missouri State Life Insurance Company; and in 1902 it amended its charter to conform to the provisions of Chapter 119, Article 2, Revised Statutes 1899, now Chapter 50, Article 2, Revised Statutes 1919, and was authorized thereafter to transact a life insurance business under the name of the Missouri State Life Insurance Company as a Level Premium or Legal Reserve Company.

The certificate of membership issued by the Association to the insured was pursuant to the following application:

"I, the undersigned applicant, do hereby declare that I have made full and correct answers to all questions in this application, and, whether said answers, together with the accompanying explanations, are in my own handwriting or not, I adopt as my own, admit to be material and warrant them to be full, complete and true. I further agree that if any misrepresentations or fraudulent or untrue answers have been made, or if any facts which should have been stated have been suppressed, if death shall result from suicide, or if I shall use intoxicants, opium or other stimulants to an extent liable to injure my health, or shall practice any pernicious or immoral habits tending to shorten life, or shall omit or neglect or refuse to make any of the quarterly payments at the place and within the times in which they are required to be made by the certificate of membership to be issued hereon and the by-laws of this association, then, and in either event, the said contract and certificate of membership shall be null and void, whether so declared by the association or not, and all moneys which have been paid shall be forfeited to said association."

The policy issued on the above application reads as follows:

"No. 1440.

"(The Safety Fund Life Association of Monroe City, Missouri.)

"Amount $ 2,000.

Age 48 years.

"In consideration of the representations, agreements and warranties made in the application herefor, the Safety Fund Life Association does hereby issue this certificate and policy of insurance and constitutes Leroy M. Lee of the County of Lincoln, State of Missouri, a member of said association and promises to pay at its home office to his wife, Josephine Lee, if living, if not living, then to his legal representatives, two thousand dollars within ninety days after the acceptance of satisfactory proofs at its home office of the death of the said member, upon the following conditions, and subject to the provisions and requirements stated on the back of this certificate, which are hereby referred to and made a part hereof: the quarterly payment of eight and no/100 dollars shall be made to the association at its home office within the months of January, April, July and October of each and every year, until such quarterly payments have been made for a full term of five years, beginning with the month of April next; at the end of said term the quarterly payments defined in provision No. 1 hereof shall be made to the association at the place and within the months aforesaid of each and every year during the continuance of this certificate of membership.

"In witness whereof, the Safety Fund Life Association caused its corporate seal to be hereunto affixed and these presents to be signed by its president and secretary at Monroe City, Mo., this tenth day of December, A. D. 1894.

"Thos. Proctor, President.

"(Seal of Safety Fund Association,

"Edmund P. Melson, Secretary.)"

The provisions of the policy to which reference is made are as follows:

"Quarterly Payments.

"(1) The quarterly payments from and after the expiration of the term of five years herein specified shall include quarterly dues of 75 cents

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