Liebing v. Mutual Life Insurance Company of New York

• Decision Date: 02 January 1917
• Parties: MARY S. LIEBING, Appellant v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
• Court: Missouri Supreme Court

191 S.W. 250

269 Mo. 509

MARY S. LIEBING, Appellant v. MUTUAL LIFE INSURANCE COMPANY OF NEW YORK

Supreme Court of Missouri, First Division

January 2, 1917

Appeal from St. Louis City Circuit Court. -- Hon. George C Hitchcock, Judge.

Remanded (with directions).

James J. O'Donohoe for appellant.

(1) Sec. 7897, R. S. 1899, was in force when the policy in suit was issued and the same entered into and became a part thereof as much so as if copied therein. Hence the full three-fourths of the net or reserve value of the policy is applicable to purchase term insurance, for the outstanding loan is not deductible. The amendatory Act of 1903 (Laws 1903, p. 208) is inapplicable. Smith v. Ins. Co., 173 Mo. 329; Burridge v. Ins. Co., 211 Mo. 158; Whittaker v. Ins. Co., 133 Mo.App. 664; Christensen v. Ins. Co., 152 Mo.App. 551; Paschedag v. Ins. Co., 155 Mo.App. 185; Christensen v. Ins. Co., 160 Mo.App. 486; Gillen v. Ins. Co., 178 Mo.App. 89; Blum v. Ins. Co., 197 Mo. 513. It is also well settled that loans are not deductible in the absence of statute providing therefor. Ins. Co. v. Wallace, 93 Ind. 7; Ins. Co. v Ross, 93 Ga. 205; Ins. Co. v. Little, 56 Ind 405; Ins. Co. v. Dutcher, 95 U.S. 269; Ins. Co. v. Curry, 115 Ky. 100; Ins. Co. Woods, 39 N. E. (Ind.) 206; Ins. Co. v. Wright, 126 F. 88. (2) There is no forfeiture stipulation in the policy for either non-poyment of premium or failure to pay loans and none should be supplied by construction. Haas v. Ins. Co., 84 Neb. 682; Tetley v. McElmurry, 201 Mo. 394; Gruwell v. K. & L. of Security, 126 Mo.App. 496; McCollom v. Ins. Co., 61 Mo.App. 352; Ins. Co. v. Statham, 93 U.S. 24. The provision in the loan agreement authorizing defendant to cancel the policy and apply the cash surrender value thereof to repay the loan contravenes Sec. 7897, R. S. 1899, and is void. Gillen v. Ins. Co., 178 Mo.App. 89. The loan agreement cannot enlarge on the policy. Francis v. Ins. Co., 243 Pa. 380; Bozeman's Admr. v. Ins. Co., 113 S.W. 836. All defenses are eliminated by the incontestability stipulation. Harris v. Ins. Co., 248 Mo. 304. Since the death of the insured occurred within the term of temporary insurance as determined under the non-forfeiture laws of Missouri, the defendant is bound to pay the amount of the policy the same as if there had been no default in the payment of deposits, anything in the option stipulation to the contrary notwithstanding. Sec. 7899, R. S. 1899; Sec. 6948, R. S. 1909; Havens v. Fire Ins. Co., 123 Mo. 403; Marshal v. Ins. Co., 80 Mo.App. 18; Williams v. Ins. Co., 73 Mo.App. 607; Paker v. Assurance Co., 57 Mo.App. 559; Ampleman v. Ins. Co., 35 Mo.App. 308. A policy issued in Missouri "shall specify the exact sum of money which it promises to pay." Sec. 7903, R. S. 1899; Sec. 6952, R. S. 1909; Sec. 7925, R. S. 1899; Sec. 6972, R. S. 1909. (3) No act or amendatory act has application to the rights of parties to a contract entered into before the same became operative. Sec. 10, art. 1, U. S. Constitution; Sec. 15, art 2, Mo. Constitution; Jamison v. Zauch, 227 Mo. 406; Vanata v. Johnson, 170 Mo. 269; Fisher v. Patton, 134 Mo. 32. (4) To require the defendant to apply three-fourths of the reserve value of Missouri policies as commanded by the non-forfeiture statute is no violation of the due process of law or the equal protection of the law clauses of either the State or National Constitutions. Burridge v. Ins. Co., 211 Mo. 158; Kennard v. La., 92 U.S. 480; Davidson v. New Orleans, 96 U.S. 97; Head v. Mfg. Co., 113 U.S. 9. (5) Sec. 7899, R. S. 1899, names no penalty for failure to make claim or furnish proof within ninety days after the death of the insured and none is supplied by construction. State ex rel. v. Swanger, 212 Mo. 472; Dezell v. Fidelity & Casualty Co., 176 Mo. 253; Tetley v. McElmurry, 201 Mo. 394; Gruwell v. K. & L. of Security, 126 Mo.App. 496. Proofs of death were dispensed with by defendant receiving and accepting proofs under another policy. Lowenstein v. Ins. Co., 227 Mo. 100; Ins. Co., v. Ins. Co., 97 Pa. 15; Dakin v. Ins. Co., 77 N.Y. 600; Richards on Insurance, p. 411. The right, if it existed, to require claim to be made and proof of death to be furnished within ninety days after the death of the insured was waived prior to the insured's death by defendant's claim of right to appropriate the reserve value of the policy to repay the loan, and its pronounced position, namely, that the policy had no value and was canceled. Walker v. Maccabees, 177 Mo.App. 52; Fischer v. K. & L. of Security, 190 Mo.App. 615. Want of claim and proofs of death were waived by the insurer disclaiming liability on other grounds. Dezell v. Ins. Co., 176 Mo. 253; Hollenbeck v. Ins. Co., 133 Mo.App. 57; Weber v. Ancient Order of Pyramids, 104 Mo.App. 729; Keller v. Ins. Co., 95 Mo.App. 627; Welsh v. Guaranty Fund Life Soc., 81 Mo.App. 30; Mensing v. Ins. Co., 36 Mo.App. 602; Ins. Co. v. Elliott, 108 N.E. 784. At no time after the death of the insured would the defendant have admitted liability or accepted proofs of death, and hence making claim or offering to make proofs would be wholly idle formalities, and "the law never requires the doing of a useless act." Printing Co. v. St. Louis, 213 Mo. 43; Statler v. Railroad, 200 Mo. 142; Bank v. Blackwelder, 81 Mo.App. 432; Coscarels v. Ins. Co., 175 Mo.App. 139. They were waived by the insurer defending on other grounds. Dezell v. Ins. Co., 176 Mo. 253; Ins. Co. v. Kyle, 11 Mo. 278; Welsh v. Life Soc., 81 Mo.App. 30; Johnson v. Casualty Co., 122 Mo.App. 369; Meisenbach v. Maccabees, 140 Mo.App. 76. And such waiver may be made after the lapse of the stipulated time for the delivery of the proofs of death and need not be based upon a new agreement nor combine the elements of an estoppel. Dezell v. Ins. Co., 176 Mo. 253; Hamilton v. Railroad, 80 Mo.App. 601; Crenshaw v. Ins. Co., 71 Mo.App. 48; Fink v. Ins. Co., 66 Mo.App. 513. Statutes, like policy provisions, can be waived. McLeod v. Ins. Co., 190 Mo.App. 653; Chandler v. Ins. Co., 180 Mo.App. 394; Lewis v. Ins. Co., 52 Me. 492; Neilson v. Assur. Soc., 139 Cal. 332; Ins. Co. v. Wenning, 58 F. 541. (6) This action is founded on a written policy of insurance for the payment of money or property and falls within the ten-year section of the Statute of Limitations, namely, Sec. 4272, R. S. 1899, now Sec. 1888, R. S. 1909. State ex rel. v. Brown, 208 Mo. 613; Curtis v. Sexton, 201 Mo. 230; Bridges v. Stephens, 132 Mo. 552; Carr v. Thompson, 67 Mo. 472; Martin v. Knapp, 45 Mo. 48; Moorman v. Sharp, 35 Mo. 283; Reyburn v. Casey, 29 Mo. 129; Howe v. Mittleberg, 96 Mo.App. 490; Shinn v. Wooderson, 95 Mo.App. 6; Miner & Frees v. Howard, 93 Mo.App. 569.

Fordyce, Holliday & White for respondent; Frederick L. Allen of counsel.

(1) The action of the trial court in refusing to set aside the nonsuit should be affirmed if for any reason the plaintiff was not entitled to go to the jury. Pope v. Boyle, 98 Mo. 531. (2) This action was upon a liability created by statute other than a penalty or forfeiture, and hence barred in five years from the death of the insured. R. S. 1909, secs. 1887, 1888, 1889; R. S. 1899, secs. 7897, 7898, 7899, 7900; Assurance Soc. v. Pettus, 140 U.S. 226; Price v. Conn. Mutual, 48 Mo.App. 293; Smith v. Ins. Co., 173 Mo. 329; Burridge v. Insurance Co., 211 Mo. 178; Dezell v. Fidelity & Casualty Co., 176 Mo. 265; 25 Cyc. 850; Turner v. Burns, 42 Mo.App. 96; Pleadwell v. Glass Co., 151 Mo.App. 63. (3) The plaintiff was not entitled to claim extended insurance under the non-forfeiture laws of the State of Missouri since she had failed to submit notice of the claim and proof of death in the same manner as provided by the terms of the policy within ninety days of the death of the insured. R. S. 1899, sec. 7899; R. S. 1909, sec. 8057; State ex rel. v. Roach, 258 Mo. 553; State ex rel. v. St. Louis, 174 Mo. 145. (4) The plaintiff failed to make a case for the jury since neither the contract nor the right to extended insurance was proved as alleged. Lindsay v. Morris, 30 Mo. 412; Jackson v. Hardin, 83 Mo. 186; Dunlap v. Kelly, 105 Mo.App. 6; Webster v. Nance, 183 Mo.App. 217; Price v. Connecticut Mutual, 48 Mo.App. 295.

OPINION

BLAIR, J.

This is an appeal from an order overruling a motion to set aside an involuntary nonsuit taken by appellant in the circuit court of the city of St. Louis in an action she instituted on an insurance policy issued by respondent, September 29, 1901, on the life of Frederick W. V. Blees, the then husband of appellant.

Respondent in its answer, admitted its corporate capacity and that it was engaged in the life insurance business; that it issued the policy sued on; that the annual premiums (each amounting to $ 4291.50) were paid in September 1901, 1902, 1903 and 1904, but denies any premium was thereafter paid; that in March, 1904, the policy was, with its consent, duly assigned by the insured to his wife, this appellant; and that Frederick W. V. Blees, the insured, died September 8, 1906. The answer contained several affirmative defenses; (1) that insured and his wife, in October, 1904, secured from respondent a loan equal to the full surrender value of the policy September 29, 1905, to-wit, $ 9550, the proceeds "divided as follows: $ 4291.50 to pay premium due September 29, 1904; $ 468 for interest; and $ 4790.50 paid Blees by company's check; that the borrowers signed a loan agreement authorizing respondent, at its option, in case of default in payment of the loan September 29, 1905, without demand and without notice, to apply cash surrender "consideration of $ 9550 to the payment of loan and interest" and cancel the policy; that the loan was not paid and respondent exercised its option and so applied the cash surrender value to the payment of the loan and canceled...