Madsen v. Prudential Ins. Co. of America
| Decision Date | 02 May 1916 |
| Docket Number | No. 14301.,14301. |
| Parties | MADSEN v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court, Rhodes E. Cave, Judge.
"Not to be officially published."
Action by Walter H. Madsen, a minor, by Edna Madsen, his next friend, against the Prudential Insurance Company of America. From a judgment for defendant, plaintiff appeals. Reversed and remanded.
Hall & Dame, of St. Louis, for appellant. Fordyce, Holliday & White, of St. Louis, for respondent.
This is a suit on a policy of life insurance. At the conclusion of the evidence the court directed a verdict for defendant, and plaintiff prosecutes the appeal.
Plaintiff, beneficiary infant son of William C. Madsen, the insured, sues by his next friend upon a policy in the amount of $1,000 issued by defendant on the life of his father on August 28, 1911. The premium was payable semiannually in installments of $8.93 each. The first installment was paid at the time the policy was issued, and by the terms of the policy the second fell due on February 28th thereafter. A competent provision in the policy allowed 30 days of grace for the payment of all installments after the first. The second installment of $8.93 was not paid on February 28, 1912, when due, nor indeed, within the 30 days of grace thereafter, and the insured died on April 15th. By the express terms of the policy it lapsed for the nonpayment of premium at the expiration of the period of 30 days' grace; that is, on March 28th. Another provision of the policy provides that, in event it shall lapse for the nonpayment of premium, it may be revived at any time after the date of lapse upon written application of the insured and the payment of arrears of premium, with interest, if evidence of the insurability of the insured satisfactory to the company be furnished.
The suit proceeds in the view that, though the policy lapsed by its terms at the expiration of the period of grace on March 28th, defendant nevertheless waived this and likewise the provision in the policy through negotiating with the insured for a continuation of the insurance without requiring him to furnish a written application for reinstatement and evidence of his insurability satisfactory to the company. The question for decision relates to this matter, and the evidence, of course, is to be viewed in its most favorable aspect to plaintiff, for the court directed a verdict for defendant as though no sufficient prima facie showing in respect of that matter appeared.
It appears, as before stated, that the first semiannual premium was paid at the time the policy was issued, August 28, 1911, and the second became due February 28, 1912. The latter was neither paid when due nor within the period of grace afforded by the terms of the policy for its payment, which expired on March 28th. But the evidence introduced on the part of plaintiff tends to prove that one Montgomery, who was both the soliciting and collecting agent for defendant, and who had negotiated the insurance in the first instance with the insured, and collected the premium thereon, called on the insured on April 1st — three days after the period of grace had expired — and sought to collect the premium from him without laying any conditions as to an application for reinstatement or a satisfactory showing concerning his insurability at the time. The evidence is, too, that on this occasion the agent left a card for the insured, on which he wrote the amount of the premium then past due — that is, $8.93 — and also "Your payments are due on your policy, and please send the amount to the office" — that is, defendant's office in the neighborhood, through which the insurance was written on the solicitation of Montgomery, the agent. Furthermore, it is said the agent called a second time on April 8th thereafter, and informed the insured personally that he was there to collect the premium, and the insured said he "couldn't pay it just that day," whereupon Montgomery said to him, "That is all right; just send it down to the office;" and the insured said he would send the money to defendant's office, as he couldn't pay it...
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