Magers v. Kansas City Life Ins. Co.

• Decision Date: 05 November 1945
• Citation: 191 S.W.2d 320,239 Mo.App. 457
• Parties: Hugh M. Magers, Assignee of Stanton Morro, v. Kansas City Life Insurance Company
• Court: Kansas Court of Appeals

191 S.W.2d 320

239 Mo.App. 457

Hugh M. Magers, Assignee of Stanton Morro, v. Kansas City Life Insurance Company

Court of Appeals of Missouri, Kansas City

November 5, 1945

Appeal from the Circuit Court of Jackson County; Hon. Brown Harris Judge.

Reversed.

Ray B. Lucas and Jos. R. Stewart for appellant.

(1) The court erred in refusing to give defendant's declaration of law in the nature of a demurrer offered at the close of all the evidence in the case for the reason that the written or documentary evidence and all the facts and circumstances in the case show that insured's policy lapsed without value for failure to pay the quarterly premium of $ 8.17 due December 6, 1943, was not thereafter reinstated, and was therefore not in force on January 23, 1944, the date of the insured's death. Prange v. International Life Ins Co., 329 Mo. 651, 46 S.W.2d 523; Winters v. Reserve Loan Life Ins. Co., 221 Mo.App. 519, 290 S.W. 109; Lacy v. American Central Life Ins. Co., 232 Mo.App 1132, 115 S.W.2d 193; Tabler v. General American Life Ins. Co., 342 Mo. 726, 117 S.W.2d 278; McQueeney v. National Fidelity Life Ins. Co., 350 Mo. 469, 166 S.W.2d 461; Vail v. Midland Life Ins. Co. (Mo. App.), 108 S.W.2d 147; Neuner v. Gove (Mo. App.), 133 S.W.2d 689. (2) The court erred in assessing against defendant any sum as penalty or attorney's fees for the reason that under the facts and circumstances in the case defendant's refusal to pay was not vexatious or without reasonable cause. State ex rel. John Hancock Mut. Life Ins. Co. v. Hughes et al. (Mo.), 152 S.W.2d 132; Howard v. Aetna Life Ins. Co., 350 Mo. 17, 164 S.W.2d 360.

R. C. Southall for respondent.

(1) The court properly refused to give defendant's declaration of law in the nature of a demurrer to the evidence. 6 Couch, Cyclopedia of Insurance Law, Sec. 1328, p. 4796; Wilson v. Kansas City Life Ins. Co., 128 S.W.2d 319; Girvin v. Metropolitan Life Ins. Co., 75 S.W.2d 596; Waters v. Bankers Life Assn., 50 S.W.2d 183; Wright v. Ins. Co., 221 S.W. 382; Halsey v. American Central Life Ins. Co., 167 S.W. 951, 258 Mo. 659; Tabler v. General American Life Ins. Co., 117 S.W.2d 282; Landringham v. Mo. State Life Ins. Co., 234 S.W. 1042, aff. 245 S.W. 382; Chestnut v. Security Mutual Life Ins. Co., 232 S.W. 203; Stout v. Mo. Fidelity & Casualty Co., 179 S.W. 993; Johnson v. American Central Life Ins. Co., 249 S.W. 115; Hampe v. Metropolitan Life Ins. Co., 21 S.W.2d 926; Glosch v. Central Life Ins. Co., 176 S.W.2d 46; State ex rel. v. Allen et al., 243 S.W. 839, 295 Mo. 307; Klinkhardt v. Crescent Ins. Co., 47 S.W.2d 210; Howard v. Aetna Ins. Co., 145 S.W.2d 113; Eyring v. Kansas City Life Ins. Co., 129 S.W.2d 1086; Glosch v. Ins. Co., 176 S.W.2d 46; Johnson v. American Central Life Ins. Co., 249 S.W. 115; Wilson v. Kansas City Life Ins. Co., 128 S.W.2d 319; Bank of Darlington v. Atwood, 36 S.W.2d 429; Bender v. Midwest Pipe & Sup. Co., 57 S.W.2d 707; Kingman v. Waugh, 40 S.W. 109, 149 Mo. 451; Golden v. Tryer, 79 S.W. 143, 180 Mo. 196; Martin v. Williams, 70 S.W. 249; DeWolff v. Morino, 187 S.W. 620; Duffy v. K. C. Railway Co., 217 S.W. 883. (2) Penalties for vexatious refusal to pay were properly allowed. Bailey v. American Life Ins. Co., 96 S.W.2d 903; Bonzon v. Metropolitan Life Ins. Co., 143 S.W.2d 340.

OPINION

Dew, J.

This is an action by the plaintiff, assignee of Stanton Morro, to recover on a life insurance policy No. 940036, issued by the defendant to the insured, Mary E. Morro. The court, sitting as a jury, gave judgment for plaintiff in the amount of $ 1635, which included the face amount of the policy, interest from January 23, 1944, statutory penalty, and attorney's fees. After denial of its motion for new trial, defendant appealed.

Plaintiff, by his amended petition, seeks to recover under the policy on the theory that although it bears the date of September 6, 1942, nevertheless, it was delivered and the first premium paid thereon October 24, 1942; that the policy took effect on the latter date, thereby making the quarterly payments begin on that date, becoming due on the 24th of every third month thereafter; that she paid the succeeding quarterly payments when due, and that on January 21, 1944, the insured duly tendered the quarterly premium due January 24, 1944, which was refused by the defendant, and that upon the death of the insured January 23, 1944, the policy was in full force and effect. He alleged that the defendant was duly notified and proofs of loss were submitted, and that defendant denied liability. He alleged the assignment to the plaintiff, and vexatious delay. The prayer was for the face of the policy ($ 1000), plus 10 per cent penalty, interest, and attorney's fees of $ 500.

By its answer defendant, in substance, denied liability on the policy; alleged that the insured requested, and by her conduct and course of dealing treated and construed the effective date of said policy to be September 6, 1942, and by her acts and communications, during the life of said policy, agreed and construed the due date of each quarterly premium of $ 8.17 to be the 6th day of December, March, June and September each year, and that the due dates of quarterly premiums of said amounts following September 6, 1942 were December 6, 1942, March 6, 1943, June 6, 1943, September 6, 1943, and December 6, 1943; alleged that accordingly said policy was issued on a quarterly basis and that the due date of said quarterly premiums of said amount was the 6th day of each December, March, June and September until the 20th anniversary of said policy or until the prior death of the insured; that insured paid five quarterly premiums of said amount on said policy, which were sufficient to carry said policy in effect until December 6, 1943, but failed to pay the said quarterly premium due December 6, 1943, or within the grace period therefor, and thereupon said policy lapsed and became void; that there was no value in said policy available to continue the same thereafter as extended insurance; that therefore on the alleged date of the insured's death said policy had lapsed and was void, and the defendant was not indebted to plaintiff in any amount. The answer pleaded some of the provisions of the policy which will hereinafter be set forth.

Plaintiff, by reply, admitted the provisions of the policy as set out by defendant, and reiterated that the policy did not take effect until the date of delivery October 28, 1942, whereby the 28th days of October, January, April and July were the due dates for the quarterly premiums. Plaintiff denied that the insured requested, or by her conduct treated and construed the effective date of the policy to be the 6th of the months of December, March, June and September, or that she recognized and agreed during her lifetime that such were the due dates of the quarterly premiums thereon in each year, and denied that the insured could under the provisions of the policy make such an agreement; denied that she failed to pay any quarterly premium when due, and denied that the policy was void at the time of her death.

The evidence of the plaintiff tended to prove the assignment to the plaintiff of all the right, title and interest of Stanton Morro, surviving husband of Mary E. Morro, deceased insured, in the policy in question; that Stanton Morro and the insured were husband and wife September 6, 1942, and were residing at that time in Kansas City, Missouri; that on or about that date Mary E. Morro applied for the policy referred to; that the application was signed by the insured in the presence of her husband; that the date of the signature was some time the first part of September; that the policy was delivered six or seven weeks thereafter, the latter part of October, 1942; that the first premium of $ 8.17 was paid on the date of the delivery of the policy; that insured and her husband moved thereafter to the state of Washington, from which place the insured mailed checks to the defendant for premiums, and that on January 22, 1944, she caused to be mailed to the defendant her check for $ 8.17, dated January 21, 1944, and that insured died January 23, 1944; that after her death the last mentioned check was returned and delivered to the husband of the insured, together with letter of January 28, 1944, written by the defendant to the insured, referring to the letter of the date of January 24, 1944, in which the defendant had acknowledged the receipt of check for $ 8.17, but stating in the letter of January 28, 1944, that defendant had received information leading it to believe the insured was unable to furnish satisfactory evidence of insurability, and for that reason was returning the check therewith, and stating that the policy lapsed for nonpayment of premium due December 6, 1943 "as your remittance bears postmark of January 22, 1944, and the grace period allowed for payment of this premium expired January 6, 1944"; that on February 3, 1944, Stanton Morro assigned his interest in the policy to the plaintiff by written assignment. The evidence tended further to show that at the date of the application and at the date of the delivery of the policy, the insured was in good health and remained so until her accidental death on January 23, 1944.

In connection with the cross-examination of plaintiff's witness Stanton Morro, there was introduced a letter from the counsel for defendant to counsel for plaintiff to the effect that the quarterly payments that were paid on the policy had been paid to the down town office of the defendant as follows: October 24, 1942, $ 8.17; January 5, 1943, $ 8.17; March 23, 1943, $ 8.17; July 8, 1943, $ 8.17, September 22, 1943, $ 8.17.

On further cross-examination of plaintiff's witness Stanton Morro, the following letter was introduced and...