Magers v. National Life & Acc. Ins. Co.
| Citation | 329 S.W.2d 752 |
| Decision Date | 14 December 1959 |
| Docket Number | No. 47468,47468 |
| Parties | Hugh H. MAGERS, Assignee, Respondent, v. NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, a Corporation, Appellant. |
| Court | United States State Supreme Court of Missouri |
Paul Van Osdol, Jr., Robert F. Redmond, III, Kansas City, Terrell, Hess, Van Osdol & Magruder, Kansas City, of counsel, for appellant.
R. C. Southall, R. J. Southall, Kansas City, for respondent.
This is an action by an assignee to recover the cash surrender values of certain policies of industrial life insurance which had lapsed for default in payment of premiums. The trial court found in favor of the plaintiff and its judgment was affirmed by the Kansas City Court of Appeals. As styled there it is reported, National Life & Accident Insurance Co. v. Magers, Mo.App., 319 S.W.2d 53. On application of the defendant Insurance Company, the cause was transferred to this court pursuant to Art. V, Sec. 10, Constitution of Missouri, 1945, V.A.M.S.
The plaintiff sued in twelve counts each involving a separate policy of industrial insurance issued by the defendant Insurance Company; four of the counts were dismissed by the plaintiff at the trial. Judgment was rendered on the remaining eight counts for the cash surrender value of each policy, ranging in amounts from $2.45 to $84.99, for a total judgment of $342.22. At the trial it was stipulated that all eight of the policies prior to their assignment to the plaintiff had lapsed for nonpayment of premiums; that the computations furnished by the Insurance Company were the correct cash surrender values which had accrued to the credit of the insureds under each of the lapsed policies and that such cash values had not been paid.
The evidence in the case consisted of the testimony of the plaintiff and certain documents including the insurance policies sued on, and two instruments signed by each of the policyholders, the first purporting to be in the nature of a power of attorney, and the second an assignment. Plaintiff testified that he was an insurance actuary engaged, among other things, in the evaluation of insurance policies and the collection of amounts found to be due thereon. He advertised his services as an actuary in local newspapers and all of the persons insured under the policies came to his office. He testified that they told him that they had attempted to get the cash value from the Company and had been unable to do so. In the plaintiff's office the policyholders signed the first document referred to which was on a printed form and was entitled 'Employment Agreement, Power of Attorney in Fact, and Assignment.' The plaintiff then made demand upon the defendant Insurance Company for the cash surrender value and upon payment being refused he secured from each of the policyholders the second document which was also upon a printed form and entitled 'Affidavit and Assignment.'
The plaintiff's testimony given on Court 2 as to the method of handling that claim is fairly typical of his testimony on all the other counts. It is as follows:
Each of the policies, except the one sued on in Count 2 of plaintiff's petition, contained a condition in substantially the following language: 'Any assignment or pledge of this Policy or of any of the benefits thereunder shall be void and of no effect.' In the trial court and the court of appeals there was an issue of whether the amount due under Count 2 had been paid. In this court the appellant has dismissed its appeal as to Count 2 and we are concerned only with the seven policies which have the condition against assignment of the policy or any of its benefits.
The findings of the court as to the legal effect of the agreements executed by the policyholders are typified by the one made on Count 6 which is as follows:
'The Court finds that the said written agreement between the insured and plaintiff, entitled in the evidence an 'Assignment', was in truth and in fact a mere Power of Attorney and Trust Agreement for collection purposes, empowering the plaintiff as Trustee to act for and on behalf of the insured to collect said cash surrender value, and that such agreement did not violate the provision in said policy against assignment thereof.'
Appellant's brief in this court directs its claims of error to the opinion of the court of appeals. We will treat these as assignments against the trial court since on transfer the appeal is considered as if originally taken to this court. Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, 818.
The points relied on by appellant are that the court erred in finding that an assignment of rights and benefits under the policies had been accomplished contrary to the express provisions of the policies because (1) the general law of contracts is applied to insurance contracts in this state except where a statute or public policy dictate otherwise, (2) the subject matter of the assignments were benefits under the policies and not of liquidated, matured choses in action, and (3) the provisions prohibiting assignment of the policies and benefits thereunder are not contrary to public policy.
It is apparent from the findings and judgment of the trial court that it did not hold the policy provisions against assignment of 'the policy or benefits thereunder' to be contrary to public policy or any statutes of the state. On the contrary the trial court, as well as the court of appeals, assumed the validity of these policy provisions but distinguished the rights involved, stating as quoted above, that the agreements and the action taken thereunder 'did not violate the provisions in said policy against the assignment thereof.' Therefore we need not be concerned with appellant's sub-points (1) and (3) referred to above. This leaves for consideration the question of sub-point (2) above, whether the claims presented are matured choses in action which are not controlled by the policy provision against assignment.
A specification of the kind of life insurance policies involved may be helpful. Section 376.690 RSMo 1949, V.A.M.S., provides that: 'Industrial or prudential life insurance companies under the meaning of sections 376.680 to 376.760 are such life insurance companies that issue policies not exceeding five hundred dollars in amount, the premiums on which are computed at a weekly rate and are collected and paid weekly under the terms of the policies of the company issuing the same.' Such companies 'may also issue life policies, not exceeding one thousand dollars in amount, the premiums on which shall be computed at a monthly rate,' and shall be so paid. The appellant stresses the special character of industrial insurance, but does not demonstrate that in the circumstances of this case it is entitled to any different treatment than policies for a larger amount on an annual premium basis.
All of the policies in question have a provision for a cash surrender value substantially similar to that in Policy Exhibit 6-A which reads as follows: Certain nonforfeitable features, of which the...
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