Marshall v. Missouri State Life Ins. Company
| Decision Date | 31 May 1910 |
| Parties | JOHN O. MARSHALL, Admr. of Estate of EDWIN R. STEADMAN, Deceased, Appellant, v. MISSOURI STATE LIFE INSURANCE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Eugene McQuillin Judge.
Judgment affirmed.
A. A Hunt and John O. Marshall for appellant.
(1) It was the duty of the court to point out the competent and incompetent parts of the deposition, and to exclude the incompetent parts. Hamilton v. Scull, 25 Mo. 165. The objection to the introduction of the deposition was timely, under section 2906, R. S. 1899, objections to incompetency and immateriality can be urged at any time. Rule 19, rules St. Louis Circuit Court, p. 14. The deposition was incompetent, one party to giving of notes being dead. R. S 1899, sec. 4652; Banking House v. Rood, 132 Mo. 256; Chapman v. Dougherty, 87 Mo. 617; Kaho v. King, 19 Mo.App. 44; Weiland v. Weiland, 64 Mo. 168; Sitton v. Shipp, 65 Mo. 297. Van Fleet not a competent witness. Banking House v. Rood, 132 Mo. 256; Chapman v. Dougherty, 87 Mo. 617; Kaho v. King, 19 Mo.App. 44. Notes were immaterial and irrelevant, and improperly admitted in evidence. They were contradictory of the policy and of each other. Contrary to Act of 1907, p. 316. (2) It was error to permit the witness Stearnes to testify from a memorandum not made by himself, and error to admit the memorandum in evidence. Fraber v. Hicks, 131 Mo. 180. The introduction of the sixty-day note (exhibit B to the deposition) was improper. The notes were not a "charge" against the policy. A charge is "any lien on property of any description." 6 Cyc. 893; Mack v. Prince, 40 W.Va. 324; Bank v. Elliott, 125 Ala. 646. The conditions of policy could not be defeated by inconsistent expressions in collateral instruments. 25 Cyc., p. 743, note 75; 25 Cyc., p. 740, note 52; May on Ins. (4 Ed.), sec. 345F; Ins. Co. v. Hardie, 37 Kan. 673; Union Central v. Buxer (Ohio), 57 N.E. 66; Elliott on Ins., 130, note 47 and 48; Fithian v. North Western, 4 Mo.App. 386; Bacon on Insurance, sec. 130, note 48; Mut. Life v. French, 30 Ohio St. 240. The company was estopped from denying that premium was not paid. Mooney v. Home Ins. Co., 80 Mo.App. 192; Jacobs v. Omaha Life, 146 Mo. 523; Dobyn v. Bay State, 144 Mo. 95. (3) The court should have submitted the case to the jury, under proper instructions; the court should have advised the jury of the legal effect of the language of the policy, leaving questions of fact to be determined by the jury. Primm v. Haren, 27 Mo. 205; Gannon v. Gas Co., 145 Mo. 503; McAfee v. Ryan, 11 Mo. 364; Turner v. Loler, 34 Mo. 461. Forfeiture was waived by the company. Rowe v. Brooklyn, 38 N.Y.S. 621; LaForce v. Williams, 43 Mo.App. 518; James v. M. R. F., 148 Mo. 1; Knarston v. Thaub, 124 Cal. 74; Moreland v. Union Central, 46 S.W. 516.
Jones, Jones, Hocker & Davis for respondent.
(1) The policy was null and void and not in force when the insured died. Duncan v. Life Ins. Co., 160 F. 646. (2) The policy provided for the payment of the amount thereof only in the event that it was in force when the insured died. (3) The policy was issued in consideration of the payment of $ 145.80, which amount was never paid. (4) The policy provides that non-payment of notes given as a charge against the contract will render policy null and void. The notes given for part of the first premium were not paid and the policy became null and void. (5) The notes given in part payment of the first premium provided for forfeiture of policy if they were not paid and the policy, therefore, became null and void when notes were not paid. (6) There was no waiver of forfeiture, for the notes provided that the notes were payable after forfeiture without reviving the policy. Duncan v. Life Ins. Co., 160 F. 646; Life Ins. Co. v. Murray, 86 S.W. 813; Life Ins. Co. v. Chowning, 28 S.W. 119; Laughlin v. Life Ins. Co., 28 S.W. 413; Insurance Co. v. K. T. Lodge, 32 Tex. Civ. App. 328; Schultz v. Ins. Co., 42 Iowa 239; Shakey v. Ins. Co., 44 Iowa 540; Blackberry v. Ins. Co., 83 Ky. 574; Smith v. Ins. Co., 6 Dak. 433; Williams v. Ins. Co., 19 Mich. 451.
Action on a policy of life insurance issued by defendant company on the life of Edwin R. Steadman, dated October 12, 1905, whereby defendant promised to pay the executors, administrators or assigns of the assured, or such other beneficiary as he might designate in accordance with the terms of the policy, the sum of three thousand dollars on receipt of satisfactory proof of the death of the insured, or, if he was living and the policy in force October 12, 1925, to pay him said sum. The policy recited it was granted in consideration of the application for it, which was part of the contract, the payment of $ 145.80 premium for one year's insurance, and the annual payment of said sum October 12th every year thereafter for twenty years or until the death of the insured. When he applied for the policy, the insured paid $ 95.80 on the first year's premium and executed two notes for twenty-five dollars each, one to fall due in thirty days after its date, and the other in sixty days after, which money and notes were accepted by the company. The two notes were identical except as to dates of maturity, the first one reading as follows:
The policy declared it and the application together should constitute the entire contract which could "only be varied in writing at its home office in St. Louis by the president, vice-president or secretary of the company." The policy further declared as follows: It should be incontestable after one year from the date of its issue, provided premiums were duly paid; after it had been in force a year, a grace of one month would be allowed in the payment of subsequent premiums; after three annual premiums had been paid with the policy in force, the company would loan on the security of it, at six per cent interest, its full loan value as shown in the table it contained, setting forth its value in different years; after three annual premiums had been paid, the company would give the insured the choice of three different options shown in the table, which we need not recite as they are not pertinent to the appeal. The application for the insurance was taken by the vice-president of the company October 11, 1905, and it was to the vicepresident the insured executed the two notes for the part of the first premium. At maturity the notes were sent to a bank for collection; but the bank returned them unpaid. Steadman died July 24, 1906, and plaintiff was appointed administrator of his estate, in which capacity he instituted the present action. The defense set up in the answer is that the insured, at the time the policy was issued, executed to defendant the two notes which declared they were in part payment of the first annual premium and that the policy should, without notice to any one, become null and void on failure to pay either of the notes at maturity; that a fruitless demand was made for the payment of them when they matured, and thereby the policy became void and was not in force when Steadman died. After denying in the reply the averments of the answer, plaintiff alleged that if defendant was entitled to have the policy forfeited for failure of the insured to pay either of the notes at maturity, it waived the right of forfeiture by its course of dealing with Steadman and by attempting to collect the notes. When the evidence was in, the court directed a verdict for defendant, which having been returned and judgment entered accordingly, this appeal was taken.
Plaintiff insists the stipulation in the premium notes that the policy should become null and void on failure to pay a note, and that, too, without notice to anybody interested, was no part of the contract between the insurance company and Steadman for two reasons: First, because said stipulation was inconsistent with the terms of the policy itself, and second, because the policy provided it and the application should constitute the entire contract. It is conceded the notes were executed simultaneously with the policy, and...
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