Martin v. Mutual Life Ins. Co.

• Decision Date: 04 May 1915
• Docket Number: No. 14011.,14011.
• Citation: 176 S.W. 266,190 Mo. App. 703
• Parties: MARTIN v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

176 S.W. 266

190 Mo. App. 703

MARTIN v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 14011.

St. Louis Court of Appeals. Missouri.

May 4, 1915.

Rehearing Denied May 18, 1915.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Action by Henrietta P. Martin against the Mutual Life Insurance Company of New York. Judgment for the plaintiff, and defendant appeals. Affirmed.

Watts, Gentry & Lee, of. St. Louis, for appellant. F. H. Bacon, of St. Louis, for respondent.

NORTONI, J.

This is a suit on two separate policies of life insurance. Plaintiff recovered, and defendant prosecutes the appeal.

The petition is in two counts. The first declares upon one of the policies, and the second upon another. Both policies were issued by defendant on the same date—that is, May 9, 1908—in the amount of $1,000 each, and by their terms the premiums are payable annually on the 9th day of May each year, with a provision allowing a grace of 30 days (or one month, if greater) for the payment of every premium after the first. The two policies are identical in their provisions in every respect, and plaintiff's husband, since deceased, was the Insured in both, while she is the beneficiary mentioned therein. The insured paid the first and second premiums on both policies, and, indeed, paid the third, too; but there is a controversy as to whether he paid the third premium in due time, and the defense pertains to this matter.

It is set forth in defendant's answer that both of the policies lapsed for the nonpayment of the premiums falling due May 9, 1910, and that therefore the insurance was not in force at the time of the death of the insured.

At the trial the court peremptorily instructed a verdict in favor of plaintiff, in the view that the policies were in force at the time of the death of the insured, and submitted only the question pertaining to damages for a vexatious refusal to pay. It is argued this was error, but we are not so persuaded. The facts concerning this matter are as follows: It appears the insured found himself unable to meet the premiums falling due on the policies May 9, 1910, and wrote defendant's general agent at Louisville, Ky., through whose office the premiums were payable, concerning this fact; but this letter of the insured is not in evidence. The premiums were payable, as before said, on May 9, 1010, but a grace of 30 days, or one month if greater, was allowed by the provision of the policy. During this period of grace—that is, on May 14, 1910—defendant's general agent wrote plaintiff's husband, the insured, as follows:

"The company will be willing to consider your request for a three months' extension of the premium, and I have therefore inclosed herewith blank forms, which should be signed by you at the place indicated, and retarned to me, together with check for $6."

Though the insured's letter in response to this, and the application, if any was formally made, in accordance with the request, is not in evidence, it appears that defendant's general agent wrote the insured under date May 26, 1910, as follows:

"I have received your letter of the 24th inst., inclosing money order for $6, with retluest for extension of the premiums on policies Nos. 1736230-232. I will forward the requests to the company and advise you as soon as their reply is received."

Thereafter, on June 4, 1910, defendant's general agent wrote the insured, as appears from the letter in evidence, as follows:

"I inclose the company's approval of your request to extend the premiums on policies Nos. 1736230-232 to August 9th."

These three letters of the general agent of defendant reveal the entire contract in respect of this matter, for, if any formal writing touching it was entered into, it is not produced in evidence by either party. It appears from this correspondence, and, indeed, it is not denied, that the insured paid defendant $6—that is, $3 on each policy—for the extension therein contemplated, and subsequently, on September 1, 1910, he paid the premiums which were due on May 9th of the same year on both policies. But the defendant tendered such payments back, and asserts that the policy had lapsed on August 9th, for that the letter of its general agent of June 4th recites that day as the limit of time to which the premiums were extended. The insured died shortly after the premiums were paid on September 1st, and plaintiff insists that such payments were made in due time in accordance with the contract extending the premiums and the period of grace provided in the policies. The following provisions of the policies are to be considered as relevant here:

"Except as herein provided, the payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium, or installment thereof, is payable. * * * A grace of 30 days (or one month if greater), subject to an interest charge of 5 per cent. per annum, shall be granted for the payment of every premium after the first, during which time the insurance shall continue in force. If death occur within the period of grace, the unpaid portion of the premium for the then current policy year shall be deducted from the amount payable hereunder."

Under the express terms of this provision the last annual premium theretofore paid continued each policy in force until and including the date when the next premium was due—that is, in the instant case, May 9, 1910—and a grace of 30 days, or one month, if greater, was allowed in addition for payment of such premium, in connection with which the policy expressly provides that "during which time the insurance shall continue in force." It appears defendant's general agent wrote the insured that the company would consider his application for a "three months' extension of premium, but that the cost to him would be $6 therefor." The insured paid defendant the $6 requested on this representation, according to the letter of defendant's agent of date May 6, 1910, "for extension of the premiums on policies Nos. 1736230-232." On June 4th defendant's general agent wrote insured:

"I inclose the company's approval of your request to extend the premium on policies Nos. 1736230-232 to August 9, 1910."

It is obvious that if the extension be begun on May 9, 1910, and continue for 3 months, it would expire on August 9th of the same year, as indicated in the last letter. But, according to this, insured would be deprived entirely of his 30 days of grace stipulated in the policy, and for the $6 he had paid he would receive in fact but 2 months' extension, whereas the proposal was to afford him 3 months' extension for $6. But it is argued that, as the letter of defendant's general agent of date June 4th, last above quoted, fixes August 9th as the limit of the extension, it must control.

The question presented is one of interpretation solely, and it is well to ascertain the situation of the parties and what they were endeavoring to do, and discover from this the true intention as revealed in the policy, and its modification appearing in the letters of defendant's general agent. The insured found himself unable to pay the premiums when due, and wrote defendant's agent...