McDonald v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 16 November 1918 |
| Docket Number | No. 32189.,32189. |
| Parties | MCDONALD v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Clarke County; Thomas L. Maxwell, Judge.
Action at law to recover upon a policy of life insurance. There was a directed verdict and judgment for the defendant, and the plaintiff appeals. Reversed and remanded.O. M. Slaymaker, of Osceola, for appellant.
Henry & Henry, of Des Moines, and Temple & Temple, of Osceola, for appellee.
The plaintiff sues as assignee of Katherine E. McKee, the widow of Samuel C. McKee, deceased. Many of the material facts are the subject of no dispute. Among them, we mention the following: On February 15, 1915, the defendant life insurance company issued its policy for the sum of $2,000 upon the life of Samuel C. McKee, payable to his wife, Katherine E. McKee. At that time McKee paid the first year's premium, $116, all or in part by giving his promissory note, which he subsequently took up. The policy provided for the payment of subsequent annual premiums at the same rate on the 9th day of February of each year until 20 of these premiums had been paid. The policy also provided for payment of dividends annually, which sums could, at the option of the insured, be “applied toward the payment of premiums.” Among other stipulations of the instrument, it was provided that--
“All premiums are payable in advance at the home office or to any agent or agency or cashier of the society upon delivery on or before their due date of a receipt,” signed by an executive officer of the company.
It was also provided that a grace of 31 days subject to an interest charge of 5 per cent. per annum would be allowed for the payment of every premium after the first, during which period the policy should remain in force. Another provision was as follows:
“Agents are not authorized to modify, or in event of lapse, to reinstate this policy, or to extend the time for payment of any premium or installment thereof.”
Samuel C. McKee died on September 10, 1916. Very soon after the death of the insured, the widow by her counsel notified defendant of his death, called upon it to furnish blanks for the formal proof thereof, and demanded payment according to the terms of the contract. The defendant acknowledged receipt of these communications, but alleged that the policy had been forfeited by the failure of the insured to pay the second annual premium, and for this reason it refused to make payment or to acknowledge any liability therefor.
Suit having been brought to enforce payment, the company made defense on the ground indicated. Trial was had to a jury, and, at the close of all the evidence offered by the respective parties, there was a directed verdict and judgment for the defendant.
I. The vital inquiry in this case is whether as a matter of law the plaintiff failed to make a case on which she was entitled to the verdict of a jury. The plaintiff denies that there was any default in the payment of the second annual premium. Her testimony tends to show that she and her husband were residents of Des Moines, Iowa; that the policy was originally issued upon an application obtained from McKee at Des Moines by one J. A. Blum, an alleged general agent of the defendant, to whom the first premium was paid; that about the time the second premium payment fell due, and before the contract days of grace had expired, McKee being away from home, Mrs. McKee, the beneficiary in the policy, saw Blum, and told him of the absence of her husband and of her expectation of his early return, and said to the agent if he wanted the payment then she would go to the bank and get the money for him; and that he replied that it was not necessary and he would wait until Mr. McKee came home. This conversation she says was repeated several times. She further says that Blum informed her that after applying the first dividend on the premium it would leave a remainder due thereon of about $101, and that she made a memorandum of it. Soon thereafter and about the expiration of the 31 days' grace, she went to her husband, who was sick at St. Paul, Minn., and, having reported to him her understanding had with Blum, he undertook to make payment of the premium in the following manner: On March 14, 1916, 33 days after the due date of the premium, he wrote a letter to Blum and inclosed to him a check for $101. The letter and check were in the following form:
“St. Paul, Minn., March 14, 1916.
J. A. Blum: Please find inclosed check for $101.00. I know there is a small amount over this, but whatever it is, will pay when I come home. Mrs. McKee said you would let the matter rest until I came home, or I would have mailed check sooner.
+---------------------------+
¦Yours truly,¦S. C. McKee.” ¦
+---------------------------+
“Dallas Center, Iowa, March 13, 1916.
Bank of Dallas Center, 72-759:
Pay to Equitable Life Assurance Company, or order, $101.00 one hundred and one and no/100 dollars.
+---------------------------+
¦[Signed]¦Samuel C. McKee.” ¦
+---------------------------+
Insurance premium due February, 1916, $2,000.00 policy.
This check was received by Blum and passed over with McKee's letter to the company's cashier at Des Moines, by whom it was indorsed and deposited to the credit of the company, and through the usual course of banking business was collected from the bank at Dallas Center on March 21, 1916. In this connection, the agency cashier who received the check from Blum testifies that on the same day he wrote and mailed a letter to McKee inclosing therein a conditional receipt for the money so remitted. The letter and receipt, he says, were in the following form:
Letter.
March 18, 1916.
Samuel C. McKee, St. Paul, Minn.--Dear Sir: Your letter of the 14th written to our Mr. J. A. Blum, inclosing a check for $101.00, in connectionwith the premium due February 9, 1916, on policy No. 1948164, has been referred to the undersigned for attention, and in this regard you should be advised that the amount of your check has been placed in escrow, for which I inclose a proper receipt. I desire to request that you kindly sign the attached declaration of health, which must be at this office no later than the 9th proximo, when restoration of this policy will have immediate attention. You have been previously advised that the said policy lapsed as to February 9th.
In reference to your remittance of $101.00, kindly be advised that it is sixty-eight (68) cents short. This is made up as follows:
Agency at Des Moines, Ia., 3/18/1916.
Received from Samuel C. McKee one hundred one and 00/100 dollars ($101.00) offered for on account annual prem. less dividend due Feb. 9th, 1916, policy No. 1948164--reinstatement pending.
Said sum is received only for transmission to the home office of the society in New York for the account of the depositor, and the society is in no way committed thereby to the acceptance thereof for the purpose offered nor to any action in the premises, and nothing herein or connected with the receipt of said sum shall be held to waive any default in payment of any premium, interest or other sum due, or to extend the time for payment of any premium, interest or other sum, or in any manner to affect the rights of the society under any policy or contract of insurance or otherwise. If the said amount be not accepted by the society for the purpose offered it will be returned to the depositor upon demand.
C. H. Nicolet, D. S. Agency Cashier.
There is also the copy of another letter of same date and of similar import directed to McKee at “508 Observatory Building, Des Moines, Iowa,” which the cashier testifies he wrote and mailed. Still other communications put in the record were mailed to McKee, he says, at different dates during the spring and summer of 1916, urging and advising him to take the necessary steps for the reinstatement of his insurance. The same witness further says that on April 26th, 42 days after the receipt of the money, he sent McKee another letter as follows:
“April 26, 1916.
Samuel C. McKee, 508 Observatory Building, City--Dear Sir: Re Policy No. 1,948,164. We are refunding herewith your deposit of $101.00 in connection with the premium due February 9, 1916, on this policy, and beg to state that in your not furnishing us with a medical certificate of your good health, we have been unable to consider the reinstatement of this policy, which lapsed February 9, 1916, for the non-payment of the premium then due. Therefore, we are making the return of this deposit.
We will be glad to open this matter up again on receiving the requirements as set forth above, or in arranging a reinstatement, and trust you will make such application at once.
+-------------------------------------+
¦Yours truly,¦C. H. Nicolet, Cashier.”¦
+-------------------------------------+
This letter inclosed a check for $101 payable to the order of Samuel McKee “for return deposit a/c policy No. 1948164 as per statement of account No. 24110,” and indorsed thereon were the following printed words:
“Received of the Equitable Life Assurance Society of the United States the within amount in settlement of account as stated.”
It is stipulated by the parties in the record of the trial that on May 3, 1916, this check was deposited to the credit of McKee in the National Bank of Commerce of St. Paul, Minn.; that it was duly collected and proceeds credited to McKee, and the same has been...
To continue reading
Request your trial
-
French v. Franklin Life Ins. Co.
... ... cit., sec. 506, ... pp. 1443, 1446; McDonald v. Eq. Life Assur. Soc., ... 185 Iowa 1008, 169 N.W. 352; ... Let us ... see what the Missouri cases have held in other cases ... ...
-
Ballard v. Beneficial Life Ins. Co
... ... believe, however, that if you will write us, stating frankly ... what your reasons are, we might be of ... Roberts v. Amer. Nat. Assur. Co. (Mo. App.) ... 220 S.W. 996, that a note accepted by ... Equitable Life Assur. Soc. v. King , 178 ... Ark. 293, 10 S.W.2d ... Co. (Mo. Sup.) ... 281 S.W. 407; McDonald v. Equitable [82 ... Utah 17] Life Assur: Soc. , 185 ... ...
-
McDonald v. Equitable Life Assurance Society of U.S.
... ... policy, and beg to state that in your not furnishing us with ... a medical certificate of your good health, we have been ... unable to consider the ... ...
-
French v. The Franklin Life Ins. Co.
...agent Cowden, in view of his broad authority, bound the defendant. 3 Couch, op. cit., sec. 506, pp. 1443, 1446; McDonald v. Eq. Life Assur. Soc., 185 Iowa, 1008, 169 N.W. 352; Limbaugh v. Monarch Life Ins. Co., 84 S.W. (2d) 208; Gibson v. Tex. Prud. Ins. Co., 229 Mo. App. 867, 86 S.W. (2d) ......