McGeehan v. Mutual Life Ins. Co.

• Citation: 111 S.W. 604,131 Mo. App. 417
• Parties: McGEEHAN v. MUTUAL LIFE INS. CO.
• Decision Date: 08 June 1908
• Court: Court of Appeal of Missouri (US)

111 S.W. 604

131 Mo. App. 417

McGEEHAN v. MUTUAL LIFE INS. CO.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

1. INSURANCE—LIFE INSURANCE—CONSTRUCTION —WHAT LAW GOVERNS.

A petition in an action on a life policy which alleges that the contract of insurance was made in New York, and that it was a part of the contract that the laws of New York were to become a part of the policy and to govern its terms, and which sets out the statute of New York which disallows a forfeiture for nonpayment of premium without first giving a written notice, and which avers that no such notice was given, alleges facts showing that the policy is a contract governed by the laws of New York.

2. SAME—NONPAYMENT OF PREMIUMS—ABANDONMENT OF POLICY BY INSURED.

A life policy called for semiannual premiums, and stipulated that, if the premiums were paid for 20 years, the insurer would pay to the insured a specified sum. The policy was subject to a statute prohibiting a forfeiture for nonpayment of premium, except after giving notice stating that, unless the defaulted premium should be paid within a specified time, the policy

would be forfeited. Insured paid premiums for 12 years, and then failed to pay further premiums for a period of eight years. Held, that he abandoned his contract regardless of the nonaction of insurer, concerning the right to declare a forfeiture, the statute covering only cases of casual neglect, and preventing such instances from depriving the party of the benefit of his policy until after notice.

3. SAME.

A policy of insurance issued by a foreign insurance company on the life of a nonresident called for semiannual premiums which were paid for a time. Insured became a resident of Missouri, and failed to pay premiums. Subsequently the policy was on his application re-established, after which he paid two semiannual premiums, and then defaulted. Held, that he was not within Rev. St. 1899, § 5856 (Ann. St. 1906, p. 2960), providing that after the payment of "two full annual premiums" a policy shall not be forfeited, etc., since insured could not connect the payment of premiums after the re-establishment of the policy with payments made before he became a resident of Missouri.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Robert P. McGeehan against the Mutual Life Insurance Company. From a judgment for defendant, rendered after sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Geo. W. Day, for appellant. Karnes, New & Krauthoff, for respondent.

ELLISON, J.

This action is founded on a life insurance policy called a "semiendowment." The petition was in three counts. There was a demurrer on the ground of no cause of action being stated in either count. The demurrer was sustained, and, plaintiff refusing to plead further, judgment was given for the defendant, and plaintiff in due time appealed. Plaintiff seems not to place much faith in the first count of his petition and properly so, as we think it does not state a cause of action, and we therefore take up, in their order, the second and third counts. The second count alleges that on the 3d of February, 1883, defendant issued to plaintiff its policy of insurance, whereby it agreed that in consideration of semiannual premiums of $15 each to be paid at defendant's office in New York for 20 years, ending in February, 1903, it would pay plaintiff, if living at that time, $500 at defendant's office in New York, less any indebtedness owing by plaintiff to defendant. It is then alleged to have been the agreement that the contract of insurance should be governed by the laws of New York, and that such laws should be considered a part of the contract; that at that time there was a statute of New York prohibiting a life insurance company from forfeiting a policy for nonpayment of premium except after giving written or printed notice, duly addressed and mailed, to the person whose life was insured at his last known postoffice address, the notice stating that, unless the defaulted premium be paid within 30 days after mailing the notice, the policy would be forfeited. It was further alleged that such law disallowed a forfeiture until 30 days had elapsed from the mailing of the notice. It is then further alleged that plaintiff regularly paid his semiannual premiums up to and including the one due the 3d of February, 1895, covering a period of 12 years; that no notice of forfeiture was ever given him. It is then averred "that, except as aforesaid, he has fully performed said contract, on his part, and is now willing and does credit the said unpaid premiums, with interest thereon from the dates they became due, respectively, amounting to the sum of $282.60, upon the amount promised by defendant to be paid him as aforesaid. Wherefore plaintiff prays judgment for $217.40, with interest from the 3d of February, 1903."

Leaving out of view the great length of time which the face of the petition shows plaintiff to have failed to perform his obligation by paying premiums, the second count states a cause of action. It alleges the contract was made in New York, and that it was a part of the contract that the laws of that state were to become a part of the policy and to govern its terms. It then sets out the statute of that state which disallows a forfeiture without first giving the written notice, and avers that no such notice was given. If the contract is a New York contract (and so we must regard it, since matters are alleged as facts which make it a contract of that state), then the laws of New York must govern its interpretation. Cravens v. Insurance Co., 148 Mo. 583, 50 S. W. 519, 53 L. R. A. 305, 71 Am. St. Rep. 628; Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 24 Sup. Ct. 538, 48 L. Ed. 788; ...