Missouri State Life Insurance Company v. Hill

• Decision Date: 14 July 1913
• Citation: 159 S.W. 31,109 Ark. 17
• Parties: MISSOURI STATE LIFE INSURANCE COMPANY v. HILL
• Court: Arkansas Supreme Court

159 S.W. 31

109 Ark. 17

MISSOURI STATE LIFE INSURANCE COMPANY v. HILL

Supreme Court of Arkansas

July 14, 1913

Appeal from Mississippi Circuit Court, Osceola District; W. J Driver, Judge; reversed.

STATEMENT BY THE COURT.

This is an action by Dua Frances Hill against the Missouri State Life Insurance Company to recover three thousand dollars upon a policy of life insurance issued November 15, 1905, on the life of Charles Frederick Hill, the husband of the plaintiff. The plaintiff was designated as beneficiary in the policy. On August 28, 1911, Hill borrowed on his policy $ 354.00, its full loan value. On November 1, 1911, Hill wrote the company asking an extension of sixty days on his premium maturing November 1, 1911. The insurance company granted the extension and Hill executed a note for the premium, due January 15 1912, without grace, and promised to pay to the insurance company at its home office in St. Louis, Missouri, the amount of the premium note. On December 15, 1911, the insurance company wrote Hill reminding him of the fact that his note would mature January 15, 1912; that it was payable at the home office of the company in St. Louis, Missouri, and that in order to keep his insurance policy in force payment must be received "on or before due date." On January 13 1912, Hill placed a letter in the postoffice at Joiner Arkansas, properly addressed to the defendant at St. Louis Missouri, and stamped, containing a check for the amount of his premium note. The testimony on the part of the plaintiff tends to show that in due course of mail this letter would have reached St. Louis on the evening of the 13th day of January, 1912, and should have been received by the plaintiff in due course of mail on that day, or, at latest, on the day following. The testimony on the part of the defendant tends to show that it did not receive the letter until January 16, 1912, and that, according to its custom, the date of the receipt of the letter was stamped on it immediately after it was opened. On the same day, January 16, 1912, the defendant wrote to Hill the following letter:

"As our renewal premium notes do not provide for any days of grace, in accordance with notice sent you, and as your remittance tendered in payment thereof did not reach this office until today, one day after due date, the above policy has lapsed, and before we can consider the acceptance of the settlement tendered, it will be necessary that you fill out, date and sign, in the presence of witnesses, and attach blank application for reinstatement and return the same to this office for the consideration of our medical department."

When Hill received this letter he handed it to his wife and said to her, "This policy has lapsed." She took the letter and read it. Having received no answer to this letter, the defendant on January 26 again wrote Hill, calling his attention to the fact that the policy had lapsed and that they could not receive the check as payment of the premium until they received his application for reinstatement. They inclosed him another blank for reinstatement and urged him to fill it out and send it in by return mail. On February 5, 1912, they again wrote Hill as follows:

"Up to the present time we have not received a reply to our communication of January 26, with reference to application for reinstatement under the above-numbered policy.

"Now, Mr. Hill, under no consideration can we consider the acceptance of the remittance tendered in payment of your past due note without reinstatement. In this connection we wish to state that an application for reinstatement is nothing to be feared if you are in as good health now as you were when taking out the policy and have had no serious sickness, accident, etc., since then. In that event, we see no reason for an unfavorable action.

"We regret very much to have to cause you this additional trouble, but the provisions of your note and the strict insurance laws of this State must be complied with; otherwise, we would soon get ourselves into trouble."

Having received no answers to any of these letters, the defendant on February 17, 1912, wrote Hill substantially as it did in the letter last copied above and urged him to advise it by return mail what he intended to do in the matter. On March 22, 1912, not having received any answers to any of the letters, the defendant wrote Hill as follows:

"Not having received a reply to our various communications addressed to you, we herewith return your check tendered in payment of renewal premium note for $ 112.80, with interest, due January 15, 1912, under the above-numbered policy."

The insurance company heard nothing further in regard to the matter until after Hill's death, which occurred September 1, 1912. After this correspondence Hill applied and secured a policy of insurance on his life in the New York Life Insurance Company and told his wife that he intended to be reinstated with the Missouri State Life Insurance Company in the fall of 1912 if he was able.

The testimony on the part of the plaintiff tended to show that Hill was accustomed to paying his premiums on the policy in question by sending a check for the amount through the mail to the insurance company. The officers of the insurance company admitted that if the check had been received on or before the 15th day of January, 1912, the defendant would have accepted it in payment of the premium.

The jury returned a verdict for the plaintiff for $ 2,588.90, being the amount of the policy sued on, less the loan obtained by Hill from the insurance company on his policy. From the judgment rendered, the defendant has duly prosecuted an appeal to this court.

Judgment reversed and cause dismissed.

J. T. Coston, for appellant.

1. When Hill deposited the letter containing the check in the postoffice, he thereby made the United States mail his agent for the delivery of the letter and check to the appellant, and the failure of his agent to deliver the check on or before the 15th of January, 1912, worked a forfeiture of the policy eo instanti, by virtue of the terms of the policy and the premium note. 17 Ark. 431, 433; 30 Cyc. 1269; 3 Cooley, § 2368; 93 U.S. 31.

2. Hill acquiesced in the forfeiture, he recognized the validity of the forfeiture, ratified and acquiesced in it and abandoned all claim under the policy. 43 N.W. 197; 106 S.W. 681, 682; 63 F. 772; 74 P. 690; 178 U.S. 345; Id. 347; Id. 327; Id. 351; 3 Cooley, 2833.

Appellee, pro se.

1. Forfeiture of a life insurance policy is not favored by the courts, and will not be declared unless there is some substantial ground upon which to base the same. 183 U.S. 25; 127 F. 651; 96 U.S. 234; Id. 572; 104 U.S. 252; 41 F. 506; 80 P. 213; 62 A. 681.

2. Silence is not a waiver. 148 S.W. 626; Id. 631; 25 Cyc. 848; 101...