Mo. Cattle Co. v. Great Southern Life Ins. Co.

• Decision Date: 01 July 1932
• Docket Number: No. 30072.,30072.
• Citation: 52 S.W.2d 1
• Parties: MISSOURI CATTLE LOAN COMPANY v. GREAT SOUTHERN LIFE INSURANCE COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

52 S.W.2d 1

MISSOURI CATTLE LOAN COMPANY v. GREAT SOUTHERN LIFE INSURANCE COMPANY, a Corporation, Appellant.

No. 30072.

Supreme Court of Missouri, Division 2.

July 1, 1932.

Appeal from Jackson Circuit Court. — Hon. Allen C. Southern, Judge.

AFFIRMED.

Chas. M. Howell, Daniel V. Howell, Fred L. Switzer and Wm. H. Allen for appellant.

(1) The court erred in refusing defendant's instruction in the nature of a demurrer to the evidence at the close of all the evidence in the case, because under the law the defendant owed no duty to the insured and/or the assignee to notify them, or either of them, either of the due date of the premium due June 5, 1926, or of the due date of the note and interest thereon, due June 5, 1926. May on Insurance (4 Ed.) 356A, p. 773; Gatterman v. Amer. Life Ins. Co., 1 Mo. App. 300; Darby v. N.W. Mutual Life Ins. Co., 293 Mo. 13; Thompson v. Knickerbocker Life Ins. Co., 104 U.S. 252, 26 L. Ed. 765; 11 Rose's Notes on U.S. Rep., p. 489; 10 Am. & Eng. Ann. Cases, 687, note; Holly v. Life Ins. Co., 105 N.Y. 437. (a) Defendant owed no duty to give notice of the due date of the premium note and failure to pay same on due date justified cancellation of policy. Bartholomew v. Security Mutual Life Ins. Co., 124 N.Y. Supp. 917; Conway v. Phoenix Life Ins. Co., 140 N.Y. 79, 35 N.E. 420; Banholzer v. N.Y. Life Co., 74 Minn. 387, 77 N.W. 295; Thompson v. Knickerbocker Life Ins. Co., 104 U.S. 252, 26 L. Ed. 765. (b) The due date of the policy was June 5, 1926; plaintiff failed to pay the premium on that date and took no steps of any kind until six months later; having failed to use due or reasonable diligence plaintiff is now estopped to defend his failure to pay the premium when due on account of failure to receive notice. Grant v. Gold Life Co., 76 Ga. 575; 2 Pomeroy's Equity Jurisprudence, sec. 813, p. 278. (2) The evidence conclusively shows that notice of due date of premium was sent by defendant to plaintiff prior to June 5, 1926. (3) The appellant is a foreign corporation with home offices in the City of Houston, Texas: Under the terms of the policy in question all premiums were required to be paid at the home office; the insurance company through its officers in Texas notified plaintiff it had cancelled the policy for nonpayment of premium and for nonpayment of interest on note; the plaintiff by this action prayed and the court decreed no cancellation or forfeiture of the policy has taken place and that it is in full force and effect. The Circuit Court of Jackson County, Missouri, had no jurisdiction to make and enter such a decree because: (a) The policy of insurance not having matured, and there being no actual controversy for decision in which a final judgment might be rendered, but only an action to determine and declare future rights, the decree merely amounts to a declaratory judgment. State ex rel. v. McElhinney, 241 Mo. 604; State ex rel. Hahn v. City of Westport, 135 Mo. 133; Fugel v. Becker, 2 S.W. (2d) 746; Honour v. Equitable Life Assurance Soc., 1 Ch. 852 (Eng.); Seligman v. Eagle Ins. Co., 1 Ch. 519, 86 L.J. Ch. (N.S.) 353, 116 L.T. (N.S.) 146; Anway v. Grand Rapids Ry. Co., 179 N.W. 350, 12 A.L.R. 26; Willing v. Chicago Auditorium Assn., 277 U.S. 274; Gordon v. U.S., 117 U.S. 697; Annotation 12 A.L.R. 52; Annotation 19 A.L.R. 1124; Annotation 50 A.L.R. 42. (b) The court by this decree is assuming the management and control of the internal affairs of a foreign corporation; it has no power to enforce such decree upon the officers of the corporation. Hence no jurisdiction to render such decree. State ex rel. v. Shain, 245 Mo. 85; State ex rel. v. Reynolds, 275 Mo. 123; State ex rel. v. Denton, 229 Mo. 196; State ex rel. v. Deering, 180 Mo. 63; Clark v. Mutual Res. Fund Life Assn., 14 App. D.C. 154, 43 L.R.A. 390; No. State Copper & Gold Min. Co. v. Field, 64 Md. 151, 20 Atl. 1039; Smith v. Mutual Life Ins. Co. (Mass.), 14 Allen, 336; Royal Frat. Union v. Lundy, 51 Tex. Civ. App. 637, 113 S.W. 185; Taylor v. Mutual Res. Fund Life Assn., 97 Va. 60, 45 L.R.A. 621, 33 S.E. 385; Tolbert v. Modern Woodmen, 83 Wash. 287, 145 Pac. 183. (c) Any cause of action that plaintiff may have in the future against defendant under said policy not yet having matured this action is premature, because insured is alive. Heard v. Ritchey, 112 Mo. 518; Russell v. Englehardt, 24 Mo. App. 38. (4) Lee L. Russell was a necessary party even if the court had jurisdiction to render the judgment prayed for. He had a reversionary interest in the policy (if policy was not forfeited) and would not have been bound by a judgment in favor of defendant because not made a party. Secs. 1157, 1159, R.S. 1919; Ballew Lbr. & Hdw. Co. v. Mo. Pac. Ry. Co., 288 Mo. 478; Tenaut v. Union Cont. Life Ins. Co., 112 S.W. 754, 133 Mo. App. 345. (5) The amended petition does not state a cause of action for the additional reason that it alleges that the policy was pledged as collateral security for a debt, but it does not allege that the debt has not been paid. Defendant's demurrer should have been sustained for this reason among others noted in other points herein. 49 C.J. 968, sec. 169; 49 C.J. 1022, sec. 297; 49 C.J. 1029, sec. 315. (6) The court erred in overruling defendant's motion to strike plaintiff's amended petition because the order and judgment of the Circuit Court of Jackson County, rendered by Division No. 6 of said court, on May 14, 1927, was res adjudicata. Johnson v. United Railways Co., 243 Mo. 287.

McCune, Caldwell & Downing for respondent.

(1) The court did not err in refusing appellant's instruction in the nature of a demurrer to the evidence, because under the law the appellant owed a duty to the insured and/or the assignee to notify them or either of them of the due date of the premium due June 5, 1926, and of the due date of the note and interest thereon due June 5, 1926. (a) By reason of its acts and conduct, appellant waived compliance of the terms of its policy and is estopped to declare a forfeiture because of its failure to send timely notices prior to June 5, 1926. Globe Mutual Life Ins. Co. v. Wolff, 5 Otto, 326, 24 L. Ed. 387: Finkle v. Western Automobile Ins. Co., 26 S.W. (2d) 843; May, Insurance, sec. 356A; 3 Couch, Enc. Insurance, sec. 668; 3 Joyce, Insurance, sec. 1332; New York Life Ins. Co. v. Eggleston, 6 Otto, 572, 24 L. Ed. 841; Phoenix Mutual Life Ins. Co. v. Doster, 106 U.S. 30, 27 L. Ed. 65; Hartford Life & Annuity Ins. Co. v. Unsell, 144 U.S. 439, 36 L. Ed. 496; Seamens v. Northwestern Mutual Life Ins. Co., 3 Fed. 325; Spoeri v. Massachusetts Mutual Life Ins. Co., 39 Fed. 752; Mutual Reserve Fund Life Assn. v. Tuchfield, 159 Fed. 833; Brooklyn Life Ins. Co. v. Bledsoe, 25 Ala. 538; Loyal Protective Ins. Co. v. Walker, 126 Ark. 296, 189 S.W. 1050; Lewis v. Phoenix Ins. Co., 44 Conn. 72; Grant v. Alabama Gold Life Ins. Co., 76 Ga. 575; Equitable Accident Ins. Co. v. Van Etten. 40 Ill. App. 232; Franklin Life Ins. Co. v. Sefton, 53 Ind. 380; Mayer v. Chicago Mutual Life Ins. Co., 38 Iowa, 309, 18 Am. R. 38; Supreme Council v. Winters, 108 Ky. 141, 55 S.W. 908; Elgutter v. Mutual Reserve Fund Life Assn., 52 La. Ann. 1733, 28 So. 289; White v. Connecticut Fire Ins. Co., 120 Mass. 330; Ibs v. Hartford Life Ins. Co., 121 Minn. 310, 141 N.W. 289; Owen v. New York Life Ins. Co., 126 Mass. 878, 89 So. 770; Goedecke v. Metropolitan Life Ins. Co., 30 Mo. App. 601; McMahon v. Maccabees of the World, 151 Mo. 522; Bergman v. St. Louis Life Ins. Co., 2 Mo. App. 262; Hanley v. The Life Assn. of America, 69 Mo. 380; Thompson v. St. Louis Mutual Life Ins. Co., 52 Mo. 469; James v. Mutual Reserve Fund Life Assn., 148 Mo. 1; Burke v. Grand Lodge A.O.U.W., 136 Mo. App. 450; Britt v. Woodmen of the World, 153 Mo. App. 698; Carter v. Brooklyn Life Ins. Co., 110 N.Y. 15; Braswell v. American Life Ins. Co., 75 S.C. 8; Halliday v. Equitable Life Assurance Society, 209 N.W. 965; Union Central Life Ins. Co. v. Pottker, 33 Ohio St. 459; Frakes v. Portland Mutual Fire Ins. Co., 60 Ore. 217, 138 Pac. 224; Helme v. Philadelphia Life Ins. Co., 61 Penn. 107; Lane v. New York Life Ins. Co., 147 S.C. 333, 145 S.E. 196; Kavanaugh v. Security Trust Ins. Co., 117 Tenn. 33, 96 S.W. 499; New York Mutual Life Ins. Co. v. Davis, 154 S.W. 1184; Knoebel v. North American Accident Ins. Co., 135 Wis. 424, 115 N.W. 1094; Woolfolk v. Home Ins. Co., 202 S.W. 627; Heinlein v. Imperial Life Ins. Co., 101 Mich. 250, 59 N.W. 615; Selvage v. John Hancock Mutual Life Ins. Co., 12 Fed. 603. (b) There is no merit in the contention that failure to pay the premium note on the due date justified cancellation of the policy. (Authorities cited above.) (c) Respondent did not fail to use reasonable diligence and is not now estopped to defend its failure to pay the premium when due on account of appellant's failure to send notice thereof as it had agreed to do. Grafeman Dairy Co. v. Northwestern Bank, 315 Mo. 849, 288 S.W. 359; Scanlon v. Kansas City, 28 S.W. (2d) 84; State ex rel. Moss v. Hamilton, 303 Mo. 302, 260 S.W. 466; Kline v. Groeschner, 280 Mo. 599, 219 S.W. 648; Thompson v. Lindsay, 242 Mo. 53, 145 S.W. 472; Alexander v. The Continental Ins. Co. of New York, 67 Wis. 422, 30 N.W. 727. (2) The record conclusively shows that notice of due date of premium was not sent to respondent prior to June 5, 1926. Goucher v. Novelty Co., 116 Mo. App. 99, 91 S.W. 447; Hardin Grain Co. v. Mo. Pac. Railroad, 120 Mo. App. 203, 96 S.W. 681; Pierson Lathrop Grain Co. v. Barker, 223 S.W. 941; Collins v. Hoover, 205 Mo. App. 93, 218 S.W. 940; Bless v. Jenkins, 129 Mo. 647, 31 S.W. 938; Best v. German Ins. Co., 68 Mo. App. 598; Sills v. Burge, 141 Mo. App. 148, 124 S.W. 605; Ward v. Morr Transfer & Storage Co., 119 Mo. App. 83, 95 S.W. 969. (3) The trial court had jurisdiction of the parties and of the subject-matter of this action with full equity power to adjudicate that the attempted forfeiture of the policy was invalid and that such policy was in full...