Moseley v. Victory Life Ins. Co.

• Decision Date: 07 December 1931
• Docket Number: No. 17145.,17145.
• Citation: 45 S.W.2d 119
• Parties: CATHERINE A. MOSELEY, RESPONDENT, v. THE VICTORY LIFE INSURANCE CO., APPELLANT.
• Court: Missouri Court of Appeals

45 S.W.2d 119

CATHERINE A. MOSELEY, RESPONDENT, v. THE VICTORY LIFE INSURANCE CO., APPELLANT.

No. 17145.

Kansas City Court of Appeals. Missouri.

December 7, 1931.

Appeal from the Circuit Court of Buchanan County. — Hon. Sam Wilcox, Judge.

REVERSED AND REMANDED.

Alcid Bowers for respondent.

Ralph T. O'Neil, Jno. D.M. Hamilton, Barton E. Griffith, Frank L. Kirtley and William Reiter for appellant.

CAMPBELL, C.

This is an action upon a policy of life insurance in the sum of one thousand dollars issued by defendant to Harry I. Moseley, in which plaintiff, the insured's wife, is named as beneficiary. Plaintiff recovered judgment for the amount alleged to be due upon the policy, with penalties and attorneys fees, and defendant appeals.

The contract sued upon was executed in Kansas and the validity and interpretation thereof are governed by the law of that State.

The insured died in Kansas on October 14, 1929. Thereafter plaintiff moved to St. Joseph, Missouri, and brought suit in the circuit court of Buchanan county. Summons was served upon the Superintendent of Insurance of Missouri, and the return thereon is, upon its face, regular. After the service of summons defendant filed motion to quash summons and service upon the ground that the court had no jurisdiction of the subject-matter of the action; that the court had not acquired jurisdiction of defendant; that the cause of action did not accrue in Buchanan county, and that the defendant did not then and never did have an office or agency for the transaction of any business in Buchanan county, Missouri. Evidence was heard on the motion. The motion was denied and defendant obtained leave to answer. Though it is recited in the motion that defendant appeared specially for the purpose of the motion and for no other purpose, the legal effect of the filing of the motion, the introduction of evidence to sustain the allegations thereof, and subsequently obtaining leave to answer, was an entry of general appearance. [State ex rel. v. Grimm. 143 S.W. 483, 239 Mo. 134, 175.]

Defendant's third amended answer contains a plea to the jurisdiction of the court, based upon the same theory as that advanced in the motion to quash summons and service; that the policy was executed in the State of Kansas and that the statutes of that State, sections 40-332 and 40-333, of chapter 40, article 3, Revised Statutes of Kansas 1923, read:

"40-332. Cancellation of policy for nonpayment of premiums without notice. It shall be unlawful for any life insurance company other than fraternal doing business in the State of Kansas to forfeit or cancel any life insurance policy on account of nonpayment of any premium thereon, without first giving notice in writing to the holder of any such policy of its intention to forfeit or cancel the same ..."

"40-333. Notice of intention to cancel policy for nonpayment of premium; time for payment. Before any such cancellation or forfeiture can be made for the nonpayment of any such premium the insurance company shall notify the holder of any such policy that the premium thereon, stating the amount thereof, is due and unpaid, and of its intention to forfeit or cancel the same, and such policy holder shall have the right, at any time within thirty days after such notice has been duly deposited in the postoffice, postage prepaid, and addressed to such policyholder to the address last known by such company, in which to pay such premium; and any attempt on the part of such insurance company to cancel or forfeit any such policy without the notice herein provided for shall be null and void. The affidavit of any responsible officer, clerk or agent of the corporation, authorized to mail such notice, that the notice required by this section has been duly addressed and mailed by the corporation issuing such policy shall be prima-facie evidence that such notice has been duly given."

It is also averred in the answer that insured failed to pay the agreed premium and thereupon in compliance with the law of Kansas, defendant gave insured thirty days notice of cancellation and the policy was thereby forfeited and canceled on September 10, 1929.

There is no merit in the plea to jurisdiction. Defendant had not only entered general appearance but thereafter filed three answers before filing the answer upon which the cause was tried. The record does not contain any of the answers except the third amended answer. We will therefore not convict the trial court of error in determining the question of jurisdiction. Moreover, the defendant at the...