Newman v. John Hancock Mut. Life Ins. Co
| Decision Date | 07 January 1924 |
| Docket Number | No. 3418.,3418. |
| Citation | 257 S.W. 190,216 Mo. App. 180 |
| Parties | NEWMAN v. JOHN HANCOCK MUT. LIFE INS. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.
Action by Vera Newman against the John Hancock Mutual Life Insurance Company, a corporation. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Sheppard & Hawkins, of Caruthersville, for appellant.
Leahy, Saunders & Walther, of St. Louis, and Ward & Reeves, of Caruthersville, for respondent.
The plaintiff, now Vera Newman, was formerly the wife of Joplin W. Moad; she having married Newman subsequent to the death of Moad. The petition in this case is based on a policy of life insurance issued by the defendant for $2,000, and plaintiff asserts in the petition that the policy was in full force at the death of her former husband, and that the defendant has refused to pay. The answer of the defendant admits the issuance of the policy as of September 5, 1911, for $2,000, and pleads that in August, 1914, the assured borrowed the sum of $80. Further answering, the defendant alleges that the policy was to be paid only in the event that the premium of $53.14 be paid each year for 20 years, or until the death of the assured, and that the last premium paid on the policy was for the period to September 5, 1915, after which time no premiums were paid on the policy or contract, and that thereafter the assured was in default.
The policy contained the ordinary loan provision, and provided that any time within five years from default of payment of such premium the policy may be reinstated upon production of evidence of insurability satisfactory to the company, and approved at its home office, and upon payment, or reinstatement, of any indebtedness to the company hereon or secured hereby, and payment of arrears of premium, with interest at the rate of 5 per centum per annum. The policy also provided that after three full annual premiums have been paid thereon, then, in case of default in the payment of any subsequent premium or installment, continued after the days of grace, without action on the part of the holder, the policy will be continued for its value in participating paid-up life insurance, which will have a yearly increasing surrender value.
We think this is a sufficient statement of the terms of the policy to decide the point presented here on appeal.
The policy was introduced in evidence by the plaintiff, which in its opening paragraph provided:
"In consideration of the representations in the application therefor, which is copied herein and hereby made a part hereof, and of the premium of fifty-eight and 14/100 dollars to be paid on delivery of this policy," etc.
The application is made a part of the policy, and in the statements made to the agent there was the following: "I wish to pay the premium annually in the amount of $58.14."
Dr. J. H. Simmons was placed on the stand by the plaintiff, and testified that he was the agent who wrote this insurance and delivered the policy, and he testified that the insured paid him the annual premium on the policy in full when it was delivered.
A number of receipts for quarterly payments were introduced by the plaintiff, the first dated July 5, 1912, reciting that it was equivalent of one-fourth of the annual premium due June 5, 1912; then follow receipts for quarterly payments due September 5, 1912, December 5, 1912, and other receipts showing quarterly payments made on this policy up to 1915. These receipts were evidently introduced by plaintiff to show that the company received these payments after they had become due, and after the days of grace in a number of instances, for the purpose of showing that the company had waived the provision as to the due date of the receipt. A letter was then introduced by the plaintiff from the general agent of the company at St. Louis, dated October 30, 1915, in which it acknowledged a health certificate signed by the insured, together with a check for the amount due on the quarterly payment, less dividend, and stated to the insured that the company declined to reinstate the policy without a medical certificate on the inclosed form which was furnished, and in that letter mentioned four doctors to whom the insured could go to receive this medical certificate. The insured, so far as the record shows, took no action to secure this medical certificate. On December 30, 1915, a letter was written by the general agent, in which the insured was told that the check for the quarterly payment which had been held by the company awaiting his medical certificate was returned because the company had failed to receive satisfactory evidence of insurability, and advised him that the policy lapsed for nonpayment of amount due September 5, 1915. On January 6, 1916, the plaintiff received...
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