Newman v. John Hancock Mutual Life Insurance Company, a Corp.

• Decision Date: 07 January 1924
• Citation: 257 S.W. 190,216 Mo.App. 180
• Parties: VERA NEWMAN, Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Corporation, Respondent
• Court: Missouri Court of Appeals

257 S.W. 190

216 Mo.App. 180

VERA NEWMAN, Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, Springfield

January 7, 1924

Appeal from the Circuit Court of Dunklin County.--Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Shepard & Hawkins for appellant.

(1) The giving of the said peremptory instruction was error because it deprived the plaintiff of her fundamental right to have the jury judge the weight of the evidence, the credibility of the witnesses and find the facts from the testimony and inferences therefrom. Buesching v. Gas Co., 73 Mo 219, 231; Gannon v. Gas Co., 145 Mo. 502; State ex rel. v. Ellison, 268 Mo. 243-244. (2) The giving of the peremptory instruction was error because it was given on the theory that plaintiff was estopped to now urge that the policy was for $ 2000. There was no estoppel in this case nor element of estoppel. No representation by plaintiff or insured had been made, inconsistent with the claim now asserted and sued on; no act of defendant was induced by any representation of insured or beneficiary; no injury has resulted to defendant from its own act, except that it is now asked to live up to its contract which it had hoped to avoid. Bank v. Ragsdale, 171 Mo. 168, 185; McLain v Trust Co., 237 S.W. 506; Vette v. Hackman, 237 S.W. 802, 21 Corpus Juris, 1133, sec. (134) f; 21 Corpus Juris, 135, sec. (136) h, 1204, sec. (206) (2), 1207, sec (208) (b). There was no sufficient plea of estoppel and the evidence did not show an estoppel. Defendant's first allegation of estoppel was that the insured defaulted. This was denied by the reply and the denial was sustained by abundant evidence. Thus defendant's first step was based upon fallacy, wrong and exercise of arbitrary power. Defendant also pleaded that it converted the policy and sent it to insured. Insured did not request this to be done and could not avoid it. This was defendant's willful act. Defendant also pleaded that insured kept and retained the policy. Defendant wrote him to keep the policy, as it would be required in event of a claim. Defendant did not say what kind of a claim. There was no showing what kind of a claim insured had in mind while he kept the policy, as he was directed to do. He may have had in mind the very claim now being made. An act to be evidence of estoppel must be certain to every intent. If the act is susceptible of different constructions, there is no certainty to every intent and therefore no estoppel. Sutton v. Dameron, 100 Mo 141, 21 Corpus Juris, page 1139, sec. (139) k. Defendant also pleaded that insured treated the policy as paid-up insurance. There was no positive evidence as to how insured treated the policy. There was therefore no certainty to every intent, hence no estoppel. Insured's treatment of the policy can be derived only by inference, and he being dead and his acts unexplained, such inference was for the jury and not the court. Insured did not draw the dividend. Burges v. Pan. Am., 230 S.W. 316; State ex rel. v. Ellison, 268 Mo. 243-244. Defendant also pleaded that insured did not pay or offer to pay any further premium. The failure to pay further premium under the circumstances of this case would not be any estopped or defeat recovery. Defendant had in hand the money for this payment and returned to, refusing to accept it; it also mutilated the policy, sent it to the insured, informed him that it was cancelled and never thereafter notified insured that it had recanted or changed its mind or resolution or would accept the premium if offered, or ever notified him further that premiums were due. Insured had exhausted all his efforts before that to get defendant to accept the premium and reinstate the policy, and it would not do so. Offer was useless. Johnson v. Ins. Co., 166 Mo.App. 261; Wayland v. Indem. Co., 166 Mo.App. 221, 232; Lee v. Mo. State Life, 238 S.W. 588, 861; N. Y. Life v. Lahr, 134 N.E. 657; N. Y. v. Norris, 91 So. 595; Life Ins. Co. v. Duff, 211 S.W. 738. Estoppel cannot be used to make rights, but only to protect rights already made. Unless defendant had a right to cancel and convert the policy thereby minimizing its liability it had no rights to protect, and was a wrongdoer cannot call estoppel to protect him in his wrongful act. 21 Corpus Juris, 1138, sec. (137) i; McLain v. Trust Co., 237 S.W. 506. No right inured to defendant or grew out of its act of mutilating the policy and sending it to the insured. Defendant's own statement stamped by it on the back of the policy was an ex parte statement in which the insured did not participate, and which was not binding on insured, and it did not have the effect to supersede the original policy contract. N. Y. Life v. Kimball, 106 Vt.App. 676. If defendant had the right to convert the policy, that ends the matter. If it did not have such right, the fact that it did, without a right, convert the policy, would not create any new right. And if without a right defendant wrongfully converted the policy it cannot call on estoppel to help hold an advantage wrongfully obtained. Estoppel never aids a wrongdoer, or strengthens a wrongful act. 21 Corpus Juris, 1138, sec. (137) i. (3) The giving of the said peremptory instruction cannot be justified on the theory that it compelled the parties to abide by any contract made by them. (a) The original policy was the only contract ever made by the parties, and this peremptory instruction allowed the defendant to avoid rather than abide by that contract. Defendant's ex parte statement was not a new contract, and could not be made such without a meeting of the minds. N. Y. Life v. Kimball, 106 Vt.App. 676. (b) The original policy provided that if default occurred, the policy would be reinstated at any time within five years, by payment of premiums in arrears and showing of insurability to the satisfaction of the company. This was a contract to reinstate upon the above conditions and that in passing upon the insurability the company would be reasonable, fair and just, and not unreasonable, unfair, capricious or arbitrary. N. Y. Life v. Adams, 235 S.W. 412; Mo. State Life v. Hern, 226 S.W. 789; Thompson v. Postal Co., 266 N.Y. 363; Mutual Life v. Lovejoy, 203 Ala. 452; Hinchliffe v. Minn. Mutual, 171 N.W. 776. The check and dividend (both in hand within five years) were sufficient to have paid the premium in arrears, if any, and the insured's insurability will be presumed, nothing appearing to the contrary. A health condition once shown to exist is presumed to continue. Canty v. Helpin, 242 S.W. 97, 102. Furthermore, insured furnished a health certificate showing a prima-facie condition of insurability, and likewise a medical examination at his own expense, upon defendant's suggestion and by the doctors named by defendant. Defendant refused to allow the presumption and disapproved the health certificate and the medical examination also, without then or now alleging or assigning any reason for so doing, and will therefore be presumed to have acted unfairly, unjustly, capriciously and arbitrarily and not fairly, reasonably, and justly, as by the contract it was required to do. (4) The giving of this peremptory instruction cannot be justified on the theory of waiver or abandonment. Neither waiver nor abandonment was pleaded, and to be relied on must be pleaded. And, furthermore, a presumption of law obtained in favor of insured to the effect that he did not intend to abandon his policy or waive his rights. Wayland v. Indemnity Co., 166 Mo.App. 332. (5) The giving of this peremptory instruction was error: First, because the giving of it allowed the defendant to escape the performance of a duty enjoined upon it by law, that is, to apply the surplus money in its hands to insured's credit arising out of the excess payments made during the first policy year, to the payment of the premium claimed by defendant to the end that insured's policy be kept in force and a forfeiture prevented. Sharp v. Arcanum, 251 S.W. 159; Olsen v. Arcanum, 224 S.W. 129, 132. Also defendant was allowed to escape the legal duty resting upon it to be reasonable, fair and just in passing upon the insurability of the insured. Authorities supra, 3. (6) The giving of this peremptory instruction was erroneous because it allowed the defendant to escape and avoid the effect of its custom-made contract of receiving premiums after the period of grace. During the period of two years next prior to September 5, 1915, defendant had received without complaint seven out of the eight premiums on this policy after the days of grace had expired, from one to thirty-three days; and for the three years next prior it had received nine out of the twelve payments made after the days of grace. This was sufficient to establish waiver of the literal terms of the contract as to the time when the premiums should be paid and to make a contract by custom to allow the premiums to be paid after the days of grace, which contract would bind the defendant and prevent its refusing premiums tendered after the days of grace, until defendant notified insured that henceforth the terms of the policy contract would be insisted upon. James v. Reserve Fund, 148 Mo. 13; McMahon v. Maccabees, 151 Mo. 522; Andrews v. Ins. Co., 168 Mo. 151; Wright v. Ins. Co., 221 S.W. 383, (Mo. Sup.); John v. Union, 154 Mo.App. 70; Kelley v. Council, 241 S.W. 74 (Mo. App.); Brown v. Fidelity Co., 247 S.W. 47 (Ark.); W. O. W. v. Pearson, 244 S.W. 344 (Ark.); Ins. Co. v. McDowell, 42 Okla. 300. (7) The giving of said peremptory instruction was erroneous because it allowed defendant to recall and repudiate its own acts of waiver. (a) After the period of grace for the payment of this particular premium had expired, defe...