Nichols v. Prudential Ins. Co.

• Decision Date: 07 April 1913
• Citation: 170 Mo. App. 437,155 S.W. 478
• Parties: NICHOLS v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Missouri Court of Appeals

155 S.W. 478

170 Mo. App. 437

NICHOLS v. PRUDENTIAL INS. CO. OF AMERICA.

Springfield Court of Appeals. Missouri.

April 7, 1913.

1. INSURANCE (§ 645) — LIFE INSURANCE — WAIVER OF FORFEITURE FOR NONPAYMENT OF PREMIUMS — PLEADINGS.

In an action on a life policy, plaintiff may prove waiver of forfeiture for nonpayment of a premium without alleging waiver in his petition.

2. INSURANCE (§ 376) — LIFE INSURANCE — WAIVER — AUTHORITY OF OFFICERS.

The superintendent of a foreign life insurance company doing business in the state may waive the forfeiture of a policy for nonpayment of a premium, though the policy states that no waiver shall be valid unless in writing signed by an officer.

3. INSURANCE (§ 392) — LIFE INSURANCE — FORFEITURE FOR NONPAYMENT OF PREMIUM — WAIVER.

Where the superintendent of a foreign life insurance company doing business in the state testified that he had full authority from the company to transact business, and he admitted that he received and retained a premium remitted by insured, and the company in its answer alleged that a premium was remitted to it, the receiving and retaining of such premium was in effect a receiving and retaining thereof by the company at its home office and must be so considered on the issue of waiver of forfeiture for nonpayment of a premium.

4. INSURANCE (§ 665) — LIFE INSURANCE — WAIVER OF FORFEITURE FOR NONPAYMENT OF PREMIUM — EVIDENCE.

Evidence held to support a finding that insurer in a life policy waived a forfeiture for nonpayment of a premium.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Isaac W. Nichols, administrator of Bridget M. Rainey, deceased, against the Prudential Insurance Company of America. From a judgment for plaintiff, defendant appeals. Affirmed.

Ernest A. Green, of Poplar Bluff, for appellant. David W. Hill, of Poplar Bluff, for respondent.

ROBERTSON, P. J.

On March 27, 1911, plaintiff filed his petition as administrator of the estate of Bridget M. Rainey, in the circuit court, alleging that the defendant was at all of the times therein mentioned an insurance corporation organized under the laws of New Jersey and doing a life insurance business in this state; that on November 6, 1908, the defendant, for a valuable consideration paid to it, made, executed, and delivered to the said Bridget M. Rainey its policy or contract of insurance, whereby it became obligated to pay immediately, upon receipt of due proofs of her death, during the continuance of said policy the sum of $500 to Patrick Rainey, beneficiary, husband of the insured, if the beneficiary survived the insured, otherwise to the executor or administrator of the insured, Bridget M. Rainey; that on June 15, 1910, the said insured died intestate, her said husband having previously died; that the plaintiff, Isaac W. Nichols, was the duly appointed, qualified, and acting administrator of the estate of said Bridget M. Rainey, deceased; that the said policy of insurance was in full force and effect at the time of the death of the said insured; that on March 7, 1911, plaintiff made due proof of the death of the insured; that the plaintiff and said deceased had kept and performed all of the conditions of said policy obligatory upon them or either of them, but that the defendant had failed and refused to pay any portion of the sum due under said policy, and prayed judgment against the insurance company for said sum of $500, with interest.

The defendant, for answer to the plaintiff's petition, admitted its incorporation and that it was engaged in the life insurance business in the state of Missouri, but denied each and every other allegation in the petition contained, and alleged that it had issued the policy on November 6, 1908, on the life of said insured for $500; that the beneficiary therein named was Patrick Rainey; that under and by virtue of said policy the first annual premium due on said policy was paid on November 6, 1908, which would keep the policy in force until November 6, 1909; that the said policy provided that after it was in force one year and the semiannual premiums should not be paid the policy would lapse for nonpayment of premium, but that the defendant would continue the insurance in force under said policy for a period of 60 days from the due date of such premium; that the semiannual premium of $19.95 due on November 6, 1909, was not paid, and the said policy by reason thereof became canceled January 5, 1910; that on said January 5, 1910, said policy was under its terms by the defendant forfeited and all rights accruing to the beneficiary therein, or any other person, were forfeited and annulled; that on March 25, 1910, after the expiration of the extended insurance period and after such policy by its terms had become forfeited and lapsed, the insured remitted $19.95 to the defendant to cover the semiannual premium due on November 6, 1909; that the defendant notified said insured that said policy was lapsed by reason of the failure to pay the semiannual premium upon said policy and notified the insured that upon the receipt of an additional sum of one dollar that her application for revival would, under the terms of the said policy, be considered by the defendant; that no application for revival was ever received by the defendant from the insured. The defendant in its answer tendered to plaintiff the $19.95, together with 6 per cent. interest thereon from March 25, 1910.

To this answer the plaintiff filed a reply admitting that Bridget M. Rainey remitted the $19.95 and stating that the defendant on April 28, 1910, wrote the deceased, among other things, the following: "You are, as stated, entitled to nonforfeitable privileges, and you have been insured right along, although you have discontinued paying. This privilege would continue for some years, as shown by the extended table within your policy." And the plaintiff alleged that this letter was written in regard to the policy of insurance in this suit, leading the deceased to believe that said policy was at that time in full force and effect; that the defendant by the acceptance and retention of said premium of $19.95, and by reason of the letter and its conduct in regard to said policy, waived whatever alleged right it had to require a formal written application to revive said policy, and whatever alleged right it had to require the payment of an additional sum of one dollar mentioned in its answer, and for the same reason the defendant was estopped, precluded, and debarred from pleading or asserting that said policy of insurance was not in force at the time of the death of the said Bridget M. Rainey, and was estopped, precluded, and debarred from pleading or asserting that said policy of insurance was forfeited within the lifetime of the said Bridget M. Rainey; and denied each and every other allegation in the defendant's answer contained.

The case was tried to the court without a jury, and at the close of the testimony the defendant requested a declaration of law to the effect that the plaintiff was not entitled to recover and that the findings of the court should be for the defendant. The defendant also requested seven other declarations of law (which are necessarily disposed of by a decision of this case upon its merits), all of which were refused by the court except one. There were no declarations of law asked or given in behalf of the plaintiff. The court found for the plaintiff and entered its judgment for $533.75. The defendant, after its motion for new trial was overruled, perfected its appeal to this court.

The policy offered in evidence discloses the material facts presented by the pleadings and the further provision, not referred to in the pleadings but insisted upon at the trial and here, that no condition, provision, or privilege of the policy could be waived or modified in any case except by an indorsement thereon signed by the president, one of the vice presidents, the secretary, one of the assistant secretaries, the actuary, or the...