Owens v. Washington Fidelity Nat. Ins. Co.

• Decision Date: 07 November 1933
• Docket Number: No. 22530.,22530.
• Parties: OWENS v. WASHINGTON FIDELITY NAT. INS. CO.
• Court: Missouri Court of Appeals

64 S.W.2d 293

OWENS v. WASHINGTON FIDELITY NAT. INS. CO.

No. 22530.

St. Louis Court of Appeals. Missouri.

November 7, 1933.

Appeal from St. Louis Circuit Court; Chas. W. Rutledge, Judge.

"Not to be published in State Reports."

Action by Mattie Owens against the Washington Fidelity National Insurance Company. From judgment for plaintiff, defendant appeals, and plaintiff moves to dismiss the appeal.

Motion overruled and judgment reversed and remanded.

Martin Farrow, of St. Louis, for appellant.

B. Sherman Landau, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action upon two policies of life insurance which were issued by defendant upon the life of plaintiff's husband, Dan Owens. The first policy, which was for the principal sum of $100, was issued on August 9, 1926, and the second, which was for $258, on August 23, 1926. Both policies were issued and delivered to the insured at Pine Bluff, Ark., where he and plaintiff were residing at the time.

The first policy designated plaintiff as the beneficiary, and provided that payment of the amount due under the policy would be made within twenty-four hours after satisfactory proof of death had been furnished the company at its home office. Though the second policy contained the standard facility of payment clause, it likewise recognized plaintiff as the actual beneficiary as was evidenced by the stamp of the company upon it, signifying the request of the insured, as of the date of the issuance of the policy, that in the event of his death, the proceeds should be paid to plaintiff.

The premium on the first policy was 15 cents, payable weekly, and on the second, 30 cents, also payable weekly. Each policy provided for its lapse when the premiums became four weeks in arrears; and each likewise provided for its reinstatement upon payment of all delinquent premiums and the acceptance by the company of the application for reinstatement.

Another provision to be found in each policy was the usual one to the effect that the policy constituted the entire agreement between the insured and the company; that no agent had authority to change the policy or waive any of its provisions; and that no change or variation of any of the terms or conditions of the policy should be valid except by the express agreement of the company as evidenced by the signature of an executive officer.

Following the issuance and delivery of the policies, plaintiff was divorced from the insured in the same year, and thereafter came to St. Louis to live, while the insured remained in Arkansas. All premiums on the policies were thereafter paid by plaintiff to defendant's agent in St. Louis. When the policies were first taken out, payments were made regularly, but afterwards plaintiff paid in an irregular manner, depending upon her financial condition from time to time. Her testimony was that she made payments in this manner in reliance upon the assurance given her by the company's collecting agent, one Winkler, that it would be satisfactory for her to pay whenever she had the money, and that the policies would be kept in force even if she did not pay the premiums promptly.

Plaintiff had lost her original receipt book, and the book which she had at the time of the trial had been issued to her on March 28, 1928. No record of premium payments prior to that date was available at the trial on behalf of either party. This last book covered a period of seventy-seven weeks, during which period payments were shown to have been in arrears for seventy-two weeks out of the seventy-seven, and four weeks or more in arrears for forty-six weeks out of the seventy-seven. On June 28, 1929, at a time when the policies were over seventeen weeks in arrears, Winkler accepted payment of the premiums for the weeks of March 7 and 11, 1929, still leaving the policies fifteen weeks in arrears, however, after crediting plaintiff with that particular payment.

No further payment was made until July 22, 1929, when the sum of $9 was paid at one time, which sum was sufficient to have taken care of all premium payments due from March 18, 1929, until July 29, 1929. Apparently payments were thereafter continued in a somewhat more regular fashion until the early part of September, 1929, when plaintiff happened to learn that the insured had meanwhile died on July 10, 1929, at his home in Arkansas. The evidence was that she had last seen the insured on May 26, 1929, when he had visited her at the place where she was staying in St. Louis. She testified that on that occasion he appeared to be in good health.

Plaintiff's own testimony was much in conflict, her statement in some instances being that she did not know and had never been told that the policies had lapsed, though in other instances she testified directly to the contrary, However, she did testify that her individual payments ranged all the way from the small amount actually due each week to as much as $5, or more than eleven weeks' payments, which latter amount she paid on four or five occasions; that when she was behind in her payments, and a payment was made, it was entered on a "little receipt," which Winkler would later on take up, and enter the payment in her book; that this was the practice invariably followed when she was four weeks or more in arrears; and that at the time Winkler gave her the "little receipts," he would tell her that he would get the matter fixed up for her.

The next day after securing the information of the insured's death, plaintiff went to defendant's office, where she was told that the policies had lapsed. Subsequently payment of her claim was refused; and in due course this action followed.

The petition, which was drawn in two counts, was in the conventional form for a case of this character, and included a prayer for penalties and attorney's fees as provided for by the Arkansas statutes.

In the answer, certain Arkansas decisions were pleaded, the defense being, in effect, that the policies had lapsed for nonpayment...