Ray v. Mutual Benefit Health & Accident Ass'n

• Decision Date: 26 April 1949
• Docket Number: No. 6813.,6813.
• Citation: 220 S.W.2d 622
• Parties: RAY v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.
• Court: Missouri Court of Appeals

220 S.W.2d 622

RAY v. MUTUAL BENEFIT HEALTH & ACCIDENT ASS'N.

No. 6813.

Springfield Court of Appeals. Missouri.

April 26, 1949.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Action for money had and received by George D. Ray against Mutual Benefit Health and Accident Association, a corporation. Judgment for defendant entered on a directed verdict and plaintiff appeals.

Affirmed.

Bradley & Noble, Kennett, John W. Noble, Lawrence L. Bradley, Kennett, for appellant.

Dearing & Matthes, Hillsboro, Will B. Dearing, Hillsboro, for respondent.

McDOWELL, Judge.

This action is for money had and received in which appellant seeks to recover $470.00, insurance premiums paid to respondent, together with interest.

The petition was filed June 1, 1946, in the Circuit Court of Dunklin County, Missouri, and tried on the 10th day of August, 1948, before a jury. At the close of plaintiff's evidence the court instructed the jury to return a verdict for the defendant, and entered his judgment on said verdict for the defendant. From this judgment plaintiff appealed.

The sole question involved in the case is whether or not the insurance company had the right, under its policy of insurance issued to plaintiff, to refuse to renew the policy on the due date of the premium.

On April 2nd, 1932, the respondent, defendant below, issued its health and accident policy No. 36-106717 to the appellant, plaintiff below, insuring said appellant against loss caused by accident and sickness. The appellant paid a premium of $30.00 for the first year and $40.00 each year thereafter in quarterly payments of $10.00 each. There is no dispute that plaintiff paid premiums to the defendant in the sum of $470.00, and that the interest computed on said premiums, at six per cent from the date of payment thereof to the date of trial, totaled $247.27, making a total of $717.27, the amount sued for by plaintiff. The due date of the premiums was January 13th of each year and the facts are admitted that the appellant paid the premiums on or before the due date, from the date of the issuance of said policy to January 13th, 1944, and the premiums had been accepted by respondent. But on January 13th, 1944, respondent refused to accept the premium for the year 1944 and returned the same to the appellant.

It is admitted that the premium for 1944 was tendered by plaintiff to defendant and refused by defendant.

The policy of insurance contained the following clause:

"(c) The copy of the application endorsed hereon is hereby made a part of this contract and this policy is issued in consideration of the statements made by the Insured in the application and the payment in advance of $20.00 as first payment; and the payment in advance of premiums of $10.00 quarterly or $40.00 annually thereafter, beginning with August 1st, 1932, is required to keep this policy in continuous effect. If any such dues be unpaid at the office of the Association in Omaha, Nebraska, this policy shall terminate on the date such payment is due. The acceptance of any premium on this policy shall be optional with the Association. The mailing of notice to the Insured at least fifteen days prior to the date they are due shall constitute legal notice of dues. Should the premium provided for herein be insufficient to meet the requirements of the Association, it may call for the difference as required."

Section (d) of said contract reads as follows: "The term of this policy begins at 12:00 o'clock noon, Standard Time, on date of delivery to and acceptance by the insured against accident and on the thirty-first day thereafter against disease and ends at 12:00 o'clock noon on date any renewal is due, unless premium is paid on or before date due."

The contract of insurance also has attached an endorsement designated as "Non-Cancellable Endorsement" which provides as follows: "The Association cannot cancel this policy during any period for which the permium has been paid."

The evidence discloses that at the time the agent wrote the application for insurance he let plaintiff examine a sample copy of the policy. Plaintiff testified that he called the agent's attention to paragraph (c), which contained the clause, "The acceptance of any premium on this policy shall be optional with the Association", and asked the agent what the clause meant, and that the agent replied that it meant if the plaintiff didn't pay the premium when it was due the company had a right to accept or reject any payments afterwards. Plaintiff testified that the agent called his attention to the "Non-Cancellable" endorsement on the form and stated that with such endorsement the Company couldn't cancel the policy on the insured for life. Plaintiff testified that he relied upon the representation of the agent and bought the policy.

We will consider first appellant's citations of error relied upon in his brief. Under point I, division I, appellant merely states that the proper action was for money had and received. There is no issue in the case about the proper action to be brought and therefore we will pass that assignment.

Under division 2 of point I, appellant states: "It is unlawful to sell a policy of health and accident insurance by deceptive statements and misrepresentation." He cites four sections of R.S.Mo.1939, Mo. R.S.A. We hold that there were no facts in evidence to which this citation of error could apply.

In division 3 of point I, appellant states: "The fraud here shown to have been perpetrated was widespread and has since been specifically abolished in Missouri." We hold that this assignment of error is not in any way involved in this law suit. Under this assignment of error appellant cites Section 6077, R.S.Mo.1939, Mo.R.S. A., which section provides that the Superintendent of Insurance and Attorney General shall approve accident and health policies. The proof shows that under the laws of 1937, the State approved the policy of insurance written by the defendant company, and the Non-Cancellable clause is not in the approved policy. Under the issues in the case it is not necessary to pass on the legal effect of this Non-Cancellable clause because there is no question of cancellation of the policy. The only question or issue involved is the right of the company to refuse to renew appellant's policy on the date the premium was due.

Under division 4 of point II, appellant states that where a policy is wrongfully cancelled, insured may elect to recover premium. We agree to this statement of the law.

Under division 5 of point II, appellant states: "Where a policy is open to two interpretations, that which is most favorable to insured will be adopted and applied." This has been long the well settled law in Missouri. There is good reason for so holding. The contract of insurance is prepared by the insurance company. The insured must take it as written. State ex rel. Mills Lumber Co., v. Trimble, et al., 327 Mo. 899, 39 S.W.2d 355; Tarzian v. Metropolitan Life Ins. Co., Mo.App., 160 S.W.2d 490, 493. In the latter case the court says: "The courts have gone far, and rightly so, in construing the terms of policies most favorable to the insured, * * *." 44 C.J.S., Insurance, § 292. We hold, however, that the language complained of as used in the policy, whereby the company refused to accept the premium of renewal, is clear and unambiguous and, therefore, this assignment of error must be denied.

As stated in the beginning, the sole and only question involved in this lawsuit, on appeal, is whether or not the insurance company had the right under its policy of insurance issued to appe...