Roberts v. American Nat. Assur. Co.

• Decision Date: 05 April 1920
• Docket Number: No. 13500.,13500.
• Citation: 220 S.W. 996
• Parties: ROBERTS et al. v. AMERICAN NAT. ASSUR. CO.
• Court: Missouri Court of Appeals

220 S.W. 996

ROBERTS et al. v. AMERICAN NAT. ASSUR. CO.

No. 13500.

Kansas City Court of Appeals. Missouri.

April 5, 1920.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

"Not to be officially reported."

Action by E. Roberts, administrator of the estate of Ralph Goodrich Smith, and another against the American National Assurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Jones, Rocker, Sullivan & Angert, of St. Louis, and Campbell & Ellison, of Kirksville, for appellant.

Higbee & Mills, of Kirksville, for respondents.

TRIMBLE, J.

This is an action on a policy of life insurance. The case was tried by the court without a jury, and judgment was rendered for the amount of the policy, with interest. The defendant appealed.

Plaintiffs pleaded a policy dated December 3, 1913, insuring the life of Ralph Goodrich Smith, and alleged that the policy was delivered and became effective on December 10, 1913, and that while said policy was in full force and effect insured died on the 16th of July, 1915; that defendant was notified and refused to pay, etc.

The answer admitted the issuance of the policy on December 3, 1913, and that insured died on the date aforesaid, to wit, July 16, 1915, but denied every other allegation of the petition. The defense was then set up that the policy automatically lapsed, and became null and void on June 3, 1915, because of insured's failure to pay, on that date, an installment of the second year's premium. It was stipulated at the trial that plaintiff gave prompt notice, etc.

Under the terms of the policy the annual premium was $52.08 to be paid in cash on the 3d of December in each year. It is admitted that insured paid the first annual premium in cash.

The policy contained these provisions:

"This policy shall not take effect until the first premium shall have been actually paid and the policy actually delivered to the insured. * * *

"Premiums may be paid annually, or in semiannual or quarterly installments thereof, in advance, in accordance with the company's table of rates applicable hereto, and the insured may change from one to another of such modes of payment upon written request therefor to the home office of the company. * * * If any premium or installment thereof is not paid when due, this policy shall be ipso facto null and void and all premiums forfeited to the company, except as herein otherwise provided. * * *

"A grace of thirty-one days, without interest charge, will be allowed for the payment of any premium after the first, during which period the insurance shall continue in force. If the insured die within said period of grace, the unpaid premium shall be deducted from the amount payable hereunder. * * *

"This policy may be reinstated in event of default of premium payments, * * * at any time upon presentation at the home office of evidence of insurability to the company and payment of all past-due premiums."

In support of its defense of forfeiture, the defendant introduced evidence, consisting of letters from insured" and carbon copies of letters which defendant claims it wrote to him, from which we glean the following:

Shortly before the second annual premium became due, insured wrote the company, saying he could not meet his premium "at present." On December 3, 1914, the very day the second annual premium became due, the company wrote insured, suggesting that he "take advantage of our premium note extension plan," and, after some correspondence between them, defendant, on December 19, 1914, 17days after the second annual premium was due, sent insured a note for $50, saying that if he decided to keep the full amount of insurance to execute the note and return same, together with check for $2.08. On December 21, 1914, insured sent his check for $2.08 and the aforesaid note, duly executed, for $50, the balance of the second annual premium. Said note is as follows:

                        "St. Louis, Mo., December 3, 1914
                

"As shown on back, without grace, after date, for value received, I promise to pay to the order of the American National Assurance Company at its home office, 1108 Syndicate Trust Bldg., St. Louis, Mo., fifty and no/100 dollars, with interest at the rate of six per cent. per annum from date hereof. This note, together with two and 8/100 dollars in cash, is tendered to said company by the maker upon the understanding and agreement that it shall not be binding upon the maker until it is accepted by the president or secretary of said company, and if and when accepted such acceptance shall be upon the following agreement, to wit: That although no part of the annual premium due on the 3d day of December, 1914, on policy No. 1606 has been paid, the insurance wider said policy shall, subject to any indebtedness thereon, be continued in force until midnight of the due date of this note; that if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said company as payment of said premium, and all rights under said policy shall thereupon be the same as if said premium had been paid when due; that if this note is not paid on or before the day it becomes due, it shall thereupon automatically cease to be a claim against the maker, and said company shall retain said cash as part compensation for the rights and privileges hereby granted and as the earned premium for the insurance granted from the maturity of said premium to the maturity of this note, and all rights under said policy shall be the same as if said cash had not been paid nor this agreement made.

                  "$50.00                     Ralph G. Smith."
                

As introduced in evidence by the defendant, said note has the following on its back:

                                                 Paid 4.46
                     $2.10—Due Feb.  3, 1915        2.3.15
                      2.10— "  March "   "          2.3.15
                      2.14— "  April "   "          5.3.15
                      2.10— "  May   "   "          5.3.15
                      7.00— "  June  "   "
                      7.00— "  July  "   "
                      7.00— "  Aug.  "   "
                      7.00— "  Sept. "   "
                      7.00— "  Oct.  "   "
                      6.60— "  Nov.  "   "
                

The sums in the left-hand column, together with the dates following each, are the installments into which defendant claims the note was divided and the dates they were respectively due. The figures at the extreme right of the first four installments are notations made by the company in crediting same as of the date each was paid. With reference to the April 3d installment being $2.14 instead of $2.10, the explanation of the company's assistant secretary is that insured sent a check for $4.16 for the two installments of February and March which was four cents short of the amount necessary to pay them, consequently the four cents deficit was added to the April installment, making it $2.14 instead of $2.10. No explanation is made of the credit contained in the indorsement, "paid $4.46," appearing above the others. However, as neither side has referred to this credit, and as the court gave a declaration saying it "cannot find that the insured or any one on his behalf paid the installment of $7 due June 3, 1915," we infer that such credit is in fact the $4.16 which defendant claimed was paid in one sum upon the two installments of February and March, and that the $4.46 shown in the abstract is a mere typographical error, and should be $4.16.

On June 3, 1915, insured wrote defendant, inclosing check for $2.10 to apply on his insurance policy, and expressing a desire to reduce it from $2,500 to $1,000. On June 4, 1915, evidently before insured's letter of June 3 had been received, defendant wrote insured, calling his attention to the fact that the installment of $7, due June 3, had not been paid, and asking him to send his check to cover same. The next day, June 5, 1915, defendant wrote insured saying:

"Since writing you yesterday, we received your letter of June. 3d, together with check for $2.10, for which we desire to thank you."

The letter also said they would write to him further in regard to reducing his policy as soon as they could take the matter up with the company's actuary. On June 8, 1915, the company wrote insured, saying they would reduce the amount of his insurance to a thousand dollars taking effect as of June 3, 1915, if he would send the company check for $14.25 "to cover the balance of the premium under your policy from December 3, 1914, to June 3, 1915," and stating what the premium for the remainder of the year would be. Some correspondence then took place between insured and defendant, the former claiming the company was owing him $15 for commissions due on the sale of company stock, and asking for a credit of that amount. On July 10, 1915, the company wrote insured that it could not allow the commissions, as they had been paid to another for the sale of the same stock, and they could not pay the commission twice. This letter concluded as follows:

"In regard to your policy, unless we receive remittance from you by return mail, we will be unable to continue it in force any longer. We would...