Ross v. Capitol Life Ins. Co.

• Decision Date: 10 May 1920
• Docket Number: No. 13450.,13450.
• Citation: 205 Mo. App. 243,228 S.W. 889
• Parties: ROSS v. CAPITOL LIFE INS. CO.
• Court: Missouri Court of Appeals

228 S.W. 889

205 Mo. App. 243

ROSS v. CAPITOL LIFE INS. CO.

No. 13450.

Kansas City Court of Appeals. Missouri.

May 10, 1920.

Rehearing Denied December 13, 1920.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by Mary 0. Ross against the Capitol Life Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

S. M. Johnson, Donald W. Johnson, and S.

D. Hill, all of Kansas City, for appellant.

Jones, Rocker, Sullivan & Angert, of St. Louis, and J. C. Rosenberger, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff is the mother of Edward M. Ross, who died on the 22d of October, 1917. On the 21st of July, 1907, defendant issued two policies of insurance on his life, each for the sum of $2,500 payable to plaintiff. Deceased paid the premiums due for ten years, when he defaulted for those due the 21st of July, 1917, and they were unpaid at his death in the following October. Plaintiff, though deceased died in default, claimed the full amounts of the policies under the terms of section 6946, R. S. 1909, providing that after the payment of three annual premiums a life policy should not be forfeited for nonpayment of premiums falling due thereafter, but that the net value of the policy computed under mortality tables (under conditions therein named) shall be taken as a net single premium for temporary insurance for the full amount of the policy. It is agreed that such premium would carry the policies beyond the death of deceased, if section 6946 controls.

Special provision is made by section 6949 of the statute for avoiding the beneficial terms of section 6946, and defendant relies upon such provision for defense to the present action. The provision is that section 6946 shall not be applicable, "if the policy shall contain a provision * * * for the unconditional commutation of the policy for nonforfeitable paid-up insurance." The policies involved contained this entirely different provision:

"If this policy shall lapse after being in force three full years, it will automatically become a paid-up policy for such amount as is hereinafter set forth in the `Table of Surrender and Loan Values' herein."

It will be observed that the statute provides for an unconditional commutation of the policy for nonforfeitable paid-up insurance, and that that character of insurance is not provided for in these policies, in that the provision found in them is not for unconditional commutation for nonforfeitable paid-up insurance, but merely for a paid-up policy.

Defendant insists that these provisions of the statute and of the policies are, to all intent and purpose, alike, and offered judgment for the amounts commuted as indicated by its policy provisions, less a loan which deceased had obtained. The trial court took defendant's view, and plaintiff appealed.

Defendant's position and the facts we have disclosed forces it to claim that a policy for "paid-up insurance" is the same thing as a policy for an unconditional commutation of a policy for nonforfeitable paid-up insurance; that is, that paid-up insurance is non-forfeitable insurance. We think the position...