Schwab v. Brotherhood of American Yoemen

• Citation: 264 S.W. 690,305 Mo. 148
• Decision Date: 31 July 1924
• Docket Number: 24044
• Parties: NANNIE E. SCHWAB v. BROTHERHOOD OF AMERICAN YOEMEN, Appellant
• Court: United States State Supreme Court of Missouri

264 S.W. 690

305 Mo. 148

NANNIE E. SCHWAB v. BROTHERHOOD OF AMERICAN YOEMEN, Appellant

No. 24044

Supreme Court of Missouri

July 31, 1924

Transferred from Springfield Court of Appeals.

Reversed.

John T. Sturgis and Frank B. Williams for appellant.

(1) The representations as to health and past medical treatment, in the application and medical examination, were, by the policy contract, made warranties and, if false, rendered the policy void. Kribs v. Foresters, 191 Mo.App. 524; Daffron v. Modern Woodmen, 190 Mo.App. 303; 316; Valleroy v. Knights of Columbus, 135 Mo.App. 574; Floyd v. Modern Woodmen, 166 Mo.App. 166; Hoagland v. Modern Woodmen, 157 Mo.App. 15. (2) The only ground on which the court found for plaintiff was that defendant, by accepting and retaining premium payments after obtaining knowledge of the false representations, waived or was estopped to claim a forfeiture on these grounds. This is not tenable on the facts here. Waiver is an intentional relinquishment of a known right. In the absence of facts constituting an estoppel, both the intention to relinquish the right must exist and the acts constituting or creating the right relinquished must be known to the party waiving same. Neither of these elements existed here. 40 Cyc. 252; 27 R. C. L. 980; Michigan Savings & Loan Assn. v. Trust Co., 73 Mo.App. 161; Stifel v. Life Association, 50 Mo.App. 224; Fulkerson v. Lynn, 64 Mo.App. 649; Davis v. Knights & Ladies of Security, 196 Mo.App. 485; Porter v. Loyal Americans, 180 Mo.App. 533; Daffron v. Modern Woodmen, 190 Mo.App. 303. (3) The retention of the premiums paid after said forfeiture to the time of the trial does not constitute waiver of the forfeiture. It is not the law that the reception and retention of premium payments by defendant, after it had knowledge of the false statements contained in plaintiff's application, is a waiver of such defense. It is sufficient, under the statute, in all cases to preserve this defense, that defendant deposit in court "at or before trial" the premiums so received. Sec 6145, R. S. 1919; Dye v. Life Ins. Co., 227 S.W. 1062.

OPINION

Ragland, J.

This appeal was first lodged with the Springfield Court of Appeals and was argued and submitted there. The decision reached by a majority of that court was deemed by one of its members to be contrary to previous decisions of the other courts of appeals, hence the certification of the cause here.

The issues under the pleadings, and the facts, are correctly outlined in the principal opinion as follows:

"There is but one question to be determined in this case, and that is whether there is any evidence from which a trier of the fact could reasonably find that the defendant had by its conduct impliedly waived the right to insist upon a forfeiture of the certificate of insurance, and we shall therefore state the facts of the case with a view to the conclusion to be reached on a determination of this sole question.

"It appears from the record that the appellant (hereafter referred to as the defendant) is a fraternal benefit society of the State of Iowa and doing business in the State of Missouri. In April, 1917, a certificate of insurance was issued to the plaintiff. It was duplex in character, the same providing that upon satisfactory proof that the holder of the certificate had become totally disabled, one-half of the principal sum of the insurance would be due. It is shown that there was a provision in the policy that, owing to the age of the plaintiff and the amount of the monthly payments she was making at the time of the alleged disability, the total amount of the insurance was something over $ 700, and that half of this amount was due on proof of total disability and the other half would become due on the death of the insured provided she kept up the regular monthly payments. This suit is for the amount due for total disability, which is for half of the total amount. The trial court gave her a judgment for $ 355.84, and it is from this judgment that the appeal is taken.

"The undisputed facts show that at the time the plaintiff made application for this insurance she incorporated in her application certain warranties, which the trial court found to be untrue and breached, that is, she misrepresented the facts in her application for insurance in that she stated that the only operation which had ever been performed on her was for appendicitis, whereas the proof at the trial showed, and the court so found in its finding of facts, that, prior to the application for insurance, she had been operated on for womb trouble and that her fallopian tubes had been removed. Her claim for disability was based on trouble with this organ. The direct question was asked her in her application concerning this and she denied ever having had such an operation. We, therefore, must take this case upon the finding of facts made by the trial court for which there was ample evidence in support thereof, and in fact conclusive evidence to our minds in support thereof, which is that when the plaintiff procured the certificate of insurance from the defendant she had made a material misrepresentation, which was a warranty, and which under the law of Missouri is a sufficient ground for associations, such as this defendant is, to forfeit the certificate. [Cromeens v. Sovereign Camp, 233 S.W. 287; Kribs v. United Order of Foresters, 191 Mo.App. 524; Daffron v. Modern Woodmen, 190 Mo.App. 303; Wilson v. Brotherhood, 223 S.W. 992.]

"The record before us shows, without contradiction, and as found in the finding of facts by the trial court, that on August 18, 1918, the plaintiff made up her proof of loss for total disability, and on the 19th day of August, 1918, there was in the hands of the defendant the proof of loss and the affidavits of the physicians, which affidavits showed that the plaintiff had made misrepresentations in the application for the certificate of insurance. The August dues were paid to the correspondent of the local "homestead," and so were the September dues paid, and the October dues were paid on October 7th. On October 7th, the day on which the October dues were paid, the same not becoming delinquent until after October 31st, the attorneys for the plaintiff wrote to the defendant reciting that their client was totally disabled and asking what the defendant would require for further proof. In answer to that letter, on October 16th, the defendant wrote to the attorneys for the plaintiff that it did not feel that Mrs. Schwab was entitled to anything, for the reason that she failed to state the true condition in her application when she joined the society, and that had she stated the true conditions she would not have been permitted to become a member; and further stated that the board felt that all she could expect from the society was a refund of the money which she had paid in her monthly installments. On October 28th, the chief correspondent for the defendant company in Des Moines, Iowa, the home office of defendant, wrote to the plaintiff that the board of directors had rejected her claim for disability, and had instructed the supreme office to refund the dues which she had paid, and informing her that if she would hand the certificate over to the homestead correspondent at Springfield she would receive a check for the dues theretofore paid. On October 16th, the same day that defendant wrote to plaintiff's attorneys it also wrote to its correspondent in charge of the homestead at Springfield that all the defendant would do would be to return to Mrs. Schwab the dues which she had paid and asked him to ascertain whether she would surrender the certificate on...