Spencer v. Travelers' Ins. Co.

• Decision Date: 18 April 1905
• Citation: 86 S.W. 899,112 Mo. App. 86
• Parties: SPENCER v. TRAVELERS' INS. CO.
• Court: Missouri Court of Appeals

86 S.W. 899

112 Mo. App. 86

SPENCER v. TRAVELERS' INS. CO.

St. Louis Court of Appeals. Missouri.

April 18, 1905.

INSURANCE — POLICIES — PREMIUMS — NONPAYMENT — LAPSE — EVIDENCE — ADMISSIONS BY AGENT — BEST EVIDENCE — NONSUIT.

1. Where, in an action on a policy, defendant denied liability on the ground that the policy had lapsed for nonpayment of premiums, evidence of a witness that he went to defendant's office and was told by a person there, who waited on him, that the last payment of premium was on a certain date, was incompetent, in the absence of proof that the person making such statement was an officer of the company, authorized to make an admission binding on it.

2. Evidence that such person took the policy, and, after looking in a book in the office, stated the date of payments of the last premium from the book, was inadmissible, the book being the best evidence of its contents, in the absence of evidence accounting for its nonproduction.

3. Where, in an action on a policy claimed to have lapsed, plaintiff's right to recover depended on the alleged fact that the last payment of premium was made on August 20, 1896, and plaintiff's only evidence thereof was a statement to that effect in a letter written by defendant's actuary, who testified that such statement was a mistake, and that the policy in fact lapsed on May 20, 1896; that premiums did not pass through his hands as an officer of the company; and that he had no personal knowledge of the time when the policy did in fact lapse—a nonsuit was properly granted.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by Julia J. Spencer against the Travelers' Insurance Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

O. T. Hamlin, for appellant. Sebree & Farrington, for appellee.

BLAND, P. J.

On August 20, 1892, defendant insured the life of James W. Spencer for the sum of $2,000 for the benefit of plaintiff, the wife of the insured, in consideration of an annual premium of $84.16, payable for a term of 15 years. The defendant agreed that the annual premium, might be paid in quarterly installments of $21.88 each. The policy contained the following clause: "In case of default in payment of any premium after the third, this policy will remain in force for the term specified in the table of `Paid-up Insurance' indorsed hereon." The indorsement referred to by this clause is as follows:

                Paid Up Term Insurance Allowed at the End of the
                               Years Designated
                  ___________________________________________
                  |    Years from      Paid Up      Term    |
                  |  Date of Issue.     Years.     Months.  |
                  |_________________________________________|
                  |       3               4          11     |
                  |       4               6           8     |
                  |       5               8           5     |
                  |_________________________________________|
                

Spencer died on the 22d day of January, 1903. The defendant denied all liability on the policy, claiming that it had expired as extended insurance prior to the death of Spencer. The suit is to recover on the policy. At the close of plaintiff's case the court peremptorily instructed the jury that she could not recover, whereupon she took a nonsuit, with leave to move to set the same aside. The motion to set aside the nonsuit was overruled, and she appealed.

Plaintiff contends that the policy lapsed and went into extended insurance November 20, 1896. If this contention is shown by the evidence to be true, then it is conceded by defendant that the policy was in force on the day of J. W. Spencer's death, and plaintiff is entitled to recover. Defendant's contention is that the policy lapsed on May 20, 1896, and that it expired as extended insurance before the death of Spencer; and plaintiff admits that, if the policy lapsed on the 20th of May, 1896, she is not entitled to recover. To show that the policy did not lapse until November...