Suess v. Imperial Life Ins. Co.

• Decision Date: 22 February 1906
• Citation: 193 Mo. 564,91 S.W. 1041
• Parties: SUESS et ux. v. IMPERIAL LIFE INS. CO.
• Court: Missouri Supreme Court

91 S.W. 1041

193 Mo. 564

SUESS et ux. v. IMPERIAL LIFE INS. CO.

Supreme Court of Missouri, Division No. 1.

February 22, 1906.

1. CONSTITUTIONAL LAW — DUE PROCESS — RULES OF PRACTICE—ALLOWING PROOF WITHOUT PLEADING IN CERTAIN CASES.

The practice of allowing plaintiff in an action on an insurance policy to prove a waiver of the terms thereof without alleging such waiver, does not violate Const. art. 2, § 30, or Const. U. S. Amend. 14, as depriving defendant of his property without due process of law.

2. INSURANCE—ACTION TO RECOVER PREMIUMS —PROVISIONS OF POLICY—WAIVER.

In an action to recover premiums paid on a life insurance policy, on the ground that the company had wrongfully declared the policy forfeited for failure to pay a premium in time, evidence held insufficient to show a waiver by the company of the requirement as to the time for paying premiums.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by John G. Suess and wife against the Imperial Life Insurance Company From a judgment for plaintiffs, defendant appeals. Reversed.

Conkling & Rea, for appellant. Jas. McPhetridge, Russell Kneisley, and Busby & Busby, for respondents.

VALLIANT, J.

Plaintiffs, who are husband and wife, sue to recover premiums paid by the husband to defendant on a life insurance policy issued by defendant on the life of the husband for the benefit of the wife, on the ground, as alleged in the petition, that the defendant had wrongfully declared the policy lapsed as for nonpayment of premium. The petition states that the policy was issued on the 15th day of October, 1889, for a period of six months, renewable at the end of every six months thereafter during the life of the husband by payment of the stipulated premium; that these semiannual premiums to renew were to be paid on or before 12 o'clock noon April 15th, and October 15th of each year, then the petition says: "Plaintiffs further state that on the day said contract of insurance was entered into, and by 12 o'clock noon of the last day of every six months thereafter, he duly paid said premium to the defendant according to the term of said contract;" that he tendered, according to the terms of the contract, the premium due on April 15, 1892, but defendant refused it, on the ground, that it had not been paid in time, and declared the policy ended. The answer admits the terms of the policy as pleaded in the petition, sets out certain other clauses, in one of which it is stipulated that the premium is to be paid on or before 12 o'clock noon of the last day of the expiring six months and unless paid by that hour the policy is to cease and determine, and the answer states that the plaintiffs failed to pay the premium due April 15, 1892, by the time required. Another clause in the policy is pleaded in the answer, whereby the insured is given 60 days after his failure to pay the renewal premium in which to revive the insurance, by furnishing a certificate of good health and payment of the past premium; and the answer avers that plaintiffs never made any offer to comply with the terms there given. The reply was a general denial. The cause was tried by the court, jury waived. There was a finding and judgment for the plaintiff for $226.65, from which the defendant applied for an appeal to this court, but the court granted the appeal to the Kansas City Court of Appeals; which court, when it came to look into the record, found that there was a constitutional question involved, and for that reason sent the case here.

1. The petition states that the plaintiffs paid the former premiums according to the terms of the contract, and tendered the one due 12 o'clock noon, April 15, 1892, also, in accordance with the terms of the contract, and upon that statement asks judgment; defendant denied that the last-mentioned premium was tendered within the time specified in the contract. Over the defendant's objection plaintiffs were allowed to introduce evidence tending to prove a course of business conduct indicating a waiver by the defendant of the prompt payment by the day and hour named, and the court found from that evidence that there had been such a course of dealing between the parties as amounted to a waiver by defendant in that particular, and that although the premium due April 15, 1892, was not tendered within the specified time, yet it was mailed to defendant within the time in which the former premiums had been mailed, and on that finding gave judgment for the plaintiff. Defendant contends that whereas it is a rule of practice and pleading in this state that a party suing for a breach of a contract with which he asserts in his pleading he, on his part, has fully complied, cannot be allowed to recover as on a waiver of terms of the contract unless he has pleaded the waiver, that to make an exception to that rule in a suit against an insurance company is to violate section 30, art. 2 of our state Constitution, which forbids the depriving of any one of his property without due process of law, and the fourteenth amendment of our federal Constitution, which forbids the denying of any one equal protection of the law. That point was well presumed in the trial court, in objection to the evidence, in an instruction asked, and in the motion for a new trial. It could not have been made in this case any sooner than it was. The Court of Appeals, therefore, did right in sending the case here. The constitutional questions now presented by appellant have been heretofore and so recently considered and decided by this court that we deem it unnecessary to say anything more on the subject. Our views are fully expressed in James v. Life Association, 148 Mo. 10, 49 S. W. 978, and Andrus v. Insurance Ass'n, 168 Mo. 161, 67 S. W. 582, and in the former decision of this court cited in those two decisions. There was no constitutional right violated by the admission of that evidence.

2. This cause has been long pending in court, it was instituted to the March term, 1893; there have been three trials, and this is the third appeal. In the first trial in 1893 there was a judgment for defendant and plaintiffs appealed. The appeal went to the Kansas City Court of Appeals, where the judgment was reversed, and the cause remanded. Suess v. Life Ins. Co., 64 Mo. App. 1. There was no question of waiver in the case at that time. The court said (loc. cit. 5): "There was evidence in p...