Swinney v. Modern Woodmen of America

• Decision Date: 15 June 1936
• Docket Number: No. 18304.,18304.
• Citation: 95 S.W.2d 655
• Parties: STELLA SWINNEY, RESPONDENT, v. MODERN WOODMEN OF AMERICA, APPELLANT.
• Court: Missouri Court of Appeals

95 S.W.2d 655

STELLA SWINNEY, RESPONDENT, v. MODERN WOODMEN OF AMERICA, APPELLANT.

No. 18304.

Kansas City Court of Appeals. Missouri.

June 15, 1936.

Appeal from Circuit Court of Buchanan County, — Hon. L.A. Vories, Judge.

REVERSED.

William R. Ross, Nile L. Vermillion and Randolph & Randolph for respondent.

George G. Perrin, George H. McDonald; Nelson C. Pratt and Mayer, Conkling & Sprague for appellant.

SPERRY. C.

Plaintiff below will be known as respondent herein, and defendant below will be referred to as appellant. James T. Swinney, husband of respondent, will be called insured.

Appellant issued its policy in amount of $2000 on the life of insured in 1903. Later this policy was reissued and respondent was named as sole beneficiary. In 1929, appellant, by appropriate action, changed its by-laws and provided therein that rates on all policies issued prior to 1919 should be increased materially under a step rate plan; or insured could at his option, without physical examination, exchange his policy for another, providing for payment of premiums under a level rate plan. These changes, affecting insured's policy, were thoroughly explained in a monthly magazine sent to all members and respondent admitted that "Mr. Swinney every month got a little paper from them." The evidence of respondent is that insured paid monthly premiums at the new rates thus promulgated from and including July, 1930, when they became effective, until and including February, 1931. He was himself an officer in the local lodge at Liberty. He was not wholly confined to bed but spent two or three days each week down town talking with friends. He was suspended for non-payment of dues for March, 1931, and a notice thereof was duly deposited in the United States mail in a stamped envelope, addressed to insured at his then address, and it pointed out the uncertainties of life and urged him to reinstate. The suspension and notice dealt with the policy he then held and which is here sued on.

Respondent testified that a special representative of appellant called at the home of insured in February, 1931, and told insured, in the presence of herself and daughter, who also testified to the same effect, "He said it (the policy) wouldn't be any good; he would have to have a new policy; he said that over and over; that was all he did say to him." "Yes, I told him I had been paying and I would rather go on just as it was, and he said there would be no use, if he didn't have a new policy, no use to send any more money; it wouldn't be accepted at headquarters." No inquiry was made by insured, or any one for him, of the local officer to whom dues had always been paid, although he lived in Liberty, was well known to insured and his family, and maintained an office where dues were collected. No other investigation was made by, or for, insured, regarding necessity of taking out a new or different policy, except respondent "wrote a letter to the Head Camp and told them about what this man told me and all, but I didn't receive any reply." No tender of dues was ever made after the visit of this representative of appellant. Insured died February 2, 1933, and after demand and refusal to pay the death benefit of the policy, this suit was brought. The jury found for respondent and this appeal is prosecuted from the refusal of the court to grant a new trial.

Respondent moves to dismiss the appeal, alleging that the statement is not concise and otherwise violates rule 16 of this court. The statement is not unduly long in view of the lengthy pleadings filed on both sides, whereby many facts alleged were admitted in the pleadings, although the evidence taken was rather brief. It is claimed that it does not state the date and term when judgment was rendered, does not refer to the motion for new trial, the action thereon, or to the appeal or its having been granted. The statement shows a trial was had, that the jury found for respondent, that judgment thereon was rendered and that appeal was taken. This is sufficient in this case. [Benanti v. Security Ins. Co., 224 Mo. App. 410.]

Appellant claims the Buchanan Circuit Court had no jurisdiction of it because the company maintained no office in that county and respondent did not reside in the county, nor did the cause of action accrue there. No plea in abatement was filed and at the close of plaintiff's evidence on the merits of the case, appellant requested a directed verdict, and again a directed verdict was requested at the close of the whole case. The point is ruled against appellant. [McMullen v. Modern Woodmen, 87 S.W. (2d), l.c. 657.]

Appellant contends that a submissible case was not made for the jury on the grounds that insured could not rely on statements of this special representative made to him, and thus estop appellant from denying that the policy was still in force because it is not shown by the evidence that respondent made any other investigation in order to learn of the truth or falsity of the alleged statement that the policy would be no good and that appellant would not accept dues thereon.

This situation is thus stated in Biggs v. Modern Woodmen, 82 S.W. (2d), l.c. 905: "Because defendant's special service representative, by false representations that Biggs' certificate was worthless and could not be continued in force by the payment of any amount, induced and caused Biggs to fail to pay his July, 1930, assessment, and that defendant was estopped from forfeiting his policy for a failure it brought about."

Each case bottomed upon estoppel must be determined by the facts in that particular case. [Biggs v. Modern Woodmen, supra; State ex rel. v. Haid, 328 Mo. 747-749.] And if estoppel is...