Tabler v. General Am. Life Ins. Co.

• Decision Date: 26 May 1938
• Docket Number: No. 35230.,35230.
• Citation: 117 S.W.2d 278
• Parties: EDITH G. TABLER, Plaintiff in Error, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, a Corporation, Defendant in Error.
• Court: Missouri Supreme Court

117 S.W.2d 278

EDITH G. TABLER, Plaintiff in Error, v. GENERAL AMERICAN LIFE INSURANCE COMPANY, a Corporation, Defendant in Error.

No. 35230.

Supreme Court of Missouri.

Division One, May 26, 1938.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Julius R. Nolte, Judge.

AFFIRMED.

John C. Vogel for plaintiff in error.

(1) The application in this case provided that if the first premium is not paid in cash at the time the application is made the insurance shall not take effect until the first premium thereon has actually been paid to and accepted by the company and the policy delivered to and accepted by the applicant during his lifetime and good health. The policy was not accepted by the applicant, Harry C. Tabler, Jr., and the premium was not paid until May 26, 1926. The premium so paid was the premium for the first year's insurance. The policy of insurance took effect on May 26, 1926, and continued in force for a full year therefrom by reason of said first payment and for each subsequent year's premium Harry C. Tabler, Jr., was entitled to a full year's insurance from May 26th and for each monthly payment he was entitled to a full month's insurance from the 26th and the policy was in effect and had not lapsed on May 7, 1930, when Harry C. Tabler, Jr., tendered the sum of $30 in payment of two monthly premiums and did not lapse until thirty-one days after May 26, 1930. Halsey v. Ins. Co., 258 Mo. 659, 167 S.W. 951; State ex rel. Mo. State Life Ins. Co. v. Allen, 295 Mo. 307; Johnson v. Am. Cent. Life Ins. Co., 212 Mo. App. 290; Hampe, Admr., v. Met. Life Ins. Co., 21 S.W. (2d) 926; Bigalke v. Mut. Life Ins. Co., 34 S.W. (2d) 1019; McDonnell v. Hawkeye Life Ins. Co., 64 S.W. (2d) 748; Kennedy v. Natl. Acc. Ins. Co., 76 S.W. (2d) 748; Stout v. Mo. Fid. & Cas. Co., 179 S.W. 993; Chestnut v. Security Mut. Life Ins. Co., 208 Mo. App. 130; McMasters v. N.Y. Life Ins. Co., 183 U.S. 25. (2) The policy in question had not lapsed on May 7, 1930, and the Missouri State Life Insurance Co., by refusing to accept the premium of $30 tendered on May 7, 1930, and by demanding and requiring that Harry C. Tabler, Jr., file an application for reinstatement and submit to a physical examination as a condition for its recognition of the continued life of the policy, based upon its contention that the first year's premium paid for insurance under the policy only to March 2, 1927, and by its letters dated May 12, 1930, and July 24, 1930, breached its contract and manifested an intention not to carry out its terms in such a manner as to relieve said Harry C. Tabler, Jr., from any duty or obligation under the law and the terms of the policy to pay or offer to pay further premiums on said policy so long as said company persisted in such demands or requirements. Newman v. Hancock Mut. Life Ins. Co., 216 Mo. App. 180, 7 S.W. (2d) 1015; Wayland v. Western Life Indemnity Co., 166 Mo. App. 221; Johnson v. Ins. Co., 166 Mo. App. 261; Hawkins v. Washington Fid. Natl. v. Ins. Co., 78 S.W. (2d) 543; Klinkhardt v. Crescent Ins. Co., 47 S.W. (2d) 210.

Williams, Nelson & English, Allen May and R.F. O'Bryen for defendant in error.

(1) The court should have peremptorily found in favor of the defendant and the judgment is for the right party because: The contract on which plaintiff sued specifically: (a) fixed the period of insurance and effective date thereof; (b) fixed the premium paying dates; (c) provided for automatic termination thereof in the event of the failure to pay premiums. A stipulation in a policy of life insurance that the policy when delivered shall be effective as of a date prior to delivery of the policy is a valid and binding stipulation and is not inconsistent with a provision reciting that there is no insurance prior to delivery and payment of the premium. Natl. City Bank v. Mo. State Life Ins. Co., 57 S.W. (2d) 1066, 332 Mo. 182; Prange v. International Life Ins. Co., 46 S.W. (2d) 523, 329 Mo. 651. A provision in a policy of life insurance expressly declaring a forfeiture or that the policy shall cease and determine if premiums be not paid on their specified due dates is a valid and binding provision and, unless the premium be paid on the specified date, the insurance automatically ceases. Bondurant v. Mo. State Life Ins. Co., 198 S.W. 74; Smoot v. Bankers Life Assn., 138 Mo. App. 468; Marshall v. Life Ins. Co., 148 Mo. App. 677; Darby v. Northwestern Mutual Life Ins. Co., 293 Mo. 12; Russum v. St. Louis Mut. Life Ins. Co., 1 Mo. App. 233; Suess v. Ins. Co., 193 Mo. 575; Reese v. Prudential Ins. Co., 218 Mo. App. 555. Where a date is specifically fixed by the policy for the payment of premiums the premiums will become due on that date and no other. Darby v. Northwestern Mut. Life Ins. Co., 293 Mo. 1. (2) The policy of insurance upon which plaintiff relies for recovery fixed the premium paying dates in clear and unambiguous language. It was the duty of the court to give effect to this language because: (a) Courts are without authority to rewrite contracts, even insurance contracts. Natl. City Bank v. Mo. State Life Ins. Co., 57 S.W. (2d) 1066, 332 Mo. 182; Prange v. International Life Ins. Co., 46 S.W. (2d) 523, 329 Mo. 651. (b) Parties to contracts are bound by the interpretation which by their own acts they place upon such contracts. Scotten v. Met. Life Ins. Co., 81 S.W. (2d) 313, 336 Mo. 724; State ex rel. Chorn v. Hudson, 222 S.W. 1051; Lee v. Mo. State Life Ins. Co., 261 S.W. 86. (c) A life insurance company may make with the insured any contract not expressly prohibited by statute and the amounts which may be charged for life insurance by way of premiums and the period for which a premium is to carry a policy are not fixed by or limited by the laws of this State. Prange v. International Life Ins. Co., 46 S.W. (2d) 523, 332 Mo. 182. (d) The court must interpret the policy so as to show no violation of the statutes of the State and to interpret this policy as providing for the payment of premiums at a later date than that specified in the policy would effect a discrimination between insurants in violation of law. R.S. 1929, sec. 5729; National City Bank v. Mo. State Life Ins. Co., 57 S.W. (2d) 1068. (3) The period of insurance for which the insured in this case paid, could not, under any theory, be extended beyond the date of delivery of the policy because: (a) It is neither just nor logical that one claiming under the contract of insurance could take advantage of a tardiness by the insured in paying his premium. Natl. City Bank v. Mo. State Life Ins. Co., 57 S.W. (2d) 1069, 332 Mo. 182; Lyke v. Am. Natl. Ins. Co., 187 S.W. 265. (b) Where a policy of life insurance is unconditionally delivered to the insured and credit is given for the first premium, the policy becomes effective on delivery, the provision that effectiveness is conditioned on prepayment of the premium being for the protection of the insurance company and being waived by unconditional delivery. Natl. City Bank v. Mo. State Life Ins. Co., 57 S.W. (2d) 1066; Bell v. Mo. State Life Ins. Co., 166 Mo. App. 399; Berryman v. Southern Surety Co., 285 Mo. 379; New York Life Ins. Co. v. Stone, 42 Mo. App. 383; Pierce v. N.Y. Life Ins. Co., 174 Mo. App. 383. (c) The doctrine of Halsey v. Insurance Company, 258 Mo. 659, has never been extended to give protection for a year's insurance beyond one year from the unconditional delivery of the policy and plaintiff's cases are therefore distinguishable because in each of those cases the insured either died before the lapse of one year from the delivery of the policy, or the application failed to provide for a predating of the policy as in this case. Natl. City Bank v. Mo. State Life Ins. Co., 57 S.W. (2d) 1070.

HYDE, C.

This is an action on an insurance policy to recover $10,000 with interest, penalty, and attorneys' fees. Defense was made that the policy had lapsed for nonpayment of premiums, and that extended insurance thereafter provided had terminated prior to the death of the insured. The case was tried before the court, with jury waived, and the court, finding against plaintiff, entered judgment discharging defendant. Plaintiff has brought the case here on writ of error.

Each party contends that it was entitled to judgment upon conceded facts. The insurance policy was issued by the Missouri State Life Insurance Company and liabilities of the company have been assumed by defendant. We, however, use the term defendant to apply to the Missouri State Life Insurance Company. The insured Harry C. Tabler died October 30, 1931. He signed an application to defendant for insurance on February 17, 1926. The date of his birth was therein stated to be September 3, 1898, so that after March 2, 1926, he would be required to pay the rate for age twenty-eight instead of the rate for age twenty-seven, applicable at the time he signed the application. His application provided: "(2) If the first premium is not paid in cash at the time the application is made, or if a policy different from the one described in this application is issued, the insurance shall not take effect until the first premium thereon has actually been paid to and accepted by the Company, or its duly authorized agent, and the policy delivered to and accepted by me during my life and good health; but in that event the policy shall bear the date of its issuance and all future premiums shall become due on such policy date and all policy values and extended insurance shall be computed therefrom." The premium was not paid at the time the application was made, and the policy issued was neither described nor intended to be described in the application when Tabler signed it. The application was signed in blank as to amount and at that time Tabler had only agreed to take one policy for $1000. However, the application was filled in to describe three policies: $5000 for the benefit of Tabler Cleaning Company; $5000 for the benefit of North End Cleaning Company,...