The State ex rel. Kansas City Life Insurance Co. v. Trimble

• Citation: 276 S.W. 1020,310 Mo. 446
• Decision Date: 06 October 1925
• Docket Number: 25328
• Parties: THE STATE ex rel. KANSAS CITY LIFE INSURANCE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

276 S.W. 1020

310 Mo. 446

THE STATE ex rel. KANSAS CITY LIFE INSURANCE COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

No. 25328

Supreme Court of Missouri

October 6, 1925

Writ quashed.

George Kingsley and Frank W. McAllister for petitioner.

(1) The opinion of the Court of Appeals, holding competent the testimony of witness Brown, that Assistant Secretary Sears admitted, after the death of insured, that he had talked to insured about payment of the premium notes, as an admission of the defendant company, is in conflict with controlling decisions of this court. State ex rel. Bankers Life Ins Co. v. Reynolds, 277 Mo. 22; Sinclair v Railroad, 253 S.W. 382; Redmon v. Railroad, 185 Mo. 1. (2) The opinion of the Court of Appeals, holding the testimony of witness Brown that Assistant Secretary Sears admitted to him, after the death of the insured, that the policy was in force, competent as an admission of defendant company, is in conflict with controlling decisions of this court. State ex rel. Bankers Life Ins. Co. v. Reynolds supra. (3) The opinion of the Court of Appeals, that a demand by the assistant secretary of the company for the payment of the premium notes after the same were due tends to show waiver, is in conflict with controlling opinions of the Supreme Court. Pa. Ins. Co. v. Geraldin, 31 Mo. 30; Am. Ins. Co. v. Klink, 65 Mo. 82; Marshall v Life Ins. Co., 148 Mo.App. 678; Malone v. Life Ins. Co., 202 Mo.App. 502; 14 R. C. L. par. 369, p. 1192. (4) The opinion and holding of the Court of Appeals, that the alleged notice that the second annual premium would be due, was sufficiently identified and competent as evidence, is in conflict with controlling decisions of the Supreme Court. Kregain v. Blake, 239 S.W. 501; Hardin v. Lee, 51 Mo. 244; Perry v. Roberts, 17 Mo. 36; Brown v. Massey, 138 Mo. 533; Linn v. Ins. Co., 78 Mo.App. 192; 9 A. L. R. Annotation, pp. 984-993. (5) The opinion of the Court of Appeals, that there was substantial evidence to show that defendant company had waived the provision of the policy under which it automatically terminated for failure to pay the premium notes, is in conflict with controlling decisions of the Supreme Court. Langdon v. Kleeman, 278 Mo. 242; Schwab v. Yeoman, 264 S.W. 692; Kazee v. Life Ins. Co., 217 S.W. 339; Ashbrook v. Life Ins. Co., 94 Mo. 72; Bondurant v. Life Ins. Co., 198 S.W. 74; Knickerbocker Ins. Co. v. Pendleton, 112 U.S. 696; Iowa Ins. Co. v. Lewis, 187 U.S. 335; Gunter v. Philadelphia Ins. Co., 125 S.E. 285; 25 L. R. A. (N. S.) 78, et seq.; 14 R. C. L. par. 334, p. 1155.

Solon T. Gilmore for respondents.

(1) The admission by Assistant Secretary Sears that he had talked to the insured about the payment of the premium notes was an admission of the defendant company, or at least was evidence of an admission of the defendant company that it considered the policy still in force. A policy had been issued; the insured had died; the beneficiary was taking up with the insurer the question of liability. Her representative had gone to the office of the company where he was referred to the assistant secretary, an officer that the company is required, under the statutes, to have and the transaction of business upon which her representative called was between that representative, the witness Brown, and the assistant secretary. (2) The ruling of the Court of Appeals was not in conflict with the latest, nor with any of the decisions of this court. The admissions made by Sears in the conversation with Brown in the offices of the company were competent. It was shown by the evidence of both parties that the conversation really occurred between Brown and Sears. This company, which can only speak through the mouths of its agents, referred this matter to the consideration of Sears, whether he had ever had authority to transact such business in the past or not, and the testimony given was what the agent, so authorized to transact the business, had stated. Harris v. Ins. Co., 248 Mo. 304. (3) All of the conversations with Sears were admissible under a well-established rule of this court, even outside of the question of his authority to transact this particular business. Phillips v. Railroad, 211 Mo. 419; McGenness v. Adriatic Mills, 116 Mass. 180; Malacek v. Railroad, 57 Mo. 17; Nickell v. Ins. Co., 144 Mo. 431. (4) This court has never held that a demand for the payment of premiums covering any portion of a period during which the insurance company has a right to say that the policy was void, is consistent with a claim that that right is being exercised. With one exception, and that is where the policy itself provided that if default was made in the payment of a premium note, the entire premium note should be considered to have been earned during the time preceding the maturity of the premium note. Marshall v. Ins. Co., 148 Mo.App. 669. (5) There is no decision of this court which is ignored or repudiated by the decision of the Court of Appeals in the case at bar. (6) The evidence is sufficient to warrant a finding of the jury that the company waived the forfeiture of the contract. Harris v. Ins. Co., 248 Mo. 304.

OPINION

Blair, J.

Certiorari to the Kansas City Court of Appeals, wherein petitioner (relator) seeks to quash the opinion and judgment of respondents in affirming the judgment of the circuit court in the case of Sallie B. O'Donnell, Respondent, v. Kansas City Life Insurance Company, Appellant, lately pending before respondents. Our writ issued and respondents have filed their return.

In their opinion respondents thus state the facts:

"This is a suit upon a life insurance policy in the sum of $ 5000 issued September 14, 1915, by the defendant upon the life of James H. O'Donnell in favor of plaintiff as beneficiary. The insured died on August 19, 1916. There was a verdict and judgment in favor of plaintiff in the sum of $ 6612.50 and defendant has appealed.

"This is the second appeal in the case (see O'Donnell v. Kansas City Life Ins. Co., 222 S.W. 920). The facts concerning this litigation were fully set forth in the opinion in that case, and it will not be necessary for us to go extensively into the testimony except in so far as it may be necessary in passing upon the points raised in this appeal.

"It appears that there were two notes taken from the insured by the agent who solicited the insurance, dated August 27, 1915, the date of the application, and due six months after date, payable to the agent and indorsed to defendant by the latter. It was provided in the application that in case it was accepted any note given for the premium should be applied on the first premium. The policy provided that in case of the failure to pay any premium on or before the date when due or of the failure to pay any premium note when due, the policy issued should become null and void without any action or notice by the company, and all rights should be forfeited to the company except as provided in the policy. The policy stipulated that in case of failure to pay any premium or premium note the company would re-instate the policy at any time upon the written request of the insured, accompanied by evidence of insurability satisfactory to the company and the payment of all premiums in arrears and the payment or re-instatement of any indebtedness existing at the date of the default together with interest thereon.

"The undisputed evidence shows that the notes were not paid when due and in fact were never paid; that after they became due defendant sought to collect them from the insured; that on or about the 24th day of August, 1916, without knowledge that insured was ill, defendant sent a notice that a premium would be due on the policy on September 14, 1916; this notice stated that 'a grace of thirty days, during which the insurance will remain in full force, will be allowed in the payment of all premiums except the first.' On the reverse side of the notice appeared the following:

"'Notice to Policy Holders: You are hereby notified that the premium required to renew your policy will become due and payable at this office on date given on reverse side, and unless said premium shall be paid on or before said date the policy will have become void, and all payments made thereon will become forfeited.'

"The evidence further shows that after the death of the insured an attorney, acting for plaintiff, called defendant's home office over the 'phone and was put in communication with defendant's assistant secretary. Without telling him that insured was dead, the attorney asked him if the policy was in force and he replied, 'Wait a minute.' He left the telephone and in a few minutes came back and said, 'The policy is in force and the next premium will be due on the 14th day of September.' The assistant secretary was put upon the stand by the defendant and testified upon cross-examination that as an officer of the defendant in charge of its premium department he had charge of the premium notes at the time of the happening of these matters; that he knew whether or not they were paid and that he knew the notes were in default from the time of their maturity; that he remembered when plaintiff's attorney called up in reference to the policy and his asking whether the policy was in force; that he thereupon made inquiry of the renewal department of the person in charge thereof and who kept the records of that department, where he would go for information on the subject, and was told that 'the policy appeared to be in force;' that he gave the attorney information to this effect; that on August 24, 1916, after learning of the death of the insured, he wrote plaintiff that the policy was not in force for the reason that insured did not pay the premium notes.

"Afterwards plaintif...