Thompson v. St. Louis Mut. Life Ins. Co.

CourtUnited States State Supreme Court of Missouri
Citation52 Mo. 469
PartiesMACKLOT THOMPSON, Respondent, v. ST. LOUIS MUTUAL LIFE INSURANCE COMPANY, Appellant.
Decision Date31 March 1873

Appeal from St. Louis Circuit Court.

Cline, Jamison & Day, for Appellant.

This case stands on simple naked acts of indulgencies granted to the plaintiff, for two successive years.

The memorandum referred to, formed a part of the policy itself. (Stocking vs. Fairchild, 5 Pick. 181; Gurnerson vs. Murray, 4 N. H., 171; Roberts vs. Chenango County Mutual Insurance Company, 3 Hill, 501; 1 Phillips on Ins., § 68, p. 51; 1 Arnold on Insurance, p. 41.)

Bakewell, Farish & Mead, for Respondent.

The proof showed that in regard to the previous payments of the annual premiums, they had always been paid weeks after they were due, and received by the defendant without objection, and therefore the instruction given was correct. (Buckbee vs. U. S. Ins. Co., 18 Barbour, 541; McClure vs. Philadelphia Ins. Co. 6 Penn. State., 107; Ruse vs. Mutual Benefit Life Ins. Co., 26 Barb. 556.)

ADAMS, Judge, delivered the opinion of the court

This was an action on a policy of insurance issued by the defendant to Alfred C. Bernoudy, whereby in consideration of two hundred and thirty and twenty-eight hundredth dollars paid by him, and an annual premium of the same amount to be paid on or before the 28th day of March, in each and every year next after the date of the policy for nine years, the Company assured the life of said Bernoudy, in the sum of three thousand dollars, to be paid to the plaintiff at the expiration of the nine years, or if Bernoudy died in the meantime, to be paid in ninety days after due notice or proof of his death.

The policy provided that if default should be made in the payment of any of the annual premiums at the time limited for their respective payments, such default should not work a forfeiture of the policy but the three thousand dollars insurance should then be commuted or reduced to such proportional part of the whole sum insured, as the sum of the annual payments that had been paid, should bear to the ten annual payments stipulated to be paid by Bernoudy.

And it was also provided, that if the insured should fail to pay annually in advance the interest on any unpaid notes or loans, which might be owing by him to the Company on account of any of the annual premiums, then, and in every such case, the Company should not be liable for the payment of the amount of insurance, or any part thereof, and the policy should cease and determine.

Bernondy, whose life was insured, died before the expiration of the nine years, and the plaintiff under the policy claimed the whole amount of insurance. The defendant claimed a commutation of the amount of insurance, upon the alleged ground that default had been made in payment of the annual premiums on the days stipulated. And the defendant also set up two additional defenses of a forfeiture of the policy, by reason of the non-payment in advance of interest on premium notes.

At the foot of the paper on which the policy was printed and written, but not embodied in the policy itself, there appeared to be the following printed memorandum: “N. B. Agents of this company are not authorized to grant permits, or to make, alter or discharge contracts, or waive forfeitures. If a premium is received by the company after the day named in the policy for its payment, it is considered by the company and the assured as an act of grace or courtesy, and forms no precedent in regard to future payments.”

The evidence in the case showed that the premium due on the 28th of March, 1870, was not paid or tendered on that day, but in two days thereafter the same was duly tendered but refused. The proof showed that in regard to the previous annual payments commencing in March, 1868, they had always been paid weeks after they were due, and received by the defendant without objection. In regard to the premium of the previous year, it was paid six weeks after it became due and received without any objection, and that there had been no change in the health or condition of the deceased. It also appeared that the plaintiff had...

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