Hay v. Bankers Life Company

• Decision Date: 07 June 1921
• Parties: ELEANOR R. HAY, et al., Appellants, v. BANKERS LIFE COMPANY, Respondent
• Court: Missouri Court of Appeals

231 S.W. 1035

207 Mo.App. 277

ELEANOR R. HAY, et al., Appellants, v. BANKERS LIFE COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

June 7, 1921

Appeal from the Circuit Court of Clark County.--Hon. N. M Pettingill, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

H Collins Hay, J. A. Whiteside and Stone, Gamble, McDermott & Webb, for appellants.

(1) The defense that the suit was not brought within the one-year period required by the policy must fail, because. (a) The statute of Illinois (Laws 1907, p. 370, sec. 2, Subd. 1, id.; Hurd's 1915-1916 Ill. Rev. Stat., p. 1528, sec. 208v Subd. 1), which is the same with respect to insurance policies as the statutory law of Missouri, is with respect to contracts generally (Mo. R. S. 1909, sec. 2780), nullifies policy provisions limiting the time within which suits may be commenced to less than three years after the cause of action shall accrue. Dolan v. Royal Neighbors, 123 Mo.App. 147; Roberts v. M. W. A., 133 Mo.App. 207. (b) The fact that the Illinois statute was not enacted until after the policy was executed is immaterial, since it affected the remedy alone. Smith v. Northern, etc., Fire Ass'n (1911), 112 Ga. 192, 70 S.E. 482, 38 L.R.A. N. S. 1016; Start v. Nat. Newspaper Ass'n, 222 S.W. 870. (c) Defendant-respondent's claim that some section of the Illinois statute other than that above cited exempts assessment companies from its application cannot avail defendant for the reason that no Illinois law providing for such exemption was either pleaded or proven, and the defendant-respondent seeks to raise the question for the first time on appeal in this court. Fidelity, etc., Co. v. Moore, ___ Mo., ___, 217 S.W. 286; First Nat. Bank v. Security, etc., Life Ins. Co., ___ Mo. ___, 222 S.W. 832; Dolan v. Royal Neighbors, 123 Mo.App. 147; Roberts v. M. W. A., 133 Mo.App. 207; Laws of Ill. 1907, p. 370, sec. 2, Subd. 1, id. Hurd's 1915-1916 Ill. Rev. Stat., p. 1528, sec. 208v, Subd. 1. (d) The limitation clause is not available to defendant for the additional reasons of: (1) Waiver. Home Life Ins. Co. v. Pierce, 75 Ill. 426; Moore v. Ntl. Acc. Soc., 38 Wash. 31; Hansel-Elcock Co. v. Frankfort-Marine, etc., 177 Ill.App. 500; Lake v. Farmers Ins. Co., 110 Ia. 473; Covenant Mut. Life Ass'n. v. Baughman, 73 Ill.App. 544; Shearlock v. Mut. Life Ins. Co., 193 Mo.App. 430; Dolan v. Royal Neighbors, 123 Mo.App. 147. (2) Shifting of Position. Farmers' etc., Ins. Co. v. Ferguson, 78 Kan. 791; Mayes v. K. & L. of Sec. , 92 Kan. 841; Snyder v. Mystic Circle (Tenn.), 45 L.R.A. (N. S.) 209; 20 Amer. and Eng. Anno. Cases, p. 438; Phoenix Ins. Co. v. Stocks, 149 Ill. 319, 36 N.E. 408; (3) Estoppel. Purdy v. Banker's Life, 101 Mo.App. 91; Shearlock v. Mut. Life Ins. Co., 193 Mo.App. 430. (2) The defense of forfeiture for non-payment of the January, 1915, assessment must fail, because: (a) The burden of proof was on defendant to prove forfeiture by non-payment of the assessment, and the trier of facts had a right to find, as he did, that the weight of defendant's evidence was not sufficient to show that the insured had failed to pay the last assessment in January, 1915. (1) Forfeiture for non-payment of an assessment, like forfeiture for any other reason, is a defense, which the company must establish by a preponderance of the evidence to the satisfaction of the trial court. Mulroy v. Supreme Lodge, 28 Mo.App. 463; Keeton v. Ntl. Union, 178 Mo.App. 301; Bange v. Supreme Council, 179 Mo.App. 21; Watkins v. American Yeomen, 188 Mo.App. 626; Fisher v. Supreme Lodge, 190 Mo.App. 606; Williams v. M. W. A., Mo.App. 221 S.W. 414. (2) Defendant's evidence tending to show non-payment of the assessment was all circumstantial and its essential parts rested entirely in parol, and the trial court, in a case at law, which this case is, was the conclusive judge of its weight and sufficiency, even if such evidence were uncontradicted. Gannon v. Laclede Gas Light Co., 145 Mo. 502; St. L. Union Tr. Co. v. Hill, ___ Mo., 223 S.W. 434. (3) Defendant's evidence of non-payment was not uncontradicted. It was opposed by other evidence both circumstantial and direct, tending to prove payment. (b) Even if the trial court's finding that the January, 1915, payment was not paid by the assured, the trial court's finding that the guarantee fund was available to liquidate assessments is correct. Elliott on Contracts, chap. 38, sec. 1528; 4 Page on Contracts (2 Ed., 1920), sec. 2053, p. 3554, Fire and Life Assn. v. Telephone Co., 175 Ky. 96, L.R.A., 1917 D, 952, 193 S.W. 1031; Leschen & Sons v. Mayflower, 173 F. 855; Purdy v. Bankers Life, 101 Mo.App. 91; McCoy v. Bankers Life, 134 Mo.App. 35; Smoot v. Bankers Life, 138 Mo.App. 438; Conqueror, etc. Co. v. Aetna Life Etc. Co., 152 Mo.App. 332. (c) There should be a directed judgment for plaintiffs. Union Serv. Co. v. Drug Co., 148 Mo.App. 327; Mountjoy v. Neighbors, etc., Co., 195 Mo.App. 21; Pearson v. Lafferty, 197 Mo.App. 121.

W. S. Ayres, R. B. Alberson and B. L. Bridley for respondent.

(1) The contract between the Association and Nathaniel Hay was at all times an Illinois contract. 6 Cooley's Briefs on Ins pages 564-5; Prudential Life Ins. Co. v. Fusco as Admin., 140 S.W. 566; Roberts v. Modern Woodmen, 133 Mo.App. 207, 113 S.W. 726; Lukens v. International Life Ins. Co., 269 Mo. 574; Napier v. Bankers Life Co., 100 N.Y.S. 1072; Supreme Lodge v. Meyer, 198 U.S. 508. (2) The limitation of one year within which to bring action was in Illinois valid and enforceable. Hurd's Revised Statutes of Ill., 1915-16, sec. 234, page 1536; Roberts v. Modern Woodmen, 133 Mo.App. 207, 113 S.W. 726; Dolan v. Royal Neighbors of Am., 123 Mo.App. 147. (3) The presumption is that the Illinois common law is the same as the common law of Missouri prior to the Missouri Statutes prohibiting such contractual limitation. Wade v. Boone, 184 Mo.App. 86, 168 S.W. 360; Brown v. Worthington, 162 Mo.App. 508, 142 S.W. 1082; Morracy v. Fairy Co., 47 Mo. 521; Eckles v. Mo. P., 87 S.W. 99. The common law of Missouri prior to the passing of the statute prohibiting limitation of the time within which suit may be brought, was that such limitations in an insurance contract were valid. Dolan v. Royal Neighbors of Am., 123 Mo.App. 147. The law of Illinois with respect to limitation of actions introduced by appellant is not applicable because it expressly excepts companies operating on the assessment plan. Hurd's Revised Ill. Statutes, 1915-16, section 208, page 1529. (4) The blank proofs of loss having been furnished at the request of and as a courtesy to the beneficiaries of the insured, there could be no waiver of the limitation with respect to the time of bringing action. Loesch v. Union Casualty Co., 176 Mo. 654; Ridgeway v. Modern Woodmen, 157 P. 1191; Tuttle v. Association, 132 Iowa 652, 663; Order of Com'l Travelers v. Boerz, 150, P. 822, 829; Allman v. Order U. C. T., 213 S.W. 429; Wintergerst v. Court of Honor, 185 Mo.App. 373. A waiver is an intentional relinquishment of a known right. 29 Cyc. 1091; Loesch v. Union Casualty Co., 176 Mo. 654. Whether the respondent company waived the right to defend on the ground, that the time for bringing suit had expired, was and is a question of fact. Thomas v. National Benefit Association, 84 N.J. L. 281, 86 A. 375. (5) This appellate court is limited to the correction of errors of law and will not review a finding of fact by the trial court, such finding of fact by the court, a jury being waived, having the same effect as the verdict of a jury. 4 C. J. sec. 2537, page 645; 4 C. J., sec. 2853, page 876; Finigan v. Railroad Co., 261 Mo. 481; Schwete v. Guerre, 175 Mo. App; Woods v. Johnson, 264 Mo. 289; Simon v. Street Railroad Co., 231 Mo. 131; Miller v. Rankin, 155 Mo.App. 394; Heynbrock v. Hoomann, 256 Mo. 21; Slicer v. Owens, 241 Mo. 319; Mound City Land Co. v. Miller, 170 Mo. 240. (6) Where the finding of fact by the trial court, is not supported by the evidence or is contrary to the evidence, the finding will be reviewed and set aside by the appellate court, as the error is deemed to be one of law. 4 Corpus Juris, sec. 2854, page 881-2; Moore v. Hutchinson, 69 Mo. 429; Schmeiding v. Ewing, 57 Mo. 78; Sandige v. Hill, 76 Mo.App. 540; Blackwell v. Adams, 28 Mo.App. 61. (7) The Doctrine of Waiver, as asserted against Insurance Companies, is only another name for the Doctrine of Estoppel, and can only be invoked where the conduct of the company has been such as to induce action in reliance upon it, and where it would operate as a fraud on the insured if the Company were allowed to disavow its conduct. Taylor-Baldwin Co. v. Northwestern Fire & Marine Ins. Co., 122 N.W. 396; Dodder v. P. Mutual Life Ins. Co. of Calif., 176 N.W. 730; 19 Cyc. 793; Kerr on Insurance, 706, 714-16; Clements on Insurance, 436-437; Insurance Company v. Wolff, 95 U.S. 326, 24 L.Ed. 387; Devens v. Insurance Co., 83 N.Y. 168; Cassimus v. Insurance Co., 135 Ala. 256, 33 S. 163; Thompson v. Insurance 11 N. Dak. 274, 91 N.W. 75; Ruddock v. Detroit Life Ins. Co., 177 N.W. 242-247; Chandler v. Insurance Co., 180 Mo.App. 394, 400. (8) The fact that the Insurance Company denies liability after the loss and before suit, on one ground, does not preclude it from setting up defenses based on other grounds, unless the insured or his beneficiaries are misled by the former action of the company to their prejudice. Cases last cited above. (9) Even if the court erred in finding that the limitation of action found in the contract was valid and applicable, such error would be harmless for the reason that the plaintiff and appellants could not succeed in any event on a new trial, because: A. There is nothing in the record to show that Call No. 127 was paid in cash by Nathaniel Hay or...