Waters v. Bankers' Life Ass'n of Des Moines, Iowa

• Decision Date: 02 May 1932
• Parties: ANNA WATERS, RESPONDENT, v. BANKERS LIFE ASSOCIATION OF DES MOINES, APPELLANT
• Court: Kansas Court of Appeals

50 S.W.2d 183

226 Mo.App. 1188

ANNA WATERS, RESPONDENT, v. BANKERS LIFE ASSOCIATION OF DES MOINES, APPELLANT

Court of Appeals of Missouri, Kansas City

May 2, 1932

Appeal from Circuit Court of Jackson County.--Hon. Ralph S. Latshaw Judge.

AFFIRMED.

Judgment affirmed.

J. B McGilvray and J. K. Owens for respondent.

R. B Alberson and J. P. Lorentzen for appellant.

McAllister, Humphrey, Pew & Broaddus for counsel.

OPINION

TRIMBLE, P. J.

This is an action on a policy or certificate of insurance for $ 2000 issued by defendant upon the life of John L. Waters. The policy was issued July 25, 1900, and plaintiff was, and is, the beneficiary therein. Insured died February 21, 1929. Proof of death was duly made but the defendant declined to pay, and suit was brought on the policy April 26, 1929, resulting in a verdict for plaintiff in the sum of $ 1923 plus interest at six per cent of $ 144.22, making a total of $ 2067 from March 10, 1930. The defendant has appealed.

An agreed statement of facts was filed and the trial rests largely upon that. The sole defense and reason offered for nonpayment of the policy is that an assessment levied April 1, 1927, known as Call No. 176 was never paid by insured, and that, under the by-laws, the policy or certificate lapsed and all interest of insured or his beneficiary in the property of the defendant, or in the policy of insurance, was forfeited.

At the time the policy was issued, July 25, 1900, defendant was a mutual assessment life insurance association organized under the laws of Iowa and authorized to do business in Missouri. Later, to-wit, on October 26, 1911, the association, in accordance with the laws of Iowa, changed its name from "Bankers Life Association" to "Bankers Life Company" and the latter is now its corporate name. Since October 26, 1911, it has been carrying on its insurance on the level premium legal reserve plan, and is now carrying on an assessment insurance only in so far as is necessary to carry out the terms of the contracts of the assessment certificates issued prior to the above named date of said change, and this includes, of course, the policy sued on herein. At the time, therefore, of the issuance of said certificate, defendant was a mutual assessment life insurance association charging no level premiums, and, as to certificates of the nature of the one sued on, the payments for death losses thereunder have been, and still are, dependent upon assessments against persons holding similar contracts which are due and payable thirty days after notice of the assessment and call therefor have been received from defendant as to the amount and due date thereof.

It is admitted that all assessments made on Waters' certificate were paid in proper time for practically twenty-seven years or up to the assessment made by the Company April 1, 1927, and known as Call No. 176, which defendant contends was not paid. This contention as to the nonpayment of said Call No. 176 plaintiff, in her pleading and also in her evidence, denies.

It was further admitted that no call was made on Waters' certificate after April 1, 1927; so that if Call No. 176 was paid, then there was due on the certificate, at the death of insured on February 21, 1929, the sum of $ 1923 with interest at six per cent from March 19, 1929. Hence, the only matter in controversy, under the evidence and the agreed facts, is as to whether or not Call No. 176 for the quarter beginning April 1, 1927, in the sum of $ 12.60, and payable on or before May 2, 1927, was mailed to insured, and if so, whether or not same was paid.

The jury having found a verdict for plaintiff, the only question left for this court to determine is whether there is any evidence to sustain that verdict, and, which is perhaps the same thing, whether the defendant's evidence is such that it must be accepted as true notwithstanding the jury's verdict.

Upon the commencement of the trial, plaintiff offered the certificate in evidence together with proof of the death of insured and the date such proof was made to defendant; she also established that she had demanded payment of the policy, that defendant refused to pay, that she was the beneficiary under the policy and that it was in the possession of insured when he died and that same was now in her possession.

Thereupon plaintiff rested, and defendant offered a general demurrer to the evidence, which demurrer was overruled.

Defendant then introduced the above mentioned agreed statement of facts which showed, in addition to the other matters already stated, that the defendant company duly made an assessment, in the sum of $ 12.60, for the quarter beginning April 1, 1927, payable on or before May 2, 1927, the call for, or notice of which, was known as Call No. 176 that a suit, entitled Bratt et al. v. Bankers Life Company, was brought in the Supreme Court of Iowa to test the legality of said assessment known as Call No. 176 for the benefit of the plaintiffs therein and all other policy holders who were similarly affected and situated. During the pendency of said suit the Iowa Supreme Court made an order therein on May 6, 1927, stating that because of said suit and the publicity given it, many assessment members of the defendant company may have, in good faith, failed to pay Call No. 176 before the last day of grace, May 2, 1927, and that all such members should have further opportunity to pay said Call No. 176 before being lapsed for nonpayment thereof. It was, therefore, ordered that, as to all members who had not paid said Call, but who were otherwise in good standing, the date of such payment should be extended twenty days or to and including May 26, 1927, and all such members were permitted, if they desired, to pay said call with the same effect as if it had been paid on or before May 2, 1927; and that notice of the order should be given by mail to said assessment members; and if it should be finally determined that assessment No. 176 and subsequent assessments are invalid any policy holder who had failed to pay said alleged invalid assessment or assessments should have right to be reinstated upon the payment, within a time to be fixed by the final decree, any sums that might have been lawfully assessed against him.

The agreed statement of facts also showed:

That all provisions of said order were duly carried out by defendant.

That defendant sent by registered mail a copy of said order to each member who had not paid said Call No. 176, and that one of the said notices was sent to John L. Waters, 3306 Moulton, Kansas City, Missouri, being registered Article No. 464,401 and in due course of mail defendant received a return receipt car hearing registered article No. 464,401 which card was attached to said agreed statement of facts as "Exhibit F 1."

That the signatures "J. L. Waters--Anna Waters" were placed on said return card May 14, 1927. (Plaintiff, in her evidence in rebuttal, admitted that she received said article or letter and signed said card; that said article was a letter which she opened immediately and gave to her husband, but she did not remember what was in that letter; she said she "received the letter, of course, because that is by signature to it but I can't tell you what particular letter it was.)"

The agreed statement of facts further showed:

That assessment No. 176 and subsequent assessments were thereafter held to be valid by the Supreme Court of Iowa.

That no notices of assessments or Calls on said Certificate No. 94909 were given or mailed to John L. Waters subsequent to the month of May, 1927, and that no Calls or Assessments were ever paid by John L. Waters on said Certificate No. 94909 after May 26, 1927.

The evidence offered by defendant to support its contentions as to the making and giving notice to said John L. Waters, of said assessment or Call No. 176 and his claimed nonpayment thereof, is contained in said agreed statement of facts, as follows:

1. That if one, F. E. Samuelson, fifty years of age, residing at 1247 York Street, Des Moines, Iowa, were present, would testify:

That for about seventeen years, and including the months of March, April and May, 1927, he was defendant's Department Supervisor and as such had charge of the accounts of the assessment members and the making and sending of notices to them and the posting of all payments made by them; that all assessments and notices thereof are known as Calls; that Call No. 176 was made and notices sent to the members in the latter part of March and prior to April 1, 1927; that each member's account had been for many years prior to, and during the said months, and thereafter up to the present are, kept in what is known as a card system, a modern up-to-date system in use by many other life insurance companies; each member's account is kept on a card, the amounts of the calls are entered on these cards and opposite the amount of the Call on the same line the date payments are received or entered. This system determines what members are in good standing; that insured John L. Waters, whose last address appears on defendant's records as 3306 Moulton, Kansas City, was a member of the Bankers Life Company prior to April, 1927, as shown by his membership card, a part of defendant's card index system. He identified Exhibit J attached thereto as a true and correct copy of the membership card of John L. Waters on which his account was kept in connection with Certificate No. 94909.

Said Exhibit J was a photostatic copy of an account in two parts. The first being headed "Age twenty-eight. Certificate No. 94909, date issue July 25, 1900. No. 94909, John L Waters, c/o State Bank, Axtell, Kansas." This was in print but a line had been drawn through the address, and "3306 Moulton, Kansas City,...