Wichman v. Metropolitan Life Insurance Company

• Decision Date: 09 July 1906
• Citation: 96 S.W. 695,120 Mo.App. 51
• Parties: WICHMAN, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Respondent
• Court: Missouri Court of Appeals

96 S.W. 695

120 Mo.App. 51

WICHMAN, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

July 9, 1906

Appeal from St. Louis City Circuit Court.--Hon. Walter B. Douglas Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

George E. Smith for appellant.

The receipt and retention of this premium estops the defendant from claiming that the policy was void for non-payment of the same premium. Andrus v. Life Ins. Assn., 168 Mo 151, 67 S.W. 582; James v. Life Assn., 148 Mo. 1, 49 S.W. 987; Wagaman v. Life Ins. Co., 110 Mo.App. 616 85 S.W. 117; Suess v. Life Ins. Co., 86 Mo.App. 10.

Nathan Frank and Richard A. Jones for respondent.

OPINION

BLAND, P. J.

--The petition is in the usual form to recover on a policy of insurance for the sum of five hundred dollars, issued to Albert O. Wichman, payable to him at the expiration of twenty years from the date of the policy, and in case of his death within that period to his wife, Louise, or her legal representatives.

After admitting the issuance of the policy and denying the other allegations of the petition, the answer set up the following defense:

"That one of the express considerations upon which said policy was issued and upon which payment was to be made, and a condition precedent thereto, was that the said Wichman should pay to said defendant a quarter annual premium of $ 6.54 on or before the twelfth day of September, December, March and June of each and every year, and that if the said sums should not be paid at the time they became due as aforesaid, then by the terms of said contract of insurance the same should be, without further action on the part of defendant, void and of no effect and defendant should not be liable to pay to plaintiff anything thereunder.

"It was further agreed under the terms of said contract, that the same was completely set forth in such written policy and the application therefor by the terms of said policy made a part thereof, and that none of the the provisions or terms of said contract of insurance could be varied or modified, nor any forfeiture waived or premiums in arrears received, except by agreement in writing signed by either the president, vice-president or secretary of defendant, whose authority would not be delegated, and that no other person had or would be given authority.

"Further answering, defendant states that the quarterly premium of $ 6.54 due under the terms of said policy on the twelfth day of September, 1903, was not paid on said date, whereby the policy became void and there was no further liability on the part of the defendant thereon.

"That thereafter, and during the month of November in said year, and after said policy had become void and of non-effect by reason of non-payment of premiums as aforesaid, the sum of $ 6.54 was paid by said insured to a local employee of defendant at St. Louis and was received by him.

"That said employee had no authority, under the terms of said policy as aforesaid, to waive any of the provisions of said contract or to revive the same and said payment was received by the said employee upon the express understanding and agreement that 'this sum of $ 6.54 as aforesaid is received as a deposit to be applied to the premium due on said policy for the non-payment of which at due date this policy was lapsed, provided that the Metropolitan Life Insurance Company, at its home office approves the application for the restoration of said policy submitted; if not so approved it is agreed that said deposit shall be returned to the person making it. And it is expressly understood that no obligation under said policy is assumed until the application for restoration has been approved.'

"That defendant did not approve the revival of said policy or revive the same and the amount so paid as aforesaid was heretofore tendered to the plaintiff and is now tendered into this court for her use and benefit, or whomsoever the court may find entitled thereto."

Omitting caption, the reply is as follows:

"Now comes said plaintiff and for her amended reply to the new matter pleaded in defendant's answer, says that by an invariable custom and usage established by defendant said defendant collected all of the premiums paid upon said policy except the initial premium by sending its duly authorized agent to the residence of the insured for that purpose and there demanding and receipting for said premiums; that relying upon said custom and usage both the insured and assured in said policy always awaited the arrival of said agent on and after the days when the several premiums on said policy became due and in pursuance of said custom each and every premium paid upon said policy, with the exception of the initial premium was called for, demanded and paid to said agent long after the day upon which it became due and payable and was accepted and retained by defendant although thus paid after maturity. And for further reply plaintiff says that all premiums which accrued upon said policy prior to September 12, 1903, were paid to and accepted by defendant, that payment of the premiums which accrued on September 12, 1903, was extended by defendant for thirty days and after said extension expired defendant's said agent did not call for or demand payment of said premiums until November 17, 1903, although money to pay the same on demand was provided and in hand awaiting the call of said agent, that when said agent did call on November 17, 1903, for the premium which accrued September 12, 1903, and then received the same to-wit, the sum of $ 6.54 from the insured, he gave a provisional receipt therefore and required the insured and assured, this plaintiff, to sign an application for the revival of said policy, representing at the time that said provisional receipt would thereafter be exchanged for a regular receipt, that at the time said application for revival was signed as aforesaid the representations therein made relating to the good health of the insured were true, that thereafter, to-wit, on December 1, 1903, said agent again called on the insured and assured and demanded that they pay the next premium that would accrue thereafter, to-wit, that on December the...