Winkelmann v. Central States Life Ins. Co.

• Decision Date: 07 December 1936
• Parties: HERMAN WINKELMANN, ETC., RESPONDENT, v. CENTRAL STATES LIFE INSURANCE COMPANY, APPELLANT
• Court: Kansas Court of Appeals

101 S.W.2d 736

231 Mo.App. 501

HERMAN WINKELMANN, ETC., RESPONDENT, v. CENTRAL STATES LIFE INSURANCE COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

December 7, 1936

Appeal from Circuit Court of Cole County.--Hon. Nike G. Sevier Judge.

REVERSED.

Judgment reversed.

Walter Burch and H. P. Lauf for respondent.

Jones Hocker, Gladney & Jones and Lon Hocker, Jr., for appellant.

SPERRY C. Campbell, C., not sitting.

OPINION

SPERRY, C.--

Plaintiff sued on behalf of himself and his deceased wife, who were beneficiaries in a life insurance policy, in the principal sum of $ 1000, issued by defendant's predecessor on the life of Edmund F. Winkelmann, son of plaintiff. From a judgment for $ 972.13 on the policy, $ 83.10 interest, and $ 350 attorney fees for vexatious delay, a total of $ 1405.23, this appeal is duly prosecuted.

The facts in evidence were that the policy was issued May 8, 1931, and premiums were to be paid on or before May 8th of each year, or within a period of thirty-one days of grace thereafter. Plaintiff and his wife, Johanna, were named as beneficiaries but the latter had died and plaintiff was executor of her estate at the time suit was instituted. The first two annual premiums were paid but the premium falling due May 8, 1933, was never paid, although tender of payment was made on June 27, 1933, after the grace period had expired. Defendant refused to accept it without first passing upon the insurability of insured, and, upon investigation, it refused to reinstate him because of his physical condition.

The policy contained the following clause:

". . . If any premium or installment thereof is not paid when due, this policy shall be ipso facto null and void and all premiums forfeited to the Company, except as herein otherwise provided."

The policy also had attached to it the following, which was introduced as plaintiff's exhibit B:

"Waiver of Premium--Disability Benefit.

"Supplemental contract attached to and forming a part of Policy No. 35316-N on the life of Edmund F. Winkelmann--issued by the

"American National Assurance Company.

"In consideration of the representations, statements and agreements made in the application for said policy above referred to, which is hereby made a part of this supplemental contract, and in consideration of the payment, on or before the delivery of this supplemental contract, of the premium of $ .34, and of the payment thereafter of a like amount with each . . . annual premium required by said policy above referred to until the anniversary nearest the sixtieth (60) birthday of the Insured, the

"American National Assurance Company will, upon satisfactory proof that, before attaining the age of sixty (60) years, and while said policy and this supplemental contract are in full force, the Insured has become totally disabled from bodily injury or disease, except as hereinafter provided, so that he is and thereby will be permanently and continuously unable to engage in any occupation or to perform any work for remuneration or profit, and that such disability has existed continuously for not less than one year (such disability of such duration being deemed permanent only for the purpose of determining the commencement of disability hereunder), waive the payment of premiums under said policy and under this supplemental contract falling due after the commencement and during the continuance of such permanent total disability, provided, however, that no premium which fell due more than six months immediately preceding receipt at the home office of the Company of written notice of claim shall be waived. If such total and permanent disability began after the due date of any premium or installment thereof in default, but not later than the last day of grace provided for by the policy for the payment of said premium or any installment thereof and has existed continuously for not less than one year immediately preceding the receipt of notice of claim, the Company will allow the benefits provided for herein the same as if such default had not occurred but the Insured shall be liable for the premium or installment thereof in default, with interest thereon at the rate of six per cent (6 per cent) per annum until paid."

"General Provisions.

"The Amount of said policy will not be reduced by any premiums waived hereunder. . . .

"Should the Company accept proof of total and permanent disability hereunder, it may, nevertheless, at any time thereafter, and as often as it may desire, but not oftener than once a year after such disability has continued for two full years following the receipt of notice of claim hereunder, demand of the Insured due proof of the continuance of such disability and shall be allowed to make a physical examination of the Insured, with respect to such disability, by a physician or physicians, or other persons designated by it. If the Insured hereunder shall fail to furnish proof of such disability, or if it be established that the Insured has engaged, or has become able to engage, in any occupation or work for remuneration or profit, or if the Insured shall refuse to submit to the examination or examinations herein provided for, then the Insured shall be deemed to have recovered from such state of disability.

"Written notice of claim hereunder must be presented to and received at the home office of the Company (a) during the lifetime of the Insured and (b) during the continuance of total disability, otherwise the claim shall be invalid; provided, however, that failure to give such notice within such times shall not invalidate such claim if it shall be shown that it was not reasonably possible to give such notice within such times, and that such notice was given as soon as was reasonably possible.

"No change, modification or waiver of the terms and conditions of this supplemental contract shall be valid unless endorsed hereon and signed by an executive officer of the Company."

"Discontinuance.

"This supplemental contract may be cancelled by the Insured at any time upon written notice to the Company and the return of this supplemental contract.

"If the Insured is a woman, this supplemental contract shall automatically terminate and become null and void in the event of her marriage and any unearned premium hereon will be returned to the Insured.

"This supplemental contract will also automatically terminate (a) upon the anniversary of the policy, herein referred to, nearest the sixtieth (60) birthday, of the Insured (except that if the Insured is totally disabled as hereinabove provided upon the anniversary nearest the sixtieth (60) birthday, the benefit herein provided shall continue in force subject to the terms and conditions of this contract), or (b) when any premium on said policy or on this supplemental contract shall not be paid when due, or within thirty-one (31) days thereafter, unless the Insured becomes totally disabled prior to the expiration of such such grace period (Italics ours), or (c) when any premium on said policy becomes a charge against the loan value thereof under the Automatic Premium Loan benefit of said policy, or (d) if said policy be surrendered or is continued in force as a paid-up term or paid-up life insurance under its non-forfeiture provisions, or shall otherwise terminate.

"No further premiums shall be payable under this supplemental contract upon its cancellation or termination."

The evidence further disclosed that insured had been in ill health for some weeks prior to May 16, 1933, and upon that date entered a hospital where he was operated on for appendicitis and his gall bladder was drained. He was discharged June 16, 1933. While he was in the hospital and totally disabled from these causes, the beginning of manic-depressive insanity was noted. From this latter disease, he never recovered and from it, with other contributory causes, he died on November 18, 1933.

No claim or proof of total disability was ever made during insured's lifetime and the first notice defendant had of any claim under the policy was by letter written by plaintiff, dated December 11, 1933. Plaintiff did not know of the existence of the policy until after death of insured. Suit was filed January 5, 1935.

Defendant contends that it is not liable on the policy because an unpaid premium fell due before the commencement date of any claimed total and permanent disability and remained in arrears until after expiration of the grace period, that such claimed total and permanent disability did not continue for a year before death of deceased; That the waiver of premium mentioned...