Wright v. Metropolitan Life Ins. Company

• Decision Date: 04 May 1920
• Parties: KATE A. WRIGHT, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant
• Court: Missouri Court of Appeals

221 S.W. 383

204 Mo.App. 124

KATE A. WRIGHT, Respondent, v. METROPOLITAN LIFE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

May 4, 1920

Appeal from the Circuit Court of the City of St. Louis.--Hon. John W. Calhoun, Judge.

AFFIRMED.

Judgment affirmed.

Fordyce Holliday & White and Walter R. Mayne for appellant.

William J. Tully of counsel.

(1) The trial court erred in refusing to give defendant's instruction in the nature of a demurrer to the evidence, for (a) There was no evidence presented from which the jury could reasonably infer that defendant actually intended to waive avoidance of the insurance for failure to pay the premiums in arrears, prior to the death of insured, nor was there any evidence upon which to base an estoppel of defendant to assert such forfeiture. Thompson v. Fid. Mut. L. Ins Co., 116 Tenn. 557, 92 S.W. 1098, 6 L. R. A. (N. S.) 1039; Suess v. Life Mut. Ins. Co., 193 Mo. 564, 574; James v. Mut. Reserve Fund Life Ass'n, 148 Mo. 1, 12; Smoot v. Bankers Life Ass'n, 138 Mo.App. 438, 468; Ashbrook v. Phoenix Mut. Life Ins. Co., 94 Mo. 72, 78; Sick v. Life Ins. Co., 79 Mo.App. 609; Barnes v. Fire Ins. Co., 30 Mo.App. 539, 549; Stiepel v. Life Ass'n, 55 Mo.App. 224; Reichenbach v. Ellerbe, 115 Mo. 588, 594. (b) Plaintiff's evidence leaves no room for doubt that her recovery in this case would effectuate a fraud on defendant. Reichenbach v. Ellerbe, supra. (2) The court erred in admitting testimony on the part of plaintiff regarding other contracts of insurance between plaintiff and defendant not involved in this suit and on the lives of persons other than the insured named in the policy in suit; for no waiver on the part of defendant, express or implied, was established as to such policies; even if waiver had been shown as to such other policies, or any of them, that fact would not have established or tended to prove a waiver as to the particular policy in suit. Smoot v. Bankers Life Ass'n, 138 Mo.App. 468, supra; 1 Morse on Banks (5 Ed.), sec. 9, p. 23. (3) The court erred in giving plaintiff's instruction No. 2 regarding waiver, for: (a) The instruction is not supported by the evidence as to waiver. McQuillin Inst. to Juries, Civil Cases, Sec. 95; Home Bank v. Towson, 64 Mo.App. 97, 100. (b) The instruction is broader than the evidence. State ex rel. v. Ellison, 270 Mo. 645, 653. (c) The instruction purports to cover the issue of waiver, but ignores the evidence of the defense in point. Peoples Bank v. Baker, 193 S.W. 632, Syll. 2. (d) The instruction omits an essential element of waiver established by a course of dealing. James v. Mut. Reserve Fund Life Ass'n, 148 Mo. 1, 12, supra; Smoot v. Bankers Life Ass'n, 138 Mo.App. 438, 468, supra; Thompson v. Fidelity Mut. L. Ins. Co., 116 Tenn. 557, 92 S.W. 1098, 6 L. R. A. (N. S.) 1039, supra.

James J. O'Donohoe for respondent.

(1) Plaintiff established a prima-facie case by introducing the policy in evidence and proving that the insured was dead. Keily v. K. of F. M., 179 Mo.App. 608; Gooden v. M. W. of A., 194 Mo.App. 666; Peterson v. Railroad, 265 Mo. 480. The burden of showing whether any premium was unpaid at the death of the insured was one defendant. In this case defendant established that all premiums were paid. Harris v. Ins. Co., 248 Mo. 304. And, by its course of dealing, defendant waived the prompt payment of premiums. In this State any act done after the breach of conditions, which recognizes the validity of the policy is a waiver of the right to avoid it for that reason. Zahm v. Royal Fraternal Union, 154 Mo.App. 71-78; Madsen v. Ins. Co., 185 S.W. 1168; Wagaman v. Ins. Co., 110 Mo.App. 616-621; McMahon v. Maccabees, 151 Mo. 522-537; Thompson v. Ins. Co., 52 Mo. 469-472. And the same rule obtains in the sister States. Morgan v. Ins. Co., 42 Wash. 10; Replogle v. Ins. Co., 132 Ind. 360; Cannon v. Ins. Co., 53 Wis. 585; Schreiber v. Ins. Co., 43 Minn. 367; Ins. Co. v. Lansing, 15 Nebr. 494; Ins. Co. v. Norton, 96 U.S. 234; Prentice v. Ins. Co., 77 N.Y. 483; Viele v. Ins. Co., 26 Iowa 55. Where it appears that the prompt payment of premiums will not be insisted upon, payment can be made of a premium after it is due and even though the insured may be dead. Goedecke v. Ins. Co., 30 Mo.App. 601; Froelich v. Ins. Co., 47 Mo. 406; Mayer v. Ins. Co., 38 Iowa 304; Ins. Co. v. Duvall, 20 Ky. L. 441; Reiz v. Supreme Council, 163 Wis. 427. (2) The court committed no error in admitting testimony concerning the custom of payment of premiums on other policies on the lives of the several members of her own family. Furthermore, collecting the premiums precludes the defendant from insisting upon a forfeiture of the policy; and "its tender (of premiums) into court at the time of the trial would come too late, and avail it nothing." Jaggi v. Ins. Co., 191 Mo.App. 384 (cases cited). (3) The court committed no error in giving plaintiff's instruction No. 2, for it correctly expressed the law. Moreover, under the evidence in this case, it would be proper for the court, as a matter of law, to hold that there had been a waiver of prompt payment of premiums. Wacker v. Ins. Co., 213 S.W. 869, and cases there cited. Besides, plaintiff was entitled to a directed verdict; and if so, instructions "cut no figure, since in such event the only possible result, under the law and the evidence, was reached by the jury." Brunswick v. Ins. Co., 213 S.W. (Mo.), 51.

BARNES, C. Reynolds, P. J., Allen and Becker, JJ., concur.

OPINION

BARNES, C.--

This suit was instituted before a Justice of the Peace of the City of St. Louis on February 8, 1916. It is based upon a life insurance policy of the "industrial" or "prudential" class, issued by defendant March 24, 1913, on the life of Sylvia Wright, the fourteen year old daughter of plaintiff, the beneficiary therein named. The premium was ten cents per week, and the amount of the insurance $ 260. The insured died November 10, 1915.

The statement filed with the justice was conventional in form, and asked judgment for the full amount of the insurance, interest, ten per cent. of the amount due on the policy as damages, and a reasonable attorneys fee not exceeding one hundred dollars. No pleadings were filed by defendant. Plaintiff had judgment.

The case was appealed to the Circuit Court. Prior to the trial de novo therein, defendant paid into court $ 13.80 as a tender back of all premiums received. The trial resulted in a verdict for plaintiff for the amount of the insurance, interest, damages and attorneys fees, totaling $ 384.40. Judgment was entered, accordingly. All the necessary intermediate steps were taken to preserve certain alleged errors for review by this court.

Appellant's first contention is, that the trial court erred in refusing to give its instruction in the nature of a demurrer to the evidence, offered at the close of the case. Altho this instruction refers to a judgment instead of a verdict, we will treat it as though proper in form.

Respondent introduced in evidence in the trial court: the policy; that insured had died since its issue; the Premium Receipt Book receipting for all premiums two weeks beyond date of insured's death; proof of her claim as beneficiary failure of appellant to pay her claim; and the value of her attorney's services in prosecuting this suit.

Appellant's demurrer goes below the surface of this statement of an apparently perfect prima-facie case. It is directed towards the terms of the policy pertaining to an avoidance of the insurance for failure to promptly pay premiums, and that the payment of premiums after the insurance had lapsed and after the death of the insured did not revive the insurance, and that there was no evidence from which the jury could reasonably infer defendant intended to waive lapsing of the insurance for failure to pay the premiums in arrears prior to insured's death.

It is in this view of the case that we set out such terms of the policy and so much of the evidence as seems germane. The policy reads:--

"In consideration of the payment of the premium mentioned in the schedule below, on or before each Monday, doth hereby agree, subject to the conditions below on page 2 hereof, each of which is hereby made a part of this contract and contracted by the insured and beneficiary to be a part hereof, and with the privileges and concessions to policy-holders on pages 2 and 3 hereof, which are hereby made part of this contract, to pay, upon receipt of proofs of the death of the insured, made in the manner, to the extent and upon the blanks required herein, and upon surrender of this policy and all receipt books, the amount stipulated in said schedule. . . ."

"Amount of insurance $ 260.

One-half only of the above sum payable if death occur within six calendar months from date, and the full amount if death occur thereafter.

Conditions.

". . . This policy contains the entire agreement between the company and the insured and the holder and owner hereof. Its terms cannot be changed or its conditions varied, except by a written agreement, signed by the president or secretary of the company, therefore, agents (which term includes superintendents and assistant superintendents) are not authorized and have no power to make, alter or discharge contracts, waive forfeitures, or receive premiums on policies in arrears more than four weeks, or to receipt for the same in the receipt book, and all such arrears given to an agent shall be at the risk of those who pay them, and shall not be credited upon the policy, whether entered in the receipt book or not.

If this policy be assigned or otherwise parted with, or if any erasure or alteration be made herein, except by the endorsement signed by the secretary, or if any premium shall not be paid when due, this...