Brown v. Pacific Mutual Life Insurance

109 Mo. App. 137 | Mo. Ct. App. | 1904

SMITH, P. J.

The policy sued on by its express terms becáme operative on the twentieth day of April, 1902, and the deduction and payment by the railway company to defendant of $3.75 out of the wages earned by the assured for the month of May, in accordance with the latter’s order, kept the policy alive for the next two months ending the twentieth of June, 1902. The accident to the assured resulting in the loss of his life did not happen until the sixth day of August, which was after the expiration of the first two months ’ period covered by the policy. The assured made default in the payment of the premium for the second period, or for the two months beginning June 20th and ending August 20th. The policy provided that if default be made in the payment of any premium at its due date the policy should be void as respects the corresponding and subsequent periods. It also further provided that in case the assured should fail to leave in the hands of the railway paymaster any installment of premium as it should fall due, as agreed in said order of assured to said paymaster, that the policy .should be void. And as has already been seen, the policy further provided that the premium for the four distinct periods was to be paid by an equal number of installments from the wages of the assured for the months of May, June, July, and August, and should apply to the respective insurance period and that the policy should be considered binding only for such insurance period as should be covered by an installment of premium actually paid except as to the time fixed for the first installment. It is in effect conceded that neither the assured himself, nor the railway company acting under his order, paid defendant any other installment of said premium except that for the first period ending June 20th. It is as clear as anything can well be that the policy was not' alive and operative at the time of the accident to the assured, and it would seem that the defendant’s demurrer to the evidence should have been sustained rather than denied.

But the plaintiff insists that since it appears from the evidence that the assured worked for the railway company during the month of June and had earnings in its hands on the twenty-eighth of that month amounting to $47.35, that it was the duty of that company to deduct from the amount so in its hands the sum of $3.75 and apply the same to the payment of the premium for the second of said insurance periods. It is not denied but that when the assured quit the service of the railway company that it presented to him for his examination and signature a voucher which showed the number of hours he had worked that month —June—-and the price paid per hour therefor, and the aggregate amount of wages to which he was entitled. This voucher disclosed to him that no deduction had been made by the railway company for the purpose of paying to defendant the premium due for the second insurance period. The statements contained on its face showed that he was then receiving the whole amount of wages that he had earned during that month and that there had been no deduction from the same. He must, therefore, be conclusively presumed to have known when he signed this voucher and received the amount it showed that he was entitled to, that no part of his wages for that month had been withheld, and that the premium then past due for the second insurance period was not paid. He therefore had actual notice that he was in default in payment of the premium for the second period of insurance and as he could not have been prejudiced by the failure of the railway company to give him notice of a fact of whose existence was as well known to him as to it.

The proof of the self-serving statements made by the assured to a friend, after he had quit the employment of the railway company and received the whole amount of wages earned by him in the month of June, to the effect that his accident insurance was the best thing he had ever taken out and that he intended to keep it up, was wholly inadmissible for any purpose.

In no view of the evidence which we are able to take can we conclude that the mere fact that the assured earned an amount of wages during the month of June in excess of the amount of the premium due by him for the second period of the insurance and that the amount of such premium was not deducted by the railway company and paid over to the defendant, amounted to a constructive payment of the premium due for the second period of insurance. The assured knowingly failed to leave in the hands of the paymaster of the railway company the second installment of premium when it fell due as was agreed in his order' on the said railway company, therefore, according to the plain terms of the eleventh clause of the policy it was thereby rendered void.

We are unable to agree to the further contention of the plaintiff that the order given to the defendant on the railway company, and the acceptance thereof by the latter, constituted an unconditional assignment of $3.75 of the amount of the wages that should be earned by the assured and in the hands of the railway company for each of the months mentioned in the said order, because, as already shown, the policy by its express terms provided that in case the insured failed to leave in the hands of the paymaster any installment of premium as it shall fall due, as agreed in said order, the policy should he void. It is thus seen by the very terms of the contract of insurance that the right was reserved to the assured to forfeit the policy at the end of any insurance period by demanding and receiving from tbe railway company all the wages then due him, and thereby “ failing to leave in its hands the installment of premium then due. ’ ’ Under the contract of insurance the right of the assured to continue the policy from one period through another was entirely optional with him. He was not bound to carry the policy through the second or any other of the periods named in the policy whether he wanted to or not. The order was then but a conditional assignment. Such assignment was upon the express condition that the assured continued in the service of the railway company earning wages equal to the amount of the premiums as they severally fell due and left such amount in the hands of such railway company to be applied by it to the payment of such premiums. The application, order and policy all relate to a single transaction and constitute but a single contract which can not be fairly and reasonably construed to mean anything other than that the order was but a conditional assignment.

The instructions hereinbefore set forth are, as we understand it, correct in expressions of the law.

There are a number of cases cited in the defendant’s brief, the rulings in which we think fully support the conclusions which we have reached. It results that the judgment will be reversed.

All concur.