180 Mo. App. 394 | Mo. Ct. App. | 1914
This is a suit upon a policy of life' insurance. Plaintiffs are the minor children of Waller T. Chandler deceased, and, as beneficiaries in the policy, brought this action, by next friend, to recover the amount of the policy. They recovered judgment for' the amount asked. Defendant has appealed.
The case was tried before the court, a jury having been waived. It was tried partly upon an agreed statement of facts and partly upon certain oral and documentary evidence offered by plaintiffs. No testimony was offered by defendant.
The defendant was, and is, a Massachusetts corporation authorized to do, and doing, business in Missouri. On June 4, 1904, it issued to Walter T. Chandler the policy in question whereby, in consideration of the payment of an annual premium, it promised to pay plaintiffs the face value of the policy upon satisfactory proof of death of the insured. Chandler paid the initial and succeeding annual premiums until six were paid', but failed to pay the premium due on June 4,1910, and the premiums due thereafter. On said date, June 4,. 1910, the net value of the policy, under our statute (Sec. 6946, R. S. Mo. 1909), was sufficient to extend the insurance to a period beyond the date of the death of the insured, which occurred on February 11, 1912. The death having occurred within the terms of temporary insurance covered by the net value of the policy, plaintiffs brought suit claiming the benefit of Section 6948,,
No question is raised over the execution and delivery of the policy, the payment of the premiums as stated, the death of the insured within the term of the extended insurance, or that the policy was applied for, and was delivered, and the premiums thereon paid, in Missouri.
It is contended by defendant that plaintiffs are not entitled to extended insurance as given by Sections 6946 and 6948, Revised Statutes of Missouri, 1909. This claim is based upon several grounds, only one of which is required to be noticed now. That ground is that no notice of the claim and proof of death was submitted within ninety days thereafter as required by the first proviso in said Section 6948.
Plaintiffs’ answer to this is that notice and proof of death within that time were waived by the company. Defendant’s rejoinder to this is two fold. First, that as the requirement of notice and proofs to be furnished in ninety days is a part of the statute, the furnishing thereof within that time is a condition precedent to the cause of action, and plaintiffs must allege and prove that they have complied with it before recovery can be had thereunder; second, that no waiver, nor evidence tending to show waiver, was shown.
As to the first part of this contention, it may be said it is but another way of saying that defendant cannot waive the failure to furnish proofs within the ninety days. No authority is cited in support of such a view and we know of none. It is true that, where the statute makes a provision for the benefit of the insured, the parties to the insurance contract cannot
But the question remains was any waiver shown? It is conceded no notice was given nor proofs furnished within the ninety days. The acts relied upon as constituting waiver occurred after the ninety days had elapsed. Nothing was done by the insurer, during the time in which notice should have been given, which in any way influenced or induced the failure to give notice
The policy itself provided that after the payment of premiums for six full years it would, without any action on the part of the insured, continue the policy as participating paid-up insurance payable at death of insured. This amounted to $219, according to one way of figuring, or to $155 according to another.
On June 1, 1912, (110 days after insured’s death) plaintiffs demanded of defendant payment of the policy in full, which was, of course on the theory that they were entitled to extended insurance. The company refused to pay this, but did offer to pay $155 in settlement of the paid-up insurance called for in the policy. On June 15, 1912, Mrs. Chandler, the mother of plaintiffs and acting for them, sent the company a certificate of the death of insured, signed by the attending physician, and in a letter inclosed therewith demanded full payment of the extended term insurance. To this the company replied saying the proofs were not sufficient in that the name of the deceased was not certified to by an officer, and was insufficient in certain other specified particulars, and that it would be necessary to-have the usual proof papers filled out. In this letter the company asserted that the policy “is paid-up insurance only in the amount of $155.”
Thereafter, on October 8,1912, a representative of the company, Mr. Day, called on Mrs. Chandler and
We are unable to see where there is any evidence-even tending to show that Mrs. Chandler, or any one else acting for plaintiffs,, was led to believe that the company intended to pay extended insurance on the policy, nor how plaintiffs were induced to change their position and go to additional expense by anything the company did. The defendant nowhere did anything to cause Mrs. Chandler to suppose it would pay anything other than the paid-up insurance it admitted to he due. She was preparing to enforce the claim for extended' insurance and was in the act of signing proofs for that-purpose. The company made them out for paid-up insurance and when plaintiffs’ attorney asked why they were made out thus, he was told the company would only recognize the amount due as paid-up insurance. Nevertheless, plaintiffs went on preparing the proofs?
The case is not like one where there was but one species of liability involved. The company claimed it was under one kind of liability, the plaintiffs claimed another. The policy contained no provision requiring proofs to be furnished within ninety days. That requirement appeared only in the statute giving extended insurance. So that, under the terms of the policy itself, unaffected by the statute, the company was, under the circumstances of this case, liable for paid-up insurance whether proofs were furnished within or without the ninety days, at least if they were furnished in a reasonable time. But under the policy with the statute as a part thereof the company was liable for the extended insurance, provided notice and proofs were given in ninety days, or, if not so given, had been waived. What the company did was solely in recognition of its liability for paid-up insurance, and its acts could be taken only as a waiver of the point that proofs for paid-up insurance were necessary or were not furnished in a reasonable time. But those acts could not be treated as a waiver ‘in regard to the extended insurance claimed by plaintiffs, since, in all of those acts, the company was saying its liability was for paid-up insurance only, and was steadfastly refusing to pay extended insurance. The company received proofs it is true, and furnished additional blanks, but, in doing so, insisted that its liability was only for paid-up insurance. Plaintiffs, notwithstanding this, prepared their proofs in support of their claim for the greater liability uninfluenced by any act of defendant, and in
It does not follow, however, that plaintiffs are not entitled to any judgment under the policy and pleading. Defendant conceded, at the trial, that they were entitled to paid-up insurance of $219 less a loan made to insured of $39.15. It now contends that under the petition plaintiffs cannot recover even this sum. But the cause of action is on the policy. The answer concedes liability to the extent above indicated. The cause of action being on the policy and the petition being sufficient to support a judgment for whatever amount is due thereon, that judgment should be rendered to which plaintiffs are entitled.
The judgment is, therefore, reversed' and the cause remanded with directions to enter judgment for plaintiffs in the sum of $179.85 (being the $219 less the loan of $39.15) together with 6 per cent, interest from February 11, 1912. The other judges concur.