160 Mo. App. 486 | Mo. Ct. App. | 1911
The appeal in this case was prosecuted to this court, but it was transferred to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12; 1909. [See Laws of Missouri 1909; p. 396; see also Sec. 3939; R. S. 1909.] Afterwards, the Springfield Court of Appeals disposed of the case in an opinion prepared by
The case has been argued and submitted here and duly considered. On examination of the several arguments advanced for a reversal of the judgment, we are prepared to concur in part with the views expressed by the Springfield Court, but not in toto. Nor do we concur in the conclusion of that court on the facts in judgment, in view of the statute, Sec. 7900’, R. S. 18991 (see also Sec. 6949, R. S. 1909), which seems not to have been considered by the Springfield Court.
The suit is upon a policy of life insurance issued by defendant to plaintiff’s husband. Plaintiff recovered a judgment of $741.60, after deducting a certain loan and unpaid premiums, and defendant prosecutes the appeal. The policy sued upon was issued December 21, 1901, to Anton Christensen, the husband of plaintiff, in the amount of $1000, and by its terms it was payable to the personal representatives of the insured. His widow, plaintiff, having qualified as administratrix, prosecutes the suit thereon, in her representative capacity, for $1000, the amount of the policy, less the amount of a loan procured by insured from
By the terms of the policy, the premium of $52.20 was to be paid annually upon the 18th day of December. Such premiums were duly paid on December 18, 1901, December 18, 1902, December 18, 190®, and December 18, 1904 — in all four annual premiums. On March 7, 1905, the insured procured a loan,, under the terms of the policy, from defendant for the sum of $133 and pledged the policy to defendant as collateral security therefor. The premium falling due December 18, 1905 and the interest on the loan due at that time were not paid, and no subsequent payment was made on either the premium of the policy or interest on the loan, nor was the loan repaid to defendant by the insured, except through a foreclosure and acquiescence to be hereinafter mentioned. By the terms of the loan contract, it was provided that if any premium on the policy or interest on the loan was not paid when such premium or interest was due, the loan might be foreclosed by satisfying the same in the manner provided in the policy. The policy and loan contract provide for the satisfaction of the loan out of the net reserve standing to the credit of the policy, which might be otherwise utilized as a, net single premium for the purpose of purchasing temporary or extended insurance. On June 11, 1906', defendant, proceeding under the terms of the policy and loan contract, foreclosed the loan and, in accordance with the terms of such contract, returned the policy to the insured by a
At the time the policy was issued, Sec. 7897, R. S. 1899 was in force, and under this statute only notes, or evidence of indebtedness to the company given on account of past premium payments on the policy issued to the insured might be deducted from three-fourths of the net value of the policy. But the case proceeds here as though this was a cash loan at large for a purpose other than the payment of past premiums, and, as the loan was made on March 7, 1905, it is argued that it was competent for the insurance company to deduct its amount from that portion of the net reserve
It therefore appears' that, according to the agreed statement of facts, the net value of the policy was sufficient to continue it in force for the full amount insured in the first instance beyond the death of the insured, and plaintiff should recover, unless her right to do so is precluded by the act of the insured in retaining the modified policy after the loan was foreclosed and it was forwarded to him by the company. As to that matter, we agree with the view of the Springfield Court of Appeals that the ordinary rule of estoppel is not to be applied to a case falling within the non-forfeiture statute, for if, under the statute, the rights' of the parties could not be changed by express contract, that result should not be attained by the application of the doctrine of estoppel, through a mere acquiescence. But though such be the rule when considering section 7897, or the non-forfeiture statute, alone, it may not be the same under the provisions of Sec. 7900, R. S. 1899 (see same statute, Sec. 6949', R. S. 1909); for beyond doubt this statute in plain terms authorizes an express agreement between the parties,, to the end of terminating the relation of insured and insurer. We believe the Springfield Court of Appeals omitted to consider this statute in connection with defendant’s argument pertaining to an estoppel on the part of the insured, as, by the language employed in its opinion, it would seem that the court understood it was not competent for the parties to discontinue the relation of insurer and insured under the original policy, even by an express contract modifying its" terms and amount for a valuable consideration. It seems
To the end of properly disposing of this question, let lis view the facts precisely as they are and consider the purpose of the broad language of the statute referred to. Defendant company liad loaned the insured $133 and on account .of this transaction no one can doubt that a valid indebtedness existed from him to it for that amount. The fact that the attempted pledge of a portion of the net reserve available to the purchase of extended insurance was invalid is, of course, without influence as to the indebtedness itself. On December 18, 1905, the insured defaulted in the payment of his premium due on that date and defaulted as well with respect to the payment of interest on his loan. Because of such defaults, the loan became due, for such was the agreement between the parties, and in this respect the agreement was certainly valid, though it contemplated as well a pledge of a portion of the net reserve not authorized by the statute. After the insured had continued in default for a considerable time without giving heed to notices with respect to the payments due, the company proceeded to foreclose its loan on the 11th day of June, 1906, and appropriated a sufficient amount of the net reserve to pay the amount of the loan and interest accrued. Of course, this appropriation of the net reserve to that purpose was unauthorized under the view heretofore expressed, and, if this were the whole case, we would not deny plaintiff’s right of recovery. After the matter of the foreclosure had passed through the several divisions of defendant’s home office and was recorded in its books, it mailed the policy to the insured on June 18,
The judgment should be reversed. It is so ordered.