129 S.W.2d 1086 | Mo. Ct. App. | 1939
An opinion in this cause was handed down by this court at our October Term, 1938. A motion for rehearing was granted and cause re-submitted at March Term, 1939, of this court. The *331 opinion handed down at our October Term, 1938, was written by Commissioner SPERRY of this court.
After a careful review of the record and briefs, we conclude that the result reached in the former opinion is correct. We, therefore, adopt the opinion of Judge SPERRY, and in explanation of conclusion reached we add one paragraph at the close.
"Plaintiffs were beneficiaries in policy issued by defendant on life of insured, and sued for proceeds thereof. From judgment for plaintiffs defendant prosecutes this appeal. The parties will be referred to herein as above stated, just as they were in the trial court.
"Insured's mother, one of plaintiffs herein, was agent of defendant and accepted insured's application for the policy in question, which was a `twenty pay life.' No money was actually paid by insured at any time, but her father, the other plaintiff herein who also on occasion sold insurance for defendant company, paid defendant $6.02, the net amount due defendant after deducting the agent's commission from the full amount due as first premium. The application contained the following pertinent provisions, among others:
"1. The policy and the application together constitute the insurance contract.
"2. If this application is accompanied by the first premium in cash and shall be approved at the home office of the company, and a policy on the plan and for the amount applied for shall be issued while the applicant is alive and in good health, then the insurance shall be effective, subject to the terms and conditions of the policy, from twelve o'clock noon of the day this application shall be approved by the Medical Department at the home office of the company."
"3. If this application is not accompanied by the first premium in cash it is agreed that the company assumed no liability whatever until a policy of insurance is actually delivered to me during my lifetime and while I am in good health, and any money, check, note, obligation or other thing of value, given to the company or its agents, on account of the first premium on the policy applied for shall be held by the company merely as a deposit and not as payment until such time as the policy of insurance is issued and delivered to me during my lifetime and while I am in good health, after which the same shall be applied on such first premium charge; otherwise said deposit shall be returned to me or my heirs, executors or administrators."
The application was dated August 15, 1934. The policy sued on was fully executed by defendant on August 23, 1934, was registered in the office of the insurance commissioner on August 25, and delivered to insured August 29, 1934. Insured died on September 28, 1935. No premium other than the first, was ever paid. If the contract of insurance became effective on the date of execution of policy, *332 then the grace period of thirty-one days had expired prior to death of insured and plaintiffs cannot recover; but if the insurance did not become effective until August 29, 1934, the date of delivery of the policy, then plaintiffs are entitled to recover, and the judgment should be affirmed.
This is true because the date the insurance goes into effect controls the date of the expiration of the first year and the beginning of the period of grace. [Johnson v. American Central Life Insurance Company,
Where the contract is ambiguous and uncertain as to the date the insurance becomes effective, and the language of the instrument or instruments constituting the contract is, susceptible of more than one interpretation, as sometimes occurs when the policy said one thing and the application states another; or if, for any reason, fair minded men may differ as to the effective date of insurance, that construction of the language sued will be adopted that is most favorable to insured in order to avoid a foreclosure. [Johnson v. American Central Life Insurance Company, supra, l.c. 306.] But unless such an ambiguity or uncertainty exists there is no more room for construction of an insurance contract, legally and fairly entered into by the parties, than there is for construction of any other contract. "The court cannot make contracts for the parties, and it is its duty to enforce them as the parties have made them." [Citizens National Life Ins. Co. v. Morris,
It was said in Prange v. International Life Insurance Co.,
We think the language quoted from the application, supra, which we have designated as paragraph 2, clearly fixes the date when the contract should become effective. It is plainly stated that both parties *333 agree that it should become effective as of 12 o'clock noon the day the medical department approved the application, provided that a policy thereon should issue. Such a policy did issue in this case, bearing date of August 23, 1934, and two days later it was registered in the office of the State Superintendent of Insurance. We cannot agree with the contention that a stenographer merely "wrote up" the policy. It was formally signed and executed by the officials of the company who are legally authorized to bind the company. From that date on, if insured had died immediately thereafter, and if the policy had never reached her or been delivered to her "during her life and good health", the beneficiaries thereunder would have been entitled to recover. The effective date of this contract was not made to, and did not, depend upon its delivery to insured. [State ex rel. Equitable Life Assn. v. Robertson, 191 S.W. 989, l.c. 929; Rowland v. Missouri State Life Insurance Company, 48 S.W.2d 31, l.c. 34.]
It is urged by plaintiff that the contract did not become effective until same was delivered. We think such an argument, to be sound, must rest upon a provision of the contract to that effect. [Pickett v. Equitable Life Assurance Soc., 27 S.W.2d 452, l.c. 454; Edwards v. Business Men's Acc. Assn.,
It is also said by plaintiffs that the mere execution of the policy by defendant is not sufficient within itself to make the contract effective, but that, as in any other contract, the offeror must be legally notified of the acceptance of the offer, also the offeree might, if later events prompted him to so do, deny that he ever accepted said offer. Therefore to be binding on the parties, defendant must either have delivered the policy or have formally notified insured of its acceptance of the application. This may be true where it is not specified in the application that acceptance shall be signified by the doing of a positive act on the part of acceptor. The true rule in this *334
regard is stated by the Supreme Court in Daggett v. Kansas City Structural Steel Co.,
It is finally urged that the effective date of the contract herein must be determined under the provisions of paragraph 3 of the application as above quoted, rather than under those contained in paragraph 2 thereof, for the reason that the application was not accompanied by cash. Plaintiff's evidence is to the effect that he paid the "net" to defendant when he handed defendant the application. It is admitted that insured herself did not deliver cash to defendant's agent, her mother, at the time the application was signed and delivered to said agent. Such a situation was discussed by the Supreme Court in National City Bank v. Missouri State Life Insurance Company,
In explanation of our conclusion above we add that certain credits, inuring to the applicants for the insurance, are shown as considered by both parties as cash, and we conclude that neither party is now in position to contend otherwise. We must and do determine issues from facts as shown and not from speculation of what might have happened under a different state of facts. Judgment is reversed. All concur.