30 Mo. App. 601 | Mo. Ct. App. | 1888
delivered the opinion of the court.
This action is brought by the plaintiff as the guardian of six minor children of William Dille, deceased, upon two policies of life insurance, insuring the life of Dille. There were two defences•, (1) That Dille died by his own hand. This ivas abandoned under the statute and need not be further considered. (2) That the premiums, which were payable weekly, were more than four weeks in default, whereby, under the •terms of the policy, the policy had become forfeited ; that, after the x>olicy had become so forfeited and after the death of Dille, a person not named (who afterwards turned out to be the plaintiff in this action) tendered to the agent of the defendant the premiums which were in arrears, falsely and fraudulently representing that Dille ivas alive and in good health, which premiums were received on the faith of such representation ; and further alleging that the revival! application was never approved at the home office of the defendant in New York, as is required by the terms of the policies. To this answer the plaintiff filed a reply which, so far as material to be considered, set up that, ever since the issuing of the
The evidence at the trial showed that the policies were made in pursuance of a scheme of life insurance called “industrial life insurance ”, under which scheme the premiums, amounting to very small items (in this, case but fifteen cents ) were payable weekly ; that the defendant has some fifty thousand policy-holders in St. Louis ; that it is the practice of the company to send its
The plaintiff ’ s testimony tended to show that the plaintiff and his wife, as well as the little daughter of :the deceased, understood the circumstances attending Dille’s life insurance ; that the plaintiff was the brother of Mrs. Dille; and that, after the unfortunate occurrence of January 18, 1887, the six children of Dille were
The court refused an instruction in the nature of a demurrer to the evidence, and submitted the case to the-jury upon the only contested issue which remained at the close of the evidence, which was, whether the prompt payment of premiums -had been waived, oiv whether the defendant was not estopped to insist that the policy had been forfeited by reason of the failure promptly to pay the premiums, in view of the fact that, after the fatal injury which Dille had inflicted upon himself had become known, it had ceased, through its collector, to call for the weekly premiums according to-
“1. If the jury find and believe, from the evidence, that either at or after the time of writing the policies in question the defendant, through its authorized agent or agents, represented to said William Dille, or to those whom it knew to be acting for him, the defendant would cause the premiums falling due under said policies to be regularly called for by its agents; that the defendant, through its agents, either knew or were informed of the place where such premiums could be collected, and that such premiums were ready to be paid or tendered to such agents at such place, had he called for them, then the defendant cannot insist upon forfeiture of said policies by reason of failure to pay the last seven weekly premiums at the maturity thereof, or within four weeks thereafter. Provided, the jury believe that the persons having in charge the payment of said premiums in good faith believed that defendant would caus e said premiums to be called for, t and that said policies, or either of them, would not be forfeited for, or on account of, unpaid premiums that had not been called on.”
“2. The court instructs the jury, although you. may believe, from the evidence, that it was the habit and custom of defendant’s agents to call upon the policyholders for the weekly premiums due upon their policies, yet the burden is upon the plaintiff to show that he and those whom he represents relied upon this custom and failed to pay the premiums, honestly believing that their policies could not be forfeited unless the agent called for the premiums, and that they were under no obligations to pay any of the weekly premiums unless called on to do so by the collector or agents of the*607 defendant, and that they at all times acted upon that belief.”
“3. The court instructs the jury, although you may believe from the evidence that it was the habit and custom of defendant’s agents and collectors to call upon the policy-holders for the weekly premiums as they became due, yet before the plaintiff can set up and rely upon such custom and habit as a waiver of the rights of defendant to have said policies forfeited for a failure to pay the premiums for more than four weeks, you must find and believe from the evidence in the cause that the said Win. Dille, or those aiding for him actually relied at all times upon such habit or custom, and that they in good faith, on account of such habit or custom, thought and believed that it was not necessary for them to pay, or offer to pay, any of the premiums at any time unless the agent or collector called for the same; but if you find from the evidence that they did not at all times rely upon such custom and habit, but that he knew, or had reason to believe it was their duty to seek out, if possible, the agents of defendant and pay the premium? in order to keep up said insurance, then plaintiff cannot recover by reason of the failure of defendant’s agents to call for premiums.”
The court refused several other instructions tendered by the defendant. One of these advised the jury, in substance, that the notice on the face of the policy that ‘ ‘ the neglect of a collector to call will not be deemed an excuse for non-payment,” precluded the plaintiff from setting up such neglect as a waiver or excuse in this case, after the lapse of four weeks. The others, so far as they were not covered by the. instructions given, proceeded upon the like theory, that the neglect of the collector to call would not excuse a failure on the part ■of the assured to pay the premiums except for the period of four weeks.
I. We see no error in refusing to instruct the jury to return a verdict for the defendant. If the plaintiff’s ■evidence was to be believed. Dille, during his lifetime,
This ruling, although it applies to a different ground of waiver from that which is set up in this case, furnishes the governing principle of this case, and shows that it was correctly submitted to the jury by the trial court. The defendant had a general and well understood custom in St. Louis of sending its collector on regular tours to the residences of its policy-holders, people belonging presumably to the poorer classes, for the purpose of gathering up the pennies and dimes which constituted the weekly premiums which kept their little policies in force. Could it discontinue this custom in respect of any policy-holder without giving him any notice of such discontinuance? Could it discontinue it after the policy-holder had become disabled through sickness, insanity, or wounds, from coming to the defendant’s office to make the payment of 'the premiums, without giving notice to him, to other members of his family, or to his relatives, who were interested in keeping alive the policy? Could it keep up the practice of collecting the premiums by its agent as long as the policy-holder was well and as long as it was to its interest to keep the policy in force, and then quietly discontinue collecting them as soon as he became ill and as soon as it became to its interest not to keep it in force ? These questions answer themselves.
It was argued at the bar that, if the holder of such
The contention of the defendant, that a proper construction of the policy is, that the assured might rely upon the collector of the defendant calling to get the premiums for four weeks after they should become in arrears, but not later, seems to be a begging of the whole question, since it would be tantamount to holding that he might rely upon it so long as it was not necessary to rely upon it, but that he could not rely upon it after it really became necessary to rely upon it. The policy could not in any event by its terms b'ecome forfeited until the weekly premiums had become four weeks in arrears. The conduct of the company was ■either a waiver of its right to insist upon a forfeiture, or it was not. If it was a waiver of such right, then
The instructions which were given fairly submitted the case to the jury upon the ground on which it was contested. Those which were tendered by the defendant and refused were either covered by those which were given, or else embodied the interpretation of the policy just spoken of. Some other errors have been assigned, but not argued, and we see nothing in the record which requires further observation.
All the judges concurring, the judgment is affirmed.