241 Mo. 403 | Mo. | 1912
— The following opinion by Bond, C., delivered in Division No. 1, is adopted as the opinion of the Court in Banc.
— Defendant is an insurance company incorporated in New York and duly licensed to do business in the State of Missouri, and for that purpose has established á branch office in Kansas City, Missouri.
Richard G. Head made an application at the Kansas City office of the defendant for two policies of ten thousand dollars each upon his life, payable to his infant son, Richard G. Head, Jr. At the time he made this application, the assured, though born in Missouri, lived on his ranch in Watrous, New Mexico, and was a citizen of that territory. He maintained business interests in Kansas City, Missouri, and was often there attending to the same. He gave the soliciting agent of the defendant a thirty day note, payable to him personally, for an amount equal to the premiums of the two policies. Thereafter the defendant transmitted from, its home office to its branch office in Kansas City a policy made out in accordance with this application, dated April 3, 1894, for a twenty year accumulation period and containing the usual stipulations, which, as far as necessary, will be specially adverted to in the opinion.
After these policies had been received at its Kansas City office, they were handed over to the soliciting agent of defendant, who delivered them to Mr. Deatherage, the attorney of the assured, who placed them in his safe, where they remained until the assured returned at the date of the maturity of the note, and took up the note by drawing a draft upon the commission company in which he was a stockholder, in Kansas City, Missouri, which draft he gave to the soliciting agent in exchange for his note, and the soliciting agent turned
A few years thereafter the assured was appointed guardian of his infant son, and as such guardian and under proper authority from the court he assigned one of these policies, No. 599590, to his daughter, Mary E. Head. Thereafter, to-wit, April 3, 1904, upon application of Mary E. Head, in which the assured joined, the defendant made a loan of '$2270', on said policy under the terms of a loan agreement, which, as far as .material, will be adverted to in the opinion. The assured defaulted in the payment of premiums on said policies due April 3, 1905, whereupon certain correspondence between himself and the beneficiary, Mary E. Head, and the defendant took place with reference to the issuance of a paid up policy computed as provided by the statutes of New York. This as far as essential will be referred to in the opinion. Thereupon, the policy in suit was returned to Mary E. Head in the summer of 1905, with an endorsement thereon, that it stood as a paid up policy for eighty-nine dollars. Her father, the assured, died April 8, 1906, and she brought this present action the 20th of September, 1906, in two counts. In the first count she prayed judgment for the face value of the policy less the loan indebtedness of $2270 and five per cent interest thereon, claiming that she was entitled to that sum under the laws of Missouri. In the second count she” prayed judgment on the same policy for the sum of $1430, which she alleged was its paid up value computed according to the statutes of Missouri after deducting the amount of the aforesaid note and interest.
The case was tried by the court without the intervention of a jury. At the request of plaintiff and over the objection and exception of defendant, the court gave the following declarations of law:
‘‘1. The court instructs the court sitting as a jury that on the uncontradicted facts of the ca’se as they appear from the evidence, "the policy of insurance in this action was and is a Missouri contract governable by the laws of Missouri in force at the time of-the issuance of said polic3q and not governable by the laws of the State of New York.
“2. ' The court instructs the court sitting as a jury that on the facts shown in the evidence in this case the plaintiff is entitled to recover and that the issues should be found in favor of the plaintiff.
“3. The court instructs the court sitting as a jury that the policy sued on was kept alive by the laws of Missouri to a time subsequent to the death of Richard*412 Gr. Head, Sr., by the net value of said policy at the time of bis default in 1905, and that plaintiff is entitled to a finding and judgment ag-ainst defendant for tbe amount of said policy, or $10,000' less tbe sum of $2270, with interest thereon at five per cent per annum from April 3, 1905, to July 6, 1906-, and less also the further sum of $425- with interest thereon compounded at six per cent from April 3, 1906, to July 6, 1906, and after so .computing interest on said three last sums and the principal and interest of said sums are added together, then deduct the total amount of said three sums from said $10,000 and then the court sitting as a jury should compute interest at six per cent per annum on such balance of $10,000 so obtained from July 6> 1906, to the day of this finding and judgment, and the sum stated in the finding and judgment should be the amount of the principal and interest of such balance.”
And thereupon rendered judgment in favor of the plaintiff for $7476.21.
After the overruling of bis motion for a new trial and in arrest, defendant appealed to this court, and assigns for error the giving of the foregoing instruction and the refusal of a declaration of law requested by it, that plaintiff was only entitled to recover the tender made in the answer, and that the contract contained in the loan agreement fixed the amount of plaintiff ’s recovery.
OPINION.
I. It is insisted for appellant that the status ot the parties and the transactions between them culminating in the contract of insurance make it the duty of this court to apply to it that interpretation and effect which it would have under the statutes of New York, pleaded in the answer of the defendant. As a basis for this position, defendant alleges, first, that the contract of insurance was not executed at defendant’s business office in Kansas City, Missouri, but was completed at its home office in New York City; second, that
II. The first inquiry is, where was the contract expressed by this policy made? The only thing done by the assured when he applied for this policy was to
When the assured returned to Kansas City, at the maturity of his note, he gave a draft on a commission firm.engaged in business there, in which he was a stockholder, for the amount of the note, took up the note, and the draft was turned over to the cashier of the defendant. On this trip the assured received his policy from his attorney. It will be perceived that the defendant did not mail its policy to the assured from its home office in New York, but transferred the policy to its branch office in Kansas City, Missouri, where it was as much in the possession of the defendant as it would have been if it had been retained in New York. The defendant’s representatives at Kansas City were necessarily invested with full power to deal with the policy as general agents of defendants in this State. Under that authority they delivered the policy to the soliciting agent, who turned it over to the attorney for the assured at that place. This act completed the contract, and rendered defendant liable according to the terms and provisions of the policy.
Under the facts of the present record, the right of the assured to the indemnity provided in the policy resulted wholly from the transactions between the parties in this State. Every step essential to the creation of a contract between them was taken in Kansas City,
III. In its regulatory statutes affecting the business of life insurance within its borders, the State of Missouri designed to illustrate and enforce its policy of wholesome control over the conduct of a calling which might otherwise be carried on in an unjust and oppressive manner. The need of insurance facilities is widespread if not universal. So important is this to! the welfare and protection of the public that advanced thinkers are asking for governmental action in the matter of affording insurance for life and insurance for aged working men of the community, and governmental action in that respect has been taken in England, Germany, Austria and Switzerland. The importance of this subject has deeply impressed the Legislature and tire courts of this State, and is aptly shown by the utterances of this court in Smith v. Ins. Co., supra, p. 340, where Vajxjant, O. J., said: “Our law deems the subject of life insurance one that requires especial protection. . . .” Adding further, “There is a great deal of technical learning in the subject of life insurance and our lawmakers have proceeded on the theory that the average man who takes out a policy on his life is not equal in skill and learning in the technicality of that subject to the experienced officers of the insurance company, and for that reason have written into such contracts some provisions which the parties to them cannot avoid.” These motives have induced the Legislature to enact and make it the
We do not think we should inject into these statutes words (not inserted by the Legislature) showing that they are applicable only when citizens of this State are affected. It is not a proper judicial function to import language into the body of a legislative enactment not necessarily required in order to accomplish the purpose of the act. To do this in this case would defeat the objects of the act and open the door to many of the evils which the statute sought to correct. We, therefore, rule that these acts were intended for the benefit and protection of all persons lawfully in Missouri and who obtained contracts of insurance there from a company licensed to make such contracts only in accordance with the laws of this State, and that these statutes are available for the protection of any such persons, though not citizens of Missouri, so contracting in this State. We, • therefore, overrule the contention that the Legislature had an unexpressed purpose to exclude strangers within our gates from the protection of our laws.
IV. It is next insisted by counsel for appellant, that, conceding the contract expressed in the policy in suit is construed and governed by the laws of Missouri in vogue at the time it was formed:, and that it
V. It is next contended by counsel for appellant that the eightv-nine dollars which the evidence tended to show was the amount of a paid up policy after deducting from the value of the policy in suit all the indebtedness for loans or premiums, is all plaintiff is entitled to receive, for the reason that she requested, in conjunction with her father, that this policy might be settled out on that basis. We have held that this policy by original legal intendment was a Missouri contract and to be wholly governed, construed and controlled by the laws of this State, and that it was neither modified nor-altered by the written agreement entered into at the time of the loan made in 1904. It necessarily follows that neither the tender nor payment (if it had been received) of the eighty-nine dollars would preclude the beneficiary from enforcing her rights under this contract according to the laws of Missouri if tho
Neither can it be urged that the eighty-nine dollars tendered to plaintiff before and by this suit as the full amount of a paid up policy under the New York law, and the fact that the policy was returned to her with that endorsement and retained for some months until after the death of her father, be held to operate as a waiver of any rights to which she was otherwise entitled. Waiver is always a question of intention and rests upon a full knowledge of all the material facts upon the part of the person agaiust whom the defense is interposed. In the case at bar there is no evidence that the present beneficiary had any knowledge or information whatever of her rights under the contract in suit as fixed by the statutes and laws of Missouri; and, hence, there is no evidence that she should have intended to abandon the enforcement of such rights. She never accepted the amount tendered her nor did any act other than to place the policy when it was returned with the aforesaid endorsement among her father’s papers, where it remained until he died, some months afterwards. The evidence clearly shows that the whole business relating, to this insurance had been done by him, and that she had left the matter entirely in his hands without knowledge or inquiry or the ascertainment of her rights until after his death, when she brought the present action to enforce them.
There was ample evidence adduced on the trial tending to show that., under the section of the statutes providing for the application of a certain proportion