107 S.W.2d 844 | Mo. Ct. App. | 1937
Lead Opinion
Plaintiff sued defendant on a life insurance policy. Judgment was for plaintiff and defendant appeals. Defendant, in oral argument in this court, waived all assignments of error excepting the demurrer to the evidence. Therefore, no other point will be considered in this opinion.
Sidney T. Cole, who will hereafter be known as insured, was issued a policy of life insurance as of date of September 1, 1930, by Loyal American Life Association, hereafter to be known as insurer. Plaintiff was named as beneficiary. The evidence shows that insurer, although nominally known as a fraternal company, actually did business as an old line life insurance company. It did not maintain a lodge system with ritualistic form of work, or a representative form of government, and had not done so from the time this policy was issued; nor is there any pleading or evidence that it ever was admitted as a fraternal company under the laws of Missouri; and the amount of premiums were fixed and certain, as was the benefit, neither of which depended in whole or in part upon payment of similar sums by others so situated and the policy provided cash values and non-forfeiture extended insurance. Therefore, we hold the policy *141
to be an old line policy. [Sec. 6005, R.S. Mo. 1929; Aloe v. Fid. Mut. Life Ass'n.,
The policy was kept in force and all premiums paid thereon for a *142
period of four years, including the premium paid for the month of August, 1934. In this respect it was similar to the policy in Barthel v. Sovereign Camp,
The contract of insurance sued on is an old line life policy. It plainly provided for extended insurance, and for cash surrender values. This was the situation July 14, 1934, when defendant, without notifying insured, took over this policy, assumed this obligation, and took possession of all the assets that supported insured's policy. Fraudulently concealing the true state of affairs from insured, defendant told him his policy was valueless, although it then had a cash value over and above the so-called lien it claims to have established thereon without the knowledge or consent of insured. Knowing the true facts, defendant concealed them from insured and caused its agent to collect the August premium on this very policy and still retains this premium, together with the admitted surplus of assets over and above its so-called lien, which, even under defendant's admissions, was and is still due insured on account of this policy. Insurer was not in bankruptcy or under court order or supervision when defendant contracted to take over all of its assets and good will. The insurance department of the State of Missouri was not consulted. No one represented insured. Although some policy holders were accepted by defendant and issued new policies and given credit for some cash value on their old policies, insured was not among the favored to whom this opportunity was offered. Defendant suggests that it was but acting the part of a "good angel" in taking over a company that was about to go bankrupt. Its conduct toward this insured, and there were others similarly treated according to the record, is more like the conduct of a wolf wearing sheep's clothing. It took this policy, knowing its provisions, and thereafter collected one premium, which it never offered to return. *143 By so doing it assumed the entire liability created by the policy. By reason of its fraudulent conduct and concealment, it is estopped to set up in defense a contract, the terms of which were concealed from insured and the true situation designedly misrepresented to him.
This case differs from the recent case of Spears v. Independent Order of Foresters, No. 18888, an opinion by this court, not yet published. In that case the insured ratified the merger, surrendered his former policy and took out a policy with defendant. He then failed to pay premiums and the policy lapsed long prior to his death.
We think the case of Hall v. American Ins. Union, 27 S.W.2d 1076, is almost on all fours with the case at bar. In that case a merger was effected and no notice ever given to insured, who paid the defendant company his dues and assessments. Defendant pleaded that, by the terms of the merger, it did not assume all of the liabilities of its predecessor, just as it is contended here, and that plaintiff could not claim the benefits of the merger contract and, at the same time, refuse its burdens and limitations. But the court held that since insured received no notice of the merger, had never accepted its terms, and continued to pay dues at the old rates, defendant was liable. The only difference between that case and this one is that in the case at bar insured paid only one premium after the merger, which defendant accepted and kept, whereas in the Hall case, supra, insured there paid until his death. But in the case at bar the policy is an old line policy, with fixed premiums of fixed and unvarying amounts, specified death benefit, a stated cash surrender value, and a non-forfeitable extended insurance clause, all of which defendant accepted when it accepted the premium due and failed to notify insured of the merger. The extended insurance clause kept the insurance in effect until after his death without paying more premiums.
The demurrer was properly overruled and the judgment is affirmed. Campbell, C., concurs.
Addendum
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. Judgment is affirmed. All concur.