173 Mo. App. 1 | Mo. Ct. App. | 1913
—This is a suit by the assignee, a creditor of the insured, on a policy of life insurance. Plaintiff recovered and defendant prosecutes the appeal.
' Defendant is engaged in the business of industrial life insurance and maintains a general office in the city of St. Louis in connection therewith. It appears that plaintiff is a barber and the insured, Lang, was his debtor to the amount of $53.50. James, defendant’s soliciting agent, had charge of what is known as a “debit” for it in the city and solicited life insurance among what is commonly known as the “plain people;” took applications therefor; collected the first premium; delivered the policies to his patrons and thereafter collected weekly premiums thereon. In prosecuting this business, as before said, the soliciting agent has charge of what is known in industrial insurance nomenclature as a “debit”—that is, a certain identified. territory in which he operates by soliciting new business and taking care, as through collection of the debit accounts of the company’s patrons for insurance theretofore written ,and outstanding. Such insurance is usually written in small amounts and on the weekly .payment plan, and the agent in charge of the “debit” calls and collects the premium —that is, usually but a few cents, as in this case twenty-five cents per week. Because of this, the soliciting agent in charge of a “debit” becomes well known in the neighborhood and is in frequent contact with the patrons of the company.
After Lang’s death, defendant refused to pay plaintiff any part of the insurance money, for the reason the policy contains a provision inhibiting its assignment, to the effect that it should become void if it be assigned or otherwise parted with. Besides this provision, the policy contains what is known an indus
On the death of Lang, plaintiff asserted his claim, but defendant did not recognize it. A few days thereafter, Mr. Dubard, defendant’s assistant superintendent in St. Louis, called at plaintiff’s barber shop to investigate the claim. While there, this officer induced plaintiff to deliver the policy to him “for examination by the company,” as is recited in a written receipt given by Dubard therefor to plaintiff on March 22nd. Defendant,'having thus obtained possession of the policy from plaintiff,- retained it and refused to surrender it to him thereafter. A few months later, on September 23d, defendant, proceeding on the theory that the assignment to plaintiff was void because of the condition in the policy to that effect in case of assignment, paid Mrs. Evelyn Lang, the widow of the insured, as it insists by way of compromise and under the facility of payment provision, sixty dollars as in full settlement of all claims under the policy. In consideration of the payment, Mrs. Lang executed a receipt to defendant as in full release of every claim under the policy, etc.
There can be no doubt that it is competent and proper for defendant to pay the insurance money under the “facility of payment” clause to the widow, either in full or in part as on a valid compromise, and that it is entitled to a full acquittance on so doing from further obligation to respond under the policy in those cases where it does not appear that the rights of others have attached thereto. But if a valid assignment appears, then, of course, the assignee is to be compensated to the extent of his rights. [See Wilkinson v. Met. L. Ins. Co., 63 Mo. App. 404; Wilkinson v. Met. L. Ins. Co., 64 Mo. App. 172; Renfro v. Met. L. Ins. Co., 148 Mo. App. 258, 129 S. W. 444.] It is clear that the policy was assigned to plaintiff in the instant case by the insured, and that such assignment is valid to the extent sought to be enforced—that is, $53.50—unless it is rendered void by the provision in the policy to that effect. No express consent to the assignment was indorsed by the company or its general officers on the policy, and the assignment itself contemplates that the company’s assent should be had.
But it is obvious the provision of the policy rendering it void in case of an assignment is incorporated for the benefit and convenience of the defendant and may therefore be waived by it. [See Saetelle v. Met. L. Ins. Co., 81 Mo. App. 509, 19 Am. & Eng. Ency. Law (2 Ed.), 96.] It does not appear that the general officers in charge of defendant’s office in St. Louis had knowledge of the assignment until after the death of the insured and the question is, may a waiver touch
In tbe circumstances of tbe case, such knowledge and conduct on tbe part of James, tbe soliciting agent, should be regarded as revealing a waiver on tbe part of tbe company of tbe condition of tbe policy against assignments, for though such agent is but a mere solicitor, it is obvious that be possessed authority to take applications, deliver policies tbereon and collect tbe premiums-. In this case, tbe insurance was induced in tbe first instance by James witb a full understanding that it was to be for plaintiff’s benefit and on that be paid all of tbe premiums to James and received credit
Moreover, in answer to' the suggestion that it is not competent as a rule for a mere soliciting agent to either waive such a condition of the policy or estop the company thereabout, the nature and character of the business and the authorized duties of such agents are to be considered. As before stated, the business of industrial insurance is conducted principally among people of the poorer classes, many of whom are illiterate and but slightly informed concerning intricate business matters. Soliciting agents are given separate portions of territory with a view of soliciting insurance •among these people, delivéring policies to them, and ,by dividing the’payments into weekly stipends, founding a sort of credit system therein known as a “debit.” ■These agents call upon the patrons of the company weekly, make collections and enter credit therefor in the book of the insured and seem to have general supervision pertaining to such matters within the immediate “debit.” To the people with whom they ■deal, such agents are justly regarded as representatives of the company, with complete power touching
In these circumstances, it would seem, furthermore, that, besides the waiver referred to, the precepts of natural justice should preclude the company, through the intervention of the principle of estoppel, from disputing the validity of the acts and conduct of such a soliciting agent, by which its patrons are induced to part with the premium which eventually finds its way into the home office till of the company. It is the high aim and purpose of the common law to afford adequate relief, to the end of effectuating a just result in the circumstances of every case. It should be ad-' ministered, too, in every instance with reference to the peculiar facts of each case, in connection with a degree of common sense from which the law itself is evolved.. In this view, the acts and conduct of such"agents in so far as they are put forward and performed in the fullfilment of their office in negotiating insurance and collecting the premium thereon should be regarded as those of the company. It is certain that the company itself will be estopped to insist upon a forfeiture if, impliedly by the course of its conduct, it leads the insured or his assignee honestly to believe that the premiums being paid are received as compensation on a valid insurance contract. [19 Am. & Eng. Ency. Law (2 Ed.), 55.] There is an abundance in the case to sustain the finding of both a waiver and an estoppel against the company.
Over the objection of defendant that the other party to the contract of assignment, Lang, the insured, was dead, the plaintiff was permitted to testify fully concerning the assignment to him. However, it was admitted by counsel representing defendant that, though the defendant was represented and present in court before the justice of the peace, plaintiff had testified without objection, concerning the same matter in this identical case before the justice of the peace,
Besides $53.50, the amount of his debt, plaintiff prayed a recovery for interest thereon, and also for ten per cent on the amount sued for and a reasonable attorney’s fee. By its verdict the jury awarded a general recovery in the amount of $107.62, without specifying the amount plaintiff was entitled to on the policy, as the assignee thereof, on account of his debt nor an amount as ten per cent thereon nor a specific amount as a reasonable attorney’s fee. It is argued that the court erred in receiving this verdict, for the reason the statute requires a specific finding touching each of the several matters mentioned.
The succeeding section (Sec: 1797, E. S. 1909) is as-follows: “In all actions wherein such damages are ' recoverable and are allowed by the jury, the amount ■thereof shall be separately stated in the verdict. ’ ’
It is to be noted that these statutes cohtemplate the subject of “exemplary or punitive damages” and 'therefore apply only to such cases. But we believe a ■portion of the damages recovered here to be exemplary •or punitive in character. There is a distinction between “penalty” and “damages” in the strict sense of the terms, in that a penalty goes in the nature of a fine or forfeiture, and when it is levied by the statute in a specific amount, it should be pursued as such by pointed! and direct pleading to that effect, as was pointed out in Casey v. St. Louis Transit Co., 116 Mo. App. 235, 91 S. W. 419; s. c., 186 Mo. 229, 85 S. W. 357; whereas generally damages are based and recoverable on the idea of a loss to be compensated, a damage to be made good. [See Nicholas v. Kelley, 159 Mo. App. 20, 139 S. W. 248.]
Our statute touching the matter involved here is as follows:
“In any action against any insurance company t,o recover the amount of any loss under a policy of fire, ■life, marine or other insurance, if it appear from the .•evidence that such company has vexatiously refused to ■pay such loss, the court or jury may, in addition to the amount thereof and interest, allow the plaintiff damages not exceeding ten per cent on the amount of the loss and a reasonable attorney’s fee; and the court shall enter judgment for the aggregate sum found in the verdict.’-’ [Sec. 7068, R. S. 1909.]
But it is clear enough that plaintiff was entitled to a recovery, and the jury so found the fact to be. If he is entitled to a recovery at all, he is entitled to $53.50 and no doubt this amount is included in the verdict. The amount of $53.50 together with interest thereon at six per cent it seems would be $57.62; add to this fifty dollars and the entire amount totals $107.-62. The record is replete with evidence tending to prove a vexatious refusal to pay and to the effect that fifty dollars is a reasonable attorney’s fee in the case and it is obvious that no injustice would appear had the jury expressly found such to be the fact, instead of doing so sub silentio. We are commanded by the statute (Sec. 2082, R. S. 1909) not to reverse judgments unless we believe that error has interposed which materially affects the merits of the controversy to the injury of the appellant. We do not believe the error in the form of the verdict entails substantial harm and in that view it should be regarded on the facts of the case as purely formal. See Courtney v.