142 Mo. App. 256 | Mo. Ct. App. | 1910
Action on a contract of life insurance. Plaintiff recovered a judgment for the full
The cause of action pleaded in the petition is grounded on an oral contract of reinsurance. On January 11, 1902, the Union Life Insurance Company, an Indiana corporation, issued a written policy of life insurance to Catherine Hughes whereby, in consideration of an annual premium of seventy-one dollars, the company agreed to pay plaintiff, who was a daughter of the assured, the sum of $1000, on the death of the assured. Provision Avas made in the policy for the payment of the premium in monthly installments of $6.27 and the premiums Avere paid monthly by plaintiff who acted as her mother’s agent. These payments were made to an agent of the company who called at plaintiff’s home to collect them. .
In July, 1901, plaintiff received through the mails a communication signed by the officers of the company to the effect that the assets and business of the company had been transferred to the Federal Life Insurance Company (the defendant) and that the policy in suit had been reinsured in the defendant company. The statement was made that “Under the contract Avith the Federal Life the net amount of admitted assets transferred to it will be credited to the Union policy-holders,” but there is no intimation in the letter of any impairment of the assets of the Union Company or of any provision in the contract of reinsurance for an impairment lien on the policies reinsured. In conclusion the letter says: “The Federal Life is an exceptionally strong and ably managed 'Old Line’ company and no Union policy-holder will ever have reason to regret this transfer. We hope you will remain a permanent policy-holder in the Federal.”
In the following month, the agent who had collected premiums for the Union company called at plaintiff’s home to collect the installment then due. He stated that the policy had been transferred to the de
Over the objection of plaintiff, defendant introduced in evidence the following letter written to plaintiff by defendant under date of July 16, 1904:
“To the Policy-Holders of the Union Life Insurance Company of Indiana:
“You are hereby notified that this company has reinsured and assumed the certificates or policies of the Union Life Insurance Company, including your Policy No. 9065, subject to the terms' of a contract between
“The Federal is and always has been strictly an ‘old line’ legal reserve company. You may confidently rely upon the Federal carrying out every promise and meeting every obligation promptly. The Federal will treat you and your beneficiary fairly, honorably and equitably. There is no better company than the Federal. It has never scaled a policy claim a dollar and has paid all such claims immediately upon receipt of completed proofs.
“Hoping that you will continue your policy in the Federal and remain one of our policy-holders for many years to come,” etc.
On the death of the assured, defendant claimed that it held an impairment lien against the policy which reduced the amount of its liability to plaintiff, the beneficiary, to $269.11. The reinsurance contract between defendant and the Union Company contains provisions which, had plaintiff given her assent to that contract, either expressly or by implication, would entitle defendant to assert a lien against the policy in the amount claimed. Plaintiff denies assenting to the contract and denies all knowledge of any arrangement by wrhich the reinsured policies might be subjected to the burden of impairment liens. Her position thus is stated in a letter she wrote defendant after her mother’s death.
At the request of plaintiff, the court instructed the jury as follows: “The court instructs the jury that if you believe and find from the evidence that the Union Life Insurance Company of Indiana issued, on the 2nd day of January, 1902, a policy of insurance upon the life of Catherine Hughes in favor of Mary McIntyre, as beneficiary, and that Catherine Hughes had, on or about the 8th day of August, 1904, through her agent, Mary McIntyre, if she was such agent, a conversation with Harry Holroyd and that said Holroyd was a collector of the defendant on said day, and that said Holroyd told Mary McIntyre that if Catherine Hughes would pay to defendant premiums of insurance in the same manner and in the amounts that she had been paying the said Union-Life Insurance Company, then, should the said Cath: erine Hughes die while such agreement between her and the defendant was in force, that the defendant would pay to the plaintiff, as beneficiary, the sum of one thousand dollars as provided in the said policy of the Union Life Insurance Company, and if you find and believe, that the said Catherine Hughes, by Mary McIntyre, her agent, if she was her agent, paid to said Holroyd the sum of $6.27 and continued to pay defendant such sum monthly before the 20th day of each
Many objections to the sufficiency of the petition to state a cause of action are urged by defendant but most of these objections need not be discussed, since we find they were waived by the answer. The common law rule of pleading known as “express aider” has not been abolished by statute but still obtains in this State and under that rule the omission to state a material fact in the petition is cured if the defendant puts the matter in issue in his answer. [Hughes v. Carson, 90 Mo. 399.]
Moreover the rule of pleading invoked by defendant that “pleadings are most strongly construed against the pleader” ceases to have application to a
The evidence of plaintiff shows that defendant by its duly authorized agents entered into a contract of reinsurance with plaintiff’s mother, by the terms of which the obligation of the Union company was assumed by defendant without impairment or abatement. It is argued that plaintiff failed to prove that the right to bind defendant by his representations was within the scope of the agent’s authority, but we think the evidence of plaintiff shows that the agents sent out by defendant were acting within their authority and, since defendant accepted and retained the benefits of the agreement made by its agent, it is estopped from repudiating the obligations of that agreement.
Instead of convincing us that plaintiff must be held to the terms of the written contract of reinsurance between defendant and the Union Company and, consequently, must suffer the loss of more than two-thirds of her insurance, we think the evidence of defendant strongly corroborates the inference, supported by plaintiff’s evidence, that the provision for an impairment lien was purposely and artfully concealed from policy-holders, and they were deluded into the belief that the reinsured policies would be paid in full. In addition to sending out agents to make oral statements