161 F. 535 | 8th Cir. | 1908
On June 10, 1901, Gustave Heidel surrendered to the defendant a policy of life insurance for $5,000 which had been issued to him in 1882, and the defendant delivered to him a new policy, whereby it promised to pay, subject to certain conditions and stipulations, to Nettie Heidel, on his death, $5,000. Heidel died on April 29, 1902. Nettie Heidel brought this action on the policy. The defense was that Heidel had failed to pay an alleged bimonthly premium which was due on August 1,1901, and that the policy had been abandoned by mutual consent. At the trial the parties agreed that Heidel paid all his premiums under the original policy, that he made an application for that policy and another application for the second policy, and the defendant admitted in its answer that it issued the second policy “whereby, in consideration of premiums then and thereafter to be paid, it insured the life of said Heidel, and promised and agreed, subject to the terms of an application therefor and the terms of the constitution and by-laws of said association, to pay, upon the death of said Heidel, to plaintiff, his wife, if living at the time of said death, the sum of $5,000.” The policy contained these provisions:
“[Tbe company] in consideration of the application originally made to this association, which is hereby made a part of this contract, and of the surrender of policy or certificate No. 7469 and of the first premium of $145.45, to be actually paid in cash on or before the delivery hereof hereby continues Gustave Heidel of St. Louis county of state of Missouri, hereinafter called the insured, as a member of said association, and upon the condition of the payment in advance of the same amount on the first day of the month of June in every year during the continuance of this policy, there shall be payable to Nettie Heidel of St. Louis county, of state of Missouri, if living at the time of death of said insured, otherwise to the executors or administrators of said insured the sum of $5,000.00. * * * This contract shall not take effect until this policy is delivered to the insured in person and the first premium is paid in cash hereon during his lifetime and while policy or certificate No. 7469 is in full force, which policy or certificate shall be rendered null and void by the act of placing this policy in force.”
The defendant offered evidence which it claimed tended to show that after the policy was issued “Heidel paid the first bimonthly premium of $17.45 and the interest on the lien $7.66 on July 1, 1901, and that the subsequent bimonthly premiums for the same amount during the remainder of the year 1901 were not paid by Heidel.” The court below sustained objections to this evidence, on the ground that proof that Heidel paid a part of the first annual premium, $145.45, and owed the remainder, was not admissible because by the delivery of the policy the defendant estopped itself from denying the payment of the entire premium for the year in question.
The provisions of the policy that in consideration of the surrender of the original policy, and “of the first premium of $145.45 to be ac
But they did not estop this company from proving by a written contract made before or at the time the policy was delivered that an extension of time for the payment of a part: or of all of this first premium to specific dates was given, and an agreement made that, if the deferred payments were not then made, the policy should cease, and the failure to make such deferred payments at the times specified by such an agreement would be fatal to the continuance of the policy. Thompson v. Insurance Co., 104 U. S. 252, 26 L. Ed. 765; Pitt v. Berkshire Life Ins. Co., 100 Mass. 500; Life Ins. Co. v. Pendleton, 112 U. S. 696, 707, 5 Sup. Ct. 314, 28 L. Ed. 866; Mooney v. Insurance Co., 80 Mo. App. 192, 195; Leeper v. Insurance Co., 93 Mo. App. 602, 67 S. W. 941; Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22, 24: Snyder v. Nederland Life Ins. Co., 202 Pa. 161, 51 Atl. 744; Duncan v. Missouri Life Ins Co. (filed March 27, 1908, C. C. A.) 160 Fed. 646.
Competent evidence ‘that this annual premium was not paid by Heidel when the policy was delivered, and that a portion had never been paid, was therefore admissible, though in itself insufficient evidence to sustain the defense. If supplemented by a written contract made before or at the time of the delivery of the policy that this premium should be subsequently paid at definite times, and that, if not then paid, the insurance should thereupon cease, and by proof that it was not paid at such times, it might have proved sufficient to prevent a recovery by the plaintiff. The written agreement evidenced by the policy, it is true, is that the premiums shall be paid annually, and evidence of a parol contract made before or at the time of the delivery of the policy that they were to be paid bimonthly is incompetent, because it contradicts the terms of the wnitten contract. Thompson v. Insurance Co., 104 U. S. 252, 259, 26 L. Ed. 765; Chamberlain v. Wright (Tex. Civ. App.) 35 S. W. 707; 17 Cyc. 659. An extension of the time of payment of the first premium without a written agreement at: or before the delivery of the policy, or a subsequent contract, for a valuable consideration after its delivery, that the insured shall make the deferred payments at specific times, and
It is accordingly reversed, and the case is remanded to the Circuit Court, with directions to grant a new trial.