170 Mo. App. 437 | Mo. Ct. App. | 1913
On March 27, 1911, plaintiff filed his petition as administrator of the estate
The defendant, for answer to the plaintiff’s petition, admitted its incorporation and that it was engaged in the life insurance business in the State of Missouri, but denied each and every other allegation in the petition contained, and alleged that it had issued the policy on November 6,1908, on the life of said insured for $500; that the beneficiary therein named was Patrick Rainey; that under and by virtue of said policy the first annual premium due on said policy
To this answer the plaintiff filed a reply admitting that Bridget M. Rainey remitted the $19.95- and stating that the defendant on April 28, 1910, wrote the deceased, among other things, the following: “You are, as stated, entitled to nonforfeitable privileges, and you have been insured right along, although you have discontinued paying. This privilege would continue for some years, as shown by the extended table within your policy.” And the plaintiff alleged that
The case was tried to the court without a jury and at the close of the testimony the defendant requested a declaration of law to the effect that the plaintiff was not entitled to recover and that the findings of the court should be for the defendant. The defendant also requested seven other declarations of law (which are necessarily disposed of by a decision of this case upon its merits), all of which were refused by the court except one. There were no declarations of law asked or given in behalf of the plaintiff.
The court found for the plaintiff and entered its judgment for $533.75. The defendant, after its motion for new trial was» overruled, perfected its appeal to this court.
The policy offered in evidence discloses the material facts presented by the pleadings and the further provision, not referred to in the pleadings but insisted upon at the trial and here, that .no condition, provision or privilege of the policy could be waived or .modified
Certain letters were offered in evidence as follows :
Under date of April 6, 1910, the insured wrote a letter addressed to the defendant at St. Louis in which she stated that on March 25' she had mailed annual premium on the policy but had not received any word or receipt except the post office registry return receipt. This letter was received and answered by the superintendent of the defendant, under date of April 11, 1910, in which he stated his records did not indicate that a money order of that kind had been received, and stated that the annual premium on the policy was due November 6-, 1909, and that in order to make further payment it would be necessary to re-instate the policy, in which case an additional amount of one dollar would be required. The insured received that letter and on April 13, 1910, answered it, addressing the letter to the defendant at St. Louis, s.tating that she sent the money order by registered letter and that the amount was intended for the semi-annual premium. Under date of April 14 the superintendent wrote to the insured in reply to her letter of the 13th, in which he referred to the remittance and stated that “the amount received is insufficient to begin action, since the policy was canceled for nonpayment of the November premium. It will, therefore, be necessary for you to remit to me the amount 'of $1.00 to be used as a medical fee in connection with the reinstatement of the policy.” The superintendent further stated in that letter that it was necessary for the deceased to sign the enclosed blank for change of the manner of payment, as her
On April 25, 1910, the insured wrote a letter addressed to the defendant at St. Louis stating that when she forwarded the amount of the semi-annual premium on her policy she was under the impression that she £iwas entitled to policy nonforfeitable privileges” and if such was not the case she asked that her $19.95 he refunded. Defendant’s superintendent at St. Louis answered that letter and, among other things, stated: “You are, as stated, entitled to non-forfeitable privileges and you have been insured right along, although you have discontinued paying.” In this letter some comment is also made upon the question of re-instatement and the expenses incident to a medical examination, and stated that if she would forward one dollar the matter would he placed in the hands of the company for revival.
Under date of September 10, 1910, a letter was addressed to the defendant at St. Louis, Missouri, signed by a party claiming to be a daughter of the insured, stating that the insured had died on June 15, 1910, and asked that the necessary papers to establish proof of loss be sent. This was answered by the superintendent apparently on. September 28th, in which letter he acknowledge receipt of the letter containing notice of the death of the insured, and stated that the matter had been referred to the home office. Under date of October 11, 1910, the superintendent supplemented his letter of September 28th by another letter inquiring for the address of P'atrick Rainey, the named beneficiary in the policy. On November 7, 1910', the ¡superintendent of the defendant at St. Louis wrote a
On February 27, 1911, a party made an affidavit stating that she was a daughter of the insured, that the insured died June 15,1910, and that the plaintiff in this case was the duly appointed, qualified and acting administrator of the estate. On the same date a letter was written to the defendant, addressed to its home office in New Jersey, enclosing the affidavit and making formal demand of payment, and stating that “under the terms of this policy and under the law of this State, coupled with your action regarding the subject-matter, I have no hesitancy in assuring my client that this policy was in force and effect at the time of the death of Mrs. Rainey, and that you are liable for the full amount thereof, and unless you immediately pay the same suit will be instituted.”
This letter was answered by one of the managers of the defendant company on March 7,1911, and stated that they were looking further into the matter and would write definitely in the course of a few days. On March 18, 1911, the last mentioned letter was supplemented by another letter stating that their records indicated “that one annual premium was paid on this policy. This entitled the contract to special extension of sixty days, dated November 7, 1909, which extension expired Jan. 6, 1910. As the party died June 15, last year, we recognize no liability under this; contract. ’ ’
In an action upon an insurance policy the practice obtains in this State to admit proof of waiver without requiring the waiver relied on to be alleged in the pleadings. [Andrus v. Ins. Assn. Co., 168 Mo. 151, 161, 67 S. W. 582; James v. Mutual Reserve Fund Life Assn., 148 Mo. 1, 10, 49 S. W. 978.]
In addition to the rule which prevails, as stated above, it is also to he noticed that in the answer filed by the defendant in this case it is. alleged that the semi-annual premium due November 6, 1909, was remitted “to the defendant.” And in addition to this, the superintendent who carried on this correspondence was a witness in the case and testified that he had full authority from the defendant corporation to transact the business shown by the record in this case to have been done by him. It must, therefore, stand as conceded that the $19.95' remitted by the deceased March 25, 1910, was received and retained by the defendant when it was remitted to the St. Louis office as effectually as if it had been remitted directly to and received by the home office of the company.
Upon these premises we shall consider the insistence of the defendant that the insured had forfeited all of her rights under the policy involved. It will be observed that the defendant according to its answer must be held to have retained the premium remitted by the deceased from about March 25, 1910, to about April 14, 1910, without intimating to the insured that the provisions of the policy as to forfeiture for nonpayment of premium would be enforced. Under date of April 6, 1910, the insured wrote to the defendant inquiring about her receipt for the remittance and the defendant’s superintendant at St. Louis in answering that letter used this language: ‘ ‘ For your information we wish to state that the annual premium was due November 6, 1909, and that in order to make further payment it will be necessary to^ re-instate your policy
In onr opinion it should not be held from' this statement that the insured at that time understood that the defendant intended to enforce the forfeiture clause of its policy, because in the same letter he asks for further information as to the money order the insured forwarded, and on April 13th the insured advised him of the character of the money order, stating that it was intended for semi-annual premium. The defendant’s superintendent at St. Louis answered this letter of April 13th, under the date of April 14th, intimating that he had discovered “a place for the money to fit into ’ ’ and stating that ‘1 the amount is insufficient to begin action since the policy was canceled for nonpayment of the November premium.” This is the first intimation as shown by the record that there was any intention on the part of the insurance company to forfeit the policy on account of the nonpayment' of the premium. "We shall not undertake to determine what the superintendent meant by the expression, £‘insufficient to begin action.” In that letter he enclosed the blank for change in the manner of payment of the premium, stating that she had formerly paid the premium annually, which was not the case. He also stated that there would be close to a dollar interest due on arrears from the time the premium was due until the date of that letter, whereas, the semi-annual premium had been received on the 25th of the previous month and under the terms of the policy only forty cents was due for interest. In answering that letter under the date of April 25th, the insured apparently discloses for the first time that she understood that the defendant was undertaking to forfeit her policy and requested if such was the case to return to her the $19.95, and she also stated that she was under the impression that she was entitled to nonforfeitable privileges. Defendant’s superinten
This, so far as the record discloses, 'disposed of the matter until the daughter of the insured on September 10, 1910, addressed a letter to the defendant at St. Louis stating that her mother had died on June 15, 1910, and requested the necessary papers to establish proof of loss. The superintendent replied to this letter under date of November 7, 1910, stating that the policy had finally expired on January 5, 1910, and as the insured died June 15, 1910, he could consider no claim, not contending, as it will he observed, that the policy had been forfeited, and for the first time he offered to return the $19.95. It is also worthy of consideration that when the attorney for the plaintiff in this case made formal demand on the defendant by a letter addressed to it at its home office, that the defendant first answered that they were looking further into the matter and would write more definitely in 'the course of a few days. Thereafter, on March 18, 1911, a letter was written from the home office to, the attorney stating that their record indicated that but one annual premium was paid on the policy, that this entitled the contract to special extension of sixty days, which extension expired January 6, 1910, and that as the party had died June 15', 1910, no liability under the policy was recognized. However, in this letter the defendant did not state that the policy had been forfeited on account of nonpayment of the pre mium therein provided for.
The least that may be said in this case is that there was unquestionably some substantial evidence of facts from which the trial court may properly have found
When the semi-annual premium was remitted by the insured to the defendant all of the facts relative to the policy were in the possession of defendant and good faith and fair dealing with the holder of this policy should exact of them prompt and explicit expression if it was desired to enforce the forfeiture provision of the policy; but in this case no effort was made by the insurance company at any time until after the information was received by it that a loss was about to be suffered under the policy, to return the premium. Up until that time the defendant retained the money and this was sufficient evidence upon which to base a finding that the assured believed that she was duly protected by the terms of the policy, and the defendant’s superintendent at St. Louis continued to write unintelligible letters which might convince an ordinarily intelligent person that the company was not intending to enforce the forfeiture clause in the policy.
Under the facts in this case we are unwilling to disturb' the judgment of the trial court, which is accordingly affirmed.