68 Mo. App. 585 | Mo. Ct. App. | 1897
“Now this day come the parties to the above entitled cause and agree to submit the above matter to the court for its. determination thereof, and. agree that the following are the facts upon which the same is to be decided: Plaintiff claims to recover of defendant two thousand dollars ($2,000) upon a life insurance policy issued by defendant upon the life of Lawrence Richards, deceased, husband of and insured for the benefit of said Mary Richards. Defendant claims that by virtue of the conditions of said policy and the neglect of said Lawrence Richards to pay an assessment which became due and payable on October 11,1894, but upon which four days of grace were allowed, making the last date for payment October 15, 1894, had lapsed and all the right and benefit under said policy had terminated. Lawrence Richards, the insured, was found dead in his bed on the morning of November 1, 1894. Plain-' tiff claims that defendant, by its course of dealing with the plaintiff, had waived a strict compliance with the terms of the policy. Defendant denies any such waiver on its part. The following are the facts upon which the said controversy depends, to wit:” etc.
This agreed statement was entered into after the pleadings were made up. The pleading consisted of a petition, answer, and reply. The petition recited that the policy was “filed herewith,” but did not make the policy a part of the petition. The answer, among other things, set up that the defendant was a company organized on the “assessment plan.” The reply did not deny this. After the cause .had been heard by the court, he took it under advisement and announced his
That such submission, or agreed statement of the matter in • controversy, was only intended to apply to the one controversy of waiver is apparent from its terms, as above set out. It is furthermore made appar
The most that can be said for the plaintiff is that the defendant’s course of dealing with the deceased was of such character as left it a matter to be determined by. the trier of the facts. It seems that under the ruling of the supreme court in the case of Reichenbach v. Ellerbee, 115 Mo. 588, the trial court would have been justified in declaring, as a matter of. law, that there was no waiver. In that case, there was evidence tending tó prove that the officers of the insurance company permitted the deceased “on many occasions to pay prior assessments after” the time fixed upon. This evidence was withdrawn from the jury by an instruction. But it was not considered as showing a waiver from the fact that the supreme court ruled that the “undisputed facts” called for a peremptory instruction against the plaintiff. The’court added these words: “There is no evidence in the case upon which this verdict can rest. There was no lack of evidence on the part of the defendant to make its defense of forfeiture as complete and perfect as in reason such a defense could be made by unimpeached and uncontradicted evidence. The verdict (in the teeth of the court’s instruction and the evidence) must have been the fruit of an unreasoning sympathy by the jury for the bereaved widow (whose^ case was then before them) unmindful of the superior claims of other similar unfortunates, who, by the due performance of the conditions of similar contracts, in law and in equity, have a better right to a fund which by this verdict would be taken from them and given to the plaintiff, if it were permitted to stand.”
But we will not put our decision on the authority
The foregoing considerations lead to a reversal of the judgment and it is so Ordered.