193 Mo. App. 430 | Mo. Ct. App. | 1916
This suit is on a fifteen payment policy on the life of plaintiff’s husband. But one point is made as to the pleadings, and that will be noted later. The case was submitted to the court on an agreed statement of facts. The facts necessary to be considered are that the policy was issued on July 15, 1886, to plaintiff’s husband, and is a Missouri contract under the ruling of Craven v. Insurance Co., 148 Mo. 583, 50 S. W. 519; that the insured paid the premiums due in quarterly installments to April 15, 1894,. seven and three-fourths years; that' default in payment of premium was then made and none paid thereafter; that the insured died August 18, 1897; that under the laws of this State in force when this policy was issued, section 5983, Revised Statutes 1879, the policy was not forfeited by the nonpayment of premium, but the amount of premium paid on the policy was sufficient to and did keep the policy in force for the full amount under the rule of commutation there specified for a term of temporary insurance extending beyond the death of the insured, and by the terms of section 5985, Revised Statutes 1879, the insured having died within the time of temporary insurance, the defendant became bound to pay the amount of said policy, unless there, be something shown to defeat such liability.
Only two defenses are made to the defendant’s otherwise conceded liability. They are: (1) The
As to the first defense, we have no doubt but that plaintiff’s cause of action-accrued to her on the death of her husband, plus, at most, a reasonable time within which to make proof of his death. Such is the ruling in Kauz v. Great Council, 13 Mo. App. 341, 344. In 25 Cyc. 1198, the law is stated to be: “Where plaintiff’s right of action depends upon some act to be performed by him preliminary to commencing suit and he is under no restraint or disability in the performance of such act, he cannot suspend indefinitely the'running of the Statute of Limitations by delaying the performance of the preliminary act; if the time for such performance is not definitely fixed, a reasonable time, but that only, will be allowed. The rule that where the right of action depends upon a preliminary step to be taken by plaintiff he cannot indefinitely delay the taking thereof, rests upon the principle that plaintiff has it in his power at all times to do the act which fixes his right of action.” [See Boyd v. Buchanan, 176 Mo. App. 56, 60, 162 S. W. 1065.] It is clear, therefore, that as the insured died in 1897 and this suit was commenced in 1915 the plaintiff’s cause of action is barred, unless defendant has waived or estopped itself from availing itself of this defense, of which we will speak later.
It is likewise conceded that no proofs of loss were submitted to the defendant within ninety days of the insured’s death, and in fact not until shortly before this suit was commenced, more than seventeen years after the death of the insured. It is argued here, in able briefs of counsel both for and against the proposition, that section 5983, Revised Statutes 1879, forbids any forfeiture of the policy for nonpayment of premium in case two annual premiums have been paid,
This brings us to the all-important question of waiver. The facts on which a waiver of both the defenses mentioned is predicate are briefly thus; 'No suggestion of any claim on this policy was made until by letter, July 5, 1914, the plaintiff informed the defendant that her husband died August 18, 1897 and asked the status of this policy. To this defendant replied, July 11, 1914, that its record showed that the policy on her husband’s life was forfeited in accordance with its terms for the nonpayment of the premium due in 1894 and has no value. The plaintiff then wrote to defendant, with the assistance of a friend, stating that her husband had died within three years after default in payment of premium and that the insured had paid about eight annual premiums on the policy. To this defendant replied that it could not recognize any claim under the policy because the contract was issued in 1886 when policies of the company provided for forfeiture of the same in case the laws of the respective States were not fully complied with; that under the laws of New York when three annual payments had been paid, the policy had a surrender value in paid-up insurance if applied for within sis months, but that none had been applied for and consequently the policy was forfeited in 1894 and has no value; that in case
We think there is no doubt that both the defenses here interposed are affirmative and special and in the nature of personal privileges. The law allows them to a defendant if he chooses to insist upon same in the proper way and at the proper time, but they are not matters going to extinguish the cause of action, but merely to bar the remedy, and being for defendant’s benefit, may be waived by it. Such defenses are generally termed forfeitures; that is, the plaintiff forfeits his cause of action (or as defendant claims does not bring it into being) by failure to furnish proofs of loss' or to bring his suit within a certain time. Forfeitures are not favorites of the law, and especially of the insurance law. In Keys v. Knights & Ladies of Security, 174 Mo. App. 671, 680, 161 S. W. 345, the court said: “Slight evidence, indicating an intention to waive, will be sufficient to prevent a forfeiture from taking effect and thereby defeating valuable rights. [Francis v. A. O. U. W., 150 Mo. App. 347, l. c. 356.] A waiver of forfeiture may be inferred when the insurer, after knowledge of the act of forfeiture requires the assured, by virtue of the requirements in the policy, to do some act or incur some expense.” The leading case on this subject seems, from its frequent citations in so many jurisdictions, to be Titus v. Insurance Co., 81 N. Y. 410, where the court stated the law thus: “But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as a matter of law waived; and it is now settled in
The doctrine is stated in 2 Bacon’s Life Insurance (3 Ed.), section 435, as follows: “If the company after being notified of a loss, has knowledge of false answers in the application or of a breach of the conditions of the policy, and notwithstanding that fact, calls for proofs of loss; or if, after receiving proofs, with knowledge of such false answers, it asks for additional proofs, it thereby waives the right to rely on the breach of warranty or of the condition. The reason of the rule is obviously that the company should not be permitted by its conduct to cause insured to go to the expense of proofs of loss, when it knows it will be a useless act.” This doctrine has received repeated recognition in this State, and has been applied to defenses far more vital than furnishing proofs of loss or bringing suit within a specified period. [Dolan v. Insurance Co., 88 Mo. App. 666; Keys v. Knights & Ladies of Security, 174 Mo. App. 671, 687, 161 S. W. 345; Bowen v. Insurance Co., 69 Mo. App. 272; Pace v. Insurance Co., 173 Mo. App. 485; 158 S. W. 892; Oehler v. Insurance Co., 159 Mo. App. 707, 708, 139 S. W. 1177.]
The doctrine of waiver is more frequently applied to furnishing timely proofs of loss or violation of some warranty or stipulation in the policy, but we can see no reason why it should not be applied to bringing suit within a given time, whether fixed by statute or by the policy itself. In fact, in this State, by reason of the statute and contrary to the general rule, the policy cannot limit the time of bringing suit differently from the general statute. [Section 278, R. S. 1909; Roberts v. Insurance Co., 133 Mo. App. 207, 209, 113 S. W. 726; 4 Cooley’s Briefs on Insurance, 3964.] “Conduct of the insurer after the expiration of the policy limitations, by which the insured or beneficiary
It is well settled law that when one is called upon m court to assert his defenses, he must plead limitation, both as to bringing suit and furnishing proofs of loss, or he is held to have waived it, and we think the same rule works out of court also. [Keys v. Knights & Ladies of Security, 174 Mo. App. 671, 687 (commenting on Cannon v. Home Insurance Co., 53 Wis. 583), and page 690; 161 S. W. 345; see, also, Insurance Co. v. Evants, 25 Tex. Civ. App. 300, 61 S. W. 536.]
There is no doubt but that such waiver can take place after as well as before the time limit has expired, as will be seen by the authorities, supra, but we agree that in such case the facts constituting the waiver must then contain the element of estoppel. [Chandler v. Insurance Co., 180 Mo. App. 394, 400, 147 S. W. 1162; Boren v. Brotherhood, 145 M. App. 136, 129 S. W. 491; Cohn v. Insurance Co., 62 Mo. App. 271, 277; Bolen v. Fire Ins. Co., 58 Mo. App. 225, 231; Walker v. Knights of Maccabees, 177 Mo. App. 50, 53, 163 S. W. 274.] This last case considers the elements of waiver both before and after the time limit has ex
Nor will it do to say that the insurance company did not require the plaintiff to go to this expense, but left it to the plaintiff to do so of not as she pleased, where, as here, a failure to do so meant a complete abandonment of her claim. In such case, the amount of the expenditure is not material, unless it he so small as to he inconsequential, which is not true here. [Kidder v. K. T. & M. L. I. Co., 94 Wis. 538, 69 N. W. 364; Keys v. Knights & Ladies of Security, 174 Mo. App. 671, 161 S. W. 345, where the expense of appointing a guardian was $6.50.]
Applying these principles to the present case, we find that the first letter written to defendant by plaintiff informed it that the insured had died seventeen years previous, and asked as to the status of this policy. The- defendant must he held to have known that no proofs of death had ever been furnished it and no suit had been brought, and the time for doing both was long since past. Defendant’s reply made no mention of either defense now interposed, hut said the policy was forfeited according to its terms (and such are its terms) by nonpayment of premium and had no value. This, of course, utterly ignored the Missouri statutes, sections 5983 and 5985 Revised Statutes 1879, which became a part of the policy. When reminded by plaintiff’s next letter that the insured had paid nearly eight annual premiums and had died within three years of his default, the defendant again answered, saying nothing of the defenses now interposed, but replied that
It seems to us that at this time and before plaintiff was called on to incur this expense, the defendant was put to its election to set up these defenses, then perfectly well known to it, and inform the plaintiff of its intention to rely thereon and that it was preserving the same (even if it could do so) or be held to have waived these defenses, just as it was afterwards required to do in court. The plaintiff may well have believed that no claim would be paid by defendant, however valid, unless passed on by its mortuary committee with the proof of death before it, and that unless there was some merit in the matters before mentioned relating to forfeiture of the policy for nonpayment of premium, then the defendant would allow the claim. Why should' the company want proofs of death, if it intended to defend on the ground that
In the absence of the statement in defendant’s letter accompanying the blanks for proof of death that defendant did not thereby waive any legal defense that may exist in its favor and that the blanks were merely furnished to facilitate the orderly consideration of the claim, there would be no question but that defendant would be held to have waived these defenses. Should these general words of reservation change this result? We think not. In Granger v. Fire Assurance Co., 119 Mich. 177, 77 N. W. 693, the court was dealing with the question of waiver of change of ownership of the insured property in violation of the policy. After the company had knowledge of this fact it called on plaintiff for additional proof of loss, saying in a letter accompanying the same that by doing so “it did not waive any defense it had,” but made no specific reference to its intention to claim a forfeiture be
It is suggested that the defense of waiver, to be available to plaintiff, should have been pleaded in her reply to defendant’s answer setting up these defenses. It may be conceded that the rules of good pleading so require. However, this case was tried on an agreed statement of facts and the facts showing a waiver are agreed to. This should certainly be given an effect equally as favorable to plaintiff as if the case had been tried on the theory that such waiver was properly pleaded. In any event, it would be useless to reverse and remand this cause for the purpose of allowing the reply to be amended in this respect, and then have the case submitted on the same facts, with the certainty that the same result would be reached.
"We hold, therefore, that the defenses interposed by defendant are not available to it on the agreed facts, and that cause is reversed and remanded with directions to enter judgment for the plaintiff.
