*1 APPEAL REPORTS, 212 MISSOURI v. Life Ins. Go. CEN SAUNDERS, MARY C. v. UNION Respondent, COMPANY, Appellant. TRAL LIFE INSURANCE Appeals. Opinion Filed June 1923. St. Louis Court Contrary Pro- INSURANCE: Non-forfeiture Statute: 1. Contracts: is Void. visions: an insurance Where 5856-5859, (sections contract, a Missouri the non-forfeiture statute 1889) contract and law written into the Revised Statutes is thereof, any provision contract which is con- is a effect, statutory provisions trary is inef- or annuls their prohibits purpose, fective for the as the law of this State foreign, company, contracts in surance domestic or regulations. contrary statutory annul our this State are Application -- — -:-: no- to Contracts Made Out- 2. Has (sections 5856-5859, side State. law non-forfeiture 1889) application insurance contracts Revised Statutes no power it of the State made outside of this State as authority control con- to extend its its borders so as to tracts made elsewhere. Policy -: -: This -: and Loan Made State: Within parties State Law Governs. both to an insurance Where and loan it were residents at the time was entered into State, steps creating took and the the contract essential State, application is, in this for the insurer, and delivered and the itself delivered to the insured, application premiums paid State, in this for the loan and de- the insured and the evidencing livered loan, insurer this State the note also 5856-5859, (sections held the non-forfeiture statute Revised 1889) Statutes contained policy to that it should be and treated as a the effect construed purpose foreign made in a State was contract ineffective preventing non-forféiture statute to the

contract. from the Court of the Appeal City Circuit St. Louis. Hugo Grimm, Judge.

—Eon. J.

Affirmed.

Percy appellant. Werner.for

Saunders v. Life Ins. Co. Appellant right (1) legal and its had insured inmeet Missouri into a insurance con- and enter agree therein that it be held con- tract, *2 ha,ve in strued been made of Ohio. McEl- State Metropolitan roy v. Life Ins. Co., 84 Neb. 19 Am. 866; Eng. Ann. 1. c. Cas, and Guessemer v. note; Ins. 10 v. Life Co., Mutual Life Wash. Green Ins. 202; (2) agreement App. 159 Mo. loan Co., The independent policy, case was not distinctly contract a of subsidiary thereto, a contract an hence Ohio contract, to be held and construed the same policy, governed by is, Lieb- laws of Ohio. ing Sup. (42 Sup. v. Mutual Co., Life Ins. U. Ct. S. Ct. Rep. 467), Burridge 226 987; S. New York Life W. v. Co., Ins. 211 Mo. McCall 158; v. International Life Ins. App. 196 318; Wallenstein, Dannhauser 169 Co., v. N. Ins. Y. Cole Knickerbocker Life 63 How. 199; Co., v. (N. Y.) Pr. 442; McDonnell v. Alabama Life Ins. Gold 85 Ala. 401; Lewis v. Life Ins. Co., New York Co., Scally App. 433; Fed. v. & 11 Cal. W. T. G. Harrington, (3) Russell v. Under all the Okla. appellant evidence, the sale of under the (4) was valid. contract subsidiary being Ohio contracts, plaintiff appeal was not entitled to of relating the Missouri statutes extended insurance. respond- Chilton Atkinson Richard A. Jones ent. C. This an

BIGGS, action a life insurance for $4200, the sum issued defendant com- pany upon Saunders, the life of Ernest L. deceased, the beneficiary being' named therein his widow. Following judgment jury the verdict of a was a there represents policy, which the face of the $1597.17, unpaid premiums certain less interest thereon also less the amount of a loan made defendant during on said lifetime of Saunders. appeals. From this REPORTS, APPEAL 212 MISSOURI Life Ins. Co. organized under laws was The defendant and maintained here, business licensed to do was Ohio, city Louis. The insured of St. in the office branch made of St. resident also a was St., the defendant for Louis office of application to the writing de- was was Thereafter Louis. the defendant livered to Ohio, delivered Cincinnati, St. Louis, in the the insured paid here. delivery alleging execution and After pay- in consideration of 31, 1897, on December and paid $132.30', ment of the annual allegation annual the insured had all further premiums including

up due alleged petition year that the said it is *3 day on 12th of died the Au- Ernest L. Saunders sured n premiums gust, the were not on that the year policy due in advance the after day payable 1906', of December, on the 31st 1907, prem- payment default in the of said that the time of of of the net value said insurance three-fourths ium, policy computed upon experience of American table per per mortality cent interest four one-half and provided conditions the terms and annum, 5856-5859, of Missouri of 1889, Revised sections Statutes single premium net an taken as a was of amount temporary amount in said insurance for the full written policy same sufficient for and maintain insurance pro- with the in full force and effect for and accord up day 12th of- and visions of said law August, died, when L. Saunders and said Ernest policy in full force and at the time said of his death was payment required thereon, effect and defendant to make unpaid premiums with interest less the amount of negotiated by Ernest the amount the loan said company on Saunders with the defendant account security. policy given as collateral which the was By the execution and defendant admitted answer, its allega- delivery policy, all the other denied Saunders v. Life Ins. Co. petition. up

tions of the policy The answer further set that subject was issued and conditions terms contained of which therein, one was company would loan certain amounts -at certain times policy; as set forth in a Table of Loan Values ap- that the insured had obtained a $825 pellant in accordance with the terms of such deposited joint had same as collateral under a note of himself and wife; that under the terms said note and after default a sale of thereon, had and private purchaser the defendant became the thereof at acquiesced sale; that insured had therein, and extinguished reason thereof the note had become canceled. following provision: in suit contained the accepted subject “This is issued and to the bene- fits, on the conditions contained second page which are made hereof, contract, of this which contract shall be held and construed have been made in the of Cincinnati, Ohio.” There awas provision company further will loan security year as collateral end of the ninth thereof the sum of $823, for the next suc- ceeding year to be deducted from the loan. paid up

All in- cluding one due on December 31,1906. December On 3, 1906, the insured made a written for a delivered to defendant at city..of and on December 1906, *4 plaintiff sured and his delivered to the de- wife, promissory fqr, applied fendant their note for the loan namely, at $825, St. here Louis; received a check for proceeds premium of the less annual the next policy. for the loan sent by the company St. Louis branch of the defendant to approved its home officeat Cincinnati, where the loan was signa- and form of note sent the St. office Louis plaintiff. proceeds ture of the insured and Check for the of the loan was likewise sent from the Cincinnati office APPEAL REPORTS, MISSOURI v. Life Ins. Co. St., Office, Louis delivered same

to the insured executed sured. The as at the time is follows: Dec. “Cincinnati, 0., “825.00 years re- after for value date, or before five “On severally pay promise jointly we ceived, eight order of The Union Central Life Insurance twenty-five dollars, without discount or hundred defalcation, at its office with interest Cincinnati, O., per payable annually. per at six cent annum, deposit pledge “We herewith com- with said company upon pany policy said 166,801, No. issued Security the life of Ernest Collateral aqd agree'to keep hereby note, this upon policy. said

“Upon maturity, the failure to note or said at any any installment of interest when or due, principal note, or when then due, forthwith immediately of said note and accrued interest shall be- payable, come due and company may -in such case said insurance place,

sell said with- at or time, public private out notice, sale the sale, such company may purchaser, said insurance become the any person a sale shall not be made to the amount below policy. of the indebtedness secured said company purchase said “Should said should the total indebtedness be than the reserve less value of the extended insurance for the current year provided purchase therein, such take shall expiration year; at the of said and the difference purchase paid-up, non-partici- shall be pating equal term insurance for an amount differ- ence between the face of said amount of indebtedness, said and for such tme as said sum would carry such insurance on the basis calculation for ex- policy. tended insurance used - “This note is on the condition that the com- pany security only will look payment of the same. *5 y. Life Ins. Co.

“P. O. Address: Dry

“Street No. Carleton Goods Co. c/o “Town St. Lonis.

“County and State

Ernest L. Mart C. Saunders.” theory recovered the nonforfeiture statutes of pay- at in the time of default premium

ment three-fourths of the net value of the provisions policy with interest, in accordance with (Revised said non-forfeiture statutes Statutes Mis- 5859), souri, 1889, sections 5856 to deduction of indebtedness due net insurance taken as a temporary insurance, sufficient have kept policy in force date the insured’s and that death, therefore the time of his death the policy was full force and effect.

It is contended the defendant that the contract agreement subsequent and loan thereto and subsidiary policy policy are Ohio subject contracts, and is not of the Missouri statutes and that under terms of the loan bility been all lia- canceled and extinguished April

thereunder a sale agreement. 1908, under the collateral plaintiff’s In view of the fact that evidence was finding sufficient to warrant the effect that the payment suit, the time of the default provided by when measured rules our non-for- feiture statute, had a net value sufficient to for and carry in full force and effect date of the insured’s death, the for determina- controlling tion is whether such non-forfeiture statute is applicable prob- to the said contract. That by determining lem is solved and its subsidiary were Missouri or Ohio con- tracts. REPORTS, APPEAL MISSOURI Life Ins. Co.

Saunders v. *6 they the contracts, under the facts are Missouri If by referred the into statute law written Missouri to is provision and is thereof, the contract contrary statutory provisions contract which is the purpose. their effect is ineffective Our annuls prohibits any company, insurance for law domestic or eign, con contracts which are this State trary statutory regulations. annul our [Horton to or v. Ins. 151 Mo. 52 W. Smith Co., 604, 356; Co., S. v. Ins. Burridge 173 Mo. 72 Ins. 211 Mo. 329, 935; Co., S. W. v. 158, 109 S. W. Ins. Mo. 50 560; Co., Craven v. 148 Company S. 519; Craven, W. Insurance v. 178 U. S. affirming Co., Whitfield v. Ins. 205 U. S. App. Keller v. Insurance Co., 58 v. Insurance 557; Head Company, 241 Mo. 403, 827.] 147 S. W. they

If on other hand are to be deemed Ohio then the contracts, no non-forfeiture law application, power it of the State to authority extend its its borders so as to control made [New contracts elsewhere. York Life Insurance Company Dodge v. Head, U. S. 149; v. Insurance Company, Liebing 246 U. S. 357; v. Ins. 226 S. W. (Mo. Sup.) Company 897; Mutual Life Insurance Liebing, Supreme Supreme U. S. Court, Court Re- porter,

We rule both the and the loan be by Missouri contracts under the evidence shown parties record, because both contract at the time it was entered into were of Mssouri. The es- residents] steps creating sential the contract took in application State. was executed and delivered to the defendant of St.

policy itself was delivered to the insured here, and the to the defendant at its Louis application office. The loan the insured and the delivered the de- fendant at evidencing St. Louis, as was note the loan. proceeds Likewise the check for the of the loan was de- livered to the insured St. Louis. MAECH TEEM, v. Hill

Hammack and Behan. being obligations Such the case, the created constituted a Missouri contract, and should be construed the laws being of this State. Such true the non-forfeiture stat- provision ute contained in effect that it be construed and treated as an Ohio pur- contract was ineffective for the pose preventing of the non-forfeiture statute to the contract.

This unnecessary conclusion renders it to determine through under the defendant, facts proper steps, forfeited and canceled the under agreement. the terms It follows that judgment should be affirmed. *7 opinion foregoing

PEE CUEIAM:—The of Biggs, adopted opinion C., is as of the court. The of the court is accordingly circuit affirmed. P. Allen, J., Becker and JDaues, concur. JJ., Respondent,

JAMES M. HAMMACK, ARCHIBALD M. HILL and WILLIAM BEHAN, Partners, Doing Business Firm Under the Name of HILLBEHAN Appellants. LU MBER COMPANY, Opinion April Appeals. Court of St. Louis Filed ' Rule Evidence: to Plaintiff’s 1. APPELLATE PRACTICE: Demurrer not a dealing In Review. appellate sustained, must court demurrer have been all give plaintiff’s the benefit him true treat evidence as may therefrom. drawn inferences which be reasonable D'angerous Negligence: to Guard Failure 2. MASTER AND SERVANT: Negligence: Machinery: Injured: Contributory Available Servant expressly duty Notwithstanding as a Defense. the violation employees re- dangerous inposed upon machinery an owner of per se, negligence statute, guarded by quired guarding to be resulting damages there- prima imposes liability facie 13—211 M. A.