Bell v. Missouri State Life Insurance

149 S.W. 33, 166 Mo. App. 390, 1912 Mo. App. LEXIS 558

• Court: Missouri Court of Appeals
• Decided: July 2, 1912
• Status: Published

Opinion

NORTONI, J.

— This is a suit on a policy of life insurance. The finding and judgment were for plaintiff and defendant prosecutes the appeal. Plaintiff, a minor, sues by her guardian.

The insured, plaintiff’s brother, came to his death at Nogales, Arizona, from an injury received while working as a telegraph lineman. It appears that on. July 17, 1909, the insured, Robert William Bell, made a written application to defendant for a policy of life insurance in the amount of $2000, payable in event of death to his sister, Ruby Pearl Bell. The application was made through defendant’s soliciting agents, Cummings & McIntyre, at Nogales, Arizona, to whom the first annual premium of $103.30 was then in hand paid. The application was forthwith transmitted to defendant by mail and duly received by it at its home office in St. Louis, Missouri, July 23, 1909. Two days after transmitting the application, defendant’s agents deducted their commission and forwarded the' balance of the first premium to defendant, which it received several days before the policy was issued.

The application for the insurance contained the following stipulation:

“I agree on behalf of myself and of' any person who shall have or claim any interest in any policy issued under this application, as follows:

“7. That the insurance hereby applied for shall not take effect unless the premium is paid and the policy delivered to and accepted by me during my lifetime and good health, etc.”

On July 27, 1909, the application having been approved and duly accepted, defendant issued the policy here in suit and transmitted it to the State Insurance Department at Jefferson City, Missouri, for registration. After its registration and return to defendant, the policy was mailed by it on August 4, 1909, to Cummings & McIntyre, the soliciting agents at Nogales, Arizona, for delivery to the insured. At the time of making application therefor and paying the premium to defendant’s agents, the insured instructed them upon its arrival to deposit the policy for him in their safe along with other private papers of his kept therein.

The insured was employed as a lineman in building and repairing telegraph lines in the vicinity of Nogales, and his duties enforced his absence from that place a considerable portion of the time. It is because of this that the arrangement was made for defendant’s agents to receive and deposit the policy for him in their safe with his other private papers. The policy, having been mailed on August 4th by defendant to its agents at Nogales for delivery, was received by them on the morning of August 8, 1909. On August 6th, or two days before the policy was received 'by Cummings & McIntyre for delivery, a telegraph pole fell upon the insured and inflicted a compound fracture of the thigh. Two or three days thereafter, blood poison resulted from this injury, and the insured died during the night of August 11th.

Defendant’s soliciting agent, Cummings, who had taken the application, testifies that he knew of plaintiff’s injury on the evening of the day it was sustained — that is, August 6th, and visited the insured in the hospital at Nogales the day following, August 7th. The same witness testifies that, after the policy arrived, he called upon the insured a second time and informed him that he had received the policy and deposited it in the safe. Though the premium of $103.30 had been paid by the insured on July 17th, when the application for the insurance was made, and had been duly transmitted to the company a couple of days thereafter, it appears that no tender or offer to repay the same was made to the insured before death by the agent, and defendant still retains it. Neither was there a suggestion by the agent that the policy was to be withheld.

The defense rests entirely upon the stipulation, above set forth and contained in the application, to the effect that the insurance shall not take effect unless the premium is paid and the policy delivered to, and accepted by, the insured during his lifetime and good health. The case was tried before the court without a jury, and the only question for consideration pertains to the sufficiency of the evidence to support the judgment for plaintiff. There can be no doubt that it is competent for the parties to stipulate in the application for insurance, as here, that the policy shall not be effective or binding until delivered to, and accepted by, the insured while in good health and the payment of the first premium is made. It is said that a contract of life insurance is not complete until the last act necessary to be done by the insured, under the conditions of the contract, after acceptance of the ap-' plication by the company, has been done by him, and the courts, therefore, in proper cases, sustain such agreements which operate to postpone the taking effect of the policy until the delivery and premium payment while the insured is in good health. [See 1 Bacon, Life Insurance (3 Ed.), sec. 272; Kilcullen v. Met. Life Ins. Co., 108 Mo. App. 61, 82 S. W. 966; Misselhorn v. Mut. Reserve, etc., Life Ins. Co., 30 Mo. App. 589; McGregor v. Met. Life Ins. Co., 136 S. W. (Ky.) 889.] But though such be true, the provision for thus suspending the policy, as an effective contract, until the first premium is paid and its delivery, while the insured is in good health, is for the benefit of the insurer and obviously may be waived by it or by .its agent possessing authority with respect to that matter. [See Rhodus v. Kansas City, etc. Ins. Co., 156 Mo. App. 281, 137 S. W. 907.]

Though there were no declarations of law given on behalf of plaintiff indicating the theory on which the recovery was allowed, it is obvious the court proceeded as if defendant had waived its right to insist upon the agreement above set forth. Upon a consideration of the entire record, it is clear the judgment may be sustained on that ground.

"When we consider that the insured paid the full premium, cash in advance, and directed the agent to deposit the policy in the safe with other private papers belonging to him (the insured) upon its receipt and that he acquiesced, when informed by the agent the policy had been received and thus deposited, no one can doubt that the court was amply justified in finding the insured accepted the policy. And this is true even though he was not in good health at the time, for, if it appears defendant waived so much of the stipulation as required the delivery of the policy to the insured while in good health, the matter of his acceptance while in good health is thereby eliminated from the case, for, necessarily, delivery on the part of the insurer must precede the acceptance on the part of the insured, and the requirement as to such good health was first waived. Touching the matter of defendant’s waiver of the requirement that the policy should be delivered to the insured while in good health before it became effective, the following facts are relevant, and, when considered together with reasonable inferences therefrom, abundantly support the judgment: It appears the premium of $103.30 had been paid to the agent, Onmmings, in advance, and, less commission, duly transmitted to the company long before the policy was issued. The evidence tends to prove and, indeed, establishes beyond peradventure, that the soliciting agent, Cummings, was authorized by defendant to solicit insurance, accept premiums therefor, and deliver policies to the insured after they were written in the home office of the company. The company accepted the premium paid in this instance, issued the policy in consideration thereof, and transmitted it to the agents, Cummings and McIntyre, for delivery. Though the insured'was injured two days before the policy was received at Nogales, and of this the agents were fully advised, for Cummings says he visited him in the hospital on the following day, they nevertheless recorded the policy in the hooks of their office as a consummated transaction and deposited it in the safe for plaintiff according to his directions. Furthermore, after the policy arrived on the eighth of August, Cummings again visited the insured and informed him that his policy had been received and placed in the safe as directed.

But it is insisted a mere soliciting agent, such as Cummings, is without authority to waive the condition in the policy here relied upon, and, for the purpose of the case, the proposition may be conceded as true. However, the facts last stated make it entirely clear that the agent delivered the policy to the insured with full knowledge of all of the facts pertaining to the condition of his health, and, if it appears that defendant knowingly ratified the agent’s act, the judgment may he sustained, for, as before said, it was competent for the company to waive the requirement that the policy should he delivered during the good health of the insured. It appears from the testimony of defendant’s secretary that he mailed the policy to Cummings & McIntyre, the agents, on August 4th and on August 15th the company received notice of the death of the insured and a request for blank proofs of death. The secretary says he mailed such blank proofs forthwith to the agents and the same were executed, returned to the company and received by it on September 15, 1909. The proofs of death thus received by the company on September 15th show clearly that the insured came to his death August 11, 1909, from an injury received on August 6th. From this it was obvious the insured was injured before the policy could have been delivered in due course of mail. In a letter in evidence, signed by defendant’s secretary, and dated January 21, 1910, defendant substantially admits it was advised by snch proofs of death that the insured was not in good health when the policy was delivered. No one can doubt that on these facts the circuit court was justified in finding defendant was informed on September 15, 1909, from the revelations contained in the proofs of death, that the policy was delivered by its agent to the insured while not in good health.

Furthermore, it appears that though the insured died on the 11th of August, Cummings, the agent, retained the policy in his safe until th'e following November, when he mailed it to the company at its request. During all of that time, the company retained the premium and, indeed, made no effort to repay it until January 21st of the following year, when its secretary wrote a letter to the father of the insured to the effect that the company would refund the premium if an administrator were appointed to receive it. Just what knowledge the officers of defendant company acquired, during the several months it retained the premium and before offering to return it on January 21, 1910, in addition to that which it had from the proofs of death September 15, 1909, concerning the condition of the insured at the time the policy was deposited in the safe for him by Cummings, does not appear. But enough is disclosed to show that there was correspondence between the agent, Cummings, and the secretary of the company, touching the matter, even before the policy was returned to the company at its request in November. Under the advice of defendant’s counsel, its secretary, a witness, declined to state anything concerning the contents of this correspondence with the agent, Cummings, during the interval. Prom this conduct of the witness and the fact that defendant requested the return of the policy to it in November, together with the other facts and circumstances above pointed out, it was competent for the court to infer defendant’s managing officers possessed full knowledge of all the facts for several months before it offered to return the premium, and. thereby ratified the acts of its agent. [See Kelly v. St. Louis Mut. Life Ins. Co., 3 Mo. App. 554.]

In view of the other facts in evidence and the evasive conduct of defendant’s secretary, the court was amply justified in holding that defendant, by its managing officers, waived the condition in the insurance contract now relied upon, through retaining the premium with full knowledge of the facts, and that it was not until November, or three months after the death of the insured, and two months after the proofs of death were received, when the policy was returned at its request, that defendant decided upon another course — that is, to contest its payment. It is certain that a waiver once attached, or a ratification once had, may not be recalled by a mere change of opinion about one’s rights in the premises. [Ball v. Royal Ins. Co., 129 Mo. App. 34, 107 S. W. 1097.] The judgment should be affirmed. It is so ordered.

Reynolds, P. J., and Caulfield, J., concur.