Gruen v. Standard Life & Accdient Insurance

152 S.W. 407, 169 Mo. App. 161, 1912 Mo. App. LEXIS 378

• Court: Missouri Court of Appeals
• Decided: December 14, 1912
• Status: Published

Opinion

CAULFIELD, J.

(after stating the facts). — So far as the trial court’s findings of fact are concerned, they are binding on us, plaintiff not having saved any exceptions to them. [Snuffer v. Karr, 197 Mo. 182, l. c. 188, 94 S. W. 983; Loewen v. Forsee, 137 Mo. l. c. 38, 38 S. W. 712; Freeman v. Hemenway, 75 Mo. App. l. c. 621.] We concur in the trial court’s conclusions of law upon the facts found by it. Undoubtedly the defendant had the right to cancel the policy and the renewal of same, on notice, as provided in the policy, and that, too, without returning the premium for the renewal, none having been paid. [3 Cooley’s Briefs on Insurance, pp. 2789, 2803; 1 May on Insurance (4 Ed.), sec. 67K; Little v. Insurance Co., 38 Ohio St. 110; Stone v. Franklin Ins. Co., 105 N. Y. 543; Insurance Company v. Brecheisen, 50 Ohio St. 542.] The fact that the receipt of the premium was acknowledged in the renewal receipt does not change the rule. [3 Cooley’s Briefs on Insurance, p. 2803; Mississippi Valley, etc., Ins. Co. v. Bermond, 45 Ill. App. 22.] Neither ■ would that fact prevent the defendant from cancelling the policy under the power reserved in the policy, such power being broad enough to permit cancellation for nonpayment of premium. The general rule is, that a receipt may be contradicted by parol evidence, and we see no reason for not applying the rule here, there being no attempt to assail the original validity of the policy or to assert that there was no consideration therefor. The defense that the policy was cancelled under the power reserved therein is entirely consistent with the original validity of the policy and in fact necessarily recognizes such original validity. The case of Dobyns v. Bay State Ben. Assn., 144 Mo. 95, 45 S. W. 1107, which plaintiff relies on, is no authority against the judgment here. As we understand the opinion in that case it holds that the receipt is simply conclusive as to a consideration and cannot be denied so as to destroy the original validity of the policy; that the payment is conclusively admitted to the extent only that it is necessary to give vitality to the contract. It recognizes that the receipt is not conclusive of payment for all purposes, being, for instance, not a bar to an action for the premium. It also recognizes, we believe, that the policy may subsequently be avoided for nonpayment of the premium, where, as here, such subsequent avoidance is authorized by the terms of the policy. [See Mooney v. Home Ins. Co., 80 Mo. App. 192, and Leeper v. Franklin Life Ins. Co., 93 Mo. App. 602, 67 S. W. 941.]

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.