Weightman v. Hatch, 17 Ill. 281

Welch v. Mann, 193 Mo. 326

Wells v. Fuchs, 226 Mo. 105

Wells v. Pike, 31 Mo. 590

58

434

362

Wayland v. County Commissioners, 70 Mass. 500

577

52

50

538

659

Werner v. Met. St. Ry. Co., 138 Mo. App. 6

376, 383

Whatley v. Zenida Coal Co., 122 Ala. 129, 26 So. 124

598

Williams v. Railroad, 169 Mo. App. 478, 155 S. W. 64

377

Woodward Iron Co. v. Curl, 153 Ala. 215, 44 So. 969

598

CASES ARGUED AND DETERMINED

BY THE

SUPREME COURT

OF THE

STATE OF MISSOURI

AT THE

OCTOBER TERM, 1921.

(Continued from Volume 292.)

CHARLES M. DARBY, Administrator of Estate of SAMUEL E. DARBY, v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, Appellant.

Division One, March 14, 1922.

1. LIFE INSURANCE: Payment of Premiums: Time of Essence: Forfeiture. Where a policy of life insurance provided that upon default in the payment of any premium the policy should cease and determine, except that insured should have a period of thirty-one days' grace for the payment of every premium except the first, and a right of reinstatement upon certain conditions after default, the time for payment of the premiums was of the essence of the contract and a failure to pay a premium when due worked a forfeiture of the policy subject to the exceptions above mentioned. 2.- Medical Examination: Waiver. In a suit on a policy of life insurance, where the issues, under the pleadings and the evidence, were whether the company had waived a medical

:

(1)

3.

Darby v. Northwestern Mut. Life Ins. Co.

examination of the insured as required by the policy, after a default in payment of a premium, and also whether the receipt by an agent of the company of a note of the insured amounted to a payment of the defaulted premium with interest and constituted a waiver of the conditions of the policy, it was prejudicial error for the trial court to admit in evidence for the plaintiff, over defendant's objections, testimony that the insured was in good health for several days immediately preceding the attack of influenza which caused his death and notes given by insured two years before the issuance of the policy in suit and connected with two previous policies which had lapsed and letters referring to such notes, inasmuch as none of such evidence was relevant to the issues in the case and was misleading to the jury and wholly incompetent.

: Transactions with Deceased: Agent of Company: Competency as Witness. In a suit on a policy of life insurance, the agent of the company, not being the real party in interest, is a competent witness to testify as to conversations and transactions had by him as such agent with the deceased insured and relating to the matters in issue in such suit.

Appeal from Stoddard Circuit Court.-Hon. W. S. C. Walker, Judge.

REVERSED AND REMANDED.

Nagel & Kirby for appellant.

(1) Time is of the essence of a contract of insurance and the failure to pay premiums when due works a forfeiture, if the policy so provides. Ashbrook v. Life Ins. Co., 94 Mo. 72; Suess v. Life Ins. Co., 193 Mo. 564; Gaterman v. Life Ins. Co., 1 Mo. App. 300; Sick v. Life Ins. Co., 79 Mo. App. 609. (2) The court admitted evidence immaterial and irrelevant and prejudicial to appellant. (3) The instruction of the court given at the request of the plaintiff was erroneous, because there is no evidence in the record to support the submission to the jury of certain questions of fact. Dakan v. Mercantile Co., 197 Mo. 264. (4) The death of Samuel E. Darby did not render appellant's agent incompetent to testify to conversations and transactions between himself and de

Darby v. Northwestern Mut. Life Ins. Co.

ceased. Clark v. Thias, 173 Mo. 628; Inv. Co. v. Lead Co., 251 Mo. 721; Wagner v. Binder, 187 S. W. 1152; Allen v. Jessup, 192 S. W. 720; Prindle v. Fid. & Cas. Co., 233 S. W. 252. (5) There is no evidence in the record that appellant waived the forfeiture or any of the provisions of the policy. Nelson v. Life Ins. Co., 190 Pac. 927; Clark v. Life Ins. Co., 106 Mich. 160; Hoyle v. Life Assur. Assn., 183 N. W. 50; Gould v. Life Assur. Soc., 231 N. Y. 208; Realty Co. v. Kelly, 278 Mo. 472.

Wammack & Welborn for respondent.

(1) The acceptance of the payment of the premium on a life insurance policy after it is due, and after the expiration of the days of grace, waives the failure to pay such premium within the allowance of time. Andrus v. Ins. Co., 168 Mo. 151; Jaggi v. Ins. Co., 191 Mo. App. 384; Spencer v. Life Ins. Co., 200 S. W. 80; James v. Life Assn., 148 Mo. 1; Thompson v. Ins. Co., 104 U. S. 252; Andre v. Modern Woodmen, 102 Mo. App. 377; Godwin v. K. L. S., 166 Mo. App. 297; Nichols v. Ins. Co., 170 Mo. App. 437; Wichmann v. Ins. Co., 120 Mo. App. 51; Reed v. Bankers Union, 121 Mo. App. 419; Francis & Hunter v. A. O. U. W., 150 Mo. App. 347; Manning v. Ins. Co., 176 Mo. App. 678; Wright v. Life Ins. Co., 204 Mo. App. 124. (2) If the agent of an insurance company takes a note in payment of a premium and treats the same as a payment of the premium, this constitutes a payment of the premium so as to bind the company issuing the policy. Berryman v. Surety Co., 227 S. W. 96; Kimbro v. Life Ins. Co., 134 Iowa, 84; McGee v. Felter, 135 N. Y. Supp. 267; Clark v. Ins. Co., 61 S. E. 80; Life Ins. Co. v. Hairston, 108 Va. 832; Ins. Co. v. Norton, 96 U. S. 234; Malone v. Life Ins. Co., 202 Mo. App. 499. (3) The law abhors a forfeiture and where there is substantial evidence of facts from which it may be found that an insurer has waived a forfeiture clause in its policy, the matter is one to be referred to the jury under appropriate instructions. Barber v. Ins.

Darby v. Northwestern Mut. Life Ins. Co.

Co., 279 Mo. 331; Jaggi v. Ins. Co., 191 Mo. App. 391. (4) If the evidence is sufficient to show waiver on the part of the one against whom it is invoked, it is not necessary that the insured even know of it. Watkins v. American Yeomen, 188 Mo. App. 636; Galvin v. Knights, 169 Mo. App. 511; Stiepel v. Life Assn., 55 Mo. App. 233; Equitable Life Ins. Co. v. Ellis, 147 S. W. 1152.

ELDER, J.—This is an action upon a policy of insurance for $10,000, issued by defendant on the life of Samuel E. Darby, payable to the estate of said Darby. Suit was brought by plaintiff as administrator of the said estate. On a trial before a jury a verdict was returned in favor of plaintiff for the sum of $10,600. From a judgment rendered thereon defendant has appealed.

The petition is conventional, alleging the execution and delivery of the policy on April 27, 1918; the payment by the insured of the premiums accrued and due; the death of the insured from influenza and pneumonia; the request for blank forms for making proof of death and the refusal of defendant to furnish same; the denial by defendant of liability; and the non-payment of the amount of the policy.

The answer, after admitting the execution and delivery of the policy, denies that at the time of the death of Samuel E. Darby it was in force and effect, but avers that the semi-annual premium of $133.10 due on October 27, 1918, was not paid by the insured, or anyone in his behalf, on that date, or at any time thereafter, and that by reason thereof the said policy lapsed 31 days thereafter, to-wit, on November 27, 1918, and remained null and void at all times thereafter. The answer further denies each and every allegation of the petition.

The reply admits that the semi-annual premium due October 27, 1918, was not paid when due, or within thirtyone days thereafter; denies that the policy thereby lapsed and became null and void; and avers that on January 3, 1919, pursuant to an arrangement then and there made