James v. Mutual Reserve Fund Life Ass'n

MARSHALL, J. On the third of October, 1890, the defendant, an insurance company on the assessment plan, insured the life of Milton James, of Kansas City, Missouri, in the sum of three thousand dollars, “upon the condition of the payment of nine dollars and eighty-four cents, as a deposit in advance of mortuary premium and dues, within thirty days from the first week day of the months of February, April, June, August, October and December.” The plaintiff, the wife of the insured, was the beneficiary. With the exception of two or three times the plaintiff paid the premiums at the office of the local agent in Kansas City, and nearly always to Miss Carrie Dewey, a clerk in said office, who had authority to receive and receipt for them. The policy provided that if the premiums were not paid on or before the day provided therefor in the policy, it should expire and become null and void. The plaintiff testified that she had paid premiums after the expiration of the time specified and as late as the 2d, 3d and 4th of the next month, but she could not specify which they were. Six receipts were produced by plaintiff, five of which showed that the premiums were paid within the required thirty days, and one, for the premium due April 1st, 1892, was paid on the 2d of May, 1892. The receipts for the other payments, made between October, 1890, and June, 1893, were not produced. The premium payable within thirty days after June — 9 — 1st, 1893, was not paid during that time. Plaintiff says she had always received notices of the assessments prior to that time, but received none for that one, and waited to receive it until July 2d or 3d, and then went to the agent’s office, and tendered the premium to Miss Bewev, who told her she would not receive it, and called Mr. F. 0. Eames, to whom she again tendered it, but he refused to receive it because it was three days past due. Plaintiff insisted upon paying it because she had paid past due premiums before, which had been accepted without objection, and because she had received no notice. Mr. Eames said, “well, it is different now; that James was in good health then.” Miss Dewey told plaintiff they could not receive the premiums on account of Mr. James’ health, and spoke of another similar case, and said they were instructed to watch such cases, and that “We watch them like a hawk.” Mr. Eames told plaintiff on July 31st “he was no longer the agent of the company, but his son was, and his son was at home sick.” Plaintiff went to the son’s house to see him about it, but as he had since died, the testimony as to what transpired was excluded. Several times during the month of July plaintiff again offered to pay the premium as did also her friend, Mr. John Larimer, between the 1st and 7th of July, but it was refused. The insured became insane in June, 1893, and was confined in an asylum. He died in February, 1895. No premiums were tendered between July, 1893, and February, 1895. Miss ' Dewey and Mr. E. 0. Eames testified that the plaintiff never tendered the premiums to either of them at any time, and especially not in July, 1893. . They both said Mr. Eames ceased to be the agent of the company in March, 1893, and was not in Kansas City between March 12th, 1893, and the spring of 1894, and that they had no conversations with her on the subject at all. Miss Dewey said she was in the office about an hour on the 1st and 3rd of July respectively; that — 10 — sbe left Kansas City for Chicago on the 6th and returned on the 22d of July. This suit was begun on the 25th of September to recover on the policy. The defense is a non-payment of the premium for June,1893, and a forfeiture of the policy in consequence. The reply is a general denial. The jury found for the plaintiff in the sum of $2,920, which sum was arrived at by deducting the unpaid premiums from the face of the policy, and adding-interest on the balance. The defendant appealed. I. The first objection of defendant is that under a plea of performance the plaintiff was permitted to prove a waiver of the conditions of the policy to be performed by the insured; that is, the payment of the premiums within the prescribed time. This practice is sanctioned in this State. [McCullough v. Ins. Co., 113 Mo. l. c. 616; Ins. Co. v. Kyle, 11 Mo. 278; Nickell v. Ins. Co., 144 Mo. l. c. 432.] The reason for this rule is that: “It is merely evidence of a performance. It is not the case of a substitution of a new contract for an old one; it is not an excuse for non-performance by the prevention or discharge of the defendants; but it is evidence of performance.” [NaptoN, J., in Insurance Co. v. Kyle, sii/pra,.'] “The proof of waiver in this case is not an excuse for non-performance at all; it is proof of performance within the meaning of the condition.” [Napton, J., in Russell & Co. v. Ins. Co., 55 Mo. l. c. 593.] This rule has obtained in this State for such a long period of time that the litigants have a right to assume that it will continue • to be followed, notwithstanding it is apparently an exception to the general rules of pleading applicable to other cases. II. The defendant argues, however, that the policy expressly provides that: “No contract, alteration or discharge of contract, waiver of forfeitures, nor granting of — 11 — permits of credits shall be valid unless the same shall be in writing, signed by the president or vice-president and one Other officer of the association,” and hence the agent or local treasurer at Kansas City, could not waive the forfeitures. This is not a new proposition. It has been much discussed, and the rule is established by the great weight of ■authority that an agent may waive a forfeiture notwithstanding such a restriction as that above quoted in this policy. This is the result of the adjudications in Alabama, Connecticut, Georgia, Illinois, Indiana, Kansas, Michigan, Louisiana, Missouri, New Hampshire, New York, Tennessee, Texas, Vermont and by the Supreme Court of the United States. [Joyce on Insurance, vol. 2, sec., 1856 and cases cited in note 15; May on Insurance, vol. 1, sec. 135, page 240 and cases cited in note 2.] In Thompson v. Ins. Co., 52 Mo. l. c. 471, a very similar provision to that contained in this policy was under review, and it was held that the agent had power to waive a forfeiture, and might by a course of dealing create an estoppel to enforce the provision notwithstanding the policy also provided that if the premium was received after it was due it should be considered “as an act of grace or courtesy, and forms no precedent in regard to future payments.” In the case at bar the receipts for premiums provided on their face that they should not be valid unless countersigned by the agent in Kansas City. This policy was, negotiated and issued by the agent in Kansas City. All of the premiums were paid to him. All of the dealings of the insured and of the plaintiff were with him. He must therefore be regarded as the alter ego of the company, and what he did was the same as if the company was present acting for itself. [Nickell v. Ins. Co., 144 Mo. 420.] Under our law a party to a contract in writing may alter, waive, rescind, vary or waive the whole or any provision thereof by a subsequent — 12 — parol agreement, or by acts in pais amounting to an estoppel. Parties may even become liable for tbe acts of tbeir agents by tbeir course of business. [Edwards v. Thomas, 66 Mo. l. c. 482.] III. Insurance companies by tbeir course of business, practice and conduct with respect to tbe payment of premiums, may waive tbe prompt payment thereof, and can not afterwards take advantage of wbat would otherwise be available as a defense on tbe ground of forfeiture. [May on Insurance, vol. 1, secs. 134,135, and cases cited; Ibid, sec. 137a, pp. 244, 245, citing Van Allen v. Ins. Co., 4 Hun. 413; Ins. Co. v. Tullidge, 39 Ohio St. 240.] Joyce on Insurance, vol. 2, sec. 1356, lays down tbe rule that: “If an insurance company or its authorized agent, by its habits of business, or by its acts or declarations, or by a custom to receive overdue premiums without objection, or by a custom not to exact prompt payment of tbe same, or in brief, by any course of conduct, has induced an honest belief in the mind of tbe policy bolder, which is reasonably founded, that strict compliance with a stipulation for punctual payment of premiums will not be insisted upon, but that tbe payment may be delayed without a forfeiture resulting therefrom, it will be deemed to have waived tbe right to claim tbe forfeiture, or it will be estopped from enforcing tbe same, although tbe policy expressly provides for forfeiture for non-payment of premiums as stipulated, and even though it is also conditioned . that agents can not waive forfeitures, and even though the policy provides that receiving overdue premiums is merely an act of courtesy.” The prompt payment of the premiums is for the benefit of the insurer, and may be waived or suspended by it or its agent in express terms or by its course of dealing with the insured. [Ins. Co. v. Hillyard, 37 N. J. L. 444; Palmer v. — 13 — Ins. Co., 84 N. Y. 63; Bouton v. Ins. Co., 25 Conn. 542; McCraw v. Ins. Co., 78 N. C. 149; Ins. Co. v. Adams, 13 Ky. L. Rep. 589; Ins. Co. v. Dowdall, 55 Ill. App. 622; Joyce on Ins., vol. 1, p. 544, sec. 439, and the numerous cases cited in note 145; Ostrander on Ins. (2 Ed.), see. 335.] The question of waiver is, lite any other fact in the ease, essentially a matter for the jury. [Ostrander on Ins. (2 Ed.), sec. 95, p. 302.] IY. "We have not experienced nearly so much difficulty with the proposition of waiver generally, as we have with its application to the facts as disclosed by this record. It is conceded that the June premium or assessment was not paid within thirty days after the first week day in June. Plaintiff contends that it was tendered and refused on the 2d and 3d of July, 1893; that the tender was made to Mr. E. 0.Eames and to Miss Dewey. They both deny this, and assert that Mr. E. 0. Eames ceased to be the agent of the company on March 1st, 1893, went to Chicago, and was not in Kansas City again until the spring of 1894; that Miss Dewey was in the office for an hour on July 1st and 3d each, and went to Ohicago on July 6th, 1893, and returned on the 22d. Mr. John Larimer testified that after the payment was refused from Mrs. James, he went to the office of the company, saw Mr. Eames and Miss Dewey and offered to pay the assessment for Mrs. James, and they refused to accept it. The plaintiff testified that between the date of the policy, October 3d, 1890, and July 1st, 1893, she had paid all the premiums, with two or three exceptions, generally to Miss Dewey, and had paid some of them later than the time at which she tendered the June assessment; had paid some of them on the 2d, 3d and 4th of the next month after they fell due; that when the June assessment was refused, she called — 14 — attention to tbe fact tbat sbe bad paid assessments when they were more than three days past due and they bad been accepted, and Mr. Eames said it was different now because Mr. James was not in good health; and Miss Dewey said they had instructions to watch such cases, and they did “watch them like a hawk.” Of the' fifteen assessments which had been paid prior to June, 1893, only six receipts were produced, five of which showed they were paid befóte the expiration of the thirty days, and one was paid two days after the limited time had expired. As to when the other nine payments were made, we have only the evidence of the plaintiff, who says she had paid some as late as the 2d, 3d and 4th of the month, after the'limited time had expired. Her testimony in this regard is substantially uncontradicted. Upon this showing plaintiff contends that a prima facia case of waiver was made out, which entitled her to go to the jury, and that as there is no- substantial countervailing evidence in the case, the jury properly found that, by its course of dealing, practice or conduct, the defendant had waived the condition of the policy requiring prompt payment of the assessments, and returned a verdict in her favor. On the other hand the defendant insists that there is not sufficient evidence in the case to establish a custom or course of dealing, and strenuously argues that as the receipts, introduced in evidence, showed that only one payment had been made after the time limit for payment had expired, one incident could no more create a custom or course of business, than one swallow could make a summer. ■ It may he conceded that one act waiving a forfeiture would not be sufficient to constitute a course of conduct. In Thompson v. Ins. Co., 52 Mo. l. c. 471, relied on by plaintiff, it appeared that the premium was tendered two days after it was due, and that premiums for previous years had been paid and received weeks after they became due, and the instruction left the question of waiver, by course of business, — 15 — to tbe jury, who found for tbe plaintiff, and tbis court affirmed tbe judgment, saying: “Tbe plaintiff was thus induced to belieye, that a failure of strict payment on tbe day would not prejudice bis rights.” Attention was also called to tbe fact that: “Tbe courts bave become more liberal in tbeir construction of those sort of stipulations in policies of insurance.” Thus, there was presenting evidence of more than one act, and tbe same is true here, for we can not overlook tbe testimony of tbe plaintiff herself; and tbe receipts, not covering tbe whole period, do not controvert or contradict her testimony, nor raise such a suspicion in reference to it as to warrant its total rejection, but on tbe contrary, rather give' color to it, by showing that she did pay and tbe company did receive one assessment after it was past due — and if one, why not more, as long as tbe insured was in good health, and it was tbe premium tbe company wanted? Our law does not require tbe testimony of any given number of witnesses to establish a fact, in cases of tbis character. Tbe plaintiff’s evidence in respect to tbe course of business stands alone. Neither Mr. Eames nor Miss Dewey were even examined on tbis subject. They contradicted her concerning tbe tender of tbe June assessment, and tbe jury must bave believed tbe plaintiff, but they did not contradict her about tbe payment of any of tbe premiums, and confined tbeir testimony to tbe six receipts. It may be that no other witness knew when she bad paid tbe previous assessments. Only tbe plaintiff and Mr. Eames and Miss Dewey would be likely to know anything about that matter, and tbis may account for tbe fact that she stands alone in her testimony in tbis regard. But, however, that may be, tbe fact remains that she so testified — she is not contradicted — she is not impeached. If she told tbe truth, she was entitled to a verdict. Whether she told tbe truth, was for tbe jury to say. They believed her. It is not our practice to set aside a verdict when there is any evidence — 16 — to support it, unless it shows on its face that it must have been the result of passion, prejudice or misconduct of the jury, and it is not enough that there is an insufficiency of evidence; a case will not be reversed unless there is no evidence tending to establish the fact found by the jury. [Moore v. Railroad, 73 Mo. 438; Bray v. Kremp, 113 Mo. 552; State v. Richardson, 117 Mo. 586; Grove v. Kansas City, 75 Mo. 672; Pierce v. Chamberlain, 82 Mo. 618; Eswin v. Railroad, 96 Mo. 290; Williams v. Railroad, 109 Mo. 475; State to use v. Brokerage Co., 85 Mo. 411; Ettlinger v. Kahn, 134 Mo. 492; Vautrain v. Railroad, 78 Mo. 44; Rosecrans v. Railroad, 83 Mo. 678; Manion Wreck. Co. v. Carreras, 26 Mo. App. 229.] The fact that the verdict is not such as the appellate court would have reached upon the conflicting evidence adduced, will not warrant a reversal. [Davis v. Railroad, 46 Mo. App. 180.] And the appellate court, in determining whether the evidence is sufficient to support a verdict for the plaintiff will, laying aside defendant’s controverting evidence, assume that plaintiff’s evidence is true, and will give to it every favorable inference which may be reasonably and fairly drawn from it. [Cohn v. Kansas City, 108 Mo. 387.] Gauged by these precedents and measured by these rules, we are constrained to hold that plaintiff made out a prima facie case of waiver, and the verdict of the jury can not be disturbed on that ground. V. The instructions fairly put the case to the jury in accordance with the law as hereinbefore expressed, and hence there was no error in this particular. Yl. The defendant alleges error in not permitting it to open and conclude the case.' In view of what is herein said with — 17 — reference to tbe admission of evidence of waiver under a plea of performance, tbe burden of proof was clearly upon tbe plaintiff, and tbis assignment of error need not be further dwelt upon. vn. In its motion for new trial defendant alleges tbat, “since tbe trial defendant bas discovered new and important evidence of wbicb it bad no knowledge or information at the trial, and tbe importance or necessity of wbicb was not known to defendant because it was not advised by tbe pleadings of tbe issue on wbicb tbe case was finally submitted to tbe jury.” Tbe evidence here alluded to is shown by tbe affidavits filed in support of tbe motion, to consist of tbe facts relating to tbe time tbe several premiums were received by tbe defendant company at its office in New York, as shown by tbe books of tbe company and tbe reports of tbe agent of tbe company inKansas Oity, and of tbe methods employed by tbe company in sending out notices of assessments on tbe first week day of tbe respective months they fell due, and of tbe affidavit of Miss Dewey, showing when assessments numbered 56 to 67 were paid, and tbe affidavit of Mr. E. 0. Eames to tbe same effect; of an affidavit of Mrs. Louisa M. Yeits tbat E. 0. Eames roomed at her bouse in Chicago from March 2d, 1893, for seven months thereafter, and tbat Miss Dewey likewise roomed at her bouse for two months commencing July 6th or 7th, 1893; and finally, an affidavit of counsel for defendant, in wbicb it is stated tbat as it did not appear from tbe pleadings tbat plaintiff would rely upon any custom or waiver of prompt payment, they “did not have and produce tbe testimony which is embraced in tbe affidavits hereto attached and filed in tbis case.” It is manifest tbat none of tbis evidence is newly discovered evidence, which, by tbe exercise of diligence, tbe defendant was unable to obtain in time for tbe trial. Tbe — 18 — evidence as to the time of payment of the several assessments and the method of sending notices, was in defendant’s possession at all times, and could have been secured before the trial when defendant took depositions in New York. The evidence of Mrs. Veits as to Mr. Eames and Miss Dewey’s presence in Chicago was cumulative of their testimony to the same effect. The facts sworn to by Miss Dewey after the trial, could have been brought out at the time as she was present in'court and testified in the case. Those contained in Mr. Eames’ affidavit could have been brought out when his deposition was taken before the trial. The affidavit of counsel shows very clearly that the reason, none of this was done, was because they did not think it. would be necessary, as they did not expect proof of waiver-would be admitted under a plea of performance. In this they were, of course, laboring under a misapprehension of the-law in this State. The circuit court committed no error in refusing to grant a new trial for these reasons. [Mayor, etc. v. Burns, 114 Mo. 426; State v. Potter, 108 Mo. 424;. State v. Keith, 53 Mo. App. 383; Dean v. Chandler, 44 Mo. App. 338; Macklin v. Railroad, 45 Mo. App. 82; State v. Campbell, 115 Mo. 391; State v. Luke, 104 Mo. 563; State v. Myers, 115 Mo. 394; State v. Cantlin, 118 Mo. 100, and especially State v. Ray, 53 Mo. 345.] Aside from this, the defendant did not make any claim in the circuit court that it was surprised by the ruling of the court on the question of waiver, and made no effort to have the hearing of the-cause postponed until it could get this evidence from its New York office and employees [Schuchman v. Heath, 38 Mo. App. 280], but on the contrary took its chances before the-jury, lost, and is now outside of the pale of relief on this ground. VIII. No protection of the Constitution was claimed in the-circuit court with respect to the rule as to proof of waiver in — 19 — insurance cases, and bence none can be claimed bere. [Vaughn v. Railroad, 145 Mo. 57; Parlin & Orendorff v. Hord, 145 Mo. 117; Hulett v. Railroad, 145 Mo. 35; Sayward v. Denny, 158, U. S. l. c. 184; Oxley Stave Co. v. Butler Co., 166 U. S. 648.] Finding no reversible error in tbe record, tbe judgment of tbe circuit court is affirmed. All concur.