Bishop v. Covenant Mutual Life Insurance

BIGGS, J. — In consideration of monthly premiums to be thereafter paid on the first day of each month at its office in the city of St. Louis, the defendant issued its policy of insurance on the life of plaintiff. The plaintiff paid the premiums from Eebruary, 1891 to August, 1898. The defendant declared the policy forfeited for the alleged nonpayment of the premium due on the first day of September, 1898. The present action is to recover back the amount of premiums with interest, upon the ground that the September installment was promptly tendered and hence the action of defendant in refusing to receive it and in forfeiting the contract was wrongful. The plaintiff resides in the city of Hannibal. His claim is that he sent the amount of the September assessment by mail; that the letter was deposited in the post office in the city of Hannibal on the afternoon of August 31, and that it arrived at defendant’s office by due course of mail on the first day of September, the day the premium was due. The evidence offered by the defendant tended to prove that the letter referred to by plaintiff was not received by it until September 3d; that it was mailed in Hannibal on the preceding day, and that immediately upon the receipt of the money the defendant returned it and notified the plaintiff that his policy was forfeited. [306] The date of the receipt of the money was the only issue of fact. The court sitting as a jury found that the money was received by the defendant on the first day of September, and it thereupon rendered judgment in favor of the plaintiff for the amount of premiums paid with interest added. The defendant has appealed. The assignment of error that the evidence is insufficient to support ,the judgment must be sustained. There was no substantial evidence that the letter inclosing the September premium was received at the defendant’s office in the city of St. Louis on the first day of September. The extent of the proof offered by plaintiff was that he mailed the letter between three ond four o’clock on the afternoon of August 31st. In order to help out the plaintiff’s case we may take judicial notice of the geographical locations of the city of Hannibal and the city of St. Louis (1 Grreenl. on Evid., sec. 6); also that there are railroads in operation between the two cities, and the ordinary speed of trains, and thus determine the time required for the transportation of a letter from one place to the other. Pearce v. Eangfit, 101 Pa. St. 507. But to uphold the judgment we must also assume that there are daily mails between the two cities, and that a mail train left the city of Hannibal after four o’clock on the afternoon of August 31st in time for plaintiff’s letter to reach the defendant’s office the following day. This would be stretching the doctrine of judicial notice to an extent unwarranted by any precedent to which our attention has been directed. A court can not take judicial notice of time of the arrival or departure of trains. Wiggins v. Burkham, 10 Wall. 129. In view of another trial or a possible settlement of the controversy it is proper to notice other assignments. The contention that the defendant was entitled to a judgment by reason of the alleged insufficiency of plaintiff’s reply, is without merit, for the reason that the answer contains [307] no new matter, and hence a reply was unnecessary. If the premium was tendered in time, then the refusal of defendant to receive it and its declaration of forfeiture were wrongful, which entitled the plaintiff to recover back the amount of the premiums theretofore paid. This is the law of this state, whatever the rule may be elsewhere. McKee v. Ins. Co., 28 Mo. 383; Suess v. Ins. Co., 64 Mo. App, 1. The provision in the policy that if it “shall lapse for the nonpayment of any premium the insured shall be entitled to extended insurance,” is but declaratory of a statutory right, (chap. 89, art. 2, R. S. 1889) and is for the benefit of the insured, if he so elects, where the company wrongfully declares a forfeiture. The stipulation in the policy “that no moneys payable to the company on account hereof shall be considered as paid unless a receipt be given therefor signed by the president or secretary thereof,” etc., can have no application where the money is sent by the policyholder direct to the office of the company. This provision is intended only to protect the company against unauthorized payments to local agents or collectors. Eor the error pointed out the judgment will be reversed and the cause remanded. All concur.