New York Life Insurance v. Stone , 1890 Mo. App. LEXIS 391 ( 1890 )

Gill, J.

The plaintiff recovered a judgment against defendant in the court below, for the amount of the first, or cash, premium on a life-policy of insurance alleged to have been issued to the defendant, and defendant has appealed. There is little for us to review. The cause was tried by the court sitting as a jury, and since no declarations of law were asked or refused, and none given by the court of its own motion, we are left uninformed as to the theory of law upon which the cause was determined. If the defendant desired a review of the law of the case he should have requested declarations of law in the circuit court. Since this was not done we are not advised whether the court found against defendant on the law or on the facts. Miller v. Breneke, 83 Mo. 163 ; Wood v. Land, 22 Mo. App. 425.

However, we have read this record, and considered defendant’s brief, and discover no reason whatever for disturbing the judgment. Plaintiff’s petition, and evidence in support thereof, exhibit a clear liability against the defendant for the amount sued for. Assuming as true the statements of witnesses introduced by plaintiff (which we must suppose was found by the trial'court) there is ample evidence to sustain the judgment. Measured in the light of that testimony, Stone applied to plaintiff for a policy of .insurance on his life, and, in pursuance thereof, a policy was issued and delivered to him. By the terms of the contract between insurer and insured, on delivery of policy, the insured. (Stone) agreed to pay plaintiff company, cash, the sum of one hundred and seventy-five dollars. Defendant received the policy from the agent, who, expecting payment in a day or two, permitted Stone to retain the same. Payment was demanded shortly thereafter, but •defendant refused and offered a return of the policy which the company declined to accept. Whereupon the suit was brought.

Defendant seeks protection from that provision of the application which stipulates that the policy shall not become operative until payment of the cash premium. This cannot avail the defendant. That provision in the contract is entirely for the benefit of the insurance company. It was in the power of the company to decline delivering the policy until payment of the cash premium, but its right to retain the policy might, be waived by plaintiff, and it seems was waived, since the policy was delivered, and defendant given a few days to make good the cash premium. The application, as signed by defendant and sent in to the plaintiff insurance company was not a contract of insurance. It was a mere proposal to insure; but, when the policy was issued and delivered to defendant, then the contract was complete in all its parts, and defendant became bound to pay the premium. An obligation was by him assumed by accepting the policy. McAllister v. Ins. Co., 101 Mass. 558 ; Herman v. Ins. Co., 17 Minn. 153 ; Miller v. Ins. Co., 12 Wall. 285.

, Further question is made, in defendant’s brief as to the sufficiency of plaintiff’s petition, in that “there is no allegation that plaintiff (a foreign insurance company ) had complied with the law regulating the terms upon which such companies may do business in this state.” This contention, too, is without merit. That plaintiff had not complied with,the statute is matter of defense, and should be set up in defendant’s answer.. In the absence of an adverse showing the law will presume plaintiff had complied with the requirements of the insurance law in this regard. May on Ins., sec. 590 ; Williams v. Cheney, 3 Gray, 215 ; Fitzsimmons v. Ins. Co., 18 Wis. 234; American Ins. Co. v. Smith, 73. Mo. 368.

Judgment affirmed,

all concur.