Lacy v. American Central Life Insurance , 232 Mo. App. 1132 ( 1938 )

ON MOTION FOR REHEARING. The plaintiff's motion for rehearing consists mostly of criticism of the court's opinion as erroneous in its holdings adverse to her contention upon issues raised, presented, argued, and submitted in the briefs and of the claim that such opinion conflicts with sundry opinions of both the Supreme Court and the other appellate courts of the State (including opinions of this court) and with Section 5729, Revised Statutes of 1929.

Rule 20 of this court provides that motions for rehearing must be accompanied by a brief statement of the reasons for a reconsideration and must be founded on papers showing clearly that some question decisive of the case and duly presented by counsel in their briefs has been overlooked by the court or that the decision is in conflict with an express statute or a controlling decision to which the attention of the court was not called.

The motion does not direct our attention to any matter presented in her brief that was overlooked by the court in its opinion. The mere fact that such matters were not determined in accordance with the plaintiff's contentions but were determined adversely to her contentions does not mean that they were overlooked, even though not specifically mentioned. The motion, for the most part, is but a mere repetition of the plaintiff's previous arguments in her brief.

The opinions of the Supreme Court with which our opinion is alleged to be in conflict — to-wit, the cases of Heald v. Aetna Life Insurance Company of Hartford, Conn. (Mo.),104 S.W.2d 379; Henderson v. Massachusetts Bonding Insurance Company,337 Mo. 1, 84 S.W.2d 922; Prange v. International Life Insurance Company of St. Louis, 329 Mo. 651, 46 S.W.2d 523; Scotten v. Metropolitan Life Insurance Company, 336 Mo. 724,81 S.W.2d 313; Halsey v. American Central Life Insurance Company,258 Mo. 659, 167 S.W. 951; Gooch v. Metropolitan Life Insurance Company,333 Mo. 191, 61 S.W.2d 704 — and Section 5729, Revised Statutes of 1929, were called to our attention in the briefs. We are unable to find wherein our opinion may be said to conflict with the opinions in my of such cases or with the statute mentioned. The Supreme Court in those cases based its decisions upon the facts before it, as did this court in its opinion in this case; and we endeavored to apply the principles enunciated in those cases so far as we could do so under the facts in this case. Neither do we find wherein there is any conflict between our opinion and the other opinions of the various courts of appeals cited. They were determined in each instance upon the particular facts involved, just as we have determined this case. We have not conflicted with any of them.

The motion directs attention to the case of Dobson v. American Central Life Insurance Company, 112 S.W.2d 148, decided by this court, and complains that the opinion herein does not follow the opinion in that case in holding that, in the policy in question, the insurance for which the first premium paid was term insurance for the year which it covered. So far as that is concerned, we are not bound to follow it; however, there are distinguishing facts in both cases. In holding that the first premium was clearly for insurance for a term expiring January 3, 1931, and that such date became the anniversary date for the payment of the premiums thereafter, we took into consideration all the provisions of the policy and the application therefor, including the recital in the policy in question that the insurance was granted in consideration of a premium of $86.84 for a period terminating January 3, 1931, and a premium of like amount on January 3 annually thereafter, and the provision found in the policy that the first year's insurance is term insurance, purchased by the whole or part of the premiums paid for the first year. It will be noticed that in the Dobson Case no reference is made to any provision in the policy in that case such as the provision in this case — that the first year's insurance is term insurance. The court in that opinion did not have under consideration any such provision. The opinion in this case holding that the first year's insurance is term insurance purchased by the whole or part of the premium paid for the first year is but giving effect to the agreement of the parties that it should be term insurance. In such respect, it is in direct line with the Prange Case and other cases in harmony therewith. The opinion in this case is therefore to be distinguished from the opinion in the Dobson Case.

There is likewise no merit in the plaintiff's contention that the Dobson Case and this case are not in harmony with reference to the maturity and the availability of the coupons attached to the policies for the purposes of extended insurance. The Dobson Case was disposed of on a stipulation of facts introduced in evidence in that case; and likewise this case was tried below largely on a stipulation of facts introduced therein, entirely different. In the Dobson Case, one of the main contentions related to the time of the maturity of a coupon attached to the policy and its availability for application for extended insurance. In this case, there is no dispute as to the coupons, the maturity thereof, or their availability; but it is stipulated that attached to the policy in question were certain coupons in the sum of $19 each, one of which was to become due each year after the policy had been in force for one year and after the premium for the following year had been paid and that three annual premiums had been paid on the policy and two of the coupons had matured. One (namely, No. 1) had matured January 3, 1931, and had been surrendered to the company; and the insured received the benefit thereof. The other coupon (namely, No. 2) matured January 3, 1932, and remained attached to the policy and was available for extended insurance.

The determination of the maturity of the coupon involved in the Dobson Case and its availability for extended insurance was the keystone of that case, upon which the opinion rested. The holding in that case that, from the recital in the policy, the insurance granted for the first year and paid for by the first premium was not term insurance was not necessary to the decision in that case. The question in that case and the one upon which it was disposed of related to the maturity of the coupon and its availability for extended insurance. We are not confronted with any such proposition in this case. The two cases are therefore to be distinguished upon that further ground.

The motion for rehearing raises the further question that the opinion in this case, in reversing the judgment of the trial court without remanding the cause, is in conflict with the cases of State ex rel. [Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372, l.c. 373, and Byrne v. Prudential Insurance Company of America (Mo.), 88 S.W.2d 344, l.c. 347.]

No question of remand was raised by the plaintiff in her brief upon the original submission of this case. She was not appealing and was not seeking a remand. Besides, the case was tried in the lower court upon the agreed facts submitted, and it was disposed of in the opinion upon the theory that such agreed facts were the facts in this case. We were therefore not called upon to remand the case.

The motion for rehearing is overruled. All concur.