
    Mary Richards, Respondent, v. Hartford Life and Annuity Insurance Company, Appellant.
    Kansas City Court of Appeals,
    February 1, 1897.
    1. Life Insurance: general v. assessment: statute. The Missouri statutes make an important distinction between general life insurance companies and assessment insurance companies, being more favorable to the assured in the former than in the latter.
    2. Trial Practice: submission: amendment of pleadings. Where, after the pleadings are made up, a cause is submitted on an agreed statement of facts, the pleadings may be amended to conform to the submission, but not so as to have the effect of changing the terms of the submission or to meet the exigencies of the trial.
    3. Life Insurance: premium : waivep. of payment: jury question. On the facts in- this ease there was no waiver of the nonpayment of the premium, but whether there was a waiver is a question to be determined by the -trier of the fact.
    
      Appeal from the Jackson Circuit Court. — Hon. E. L.. Scarritt, Judge. ’
    Reversed.
    
      
      Balph E. Scofield for appellant.
    (1) The judgment is not supported by the evidence in the case. The judgment should have been for the defendant notwithstanding the finding of the court that defendant was not an ‘Assessment plan,; company. See authorities cited under 2 below. (2) The agreed statement of facts specially stipulated that this case was to be submitted upon the question of forfeiture and waiver. Where a case is to be tried upon an agreed statement made by the parties thereto, that agreed statement governs. That agreed statement takes the ■place of everything else, and the court is governed thereby. Mnnford v. Wilson, 15 Mo. 557; Gage v. Gates, 62 Mo. 416; Hammontree v. Haber, 39 Mo. App. 328; State v. B’y, 34 Mo. App. 591; Hannah v. Baylor, 27 Mo. App. 313.
    
      Kenneth MeG. BeWeese for respondent.
    (1) The law does not favor forfeiture. Slight circumstances are enough to show a waiver. McFarland v. Accident Ass’n, 124 Mo. 204-217; Hanthorne v. Ins. Co., 5 Mo. App. 73; Thompson v. Ins. Co., 52 Mo. 469; Hanley v. Life Association, 69 Mo. 380; Sims v. Ins. Co., 47 Mo. 54, 61, 62; Goedeche v. Ins. Co., 30 Mo. App. 601; Ins. Co. v. Unsell, 144 U. S. 439. See opinion Thayer, J., instructing jury in the case last cited in 32 Fed. Rep. 443; Ins. Co. v. Foster, 106 U. S. 30; Ins. Co. v. Norton, 96 U. S. 239; Ins. Co. v. Eggleston, 96 U. S. 96; Ins. Go. v. Moivry, 96 U. S. 544.
   Ellison, J.

This is an action on a life insurance policy, the plaintiff being the widow of the assured. The trial was before the court without the aid of a jury and resulted in a judgment for plaintiff for $2,148.80. The cause was submitted to the court on an agreed statement of facts and of the claims of the respee-(;iye parties, which were submitted for decision:

“Now this day come the parties to the above entitled cause and agree to submit the above matter to the court for its. determination thereof, and. agree that the following are the facts upon which the same is to be decided: Plaintiff claims to recover of defendant two thousand dollars ($2,000) upon a life insurance policy issued by defendant upon the life of Lawrence Richards, deceased, husband of and insured for the benefit of said Mary Richards. Defendant claims that by virtue of the conditions of said policy and the neglect of said Lawrence Richards to pay an assessment which became due and payable on October 11,1894, but upon which four days of grace were allowed, making the last date for payment October 15, 1894, had lapsed and all the right and benefit under said policy had terminated. Lawrence Richards, the insured, was found dead in his bed on the morning of November 1, 1894. Plain-' tiff claims that defendant, by its course of dealing with the plaintiff, had waived a strict compliance with the terms of the policy. Defendant denies any such waiver on its part. The following are the facts upon which the said controversy depends, to wit:” etc.

This agreed statement was entered into after the pleadings were made up. The pleading consisted of a petition, answer, and reply. The petition recited that the policy was “filed herewith,” but did not make the policy a part of the petition. The answer, among other things, set up that the defendant was a company organized on the “assessment plan.” The reply did not deny this. After the cause .had been heard by the court, he took it under advisement and announced his finding and decision on or before October 17. Defend ant, on that date, filed a motion for judgment, notwithstanding the finding. Defendant, on said date, also filed its motion for new trial and in arrest of judgment. The latter motions were overruled on October 19, and on th latter day, but before the motions were acted on, plaintiff was given leave, over defendant’s objection, to amend his petition by interlining immediately after the words stating that the policy was “filed herewith,” the following: “and made a part of this petition as though fully set forth herein at length and to which the plaintiff begs leave to refer.”

The court found that there had been no waiver of the payment of the premium due October 15, 1891. But the court further found, or concluded, under the wording of the policy as construed by the court, that defendant was, practically, not an assessment company as regards this insurance, at least, until the lapse of seven years from the date of the ... mi-.*.*!! policy. That until the expiration of that time, the case must be considered as though defendant was a general life insurance company. The distinction is important in this state, since we have statutes favorable to the assured in general life insurance companies that do not apply to companies on the assessment plan. Handford v. Ins. Co., 122 Mo. 59. By construing this policy to be governed by the statutes relating to general life insurance, sections 5856, 5858 became applicable, and plaintiff would be entitled to recover of defendant an amount to be determined by those sections, notwithstanding the provisions for forfeiture for nonpayment of premiums.

But was the court authorized to pass on any question other than those submitted, by the parties? We think not. It is evident that the agreed submission only embraced the question of whether defendant, “by its course of dealing with plaintiff, had waived” a compliance with the policy. It was doubtless with a view or giving the submission a broader limit that the amendment to the petition was made, whereby the policy became a part of the petition. As the petition stood at and before the trial, it did not disclose whether defendant was a general or assessment plan company. • The answer alleged that it was the latter. The reply only denied new matter in the answer, which was “inconsistent” with the petition, and therefore did not deny the allegation that defendant was an assessment company. By amending the petition so as to have it include the policy as one of its constituent parts, it left room for the argument that the allegation in the answer that defendant was an assessment company was denied by the reply, since, as is contended, the policy shows itself to be a general insurance policy and therefore inconsistent with the allegation of the answer that it was an assessment company. But the agreed submission was executed before the trial and was based on the pleadings as they then stood. It is manifest that, over the protest of one of the parties, you can not so alter the pleadings as to change the meaning and scope of the submission. In other words, you can not amend the pleadings so as to alter the rights of the parties as fixed by the submission. The pleadings could be amended so as to conform to the terms of the submission, but not so as to have the effect of changing the terms. We shall therefore construe the submission as though the petition had not been amended after the court’s finding.

That such submission, or agreed statement of the matter in • controversy, was only intended to apply to the one controversy of waiver is apparent from its terms, as above set out. It is furthermore made apparent from the fact that all of the evidence referred to in the submission as exhibits, etc., relate to the acts and doings of the parties showing the ‘‘course' of dealing,” to establish a waiver. It is evident that the parties considered the right of the controversy was to be determined by the question of waiver and that all else was conceded. In this view, a submission duly made by the parties can not be altered to meet'the exigencies of the trial. Hammontree v. Huber, 39 Mo. App. 326.

2. It remains to determine whether the case presented justified the court in' finding that there was no waiver by defendant. We are of the opjnion that B did. The deceased took out the insurance on July 11,1892, the policy, or certificate of membership, requiring the payment of premiums quarterly with three days of grace, and providing for forfeiture in case they were not paid. This made payments due on October 15, 1892; January Í5, 1893; April 15, 1893, etc. The two latter payments were not make when due, but were received by the defendant a few weeks later, the plaintiff furnishing a health certificate and being reinstated by defendant, as it was provided in the policy or certificate it might do. All other payments down to the one due October 15, 1894, were promptly paid. The latter was not paid at all, as shown by the following facts: Payment was tendered October 27, 1894, in response to a letter from defendant of October 22, re-' minding deceased that the payment had not been made, that he stood, in consequence, without insurance; that if he would make application for reinstatement, including a health certificate, defendant would consider it, and if it did not reinstate him, would return the money accompanying the application. Accompanying the tender of payment October 27 was the application for reinstatement and the health certificate, but the latter was not dated. On October 31, deceased made another application for reinstatement in proper form, with health certificate duly dated, and that night he died. The defendant refused to reinstate him and returned the check for the premium which was inclosed.

The most that can be said for the plaintiff is that the defendant’s course of dealing with the deceased was of such character as left it a matter to be determined by. the trier of the facts. It seems that under the ruling of the supreme court in the case of Reichenbach v. Ellerbee, 115 Mo. 588, the trial court would have been justified in declaring, as a matter of. law, that there was no waiver. In that case, there was evidence tending tó prove that the officers of the insurance company permitted the deceased “on many occasions to pay prior assessments after” the time fixed upon. This evidence was withdrawn from the jury by an instruction. But it was not considered as showing a waiver from the fact that the supreme court ruled that the “undisputed facts” called for a peremptory instruction against the plaintiff. The’court added these words: “There is no evidence in the case upon which this verdict can rest. There was no lack of evidence on the part of the defendant to make its defense of forfeiture as complete and perfect as in reason such a defense could be made by unimpeached and uncontradicted evidence. The verdict (in the teeth of the court’s instruction and the evidence) must have been the fruit of an unreasoning sympathy by the jury for the bereaved widow (whose^ case was then before them) unmindful of the superior claims of other similar unfortunates, who, by the due performance of the conditions of similar contracts, in law and in equity, have a better right to a fund which by this verdict would be taken from them and given to the plaintiff, if it were permitted to stand.”

But we will not put our decision on the authority of that ease, since, under the terms of the opinion in the strongest case cited to us by plaintiff (Hartford Ins. Co. v. Unsell, 144 U. S. 439), the question was one. of fact to be determined by the trier of the fact. The cases of Sims v. Ins. Co., 47 Mo. 54, and Hanley v. Ins. Co., 69 Mo. 383, are not applicable in their facts to the case at bar.

The foregoing considerations lead to a reversal of the judgment and it is so Ordered.

All concur. •  