Hablutzel v. Home Life Insurance Co.

Full title: GEORGE F. HABLUTZEL v. HOME LIFE INSURANCE COMPANY OF NEW YORK, Appellant

Court: Supreme Court of Missouri, Division One

Date published: Apr 20, 1933

59 S.W.2d 639 (Mo. 1933)

59 S.W.2d 639

Opinion

April 20, 1933.

1. INSURANCE: Disability Benefit: "Due Proof." Where a life insurance company, on notice of a permanent disability for which the policy provided a benefit, caused its agent to make an investigation, it construed notice to be "due proof" of such disability.

2. INSURANCE: Disability Benefit: "Due Proof." Where a life insurance policy provided for a permanent disability benefit and insured's wife, after such disability, in ignorance of that provision, continued to pay the premiums but told the insurer's agent that the insured was permanently disabled, this was "due proof" of such disability.

3. INSURANCE: Notice of Disability: Waiver of Premiums. Where a life insurance policy provided that, if insured should furnish "due proof" of total disability, the company would agree to waive the payment of premiums "which may thereafter fall due during the continuance of such disability," this meant that the waiver applied to premiums becoming due after the insured became disabled and not merely after notice was given; a construction favorable to the insured.

4. INSURANCE: "Due Proof:" Pleading. In an action by insured to recover premiums paid during disability, where the petition alleged that notice was given of the disability, it was a sufficient averment of "due proof."

5. APPEAL AND ERROR: Assignment of Error. Alleged errors not assigned in appellant's motion for a new trial are not for review by appellate court.

Appeal from Circuit Court of City of St. Louis. — Hon. M. Hartmann, Judge.

AFFIRMED.

Jones, Hocker, Sullivan Gladney for appellant; Benjamin R.C. Low of counsel.

(1) The premiums paid, for which recovery is sought in this suit, were voluntary payments and cannot be recovered. Claflin v. McDonough, 33 Mo. 412; Christenson v. Insurance Co., 160 Mo. App. 486; Pritchard v. People's Bank, 198 Mo. App. 597; Campbell v. Clark, 44 Mo. App. 249; Wilkins v. Bell's Estate, 261 S.W. 758; New York Life v. Fletcher, 117 U.S. 519; Underwriters Co. v. Rife, 237 U.S. 605; Epstein v. Mutual Life, 257 N.Y.S. 772. (2) The plaintiff did not comply with the condition of the disability benefit requiring the furnishing of proof of disability. (a) There was no waiver by defendant of this condition. 27 R.C.L. pp. 904, 905, 909; Holt v. Nat. Life, 263 S.W. 524; Keys v. Knights Ladies of Security, 174 Mo. App. 671; Leigh v. Springfield Ins. Co., 37 Mo. App. 542; Porter v. German Ins. Co., 62 Mo. App. 520. (b) The statement made by insured's wife to defendant's local cashier when negotiating an extension of time for payment of premium due in June, 1922, that insured was disabled did not constitute the furnishing of proof of disability as required by the policy. O'Reilly v. Guardian Ins. Co., 60 N.Y. 169. (c) The condition was a reasonable and necessary requirement. Parker v. Jefferson Standard Life Ins. Co., 155 S.E. 617; Courson v. New York Life Ins. Co., 145 A. 530; New England Life Ins. Co. v. Reynolds, 116 So. 151. (d) Under the rule in Missouri this requirement was a condition precedent. Insurance Co. v. Kyle, 11 Mo. 275; McCulloch v. Insurance Co., 113 Mo. 606; McFarland v. United States Acc. Co., 124 Mo. 204; Hanna v. Am. Central Ins. Co., 36 Mo. App. 538; Porter v. German Am. Ins. Co., 62 Mo. App. 520; Roseberry v. American Ben. Assn., 142 Mo. App. 552; Hayes v. Continental Casualty Co., 98 Mo. App. 410. (e) The Supreme Court of the United States likewise holds this requirement to be a condition precedent. Bergholm v. Peoria Life, 284 U.S. 489. (f) The following cases are on all fours with this case and a recovery of the premiums paid was denied. Epstein v. Mutual Life, 257 N.Y.S. 772; Perlman v. New York Life, 254 N.Y.S. 646; Walters v. Jefferson Standard, 20 S.W.2d 1038; Parker v. Jefferson Standard, 155 S.E. 617. (g) The courts of other jurisdictions hold this requirement to be a condition precedent. Northwestern Mut. Life v. Dean, 157 S.E. 878, affirmed 165 S.E. 878; O'Reilly v. Guardian Ins. Co., 60 N.Y. 169; Penn. Mut. Life Ins. Co. v. Milton, 127 S.E. 799; Parker v. Jefferson Standard, 155 S.E. 617; Courson v. New York Life, 145 A. 530; New England Mut. Life v. Reynolds, 116 So. 151; Smith v. Franklin Ins. Co., 202 P. 751; Hall v. Acacia Life, 46 S.W.2d 56; Wolfe v. Mutual Life, 3 Tenn. App. 199; Smith v. Missouri State Life, 7 P.2d 65; Berry v. Lamar Life, 142 So. 445; Egan v. New York Life, 60 F.2d 268; Wright v. Atl. Life Ins. Co., 164 S.E. 500; Brams v. New York Life, 148 A. 855; Hanson v. Northwestern Life, 229 P. 630; Mid-Continent Life Ins. Co. v. Skye, 240 P. 630; Mid-Continent Life Ins. Co. v. Walker, 260 P. 1109; Jones v. New York Life, 290 P. 333. (h) Marshall v. Minnesota Mutual Life, 29 F.2d 977, distinguished. (i) Repudiation of holding in Marshall case. Bergholm v. Peoria Life, 284 U.S. 489; Orr v. Mutual Life, 57 F.2d 901. (3) The decree is erroneous in requiring the defendant to endorse the policy for a waiver of the payment of further premiums. (4) The money award in the decree is excessive in any event. Leahy, Saunders Walther and J.L. London for respondent.

(1) Respondent can recover money paid under a mistake of fact. 3 Couch Cyclopedia of Ins. Law, sec. 729; Hartford Life Ins. Co. v. Douds, 103 Ohio St. 398, 136 N.E. 274, affirmed 274 U.S. 476; Equitable Life Assur. Society v. Brame, 112 Miss. 859, 73 So. 812; McKee v. Phoenix Ins. Co., 28 Mo. 383; Taylor v. Sumner, 4 Mass. 56. (2) Appellant had sufficient notice and proof. Williams v. Atlans Ins. Co., 97 S.E. 91; Jackson v. Life Annuity Assn., 195 S.W. 535; Bergholm v. Peoria Life, 284 U.S. 489; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F.2d 977; Southern Life Ins. Co. v. Hazard, 146 S.W. 1107; Merchants Life Ins. Co. v. Clark, 256 S.W. 969; State Life Ins. Co. v. Fenn, 269 S.W. 1111; Met. Life Ins. Co. v. Carroll, 273 S.W. 54; Hagman v. Equitable Life Assur. Soc., 282 S.W. 1112; Levan v. Met. Life Ins. Co., 136 S.E. 304; Marti v. Midwest Life Ins. Co., 189 N.W. 388; Fidelity Mutual Life Ins. Co. v. Gardner, 25 S.W.2d 69; 50 C.J. 720; Jarvis v. Northwestern Mut. Relief Assn., 78 N.W. 1089; Insurance Co. v. Rodel, 95 U.S. 232; Bank of Commerce, Admr., v. Northwestern Nat. Life Ins. Co., 160 Tenn. 551, 26 S.W.2d 135, 68 A.L.R. 1380; Missouri State Life Ins. Co. v. Le Fevre, 10 S.W.2d 267; Hogman v. Equitable Life Assur. Soc., 214 Ky. 56, 282 S.W. 1112. (a) The above rule is especially true where the insurance company can show no prejudice. Gunsul v. American Surety Co., 308 Ill. 312, 139 N.E. 620, aff. 225 Ill. App. 76; Maryland Casualty Co. v. Ohio River Gravel Co., 20 F.2d 514, certiorari denied 275 U.S. 570; U.S. Fidelity, etc., Co. v. McNulty Bros. Inc., 13 F.2d 78; People v. Traves, 188 Mich. 345, 154 N.W. 130; 50 C.J. 153, par. 252; 7 Couch, Cyc. of Ins. Law, par. 1507, p. 5385; 7 Couch, Cyc. of Ins. Law, par. 1538-K, p. 5481; Provident L.I. Investment Co. v. Baum, 29 Ind. 236. (b) The clause requiring proof only fixes the time when payment is to be made, not the time when payment is to start. The insurance company is liable for the full time of the disability. Fidelity Mut. Life Ins. Co. v. Gardner, 233 Ky. 88, 25 S.W.2d 69; Levan v. Met. Life Ins. Co., 138 S.C. 253, 136 S.E. 304; Marti v. Insurance Co., 108 Neb. 845, 189 N.W. 388, 29 A.L.R. 1507; Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S.W. 366; State Life Ins. Co. v. Fenn, 269 S.W. 1111; Merchants Life Ins. Co. v. Clark, 256 S.W. 969; Met. Life Ins. Co. v. Carroll, 209 Ky. 522, 273 S.W. 54; Mid-Continent Life Ins. Co. v. Hubbard, 32 S.W.2d 701; Corsaut v. Equitable Life Assur. Soc., 203 Iowa 741, 211 N.W. 222; Southern Life Ins. Co. v. Hazard, 148 Ky. 465, 146 S.W. 1107. (3) The decree is not erroneous. See cases cited under Points 1, 2. (4) Respondent was entitled to recover premiums paid under mistake of fact, together with interest. White Co. v. Betting, 46 Mo. App. 417; Battel v. Crawford, 59 Mo. 215; Handlan-Buck Mfg. Co. v. Stave Electric Co., 169 S.W. 785; R.S. 1929, sec. 1262.

William C. Michaels, Kenneth E. Midgley, Meservey, Michaels, Blackmar, Newkirk Eager, Jourdan English and R.F. O'Bryen amici curiae.

(1) The conclusions of the trial court and the opinion of the majority of the Court of Appeals are in direct conflict with many decisions of this court and of the courts of appeal, as follows: Prange et al. v. International Life Ins. Co., 46 S.W.2d 526; State ex rel. v. Allen, 301 Mo. 631, 254 S.W. 194; Graves v. Met. Life Ins. Co., 279 Mo. 240, 162 S.W. 298; Schwab v. Brotherhood Am. Yeomen, 305 Mo. 148, 264 S.W. 690; St. Louis Ins. Co. v. Kyle, 11 Mo. 278; McCulloch v. Ins. Co., 113 Mo. 606, 21 S.W. 207; McFarland v. U.S. Acc. Co., 124 Mo. 204, 27 S.W. 436; Blanke Bros. Realty Co. v. Am. Surety Co., 297 Mo. 41, 247 S.W. 797; Darby v. Northwestern Life Ins. Co., 293 Mo. 1, 239 S.W. 68, 21 A.L.R. 920; Lewis v. James McMahon Co., 307 Mo. 567, 271 S.W. 779; American Ins. Co. v. Neiberger, 74 Mo. 173; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81; Claflin v. McDonough, 33 Mo. 412; Cochrane v. Standard Acc. Ins. Co., 219 Mo. App. 322, 271 S.W. 1011; Hanna v. American Central Ins. Co., 36 Mo. App. 538; Porter v. German Am. Ins. Co., 62 Mo. App. 520; Roseberry v. Am. Ben. Assn., 142 Mo. App. 552; Hayes v. Cont. Cas. Co., 98 Mo. App. 410, 72 S.W. 135; Christensen v. N.Y. Life Ins. Co., 160 Mo. App. 486, 141 S.W. 6; Keys v. K. L. of Sec., 174 Mo. App. 686, 161 S.W. 345; Browning v. Springfield Fire Ins. Co., 8 S.W.2d 941; Hausen v. Citizens Ins. Co., 66 Mo. App. 29; Holt v. Natl. Life Ins. Co., 263 S.W. 524; Pritchard v. People's Bank, 198 Mo. App. 597, 200 S.W. 665; Wilkins v. Bell's Estate, 261 S.W. 927. (2) The disability clause, here involved, is in no sense ambiguous. State ex rel. v. Allen, 301 Mo. 631, 254 S.W. 194; Blanke Bros. Realty Co. v. Am. Surety Co., 297 Mo. 41, 247 S.W. 797; Cochrane v. Standard Accident Ins. Co., 219 Mo. App. 322, 271 S.W. 1012; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489; Gorman v. Fid. Cas. Co. of N.Y., 55 F.2d 6; And the cases cited under Point 3. (3) The furnishing to the company by insured of due proof that he was totally disabled was a condition precedent to the right of insured to claim a waiver of premium payments. Graves v. Met. Life Ins. Co., 279 Mo. 240, 162 S.W. 298; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 Sup. Ct. 230, affirming; Peoria Life Ins. Co. v. Bergholm, 50 F.2d 67; Egan v. New York Life Ins. Co., 60 F.2d 268; Orr v. Mutual Life Ins. Co. of N.Y., 57 F.2d 901; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F.2d 979; Epstein v. Mut. Life Ins. Co. of N.Y., 257 N.Y.S. 772, 143 Misc. 587; Perlman v. New York Life Ins. Co., 234 A.D. 359, 254 N.Y.S. 646; Walters v. Jefferson Standard Life Ins. Co., 159 Tenn. 541, 20 S.W.2d 1038; Mary Wolfe v. Mutual Life Ins. Co. of N.Y., 3 Tenn. App. 199; Dean v. Northwestern Mut. Life Ins. Co., 43 Ga. App. 67, 157 S.E. 878; Hall v. Acacia Mutual Life Assn., 46 S.W.2d 56; Wick v. Western Union Life Ins. Co., 104 Wn. 129, 175 P. 953; Smith v. Mo. State Life Ins. Co., 134 Kan. 426, 7 P.2d 65; New England Mut. Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A.L.R. 1075; Courson v. New York Life Ins. Co., 295 Pa. 518, 145 A. 530; Berry v. Lamar Life Ins. Co., 142 So. 445; Brams v. New York Life Ins. Co., 299 Pa. 11, 148 A. 855; Hanson v. Northwestern Mutual Life Ins. Co., 229 Ill. App. 15; Mid-Continent Life Ins. Co. v. Skye, 113 Okla. 184, 240 P. 630; Yohamen v. Columbian Nat. Life Ins. Co., 240 N.Y.S. 666, 136 Misc. 748; Mid-Continent Life Ins. Co. v. Walker, 260 P. 1109; Jones v. New York Life Ins. Co., 290 P. 333; Parker v. Jefferson Standard Life Ins. Co., 155 S.E. 617, 158 S.C. 394; Corbett v. Phoenix Mut. Life Ins. Co., 259 N.Y.S. 221; Wright v. Atlantic Life Ins. Co., 148 S.E. 500; Penn. Mut. L. Ins. Co. v. Milton, 127 S.E. 799; Smith v. Franklin Ins. Co., 61 Mont. 441, 202 P. 751; O'Reilly v. Guardian Ins. Co., 60 N.Y. 174. (4) The case of Minnesota Mutual Life Insurance Company v. Marshall, 29 F.2d 977, does not support the decision of the circuit court or of the St. Louis Court of Appeals in the case at bar. On the contrary, on the facts in the case at bar, the Marshall case is in favor of the appellant. (5) The disability provision requiring the furnishing of due proof before any liability can attach is not only valid and reasonable but it is necessary for the protection of insurance companies and their policyholders, and as a matter of public policy, and this is, alone, a complete answer to respondent's suggestion that no prejudice resulted to the company by the insured's failure to comply with conditions requiring proof. New York Life Ins. Co. v. Statham, 93 U.S. 30; Klein v. Insurance Co., 104 U.S. 92; New England Mut. Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A.L.R. 1075; Berry v. Lamar Insurance Co., 142 So. 445; Egan v. New York Life Ins. Co., 60 F.2d 268; Smith v. Missouri State Life Ins. Co., 134 Kan. 426, 435, 7 P.2d 65; Parker v. Jefferson Standard Life Ins. Co., 158 S.C. 394, 155 S.E. 617, 70 I.L.J. 281; Courson v. New York Life Ins. Co., 295 Pa. 518, 145 A. 530; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489; Jefferson Realty Co. v. Employers, etc., Corp., 49 Ky. 741, 149 S.W. 1011; Weatherwax v. Royal Indemnity Co., 250 N.Y. 281, 165 N.E. 295; St. Louis Architectural Iron Co. v. New Amsterdam Cas. Co., 40 F.2d 344; Whalen v. Western Assur. Co., 185 F. 490; Phoenix Cotton Oil Co. v. Royalty Indemnity Co., 205 S.W. 128, 140 Tenn. 438. (6) The insured did not comply with the conditions that due proofs must be furnished to the company by him, and such proofs were not waived. The holdings of the courts below that due proofs were furnished and that there was a waiver are in direct conflict with the decisions of this court. (a) "Proof" is evidence; "notice" or "information" is not "proof;" and in this case no proof whatever was ever furnished to the company. Inter-Ocean casualty Co. v. Johnson, 47 S.W.2d 696; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N.Y. 169; Da Rin v. Casualty Co., 41 Mont. 175; Watertown Fire Ins. Co. v. Sewing Mach. Co., 41 Mich. 131, 1 N.W. 961; Cargill v. Millers' Ins. Co., 33 Minn. 90, 22 N.W. 6; Ervay v. Fire Assn., 119 Iowa 304, 93 N.W. 290; Central City Ins. Co. v. Oates, 86 Ala. 558, 6 So. 83; Graves v. Insurance Co., 82 Iowa 637, 49 N.W. 65; Smith v. Franklin Ins. Co., 61 Mont. 441, 202 P. 751; Jarvis v. Northwestern Mutual Relief Assn., 102 Wis. 546, 78 N.W. 1089; 5 Joyce on Insurance (2 Ed.) sec. 3290; Knight Templar Life Ind. Co. v. Crayton, 209 Ill. 550, 70 N.E. 1066; Traiser v. Commercial Travelers, 88 N.E. 901; Security Bank v. Equitable Life, 71 S.E. 647; Buffalo, etc., Trust Co. v. Knight Templar, etc., 126 N.Y. 450, 27 N.E. 942; Insurance Co. v. Rodel, 95 U.S. 232; 33 C.J. 6, 17, 18. (b) Insured could not furnish "due proof" without intention or claim. Home Insurance Co. v. Driver, 87 Ark. 171; State Insurance Co. v. Lock, 191 Iowa 1083, 183 N.W. 311; Ervay v. Fire Assn., 119 Iowa 304; Woodard v. Security Ins. Co., 201 Iowa 378, 207 N.W. 351. (c) The company had no duty to secure proofs or to ask plaintiff to submit proofs and mere silence was not a waiver of proofs. 33 C.J. 26; Schwab v. Brotherhood of American Yeomen, 305 Mo. 155, 264 S.W. 692; Continental Ins. Co. v. Dorman, 125 Ind. 189; Martin v. Illinois Commercial Men's Assn., 195 Ill. App. 421; Great Western Ins. Co. v. Staaden, 26 Ill. 360; Aetna Insurance Co. v. Jones. 64 Ind. App. 251, 115 N.E. 697; Continental Ins. Co. v. Parkes, 142 Ala. 650, 39 So. 204; Barnard v. Megorden, 178 N.E. 868; Da Rin v. Casualty Co. of Am., 41 Mont. 175; Davis v. Yorkshire Ins. Co., 288 S.W. 80; Carusone v. Am. Col. Ins. Co., 247 N.Y.S. 738. (d) Miss Samuels, a mere cashier of a local office could not waive proofs and even if proofs had been furnished to her, it would not have been "proof to the company." Pardon v. Wasvary, 249 Ill. App. 327; Gambino v. Northern Ins. Co. of N.Y., 232 Mich. 561, 205 N.W. 480; on rehearing, 234 Mich. 651, 209 N.W. 119; Arkansas Mut. Fire Ins. Co. v. Clark, 84 Ark. 224, 105 S.W. 257; Eikelberger v. Insurance Co., 105 Kan. 675; Careve v. Phoenix Ins. Co., 215 P. 235; Odegard v. Gen. Cas. Sur. Co., 44 F.2d 31; Caldwell v. Insurance Co., 124 Tenn. 593, 139 S.W. 698; Pateras v. Standard Acc. Ins. Co., 174 N.E. 620, 37 Ohio App. 383; Carusone v. American Colony Ins. Co., 247 N.Y.S. 738; 33 C.J. 10. (7) The payments of premiums were voluntary payments and cannot be recovered. See cases cited under Point 1 of appellant's brief. And also 26 C.J. 981. (8) The petition states no cause of action either at law or in equity. Lewis v. McMahan Co., 307 Mo. 567, 271 S.W. 779; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; American Ins. Co. v. Neiberger, 74 Mo. 173; Christensen v. New York Life Ins. Co., 160 Mo. App. 486, 141 S.W. 6; New York Life v. Fletcher, 117 U.S. 519. (9) The insurer may make with the insured whatever contract may be agreed upon between parties and the courts will give effect to such contract and to all the terms of such contract regardless of whether the courts believe the contract to be fair. Prange v. International Life Ins. Co. of St. Louis, 46 S.W.2d 526. (10) Premiums voluntarily paid after disability cannot be recovered back by the insured where there is no mutual mistake and no showing of fraud or duress. Pritchard v. Peoples Bank, 198 Mo. App. 598; Claflin v. McDonough, 33 Mo. 415. (11) Proof that the insured had become totally and permanently disabled is not presented by a mere oral conversation with an agent. At most, such conversation constitutes nothing but notice. 14 R.C.L. 1338; 33 C.J. 17-6; 7 Couch, Cyclopedia of Ins. Law, par. 1528, p. 5431; O'Reilly v. Guardian Mut. Life Ins. Co., 60 N.Y. 169. (12) Proof that the insured had become totally and permanently disabled is a condition precedent to insurer's waiver of premium. The proof must be accompanied by actual disability and the disability must be accompanied by proof. Disability unaccompanied by proof does not put the contract in force. Orr v. Mutual Life Ins. Co., 57 F.2d 903; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 76 L.Ed. 416. (13) When the policy states that the company will agree in the future to waive payment of future premiums which may fall due after making proof, it plainly states that no present agreement is in effect. The insured cannot ask that the company be compelled to now pay what it had not theretofore agreed to pay. It is plain that the agreement to pay is to be made after furnishing proof.

GANTT, J.

Action to compel the specific performance of certain provisions of a life insurance policy issued by defendant to plaintiff and to recover premiums paid under said policy during a permanent disability of plaintiff. The judgment for plaintiff was affirmed by the St. Louis Court of Appeals and the case certified to this court on the dissent of a judge of that court. [Hablutzel v. Home Life Ins. Co., 52 S.W.2d 480.]

The policy was issued on June 1, 1915. It contains a "permanent disability benefit" provision. In April, 1920, plaintiff became permanently disabled. In ignorance of this provision the wife of plaintiff continued to pay the semi-annual premiums on the first of June and first of December. There was no default in the payment of premiums and the disability of plaintiff is not controverted.

I. Defendant contends there was no evidence tending to show that plaintiff furnished "due proof" of his disability before he attained the age of sixty. The policy did not require proof to be in writing and verified. The Court of Appeals correctly summarized the testimony of the witnesses as follows:

"Mrs. Hablutzel, plaintiff's wife, testified: `My custom and habit was to pay the premium on the policy on the first of every six months. I always paid it. I took care of it because my husband was sick. I paid it at the defendant's office in St. Louis. I talked to Miss Samuels at defendant's office, concerning the premium due June 1, 1922. I told her I didn't have the funds to pay the premium and asked her to give thirty days extension. I told her I was my husband's main support and that I had a pretty hard time making ends meet, and she gave me that extension. The premium was not due until thirty days after June 1st, but it worried me because we had always paid it around the first of June, or the first of December. Miss Samuels was the local cashier for the Home Insurance Company. She always waited on me. I told her that my husband was permanently disabled, and the doctor did not expect him to live. I did not know at that time that the policy contained the total disability clause. I told Miss Samuels that my husband was totally and permanently disabled. I told her the doctor said he was totally and permanently disabled and that he was very ill. The premium due on June 1, 1922, I paid to Miss Samuels on June 24th.'

"Margaret Hablutzel, plaintiff's daughter, testified: `I recall going to the office of the Home Insurance Company in 1922, with my mother, and asking for an extension of the time for paying the premium then due on the policy. That was in the early part of June, because I had just come from school at the end of the school term. Mother always spoke to Miss Samuels, who was always so nice to her when she would pay the premiums. At the time we went down we were having a very hard time because my father had just come from the hospital. Mother went down and asked if she could have an extension, because she didn't see how she could possibly raise the money at that time. Miss Samuels was very nice and said she had thirty days grace. Mother told her how dad was permanently disabled, and that it was up to her to take care of me and the home. At that time I was only thirteen years old, and didn't know anything about the disability clause in the policy. Mother and I went to the Home Life Insurance Company office in the early part of June and asked if we could get a thirty days extension because we couldn't pay the premium at that time — the funds were so low. Miss Samuels said we could have thirty days grace, and she would make a note of it and that we should not worry. Mother told her my father was permanently disabled and that two or three doctors had only given him six months to live. The doctors stated they would only give him six months to live.'

"Miss Samuels, being produced by defendant, testified: `I have been connected with the Home Life Insurance Company since 1919, at its office in St. Louis. My duties were in connection with premiums. I was agency cashier. I do not recall the conversation testified to by Mrs. and Miss Hablutzel. I do not recall it definitely enough to deny or confirm it. The usual procedure in handling disability claims is that the insured, or some one in the insured's family, notifies the company of his disability, and then we get in touch with the agent who wrote the policy, and he has to make a report that the insured is disabled and is claiming on the disability. The claim is to be filled out by the person disabled or some member of his family. I have had conversations with Mrs. Hablutzel. All policy holders talk to me. When the company is notified of a permanent disability it is the duty of the agent who wrote the policy to go out and take proofs. At the time Mrs. Hablutzel says she had this conversation with me it was not my duty then to have charge of the disability claims unless they asked me something about them. At this time I do not recall definitely that I ever had any conversation with either Mrs. or Miss Hablutzel concerning the disability or sickness of their husband or father. It is all vague to me; I don't remember anything about it. The first I remember is when some woman of another company came in and notified us that the insured was disabled, and I immediately sent for the papers. That was about May, 1920.'"

[1, 2] It is clear from the evidence that on notice of a permanent disability, defendant caused its agent to make an investigation, "Take proofs" from "the person disabled or some member of his family," and report to defendant.

Thus it appears that defendant construed the words "due proof" in this provision of the policy to mean notice. However, it contends that the wife of plaintiff in stating to the cashier that her husband was permanently disabled, did not thereby intend to give notice that he was so disabled. Even so, the policy does not provide that the insured shall intentionally furnish due proof or notice of permanent disability. The cashier must have known the policy contained a permanent disability provision, for on the face of the receipts she gave on payment of the premiums was a statement of the additional amount charged for disability insurance. On notice of the permanent disability of plaintiff the cashier should, as usual, have caused an agent to "take proofs and report to defendant." We think that plaintiff before attaining the age of sixty complied with this provision of the policy as it had been construed by defendant.

II. Defendant next contends that proof or notice of disability fixes the beginning of the waiver of the payment of premiums.

The provision of the policy determines the question. It follows:

"If, after one full annual premium shall have been paid hereon and before default in the payment of any subsequent premium, the insured shall, before attaining the age of sixty years, furnish due proof to the Company that he has become totally disable by bodily injury or by disease, so that he is and shall be permanently, continuously and wholly incapacitated for life and prevented thereby from pursuing any gainful occupation, the Company by endorsement hereon shall agree to waive the payment of premiums which may thereafter fall due during the continuance of such disability."

The essence of the foregoing provision is that "if the insured shall furnish due proof that he has become totally and permanently disabled, the company will waive the payment of premiums thereafter becoming due." In ruling the question the Court of Appeal said:

"Does this provision mean that the company will waive premiums becoming due after the insured has furnished proof, or after he has become disabled? We construe it to mean that the company will waive premiums becoming due after the insured has become disabled, because this construction is more favorable to the insured, and more in consonance with the purpose of the provision, which is to give protection to the insured against disability. If it was the intention to waive only the premiums becoming due after the furnishing of proof, it would have been an easy matter for the company, who wrote the policy, to have said so in plain words."

The question was well ruled. We adopt this ruling of the Court of Appeals. [Mathews v. Modern Woodmen, 236 Mo. 326, l.c. 346, 350, 139 S.W. 151.] [4] In this connection it should be stated that defendant challenges the petition for failure to allege that plaintiff furnished "due proof" of disability. The petition alleged that plaintiff gave notice of disability. This allegation was sufficient, for defendant by its conduct construed "due proof" to mean notice.

III. Defendant next contends that "the court below erred in finding that the plaintiff was entitled to recover of the defendant the premiums, with interest, paid by the insured under the policy in suit from 1920 to the time of the institution of this suit and in entering judgment against defendant for that amount."

Defendant also contends that "at any event the amount of money judgment awarded to the plaintiff was excessive."

We do not find these assignments of error or their equivalent in the motion for a new trial. It follows that the assignments are not for review. [Bond v. Williams, 279 Mo. 215, 214 S.W. 202; Waters v. Gallemore, 41 S.W.2d 870, l.c. 872; Belcher v. Haddix et ux., 44 S.W.2d 177.]

The judgment should be affirmed. It is so ordered. All concur, except Hays, J., not voting because not a member of the court when cause was submitted.