Hanley v. Life Ass'n of America

Henry, J.

i life insurance: Sitorricom° mute'

There was evidence on the part of plaintiff that defendant waived prompt payment of the semi-annual premium due August 1st, 1872; that no forfeiture of the policy for non-payment thereof, was declared, nor any act of the company or entry on their books, treating the policy as a commuted policy, was done or made prior to Hanley’s death ; that when plaintiff executed the receipt in full of all demands on account of the policy, she did it in ignorance of her rights. It was also shown that on several occasions, when previous semi-annual payments became due, Hanley was indulged by the company and permitted to make the payments after they became due, defendant having taken no step to declare the policy forfeited or commuted. If it was the intention of 'the company, rigidly to enforce against Hanley the provisions of the policy in regard to *383 the non-payment of the semi-annual premium due August 1st, 1872, it was their duty, and fair dealing required them! to notify him of such purpose. They neither notified him nor made any entry on their books or on the policy, then in their possession as collateral security for loans to Hanley, that it had become and would be treated as a commuted policy; and considering their conduct and course of dealing with respect to prior semi-annual premiums, it would be tolerating gross injustice to allow the defense relied upon. The instructions given by the court embodied these views, which are fully sustained by the authorities. Thompson v. St. Louis Mutual Life Ins. Co., 52 Mo. 469; Pelkington v. National Ins. Co., 55 Mo. 173; Bouton v. The American Matual Life Ins. Co., 25 Conn. 542; White v. Conn. Ins. Co., 120 Mass. 330; Meyer v. Knickerbocker Life Ins. Co., 51 How. 267; Illinois Fire Ins. Co. v. Stanton, 57 Ill. 354. The provision in the policy was inserted for the benefit of the company, which could waive a strict compliance, as well by any other act indicating such an intention, as by a formal, written instrument to that effect.

2. newly disooyBRED EVIDENCE: new trial.

The motion for a new trial on the ground of newly discovered evidence, was properly overruled. McIIatton, whose affidavit accompanies the motion for a . new trial, stated therein a conversation ne had with Hanley, which would have been very material evidence for the defense; but the same gentleman, on behalf of plaintiff, made a counter affidavit, stating that he had communicated to Mr. Hough, (the president of the company,) previous to the summer of 1876, and before the trial of the cause, the conversation, he had with Hauley. Mr. Harvey also made an affidavit, filed With defendant’s motion, in which he stated a conversation he had with Hanley, in substance the same as that disclosed by Mr. McHatton. Although Mr. Hough, nor any of the defendant’s officers, knew what Mr. Harvey would have testified to, and conceding that'they had used proper diligeuce, so far as Harvey was concerned, yet Mr. Hough was advised *384 before the trial, that the same facts substantially, which Harvey would have testified to, could have been established by the testimony of McHatton; they did not seem to think the evidence important to the defense, for McHatton was subpoenaed as a witness, and that defendant afterwards discovered that Mr. ITarveji knew the same facts, certainly will not entitle the defendant to a new trial any more than if McHatton had been called and testified to the conversation,and it had afterwards come to the knowledge of defendant that. Harvey could have testified to a similar conversation, it would then have been cumulative evidence. If a party is aware that one or more persons know facts important to be proved by him, and go to trial without calling such persons as witnesses, and afterwards discover another person who could have testified to the same fact, a motion for a new trial on such ground could not be sustained except in violation of all principle and precedents. All concurring, the judgment is affirmed.

Affirmed.