SEPARATE OPINION OF McCULLEN, J., CONCURRING AS TO RESULT IN PART AND DISSENTING IN PART AND REQUESTING CERTIFICATION TO SUPREME COURT. I find myself able to concur only in the result reached by our worthy Commissioner on the first count of the petition of plaintiff respondent herein, namely, that plaintiff is entitled to recover the principal sum of $300, with interest from the date of the death of the insured. Furthermore, I dissent from the Commissioner's holding on the second count that plaintiff is entitled to receive nothing under said count. I believe that the opinion of our Commissioner as to the second count herein construes into our nonforfeiture statutes a meaning and a purpose not expressed by the Legislature. As I read the opinion, it not only fails to construe the policy (as to the double indemnity) liberally in favor of the insured but, on the contrary, construes both the policy and our nonforfeiture statutes most favorably to the insurer, and in such respects is in conflict with the rule established long ago by our Supreme Court which has been steadily adhered to in many decisions.
In the light of the language and the history of our nonforfeiture statutes, Sections 5852, et seq., R.S. Mo. 1939, I am of the opinion that the Legislature had in mind one supreme purpose in the enactment thereof as well as in the subsequent amendments thereto, and that was to protect policyholders against forfeitures of their insurance by extending the period of insurance after a policyholder fails to pay premiums when due. The Legislature accomplished that purpose by requiring that a portion of the net value or accumulated reserve of the policy, which belongs to the policyholder and not to the insurance company (Westerman v. Supreme Lodge K. of P., 196 Mo. 670, 712, 94 S.W. 470), be used to keep the policy in force for such period of time as said value taken as a net single premium will purchase. The method of computing the net value is set forth in the statute. In accomplishing that purpose, the Legislature said nothing whatsoever about any distinction between "straight life insurance" and "insurance for accidental death" or "death by accidental means." Such a distinction results from an elaborate and involved "construction" of the statutes and is not warranted by the plain language used by the Legislature. By such construction, the opinion of our Commissioner herein, as I see it, changes our "nonforfeiture" statutes *Page 970 into "forfeiture" statutes with respect to insurance for death by accidental means, whereas I think the supreme and deliberate purpose of the Legislature in enacting such laws was to avoid and defeat forfeitures.
In the case of Frances Britt Wilkins, Respondent, v. Metropolitan Life Ins. Co., a corporation, Appellant, Cause No. 25963 of the causes in this court, an opinion by our worthy Commissioner was filed on March 3, 1942, and when published will be found in 159 S.W.2d 354. That case involved the same question that is involved in the second count of the case at bar. In said Wilkins case my duty impelled me to file a separate dissenting opinion and to request that said cause be certified to the Supreme Court because of what I considered to be conflict with the decisions of our Supreme Court set forth therein. In that case I gave at some length the reasons for my views and discussed the several cases which must be considered in determining the question now before us. However, no useful purpose would be served by repeating here all that I said in the dissenting opinion in that case, because that case will, in the usual order, no doubt be decided by our Supreme Court before this case is decided. Hence, there is nothing to be gained by burdening this opinion with matter which will already have been before the Supreme Court by the time this case is reached for final determination.
I think, however, it will not be amiss to refer briefly herein to the case of Cleaver v. Central States Life Ins. Co.,346 Mo. 548, 142 S.W.2d 474. Our commissioner, in his opinion in the Wilkins case as well as in the case at bar, relies mainly upon the Cleaver case, supra, because of an expression used by the court in the Cleaver case in incidental discussion, where that court said that, "if" the automatic loan provision involved therein should be found to be invalid under the nonforfeiture statutes, then Cleaver's insurance became temporary term insurance, and that "the double liability agreement terminated when such extended insurance began."
As I see it, the above discussion of the hypothetical "if" situation was no part of the actual decision of the court in the Cleaver case because the court definitely found that such hypothetical situation did not exist. On the contrary, the court reached the opposite conclusion, namely, that the automatic loan provision involved therein was valid, and held that the whole policy, including the double indemnity agreement, remained in force, and that the insurance company was liable for the double indemnity for the accidental death. The Cleaver case was, therefore, not decided on our nonforfeiture statutes at all. It was clearly and unequivocally decided on the language of the policy involved in that case. The opinion therein did not discuss the nonforfeiture statutes in this connection.
For the reasons herein given as well as those set forth in the dissenting opinion in the Wilkins case, supra, and because I believe the *Page 971 Commissioner's opinion in the case at bar is in conflict with State ex rel. Security Mutual Life Ins. Co. v. Allen et al.,305 Mo. 607, 613, 267 S.W. 379; Henderson v. Massachusetts Bonding Ins. Co., 337 Mo. 1, 84 S.W.2d 922, and Cleaver v. Central States Life Ins. Co., 346 Mo. 548, 142 S.W.2d 474, I request that the case at bar also be certified to the Supreme Court so that said court may have an opportunity to render an authoritative decision on the question involved to guide us in the future.