Baker v. General American Life Ins. Co.
| Decision Date | 31 July 1936 |
| Docket Number | 43486. |
| Citation | 268 N.W. 556,222 Iowa 184 |
| Parties | BAKER v. GENERAL AMERICAN LIFE INS. CO. |
| Court | Iowa Supreme Court |
Appeal from District Court, Linn County; Atherton B. Clark, Judge.
Action at law to recover upon policy of insurance issued by the Missouri State Life Insurance Company upon the life of Kenneth F. Baker. The action was against the defendant General American Life Insurance Company, which under a contract with the receiver of the Missouri State Life Insurance Company had assumed liability on policies of the former company in force as shown by the books and records of said company on August 28, 1933. At the close of all the evidence, the court directed a verdict in favor of the defendant, and plaintiff has appealed.
Affirmed.
Raymond N. Klass, of Cedar Rapids, for appellant.
Grimm Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, for appellee.
This is a law action, brought by the plaintiff to recover the death benefit alleged to have accrued to her as benficiary named in a policy of insurance upon the life of her son Kenneth F. Baker, issued by the Missouri State Life Insurance Company. The original policy was $1,000, 20 payment life, to which was attached a supplementary agreement providing for double indemnity accidental death benefit. The annual premium was $28.80 which by the terms of the policy was payable in advance on the 25th of May, either at the home office of the company in St. Louis, Mo., or to an authorized agent of the company upon delivery of a receipt signed by the president or secretary and countersigned by such agent. Thirteen annual payments of premium had been made. The fourteenth premium became due May 25, 1933. There was loaned on the policy $231, being the full cash value at the end of the thirteenth premium year. The interest was payable in advance, and hence on this date there was interest due of $13.86. The policy was a participating one, and at this date dividends totaling $11.13 were due assured. He died September 27, 1933.
Appellee has by motion asked that the appeal be dismissed for failure on the part of appellant to observe the rules of this court with reference to assignment of errors. Counsel for appellant, in attempting to set forth the errors relied upon for reversal, under the title " Errors and Grounds Relied on for Reversal," sets forth a general assignment of so-called errors, numbered from I to VII. Immediately following this he sets forth error No. I followed by a list of authorities, and following this is his argument, and this form is continued as to all errors assigned. No reference is made to " so much of the record as refers" to the particular error, " with the ruling of the court thereon" as required by the fifth provision of rule 30.
In dealing with this matter of enforcing its rules, the court quite often finds itself caught " in a strait betwixt two" ; a desire to (a) be fair and impartial in our treatment of all practitioners, and (b) to avoid inflicting unjust punishment upon litigants because of the failure of attorneys to observe the rules of the court. We fear a close scrutiny of our opinions will reveal the practice quite often followed by the court, that where a reading of the record convinces us that an affirmance would be necessary in any event, to sustain the motion to dismiss and provide a soft place for appellant to light by following our ruling with the soothing words, " we have however read the record and find nothing which would justify a reversal" ; whereas, if there are serious errors noted, and, upon examination of the record, we see that a grave injustice will follow if the appeal is dismissed, prompted by the desire to do justice, the court has been prone to overlook the infraction of its rules in the interest of justice, and thereby subjected itself to the criticism of failing to act impartially. And this practice on the part of the court leads inevitably to carelessness on the part of attorneys in observing the rules of the court. There would seem to be no way of avoiding this result unless the court foregoes all liberality and becomes arbitrary, or practitioners become more alert and careful in regard to the observance of the rules.
" Considering the tremendous effort which attorneys put into legal research so as to properly argue on appeal, it is indeed surprising that the hazardous task of assigning errors has not been given more attention." Hon. Mason Ladd, in XXI, Iowa Law Review, page 702.
Perhaps, in view of the recent revision of the rules, some leniency is due attorneys until the profession becomes more familiar with the new rules; but may we not hope for a more careful reading and study of these new rules? We realize that any rule is difficult of application in some cases, but even in such cases, there should be a good-faith effort to follow the rules as far as practicable.
In the instant case, the application of the fifth provision of rule 30 was fraught with considerable difficulty, due to the fact that the motion to direct a verdict contained some twenty different grounds and same was sustained generally, and the issues were such that the sustaining of the motion presents to us mostly a solution of legal questions, and appellant's assignments of error are in the main statements of abstract legal propositions, but she fails to connect them with the present record.
Appellant's legal propositions embodied in the first three alleged errors are: That the burden of proof was on the defendant to establish forfeiture of the policy for failure to pay the 1933 premium, and foreclosure of the policy loan; and since the insured is dead, and the proof of this issue lies peculiarly within the knowledge of the defendant, that therefore, unless the plaintiff admits, proves, or concedes nonpayment of premium, the trial court could not direct a verdict in favor of the party (defendant) with the burden of proof; and although defendant's evidence was uncontradicted, and although there was no evidence of payment, and no evidence in conflict with that introduced by defendant, that there still remained the question of the credibility of defendant's witnesses, and this alone made out a case for the jury. And appellant's argument is based on the assumption that all his legal propositions are well founded.
First of all, his whole argument contains a false assumption that the fact that insured is dead brings the case within the rule announced. It is true the insured is dead and cannot speak, but this does not mean that there are no other means of refuting the testimony of defendant's witnesses as to nonpayment of premium or interest. The policy provides how premium shall be paid, " upon delivery of a receipt signed by the president or secretary," or if payment is made to a duly authorized agent, the receipt shall be countersigned by such agent. Nearly every one carries insurance of some kind, and it is a matter of common knowledge that premium receipts are issued. Usually payment is made, not in currency, but by check or draft, which could be produced. So the fact is that the proof of payment, if actually made, would lie peculiarly within the knowledge and possession of the insured. Under such circumstances it would be much easier for the plaintiff to prove payment than for the defendant to prove a negative of nonpayment, as its books and records would contain no entry. The evidence of defendant on this issue is uncontradicted and establishes by clear, convincing, and satisfactory, competent proof that neither the premium nor the interest was ever paid. Every reasonable and necessary requirement of the law was complied with by the defendant in the presentation of its evidence, negativing payment of these items. Absolute certainty is not required. Most surely defendant made out a prima facie case on the issue of nonpayment of these items, and plaintiff offered nothing to rebut it.
The fundamental principle involved in passing on a motion to direct a verdict in favor of one on whom the burden of proof rests is the same in each and every case. The difficulty arises in its application. But when the evidence all points in one direction, is not in material conflict on the issues involved, and there are no circumstances which tend to impair or impeach the same, and is not susceptible of inherent weaknesses, improbabilities, and incongruities, which in and of themselves naturally arise to contradict or impeach the weight and credibility of the utterances of the witnesses then it can most certainly be said as a matter of law that the record presents a case about which the minds of reasonable men cannot differ, and the court is, under such circumstances, warranted in directing a verdict, and there is no sound principle standing in the way of such action on the part of the court. And while there are some statements in the books to the effect that, " It is a rare occasion which justifies a court in directing a verdict upon a fact issue in favor of the party on whom rests the burden of proof" ( Connelly v. Greenfield Savings Bank, 192 Iowa 876, 185 N.W. 887, 889), and " a mere failure to produce direct contradiction to the testimony of a witness does not necessarily entitle such testimony to be deemed as true" (The reason why:) ( Schulte v. Ideal...
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