Baker v. Keet-Rountree Dry Goods Co.
| Citation | 2 S.W.2d 733,318 Mo. 969 |
| Decision Date | 04 February 1928 |
| Docket Number | 25957 |
| Parties | Carrie D. Baker, Executrix of Last Will of Milton C. Baker, v. Keet-Rountree Dry Goods Company, Appellant |
| Court | United States State Supreme Court of Missouri |
[Copyrighted Material Omitted]
Rehearing Granted, Reported at 318 Mo. 969 at 989.
Appeal from Greene Circuit Court; Hon. Guy D. Kirby, Judge.
Affirmed.
Mann & Mann for appellant.
(1) Plaintiff's action is for money had and received. Such an action, although an action at law, is governed by equitable principles, and in it plaintiff waives all torts, trespasses and damages. It may, in general, be maintained when one has money in his hands belonging to another, which, in equity and good conscience, he ought to pay over to that other. 41 C. J. 28; Fox v. Pullman Co., 16 Mo.App. 123; Henderson v. Koenig, 192 Mo. 690; Copper Belle Wire Co. v. Gleeson, 48 L. R. A. (N. S.) 481; Sidebottom v. Sidebottom, 255 S.W. 353; Whitecotton v. Wilson, 197 S.W. 168; Bruer v. Dunham, 209 S.W. 573. (2) J. H. Rountree, W. J. Hunt, Charles Rountree and J. F. Gates, witnesses for appellant, whose testimony was excluded by the court, were all competent witnesses. Sec. 5410, R. S. 1919. In order for them to have been incompetent, they must have been both interested and a party. Ham v. Lead Co., 251 Mo. 721; Elsea v. Smith, 273 Mo. 396; Leava v. Railway, 266 Mo. 151; Richenbach v. Ellerbe, 115 Mo. 588; Bank v. Rood, 132 Mo. 256; Bank v. Slattery, 166 Mo. 633; Lead & Zinc Co. v. Lead Co., 251 Mo. 742. In any event, the testimony of all defendant's witnesses was competent against a mere general objection to its competency and against the ground for its exclusion not covered by a specific objection. Elsea v. Smith, 273 Mo. 396. (3) Milton C. Baker, the insured, respondent's decedent, being an officer and employee of the appellant at the time the policies in question were taken out and his service and experience of value to it, appellant had an insurable interest in his life. (a) Any relationship which is such as to give rise to the presumption of some material or physical benefit to be reasonably expected from the continuance of the life insured, creates an insurable interest. 25 Cyc. 704. (b) A partner who has advanced the capital for the business has an insurable interest in the life of his co-partner, and any person who invests money in reliance on the personal efforts of another to yield a return, has an insurable interest in the life of the latter. Insurance Co. v. Luchs, 108 U.S. 498; Adams v. Reed, 35 L. R. A. 692; Bank v. Comins, 101 Am. St. 650; Victor v. Louise Cotton Mills, 16 L. R. A. (N. S.) 1020; Insurance Co. v. Board, L. R. A. 1915F, 979; Keckley v. Coshocton Glass Co., Ann. Cas. 1913D, 607; Life Ins. Co. v. Schaefer, 24 L.Ed. 251. (c) In any event, the want of an insurable interest is available only to the insurance company. There is abundant authority for holding that when the insurer has recognized the validity of the policy by paying the amount of the policy to the beneficiary or into court, other parties claiming an interest in the fund cannot object on the ground that the beneficiary named in the policy has no insurable interest. Keckley v. Coshocton Glass Co., Ann. Cas. 1913D, 607; Langford v. Freeman, 60 Ind. 46; Insurance Co. v. Catlin, 63 N.W. 897; Hosmer v. Welch, 65 N.W. 280; Diffenbach v. Ins. Co., 61 Md. 370; Johnson v. VanEpps, 110 Ill. 551; Grigsby v. Russell, 56 L.Ed. 133; Hurd v. Doty, 21 L. R. A. 746. (4) The court erred in his final ruling upon being requested by appellant to find the facts in the case, in holding that the parole evidence of J. H. Rountree, W. J. Hunt, Charles Rountree and J. F. Gates, offered by the defendant, was not admissible for any purpose in the case, in sustaining the objection of plaintiff to such evidence and in excluding the evidence of said witnesses, from the consideration of the case. (a) It was laid down as the rule by Lord Bacon that a latent ambiguity may be explained by extrinsic evidence, but that a patent ambiguity may not; and this has been very generally accepted by the courts as correct. This general distinction has, however, been criticized, and it is necessary to examine into the statement closely in order to see what it really means and how far it is a correct exposition of the law. 22 C. J. 1191, sec. 1592. (b) A latent ambiguity arises when the writing upon its face appears clear and unambiguous, but there is some collateral matter which makes the meaning uncertain; and it is so well established as to be beyond all possible dispute that parol or other extrinsic evidence is always admissible to explain a latent ambiguity in any written instrument. The reason which is usually given for the rule is that as the ambiguity is raised by extrinsic evidence, the same kind of evidence must be admitted to remove it. 22 C. J. 1192, sec. 1593. (c) Parol evidence is admissible where there is a latent ambiguity for the purposes of explaining the doubtful expression of the instrument consistently with the relations of the parties and the other incidents of the contract. 22 C. J. 1194, secs. 1594, 1595. (d) Even where the words are sensible and have a settled meaning, but at the same time consistently admit of two interpretations according to the subject-matter in the contemplation of the parties, they constitute an intermediate class partaking of the nature of both patent and latent ambiguities, and in such cases parol evidence is admissible to show the circumstances under which the contract was made and the subject-matter to which the parties refer. 22 C. J. 1196, sec. 1596. (e) Where any doubt arises as to the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument, for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party. In such cases parol evidence is admissible of necessity. 22 C. J. 1199, sec. 1600; Mfg. Co. v. Ins. Co., 167 Mo.App. 566; Construction Co. v. Tie Co., 185 Mo. 25; Leonard v. Railway, 54 Mo.App. 301; Linseed Co. v. Paint Co., 202 S.W. 566; Williams v. Railroad, 153 Mo. 534; Pulitzer Pub. v. McNichols, 170 Mo.App. 709. (5) The acquiescence of the corporation (appellant) in the arrangement made to insure the lives of Milton C. Baker and Joel H. Rountree, its principal officers, for its benefit, and its ratification thereof, are shown by the evidence of respondent herself, who introduced Exhibit C, and Exhibit D, being proceedings had at directors' meeting of said corporation in which plaintiff's decedent participated. Absent any evidence of ratification, the mere fact that the arrangement was beneficial to the corporation raises presumption that it had its approval. The payment of the ten annual installments of premiums as alleged in plaintiff's petition is conclusive of the corporation's consent to, participation in and ratification of the arrangement made for its benefit. No resolution of the board of directors was necessary. Preston v. Lead Co., 51 Mo. 43; Bank of Columbia v. Patterson, 7 Cranch. (U.S.) 299; 14a C. J. 319, 374. (6) The collateral or outside, agreement between Baker and the appellant can be shown by parol evidence and enforced notwithstanding, and in the very face of the recitals of the beneficiary clause in the policy. Hurd v. Doty, 56 N.W. 371.
W. D. Tatlow for respondent.
(1) This case does not involve any question as to whether the Keet-Rountree Dry Goods Company had an insurable interest in the life of M. C. Baker. It is conceded that it had an interest, which was insured by the policies in evidence. The sole question is what interest was insured, and whether the written contracts of insurance are plain and unambiguous, so that they cannot be altered, enlarged, contradicted, added to, or subtracted from, by parole evidence. (2) It is conceded, that the dry goods company had such an insurable interest in the life of the deceased, that it could have been the sole beneficiary in the policies. The interest of the company which is insured in the policies is the interest of a creditor or business associate, growing out of his official position with the company. That interest can be computed in dollars and cents, as is plainly set forth in the policies. There is no ambiguity or uncertainty relating thereto. This is so when read in the light of all the surrounding circumstances. The policies are just as plain, when read in the light of the surrounding circumstances, as when read without any knowledge thereof. They mean exactly the same thing, neither more nor less. Neither the interpretation which the parties have put upon it, nor their understanding as shown by verbal testimony, can be looked to "when the language is clear and will admit of but one interpretation, because in that case, unless there is fraud or mistake, the language used is the best possible evidence of the intention." Neither should any regard be paid to loose declarations, or equivocable or isolated acts. Gas Co. v. St. Louis, 46 Mo. 120; Korneman v. Davis, 281 Mo. 234; Citizens Trust Co. v. Tindall, 272 Mo. 681; Bank v. Mills Co., 268 Mo. 188; St. Louis v. Railroad Co., 228 Mo. 712; Counts v. Medley, 163 Mo.App. 555; State ex rel. v. Board, 294 Mo. 106. "It is also a cardinal rule that where the language is plain, there can be no construction, because there is nothing to construe." Turner v. Casualty Co., 274 Mo. 260; Liggett v. Levy, 233 Mo. 590. Courts cannot "add or take away words." Blake Bros. Realty Co. v. Am. Ser. Co., 297 Mo. 41. ...
To continue reading
Request your trial