Bennett v. General Accident, Fire and Life Assurance Corporation, Limited

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSUTTON, C.
Citation255 S.W. 1076,213 Mo.App. 421
Decision Date02 October 1923

255 S.W. 1076

213 Mo.App. 421

FREDERICK D. BENNETT, by HARRIS N. BENNETT, His Guardian, Appellant,


Court of Appeals of Missouri, St. Louis

October 2, 1923

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.


Judgment reversed and cause remanded.

Lee Hagerman, and Abbott, Fauntleroy, Cullen & Edwards appellants.

(1) The judgments or decrees in favor of other parties on other policies and the pleadings upon which they were based were clearly inadmissible as hearsay and res inter alios acta. State v. Bradnack, 69 Conn. 212; Tierney v. Ins. Co., 4 N.D. 565; Wood v. Davis (U. S.), 7 Cranch 271; Davis v. Wood (U. S.), 1 Wheat 6; Snyder v. Berger (Pa.), 6 A. 733; Black on Judgments, sec. 600; Alexander v. Walter, 8 Gill 247, 688; Winston v. Starke (Va. Ct. of App.), 12 Gratton 317. (2) A judgment or decree, even though against one of the parties to a former action, is inadmissible when offered by another party in a subsequent action, because lacking in mutuality. Amer. & Eng. Encyc. of Law (2 Ed.), 730; Bell v. Hoagland, 15 Mo. 364; 15 R. C. L., sec. 432, p. 956; Henry v. Woods, 77 Mo. 281; Redmond v. Coffin, 2 Dev. Eq. (N. C.), 443; Hempstead v. Easton, 33 Mo. 142; Simpson v. Jones, 2 Snead 30; McCory v. Parks, 18 Ohio St. 148; Butterisck v. Holden, 8 Cush. 233; Greenleaf's Ev., sec. 189; Story's Eq., sec. 165; Haley v. Bagley, 37 Mo. 264; The State ex rel. v. Johnson, 123 Mo. 43; Eckes v. Luce, 173 Pac. (Okl.), 219; Jones v. Adler, 62 So. 777; Ryan v. Young, 147 Ala. 660; Fidelity & Deposit Co. of Maryland v. Robertson, 136 Ala. 379. (3) A judgment or decree cannot be given in evidence in a civil case to establish the truth of the facts alleged in the petition or in proof of the facts upon which it is rendered. 15 R. C. L., secs. 476, 477, 478; Hicks v. Mason (Mich.), 11 L. R. A. (N. S.) 633 and note; State v. Roach (Kan.), 21 Ann. Cas. 1183, and cases cited in note, same case; 31 L. R. A. (N. S.) 671 and note; Myers v. Maryland Casualty Co., 123 Mo.App. 682, 101 S.W. 124; Fowle v. Child, 164 Mass. 210; Marceau v. Travelers' Ins. Co., 101 Cal. 338; Omohundro v. Emerson, 80 Mo.App. 313; Gray v. McDonald, 104 Mo. 303. (4) The allegations of the petitions in the other cases, the answer of the defendant's guardian thereto, and the decree rendered thereon have no tendency to establish admission and were not admissible on the theory that they were admissions binding on the insane defendant in the present action. 15 R. C. L., sec. 479, p. 1003; Corwin v. Walton, 18 Mo. 71, 23 Cyc. 1288; St. Louis Mutual Life v. Cravens, 69 Mo. 77; Collins v. Trotter, 81 Mo. 275; Hoeffner v. Grand Lodge, 41 Mo. 368; 24 Am. & Eng. Ency. of Law, pp. 764, 765; Womach v. City of St. Joseph, 201 Mo. 467; Insurance Co. v. Cullen, 237 Mo. 572. (5) There was no privity or common interest between the plaintiffs in the former case and the plaintiff in the instant case, so as to render the record in the former case admissible. Ins. Co. v. Cullen, 237 Mo. 572; Authorities supra. (6) The insane defendant in the instant case was not bound by the acts or admission or admissions of his guardian in the former cases. Even if the guardian had made admissions in the former cases (which he did not make) still such would not be binding on his insane ward. Neff v. Cameron, 213 Mo. 350; Buffalo Loan Co. v. Knights Templar Ass'n, 126 N.Y. 450; Forsythe v. Ganson, 5 End. (N. Y.) 559; Collins v. Trotter, 81 Mo. 275; Wood v. Truax, 39 Mich. 628, 42 Mich. 69; Cartwright v. Wise, 14 Ill. 417; Peak v. Pricer, 21 Ill. 164; Fischer v. Fischer, 54 Ill. 231; Fink v. Railroad, 161 Mo.App. 324; Ralston v. Lahee (Iowa), 74 Am. Dec. 291; Lloyd v. Kirkwood, 112 Ill. 329; Rucker v. Bean, 65 Me. 352; White v. Joyce, 157 U.S. 128; Knights Templar and M. L. I. Co. v. Crayton (Ill.), 70 N.E. 1066; 1 Encyc. Evid. 460; Gray v. Clements, 277 S.W. 114; Revely v. Skinner, 33 Mo. 101; Litchfield v. Burnell, 5 Howard 341; McClure v. Farthing, 51 Mo. 109; Waterman v. Lawrence, 19 Cal. 210; Long v. Mulford, 17 Ohio Sy. 484, 93 Am. Dec. 638, and note; Buffalo Loan, etc., Co. v. Knights Templar, 126 N.Y. 450; Case Note, 32 L. R. A. 671; Schlotterer v. Ferry Co., 78 N.Y.S. 202. (7) Transactions between the insured and other insurance companies were not relevant to any issue in the case at bar, and should have been excluded. Aiken v. Kennison (Vt.), 5 Atl., 757; 1 Phil Ev. 748, p. 759; Pictorial League v. Nelson (Vt.), 37 A. 247; Jones v. Ellis Estate, 35 A. 488; Phelps v. Conant, 30 Vt. 277; Elbert v. Mitchell, 109 N.W. 181; Vacca v. Martucci, 90 N.Y.S. 356; Abrams v. Manhattan Consumers Brewing Co., 90 N.Y.S. 425; People v. Gaffey, 90 N.Y.S. 706; Bomar v. Rosser, 206 So. 510. (8) The instruction given by the court at the request of the defendant placed an undue burden upon the plaintiff, and erroneously advised the jury that if the evidence was evenly balanced the plaintiff could not recover. Griffith v. Continental Casualty Co., 235 S.W. 83, overruled by Court in Banc on second appeal, case No. 23756; Kahn v. Metropolitan Casualty Co., 240 S.W. 793; Prentice v. Ins. Co., 225 S.W. 691; Brunswick v. Standard Acc. Ins. Co., 213 S.W. 45; Reynolds v. Maryland Casualty Co., 201 S.W. 1128; Bacon on Benefit Societies, sec. 336a; Herne Benefit Association v. Sargent, 142 U.S. 691.

Anderson, Gilbert & Wolfort and M. U. Hayden for respondent.

(1) The trial court did not commit error warranting a reversal of this judgment in admitting in evidence the records of the probate court of the city of St. Louis, with respect to which appellant assigned error, for the following reasons: (a) The settlements and inventories offered and admitted in evidence were passed upon and adjudicated by the probate court. They therefore had the effect of adjudications as to the truth of the statements therein contained. (b) They consisted of inventories and settlements filed by the respective parties in accordance with the laws of this State. (c) They constituted admissions by appellant as to the receipt by him of certain money belonging to the estate of his father, which was not forthcoming when his sister, May B. Jones, was appointed administratrix of the father's estate to succeed appellant. (d) Appellant, through the same duly appointed guardian who instituted this suit for him, acquiesced in the claim made against his estate by the administratrix of his father's estate, and paid the money claimed. (e) These records collectively were offered for the sole purpose of showing that appellant had appropriated from, and at the time of his alleged injury owed, the estate of his deceased father the sum of $ 2,500. If any error was committed in admitting these records that error was cured by the appellant himself, through his present guardian, testifying to the fact that appellant owed the father's estate that money. R. S. 1919, chap. 1, secs. 457, 458, 459, 460 and 481; 12 R. C. L., sec. 21, page 1119; 12 R. C. L., sec. 21, page 1130; 12 R. C. L., sec. 32, page 1137; 2 R. C. L., sec. 46, page 1154; Young v. Byrd, 124 Mo. 590; State ex rel Pountain v. Gray, 106 Mo. 526; Patterson v. Booth, 103 Mo. 402; Merriwether v. Black, 31 Mo.App. 170; Philes v. Railway Co., 125 S.W. 553; Stumpe v. Kopp, 201 Mo. 412; Manufacturing Co. v. Railway Co., 230 Mo. 59. (2) The court committed no error in admitting the proceedings in the cases of Missouri State Life Insurance Company v. Bennett and the Equitable Life Insurance Company v. Bennett. The proceedings in said cases were admissible for the following purposes: A. On the question of defendant's reasonable cause for resisting payment. Judgments against a party on other proceedings are competent to prove probable cause for the adversary's position. Some cases hold they are conclusive evidence of probable cause. Others, that they are evidence, not conclusive, but all agree they are admissible. Hanser v. Bieber, 271 Mo. 339; Parker v. Farley, 10 Cush. 279, 281; Goodrich v. Warner, 21 Conn. 443; Denneby v. Wilson, 100 Miss. 197; Whitney v. Peckham, 15 Mass. 243; Parker v. Huntington, 7 Gray 36; Womack v. Circle, 29 Grattan, 206; Griffis v. Sellars, 19 N.C. 492; Garrard v. Willett, 4 J. J. Marsh, 630. B. And conversely, an acquittal is evidence of want of probable cause, in favor of the accused. Sappington v. Watson, 50 Mo. 83. (3) These judgments and pleadings were competent to show an intent to defraud. And specifically were admissible under the allegation that Bennett intended to defraud the Missouri State Life, the Equitable, defendant and others. Rubby v. Gunby, 180 S.W. 1045; Charlton v. Railway, 200 Mo. 441; Gunn v. Thurston, 130 Mo. 347; Davis v. Vories, 141 Mo. 241; Dodge v. Knapp, 112 Mo.App. 523; Hobbs v. Boatright, 195 Mo. 725; Powell v. Railroad, 229 Mo. 272; Manheimer v. Harrington, 20 Mo.App. 301. (4) The judgments are admissible because the claim of Bennett arises from his attempted suicide. A judgment against a party on a ground not personal to his adversary, but common to others, precludes recovery against all involved in this common situation. Moore v. Railway, 109 S.W. 497, 503; Spencer v. Dearth, 43 Vt. 98, 117; Jenkins v. Railway, 71 S.E. 1010; Sonnentheil v. Moody, 56 S.W. 1001; Williams v. McGrade, 13 Minn. 46; Anderson v. Fleming, 160 Ind. 597; Featherstone v. Turnpike Co., 24 N.Y.S. 603. (5) These records are admissions. (6) The instructions given to the jury at the instance of respondent correctly declared the law applicable to the issues raised by the pleadings and established by the evidence in this case and no error was committed by the trial court in giving them warranting a reversal of the judgment. Laessig v. T. P. A., 169 Mo. 262; Scales v. Insurance Co., 212 S.W. 8; Newell v. Casualty Co., 212 S.W. 991; Brunswick v. Insurance Co., 278 Mo. 154, 213 S.W. 45; Lamport v. Insurance...

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