Bernblum v. Travelers Ins. Co. of Hartford, Conn.

• Decision Date: 08 March 1939
• Docket Number: 36141
• Citation: 125 S.W.2d 844,344 Mo. 217
• Parties: Harry Bernblum v. Travelers Insurance Company of Hartford, Connecticut, Appellant
• Court: Missouri Supreme Court

125 S.W.2d 844

344 Mo. 217

Harry Bernblum v. Travelers Insurance Company of Hartford, Connecticut, Appellant

No. 36141

Supreme Court of Missouri

March 8, 1939

Appeal from Livingston Circuit Court; Hon. Ira D. Beals Judge.

Reversed.

Davis & Davis and Mosman, Rogers Bell & Buzard for appellant.

(1) The court erred in refusing to give the defendant's requested peremptory Instruction D-2 at the close of all the evidence. In the circumstances there is no evidence of a contract of insurance between the parties. Bernblum v. Travelers Ins Co., 340 Mo. 1217, 105 S.W.2d 941; State ex rel. v Robertson, 191 S.W. 989; Mo. State Life Ins. Co., v. Salisbury, 279 Mo. 40, 213 S.W. 786; Dayton v. Travelers' Ins. Co., 303 Mo. 1, 259 S.W. 448. (2) The court erred in giving to the jury Instruction P-1 requested by the plaintiff, because: (a) There was no evidence to support the theory that defendant extended credit to Glassco for the premium, or that Glassco had accepted the policy or accepted any alleged offer of credit for payment of the premium. It is error to give an instruction based upon a theory unsupported by evidence. Degonia v. Railroad Co., 224 Mo. 564, 123 S.W. 807; Bennett v. Standard Acc. Ins. Co., 209 Mo.App. 81, 237 S.W. 144. (b) It was misleading and confusing, erroneous and improper, in telling the jury they could "take into consideration all of the facts and circumstances in evidence and to draw all reasonable inferences arising out of and reasonably deducible from the facts and circumstances in evidence. And the presumption is that a person intends the natural consequences of his acts." (Howell v. Davis, 236 S.W. 889. It is erroneous and improper to give an instruction that is misleading and confusing to the jury. Gillett v. Laederich, 242 S.W. 112; Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393; Knapp v. Hanley, 153 Mo.App. 169, 132 S.W. 747; Christner v. C., R. I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 752.

McVey & Randolph, J. Robertson Clagett and Chapman & Chapman for respondent.

(1) The plaintiff made a case for the jury. Bernblum v. Travelers Ins. Co. 340 Mo. 1217, 105 S.W.2d 941; 13 C. J. 274; Bruckman v. Hargadine McKittrick D.G. Co., 91 Mo.App. 454; Link v. Westerman, 80 Mo.App. 592; Wood & Brooks Co. v. Lbr. Co., 89 W.Va. 254, 109 S.E. 242, 19 A. L. R. 467; Title & Trust Co. v. Nelson, 71 P.2d 1081, 114 A. L. R. 1196. (2) The court did not err in giving Instruction P-1, requested by plaintiff. Burtch v. Wabash Ry. Co., 236 S.W. 338; Grand Gennett v. Natl. Protective Ins., Assn., 73 S.W.2d 341; Howell v. Davis, 236 S.W. 891. (3) The trial court did not err in admitting evidence of the deceased's service in the army and other insurance carried by him. Rouchene v. Gamble Const. Co., 89 S.W.2d 58. (4) The judgment of the lower court is correct as a matter of law. State ex rel. Mills Lbr. Co. v. Trimble, 337 Mo. 899, 39 S.W.2d 355; Phillips v. Pulitzer Pub. Co., 238 S.W. 127.

OPINION

Hays, P. J.

Action on an accident insurance policy, brought by the assignee of the named beneficiary. Verdict and judgment went for the plaintiff for $ 9,957.50 and the defendant appealed. The decisive question is whether the conditional delivery of the policy remained conditional or whether it afterward became absolute.

This is a second appeal. The first is reported in 340 Mo. 1217, 105 S.W.2d 941. The statement of the case as contained in the former decision will be followed with such changes and additions as necessary to state the determinative facts as they appear in the printed records of the trials.

"The policy sued on stated that defendant 'does hereby insure James S. Glassco . . . against loss resulting from bodily injuries . . . through accidental means'; that 'this policy is issued in consideration of the premium of Ten and No/100 Dollars, for the term of three months to commence on the 29th day of November, 1930;' that 'this policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance;' . . . and that 'no change in this policy shall be valid unless approved by an executive officer of the company and such approval indorsed thereon.' When Glassco received this policy from the defendant's agent he signed a receipt (which the trial court refused to receive in evidence) which is as follows:

"'(This policy is received) for inspection only. This policy shall not take effect or be in any way binding upon the Company unless nor until the premium therefor is actually paid and this receipt is surrendered while I am in good health and free from injury, nor in any event unless paid within sixty days of the date of the policy.'

. . .

"It was admitted that Glassco had signed this receipt and had never paid the premium. (His father tendered it after his death.)"

Kornfeld, the soliciting agent, testified to an oral offer of credit made by him, accepted by Glassco and reduced to writing. The writing (inspection receipt) was excluded by the trial court.

About thirty days later the agent called Glassco on the telephone. Kornfeld testified concerning the call: "I had settled up with the Travelers Insurance Company and I informed him that they were expecting me to make some disposition at once of all items outstanding. I was attempting to determine just what his intentions were and asked him as a favor to myself to return the policy and allow me to rewrite the policy with the Federal Life, which company I signed a contract with on the date I settled up with the Travelers Insurance Company . . . He said . . . 'You'll be downtown in the next day or two, stop in the office and I'll just hand it over to you.' (He was concerned about this receipt that was outstanding and he wanted that returned.)" [The parenthesis was, on motion of plaintiff's counsel, stricken out.] This answer in its entirety was admitted in evidence in the retrial. And at the retrial Kornfeld testified that after that conversation (December 30, 1930) he never saw or communicated with Glassco again. Glassco died from injuries he received on January 1, 1931.

The evidence was substantially the same as that in the former trial touching the solicitation of the policy, the acceptance of the application therefor, the manual delivery of the policy together with the customary identification card, and of the agent's bill, and Glassco's possession of all those papers at the date of his injury. The first trial proceeded on the theory of absolute delivery of the policy to Glassco without payment of the initial premium but upon credit extended to him for the premium. The inspection receipt was admitted in the retrial. On the first appeal we held that the oral evidence touching the actual delivery of the policy and other papers to Glassco, and his retention thereof, was insufficient to make a prima facie case for plaintiff of completed delivery without excluding from view the inspection receipt, as was done. We further held that the oral offer, the fact of discrepancy between the dates of the policy and the bill and of the time of the delivery of them respectively, though some evidence of a credit arrangement, was insufficient to take the case to the jury because of the existence of the inspection receipt, and because of a certain conversation to be mentioned.

We pointed out, however, that the provision in the inspection receipt requiring its surrender, could not be permitted to defeat either a payment of the premium or a subsequent agreement for credit; and that, therefore, a case on the policy might be made on the theory that a credit agreement was made after the inspection receipt was signed; but that, even so, such evidence as plaintiff produced was not sufficient to make a submissible case on the latter theory, "because the agent's positive testimony was that Glassco never did agree to pay for the policy, but finally rejected it." These holdings, it is admitted, constitute the law governing the retrial.

At the retrial respondent's right of action was predicated upon the theory of an oral offer made by the appellant of credit for the premium, an acceptance thereof by Glassco which was by him made known to appellant, and an agreement then and there made by Glassco to pay the offeror the premium. This, if established, would constitute a new contract, brought into existence by the meaning and mental intent of the parties as embodied in the conversation that occurred between Glassco and the agent on December 30, 1930. Matters antecedent thereto became, therefore, collateral in the retrial. The only direct evidence in relation to the making of a new contract -- a substituted contract -- is to be found in the testimony of the appellant's agent. It is upon this testimony that respondent places, and must needs place, his chief reliance -- upon this, so far as it may be supported by the indirect evidence arising out of the circumstances that Glassco held in his possession at the time of his injury, the theretofore conditionally delivered (pursuant to the inspection receipt) other instruments noted. For it is obvious that just as the inspection receipt cannot serve to preclude a new offer and a new contract, so Glassco's holding of said other instruments cannot serve here to support the inferences attributed to them in our former decision upon the previous oral offer, and operating through the period, there considered. Putting the matter differently, the issue here, though similar to the former issue, is quite distinct and separate from it. So far as the inferential effect of Glassco's holding and placement of said instruments is here concerned, the inception thereof was simultaneous with the conversation of December 30, 1930.

The respondent rests his case in the main upon what his counsel developed in his cross-examination...