Bledsoe v. Midland Life Ins. Co.

• Decision Date: 16 June 1937
• Docket Number: No. 5681.,5681.
• Citation: 106 S.W.2d 930
• Court: Missouri Court of Appeals
• Parties: BLEDSOE et al. v. MIDLAND LIFE INS. CO.

106 S.W.2d 930

BLEDSOE et al. v. MIDLAND LIFE INS. CO.

No. 5681.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Rehearing Denied July 8, 1937.

Appeal from Circuit Court, Dunklin County; James V. Billings, Judge.

"Not to be published in State Reports."

Action by Bedford Bledsoe and Thomas E. Pritchard against the Midland Life Insurance Company. Judgment granting plaintiffs a new trial following verdict for defendant, and defendant appeals.

Reversed and remanded, with direction to enter judgment for defendant.

Sebree, Sebree & Shook, of Kansas City, and Bradley & Noble, of Kennett, for appellant.

McKay & McKay, of Kennett, for respondents.

SMITH, Judge.

This is a suit to recover $3,000 by plaintiffs as beneficiaries under an insurance policy No. 22638, issued June 14, 1922, on the life of Mariah E. Bledsoe, the mother and aunt of plaintiffs. The insured died December 8, 1932. The suit was filed June 6, 1933.

The cause was tried before the court without a jury. A stipulation of certain facts was filed, which, caption and signatures omitted, is as follows:

"It is hereby stipulated and agreed by and between the parties hereto that the following facts shall be taken as true, provided, however, that this stipulation shall be without prejudice to the right of either party to introduce other and further evidence not inconsistent with the facts herein stipulated to be taken as true.

"I. The defendant, Midland Life Insurance Company, is a corporation organized and existing under and by virtue of the laws of the State of Missouri and duly authorized to do business as an old line insurance company in said state with its principal office in Kansas City, Missouri.

"II. That on or about the * * * day of June, 1922, in pursuance to the written application of Mariah E. Bledsoe the Midland Life Insurance Company issued its policy of life insurance No. 22638 to Mariah E. Bledsoe, dated June 14, 1922 whereby subject to the terms and conditions contained in said policy it agreed to pay to the beneficiaries therein named, upon due proof of the death of said Mariah E. Bledsoe, the sum of $3,000.00 to Bedford Bledsoe and Thomas E. Pritchard, son and nephew of the said insured. Said policy was delivered to Mariah E. Bledsoe on June 14, 1922.

"III. The original policy of insurance being policy No. 22638 attached to the petition herein and marked Exhibit A may be introduced in evidence by either party as a part of the facts in this case.

"IV. That said policy No. 22638 contains a clause agreeing to pay $3,000.00 at its home office in Kansas City, Missouri, to Bedford Bledsoe and Thomas E. Pritchard, son and nephew, share and share alike or such other beneficiary as may be designated by the insured, or if no designated beneficiary survive then to the executor, administrators or assigns of the insured, upon receipt by its home office of due proof of claimant's right and of the death of Mariah E. Bledsoe, the insured, during the continuance of the policy.

"V. Attached to said policy were certain coupons in the sum of $27.69 each and one of which became due each year after the policy had been in force one year, and which coupons could be used by the insured after becoming due to reduce the amount of the annual premium above mentioned to $154.47 as provided in said policy.

"VI. The advance premium under said policy of $182.16 was paid in cash; the second premium was paid on May 31, 1923, by the use of the coupon in the amount of $27.69 which became due on June 1, 1923, and by the payment of $154.47 in cash; that the next three premiums were paid by the use of coupons and premium lien notes which were later paid in cash.

"VII. That the premium which became due on June 1, 1927, was paid by coupon No. 5 maturing June 1, 1927, in the sum of $27.69 and the balance by a lien note dated June 1, 1927, in the sum of $154.47 due on or before November 1, 1927, which lien note was never paid in cash, a photostat copy of said premium lien note is hereto attached, marked Exhibit B and may be introduced in evidence by either party hereto.

"VIII. That on June 1, 1928, another premium was due and coupon No. 6 was also due in the sum of $27.69 which said coupon together with $154.47 would have paid premium due June 1, 1928, which premium was not paid. Neither was the premium lien note executed on June 1, 1927 paid.

"IX. That the insured failed to pay the premium lien note due November 1, 1927, and failed to pay the premium due June 1, 1928, and on August 22, 1928, the insured made application for reinstatement of said policy, copy of said application for reinstatement is hereto attached, marked Exhibit C and may be introduced by either party, subject to the objection as to its competency and relevancy without further proof of its identity; that the Midland Life Insurance Company rejected said application for reinstatement on September 19, 1928, and so advised the insured by letter of such rejection, and that said policy would remain on extended insurance, a copy of which letter is hereto attached marked Exhibit D and may be introduced by either party hereto subject to objections for its competency and relevancy.

"X. That the insured, Mariah Bledsoe, died on December 8, 1932, and proof of death was made in due form or duly waived by the defendant company.

"XI. That all notices of premiums due were sent by Midland Life Insurance Company to and including the premium due in June, 1928, and that all such notices specified that the premium due date was June 1st and that no objections or complaint was ever made by the insured to the defendant company that June 1st was not the due date of premiums on said policy."

Certain other testimony was introduced in evidence, and finally judgment was rendered by the court for the defendant. A motion for a new trial was filed by the plaintiffs, and by the court sustained without stating any particular point upon which the motion was sustained. The defendant appealed to this court, and the case is before us on the one assignment, stated by the defendant, as follows: "The Court erred in sustaining plaintiffs' motion for a new trial and in granting plaintiffs a new trial."

The motion for new trial filed by the plaintiffs, which the court sustained, caption and signatures omitted, is as follows:

"Now on this the 15th day of March, 1935, come plaintiffs in the above entitled cause and move the court to set aside its judgment rendered herein on this the 15th day of March, 1935, and as grounds for said motion allege:

"First: The judgment and decision of the court is against the law.

"Second: The judgment and decision of the court is against the law under the pleadings and the evidence in this cause.

"Third: The court erred in refusing to give plaintiffs' declarations of law numbers one and two offered at the close of all the testimony in said cause.

"Fourth: The court erred in giving the defendant's declaration of law number 2D given at the close of all the evidence.

"Fifth: The judgment and finding of the court should have been for the plaintiffs and against the defendant.

"Sixth: The judgment of the court is for the wrong party.

"Wherefore, plaintiffs pray the court to set aside its judgment in said cause and to grant them a new trial herein."

It may be seen, and the parties seem to concede, that the foregoing motion for new trial is so general and indefinite as to present for our consideration the one point only, which is the fourth; that is, that the court erred in giving declaration of law number...