Boillot v. Income Guar. Co.

• Decision Date: 23 May 1938
• Docket Number: No. 19139.,19139.
• Parties: WILLIAM W. BOILLOT, RESPONDENT, v. INCOME GUARANTY COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

120 S.W.2d 74

WILLIAM W. BOILLOT, RESPONDENT, v. INCOME GUARANTY COMPANY, A CORPORATION, APPELLANT.

No. 19139.

Kansas City Court of Appeals. Missouri.

May 23, 1938.

Appeal from Pettis Circuit Court. — Hon. Dimmit Hoffman, Judge.

AFFIRMED.

Davis & Davis and C.W. Armstrong for appellant.

(1) If Mr. Boillot can now tune a piano — having recovered from his disability — and is able to perform some of the duties of a piano tuner, appellant has a right to contest the matter, even to the extent of requiring him to file suit; and it is competent for appellant to show this at the trial. Paul v. Missouri State Life Ins. Co., 52 S.W. (2d) 437. (2) (a). The phrase "totally and continuously disabled" contemplates a physical condition at the time of the claim which reasonably convinces the judging authorities that (a) the subject is then totally disabled, and (b) will so remain for life. Paul v. Missouri State Life Ins. Co., 52 S.W. (2d) 437. (b) An insured, under an accident and health disability policy, does not have a right of action and cause of action except for installments as they fall due. New York Life Ins. Co. v. Viglas (U.S.), 80 L. Ed. 971; Mobley v. New York Life Ins. Co. (U.S.), 79 L. Ed. 1621. (c) An insurance company has the right to contest the disability claimed under an accident and health insurance policy for every period of time provided by the policy. New York Life Ins. Co. v. Stoner, 92 Fed. (2d) 845; United States Fidelity & Guaranty Co. v. McCarthy, 33 Fed. (2d) 1, (3) The Kansas City Court of Appeals is not a trier of the facts. That is the sole duty and province of the jury or the court sitting without a jury. 5 C.J.S. 550; O'Donnell v. B. & O.R. Co., 26 S.W. (2d) 929, 324 Mo. 1097; King v. Mauer, 286 S.W. 100, 315 Mo. 318; Phillips v. Wilson, 250 S.W. 408, 298 Mo. 186; Davis v. Alexander, 183 S.W. 563; Schell v. F.E. Ransom Coal & Grain Co., 79 S.W. (2d) 543; Bender v. Midwest Pipe & Supply Co., 57 S.W. (2d) 707; Scott v. Missouri-Kansas-Texas R.C., 22 S.W. (2d) 654, 224 Mo. App. 1; Kapros v. Pierce Oil Co., 25 S.W. (2d) 777, 324 Mo. 992; Craig v. Rhodes, 298 S.W. 756; 5 C.J.S. 552. (4) In the Sullivan County Case (Kansas City Court of Appeals, 102 S.W. (2d) 132) the trial court found as a fact that Mr. Boillot was disabled from the time of the accident to the filing of the petition. The Kansas City Court of Appeals did not have power, authority or jurisdiction to go beyond that finding and find, hold or decide that he was disabled beyond that period. Any such judgment was void. Authorities, Point 3, this brief. (5) It is the duty of courts to override previous decisions if such departure is necessary to avoid the perpetration of pernicious error. It is the obligatory duty — a duty imperiously demanded by litigants whose rights are affected — that courts reexamine decisions previously rendered, and, if found to be erroneous, to recede from them. 7 R.C.L. 1008, 1009. The Kansas City Court of Appeals has recognized this duty in a total and permanent accident insurance disability case, and reversed itself to correct error. See: Schuerman v. General American Life Ins. Co. (1937), 106 S.W. (2d) 920; Kingsland v. Missouri State Line Ins. Co., 66 S.W. (2d) 869. (6) The only issue tendered and joined in the Audrain County suit as to Mr. Boillot's disability was that he was unable to perform the duties of a piano tuner from the time of the accident to the filing of the petition. Boillot v. Income Guaranty Company, 83 S.W. (2d) 119. (7) (a) A court cannot decree to a plaintiff more than he asks. Charles v. White, 214 Mo. 187, 112 S.W. 545. (b) A judgment which is not responsive to the pleadings and the proofs is void. Evans v. Gibson, 29 Mo. 225; 15 R.C.L. 604. (c) Missouri courts have held: A court cannot put into the record a judgment which is not a proper sequence to the pleadings; the judgment must be supported by and conform to the pleadings; recovery must be had, if at all, on the facts alleged in the pleadings; facts proved but not pleaded will not support the judgment; proof different to facts alleged constitute variance; a judgment based on issues not made is void. Gatewood v. Trible Co., 62 S.W. (2d) 756; Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W. (2d) 158; Newcomb v. Payne, 250 S.W. 553; Petrie v. Reynolds, 219 S.W. 934; Elliott v. Delaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance Thrasher Co. v. Speak, 167 Mo. App. 440; Central Mfg. Co. v. Montgomery, 144 Mo. App. 494; Rogers v. Shawnee Fire Ins. Co., 132 Mo. App. 275; Orchard v. National Exchange Bank, 121 Mo. 239; Nichols v. Dodson Lead Co., 83 Mo. App. 584; Woolridge v. LaCrosse Lumber Co., 291 Mo. 239; Germer Mfg. Co. v. Combs, 287 Mo. 275; Stewart v. Omaha L. & T. Co., 283 Mo. 364; Scott v. Lusherman, 273 Mo. 363; Zasenowich v. American Mfg. Co., 213 S.W. 799; Spindle v. Hyde, 247 Mo. 32; 310 Mo. 339, 275 S.W. 579; 273 S.W. 145; 31 S.W. (2d) 86. (8) (a) The positive authority of a decision is coextensive only on the facts on which it is founded. Bender v. Weber, 250 Mo. 551, 157 S.W. 570. (b) Judgments of appellate court on one state of facts may not be applied automatically to another state of facts, but, on the contrary, the general language in decisions must be read in the dry light of the very case held in judgment, and not otherwise. State ex rel. v. City of St. Louis, 241 Mo. 238, 145 S.W. 801; Bender v. Weber, supra. (c) Where the evidence on a second trial is different from that produced at the first trial, this may justify a departure from the rulings on the former trial, or on a former appeal, as to questions in regard to which the evidence must govern. 5 C.J.S. 963. (9) Either party is entitled to introduce evidence to rebut that of his adversary, and for this purpose any competent evidence to explain, repel, counteract or disprove the adversary's proof is admissible. 64 C.J. 152. (10) Mr. Boillot testified, in answer to a question by his counsel: "In my present condition I am unable to tune a piano." This fact had been pleaded and denied and was an issue in the case. Appellant was entitled to introduce evidence to explain, repeal or counteract this evidence offered by the respondent to maintain his case. 64 C.J. 152; Rose v. St. Louis-San Francisco R. Co., 289 S.W. 913, 315 Mo. 1181; Hite v. St. Joseph & G.I.R. Co., 225 S.W. 916; Seibel-Suessdorf Cooper & Iron Mfg. Co. v. Manufacturer's Ry. Co., 130 S.W. 288, 230 Mo. 59; Dean v. Wabash R. Co., 129 S.W. 953, 229 Mo. 315; Burgess v. Garvin, 272 S.W. 108, 219 Mo. App. 162; Kramer v. Britt Printing & Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 171 S.W. 979, 185 Mo. App. 43. (11) (a) The power to take judicial notice is to be exercised with caution, and due care must be taken to see that the subject comes within the limits of common knowledge. 23 C.J. 175; 179 N.Y. 235, 72 N.E. 97, 103 Am. St. Rep. 859, 70 L.R.A. 796, 1 Ann. Cas. 334. (b) Care must be taken that the requisite notoriety exists; every reasonable doubt must be promptly resolved in the negative. 23 C.J. 173; Timson v. Manufacturer's Coal Co., 220 Mo. 580, 119 S.W. 565. (c) When judicial notice is taken, the party dissatisfied may introduce evidence to the contrary. Wigmore on Evidence, sec. 2567 (a); 132 Wis. 534, 112 N.W. 40, 6 Ann. Cas. 893. (d) Uncertainty of a fact precludes recognition by judicial notice. 249 U.S. 265, 39 S. Ct. 273, 63 L. Ed. 597. (e) Judicial knowledge cannot be resorted to to raise controversies not presented by the record. 6 R.C.L. 1062; 180 U.S. 533, 21 S. Ct. 488, 45 L. Ed. 656; Mutual Life Ins. Co. v. McGraw, 188 U.S. 291, 23 S. Ct. 376, 47 L. Ed. 480, 63 L.R.A. 33. The Kansas City Court of Appeals had no warrant in fact or authority in law to judicially assume that Mr. Boillot "for all time to come" would be disabled and unable to perform the duties of a piano tuner. This was not within the issues, is not common knowledge or true. (12) An offer of proof is unnecessary where the offer would be a useless ceremony, or the evidence would be rejected, or where the court indicates such offer would be unavailing or holds that the evidence is not admissible under the pleadings, or where the rulings of the court show that it would be unavailing. 64 C.J. 123. (13) The due process clause of the Federal Constitution applies to annual adverse legislation as well as executive and judicial acts affecting individual rights. Simkins, Federal Practice, p. 394; Raymond v. Chicago Union Traction Co., 207 U.S. 20-36, 52 L. Ed. 78-87, 28 S. Ct. 7, 12 Ann. Cas. 757; Scott v. McNeal, 154 U.S. 45, 38 L. Ed. 901, 14 S. Ct. 1108; United States v. Cruikshank, 92 U.S. 542-545, 23 L. Ed. 558-590; Nashville C. & St. L. Co., 86 Fed. 184, 185; Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 41 L. Ed. 979, 17 S. Ct. 581.

Boillot & Teters and Irwin, Bushman & Buchanan for respondent.

(1) Issues are created by the pleadings of the parties. Kleinlein v. Foskins, 13 S.W. (2d) 648, 654; Silverthrone v. Summit Lumber Co., 176 S.W. 441, 444; Coleman v. Drain, 116 Mo. 387, l.c. 392. (2) It is the duty of a trial court to follow the law as laid down by the appellate courts, regardless of the opinion of the trial court as to whether the decision of the appellate court is right or wrong. If it follows such decision, it commits no error. Bealy v. Smith, 158 Mo. 515, l.c. 522; Citizens Nat'l. Bank v. Donnell, 195 Mo. 564, l.c. 570; Gammon v. Paulk, 200 Mo. 75, l.c. 96; Bouvier's Law Dictionary under definition of "stare decisis." (3) (a) Respondent did not waive his right under res adjudicata in his pleadings, or by testifying that he was still totally disabled. A waiver is said to be the intentional abandonment or relinquishment of a known right. "A waiver must be intentional; it must be an intentional act with knowledge; waiver is mainly a question of...