Cable v. Metropolitan Life Ins. Co.
| Decision Date | 03 April 1939 |
| Citation | 128 S.W.2d 1123,233 Mo.App. 1093 |
| Parties | ARCHIE CABLE, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Buchanan County.--Hon. Sam Wilcox Judge.
AFFIRMED.
Judgment affirmed.
John C Landis, 3d, William C. Michaels and Kenneth E. Midgley for appellant.
Harry Cole Bates, Landis & Landis and Michaels, Blackmar, Newkirk Eager & Swanson, of Counsel.
(1) The trial court erred in refusing to give defendant's requested Instructions A and C in the nature of demurrers to the evidence, since plaintiff failed to sustain his burden of establishing that he was suffering prior to suit with a disability resulting from disease originating after the policies were issued, and that he had furnished defendant due proof thereof. And hereunder: (a) The allegation in the petition that disability was due to diabetes is a judicial admission binding on plaintiff. Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 849; Federal Land Bank of St. Louis v. Cantley, 226 Mo.App. 559, 44 S.W.2d 269; State ex rel. Boatmen's Nat. Bank v. Webster Groves General Sewer District, 327 Mo. 594, 37 S.W.2d 905. (b) Lay testimony of apparent good health and ability to work does not conflict with the medical testimony in a case of this kind. Kirk v. Met. Life Ins. Co., 336 Mo. 765, 81 S.W.2d 333; Mudd v. John Hancock Mut. Life Ins. Co. (Mo. App.), 39 S.W.2d 450; Clark v. Nat. Life & Acc. Ins. Co., 288 S.W. 944; Smiley v. John Hancock Mut. Life Ins. Co. (Mo. App.), 52 S.W.2d 12. (c) The evidence is not in dispute, considering the proofs submitted and other documentary evidence, that plaintiff had diabetes prior to issuance of the policies, and that it is incurable. Kirk v. Met. Life Ins. Co., supra; Mudd v. John Hancock Mut. Life Ins. Co., supra; Clark v. Nat. Life & Acc. Ins. Co., supra; Smiley v. John Hancock Mut. Life Ins. Co., supra. (d) Plaintiff's equivocation in his testimony cannot defeat the effect of his admission that he submitted Exhibit A as part of his proofs. Sexton v. Street Railway, 245 Mo. 254; Weltmer v. Bishop, 171 Mo. 116; Clark v. Bridge Co., 333 Mo. 721, 62 S.W.2d 1079; Roseman v. United Railways Co. (Mo. App.), 251 S.W. 104; Burkett v. Gerth (Mo. App.), 253 S.W. 199; Hayes v. S. S. Kresge Co. (Mo. App.), 100 S.W.2d 325; Champagne v. Hamey, 189 Mo. 709; Fleming v. Anderson (Mo.), 232 S.W. 718; Kirk v. Met. Life Ins. Co., supra; Mudd v. John Hancock Mut. Life Ins. Co., supra; Clark v. Nat. Life & Acc. Ins. Co., supra; Smiley v. John Hancock Mut. Life Ins. Co., supra. (e) Even if the contrary were true, the verdict should have been directed for failure to prove that due proof was furnished. Burnham v. Royal Ins. Co., 75 Mo.App. 394; Clanton v. Travelers Protective Association, 101 Mo.App. 312; Beem v. General Acc. Fire & Life Assurance Corp. (Mo. App.), 105 S.W.2d 956; Sampson v. Postal Life & Casualty Co. (Mo. App.), 78 S.W.2d 466. (2) The verdict was not responsive to the issues and shows an entire disregard for the court's instructions. And hereunder: (a) A verdict for only one-sixth of the minimum amount permitted under the instructions in the event of a verdict for plaintiff, is prejudicial to defendant, and cannot stand. Johnson v. Labarge, 46 Mo.App. 433; Cole v. Armour, 154 Mo. 333; Ferd Bauer Engineering & Contracting Co. v. Arctic Ice & Storage Co., 186 Mo.App. 664, 671; Shoemaker v. Johnson et al., 200 Mo.App. 209; Abbey v. Altheimer, 263 S.W. 471; Weisels-Gerhardt Real Estate Co. v. Pemberton Invest. Co., 150 Mo.App. 626; Witty v. Saling, 171 Mo.App. 574; Watson v. Esther, 226 S.W. 324; Burks v. Woods, 279 S.W. 168; Morey v. Feltz, 187 Mo.App. 650; Lindstrom v. K. C. So. Ry., 202 Mo.App. 399; Busse v. White, 274 S.W. 1046. (3) The trial court erred in refusing to give Instruction G requested by defendant. Jacoby v. New York Life Ins. Co. (Mo. App.), 77 S.W.2d 840. (4) The trial court erred in refusing to give Instruction H requested by defendant. Kirk v. Met. Life Ins. Co., supra; Mudd v. John Hancock Mut. Life Ins. Co., supra; Clark v. Nat. Life & Acc. Ins. Co., supra; Smiley v. John Hancock Mut. Life Ins. Co., supra; Tyler v. Hall, 106 Mo. 313; Wilkerson v. Hunt, 245 S.W. 615. (5) The trial court erred in giving plaintiff's Instruction I for the reason that such instruction constituted a roving commission and was broader than either the pleadings or the evidence. State ex rel. Peoples Bank v. Melton, 251 S.W. 447; Telaneus v. Simpson, 12 S.W.2d 920; Pattonsburg Savings Bank v. Koch, 255 S.W. 580; Macklin v. Construction Co., 31 S.W.2d l. c. 19. (6) The verdict was based on apparent false testimony and disregard of the evidence and was the result of passion, prejudice and sympathy, and should be set aside. Sexton v. Street Railway, supra; Empey v. Cable Co., 45 Mo.App. 424; Lehnick v. Street Railway Co., 94 S.W. 996; Jones v. Railway Co., 228 S.W. 780.
Joseph Goldman and John D. McNeely for respondent.
(1) There was no misrepresentation in securing the policies and even if there had been, same would not be available as a defense in this case. R. S. Mo., sec. 5735. Must actually deposit in court. Marion v. Ins. Co., 273 S.W. 271; Craig v. Metropolitan, 220 Mo.App. 914. This section applies to the disability insurance in these life policies. Shaw v. Mutual, 9 S.W.2d 687; Fraker v. Commonwealth, 278 S.W. 1053; Drucker v. Indemnity, 204 Mo.App. 516; Thrassler v. Association, 67 Mo.App. 505; Lavin v. Insurance Co., 101 Mo.App. 434. R. S. Mo., sec. 5633, making the effect of misrepresentation in life insurance policies a question for the jury would include disability clauses in this policy, even if the question of misrepresentation were in the case. Williams v. Mutual, 283 S.W. 64. (2) Defendant cannot split up his adversary's pleading and use dismembered parts thereof as an admission against him, and discard such parts as affect injuriously. Stock v. Schloman, 226 Mo.App. 240. (3) In passing on the trial court's refusal to give peremptory instruction in nature of demurrer to plaintiff's evidence, the reviewing court must take plaintiff's evidence as true, if it is not at variance with common reason, and disregard defendant's evidence where it is in conflict with plaintiff's evidence, and must give plaintiff the benefit of all reasonable inferences arising from evidence. Burns v. Aetna Life Ins. Co., 123 S.W.2d 185. (4) The fact that the physician of the defendant company examined plaintiff and found him in good health, especially in view of the corroborating testimony showing excellent health for more than seven years thereafter, makes the time of the origin of the disability a question for the jury. Scott v. National Life Co. (Mo. App.), 281 S.W. 67; Mudd v. John Hancock Life Ins. Co. (Mo. App.), 39 S.W.2d 450. (5) Contrary to the contention of appellant, where the health of the deceased is an issue, the testimony of lay witnesses is not without evidentiary value. Scott v. National Ins. Co. (Mo. App.), 281 S.W. 67, 69; Smiley v. John Hancock Life Ins. Co., supra; Bruck v. John Hancock Life Ins. Co., 194 Mo.App. 529; Rowe v. Mo. Nat. Life Co., 96 S.W.2d 889. Admissions in proofs of death are not to be regarded as conclusive against plaintiff where there is evidence tending to show that they were erroneously made, or tending to explain, repel or contradict them or tending to impair their force and effect. Bultralick v. Metropolitan Ins. Co. (Mo. App.), 233 S.W. 250; Hodges v. American Nat. Ins. Co. (Mo. App.), 6 S.W.2d 72; Remfry v. Ins. Co. (Mo. App.), 196 S.W. 775; Ryan v. Metropolitan Ins. Co. (Mo. App.), 30 S.W.2d 190; Bruck v. John Hancock Life Ins. Co., 194 Mo.App. 529; Rowe v. Mo. Nat. Life Co., supra. (6) As to proof, the contract requires the insured to furnish the Company "due proof on forms, which will be furnished by the Company, on request, that the insured has, while said policy and this supplement contract are in full force . . . become totally and permanently disabled . . . and that such disability has already continued uninterruptedly for a period of at least three months." The contract provides that "Payments shall begin as of the date of the commencement of such disability." Plaintiff's Instruction Number L tracks the contract and under said instruction the jury was given the discretion to determine the beginning of total disability regardless of the allegations as to its commencement in the proof of disability, a right that the company, by the terms of its contract, certainly reserved, and did not turn over to the discretion of the insured in making out his proof. The duty of the court to instruct the jury that they had the discretion to fix the time of disability and were not governed by the allegations in the notice or formal proof, is obvious. If Instruction D, given at defendant's request, is inconsistent with Instruction I given at plaintiff's request in that the former does not track the contract and the latter does, defendant, appellant here, cannot complain of his own error. Welsh v. Chicago Guaranty Fund Life Soc., 81 Mo.App. 30. The objection that all the instructions are inconsistent with an instruction given at defendant's request is unavailing where the latter instruction, given at defendant's request, was erroneous. Reardon v. Mo. P. Ry. Co., 114 Mo. 384. An instruction on measure of damages and limiting recovery not conflicting. Porter v. Chicago R. Co., 28 S.W.2d 1035; Consolidated School District v. Power Co., 46 S.W.2d 174. Defendant could not complain that instruction given in behalf of plaintiff was erroneous as in conflict with defendant's instruction, where giving of defendant's instruction was error, if plaintiff's instruction was correct. Youtz v. Sherman, 94 S.W.2d 917.
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