Doza v. American National Insurance Company

• Decision Date: 08 March 1963
• Docket Number: No. 17092.,17092.
• Citation: 314 F.2d 230
• Parties: Marshall G. DOZA and Mary E. Doza, Appellants, v. AMERICAN NATIONAL INSURANCE COMPANY, an Insurance Corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

314 F.2d 230 (1963)

Marshall G. DOZA and Mary E. Doza, Appellants, v. AMERICAN NATIONAL INSURANCE COMPANY, an Insurance Corporation, Appellee.

No. 17092.

United States Court of Appeals Eighth Circuit.

March 8, 1963.

William R. Kirby, St. Louis, Mo., and Thurman Nixon & Blackwell, Hillsboro, Mo., on the brief, for appellants.

Lon Hocker, St. Louis, Mo., and Goodwin, MacGreevy, and Donald J. Stohr, St. Louis, Mo., on the brief, for appellee.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

PER CURIAM.

On motion for summary judgment the District Court sans memorandum opinion, entered judgment in favor of appellee and against appellants on the following tersely stated claim made in the complaint filed in the case at bar:

"(T)hat they (appellants) are the beneficiaries of an insurance policy purchased on the life of their daughter, Rose DeClue (who) died as a result of an accident; that at the time of the death the plaintiffs\' rights under said policy accrued, and they thereby became entitled to $50,000.00 as the face amount of the policy, together with the amount of $15,000.00 as penalty and attorney fees for vexatious refusal to pay.

"Wherefore, plaintiffs pray judgment in the amount of $65,000.00 and for their costs herein expended."

To that claim, appellee filed a general denial. By its motion for summary judgment, subsequently filed, appellee recognized that "the complaint (was) based upon a claim founded upon an alleged life insurance policy issued by (it) to the plaintiffs' (appellants') assured." It further stated therein: "The fact is that no such policy was ever issued by the defendant nor delivered to the plaintiffs' alleged insured, Rose DeClue." It was also alleged in that motion:

"The relevant facts are disclosed by the answers to plaintiffs\' interrogatories answered under oath by the Regional Director of Agencies of defendant, a copy of which is attached hereto in support hereof.

These facts demonstrate that the policy application was never acted upon by the defendant pending receipt of a physical examination to be taken by the applicant.

"The application for the insurance, a copy of which is attached hereto and incorporated herein, demonstrates that the policy could not in any event take effect until the completion of a medical examination (if required); that a physical examination was required, and that the plaintiffs were so informed by the agent soliciting the policy, as appears from the sworn answers to the interrogatories. (Emphasis added.)

"There appears to be no dispute as to the basic facts in the case, and there is no substantial issue as to the facts, and under them plaintiffs are not entitled to recover more than the return of premium tendered to them by deposit in court." (Emphasis added.)

From the record here, it appears that the basic issue raised by appellee's motion for summary judgment was whether or not a "policy was ever issued or delivered by (appellee) to Rose DeClue or ever became effective because the policy for which application was made was contingent upon and could not take effect until the completion of a medical examination, to which the proposed insured, Rose DeClue, never submitted * * *." As to that matter, appellee contends there was no genuine issue of material fact existing, and that it sustained the burden of proof cast upon it to demonstrate that fact. But it appears that the "answers to plaintiffs' interrogatories," relied on by appellee, were made "under oath by the Regional Director of Agencies of defendant * * * according to his best knowledge and belief." That being so, the answers to plaintiffs' interrogatories are insufficient to sustain the burden of proof cast upon appellee.

"On a motion for a summary judgment the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, all doubts are resolved against him, and his supporting affidavits and depositions, if any, are carefully scrutinized by the court. The object of the motion is to separate the formal from the substantial issues raised by the pleadings, and the court examines evidence on the motion, not to decide any issue of fact which may be presented, but to discover if any real issue exists. * * * When affidavits are offered in support of a motion for summary judgment, they must present admissible evidence, and must not only be made on the personal knowledge of the affiant, but must show that the affiant possesses the knowledge asserted." Sprague v. Vogt et al., 150 F.2d 795, 800 (8 Cir., 1945).

Such has been the position steadfastly maintained by this Court in respect to motions for summary judgment under Rule 56, F.R.Civ.P., 28 U.S.C.A. Cf. United Pacific Insurance Company v. United States, 296 F.2d 160 (8 Cir., 1961), and cases there cited.

As above noted, appellee by its motion for summary judgment recognized that a factual issue was presented by the pleadings (1) as to whether appellee ever acted upon the application for insurance; and (2) whether a "physical examination was required" before the policy...