Evers v. Life Ass'n of America

• Decision Date: 31 March 1875
• Parties: EDWARD EVERS, Trustee of CATHERINE EVERS and ELIZA H. DUNSTAN, Respondent, v. THE LIFE ASSOCIATION OF AMERICA, Appellant.
• Court: Missouri Supreme Court

59 Mo. 429

EDWARD EVERS, Trustee of CATHERINE EVERS and ELIZA H. DUNSTAN, Respondent,

v.THE LIFE ASSOCIATION OF AMERICA, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

I. Z. Smith, for Appellant.

Geo. M. Stewart, with G. P. Strong & H. E. Mills, for Respondent, referred in argument among others to the following authorities: Snell vs. Inhab. of Westport, 9 Gray, 321; Marsh vs. Potter, 30 Barb., 506; Hooper vs. Hooper, 43 Barb., 292; Stark. Ev., 8 Am. Ed., 142, ch. 99, §§ 2, 14, 15; Stokehill vs. Pettingill, 10 Law & Eq., 458; Gay vs. Est. Rogers, 18 Vt., 342; Low vs. Hughes, 29 Ind., 399; Crane vs. Buchanan, 2 Ind., 570; Merriman vs. R. R. Co., 20 Conn., 354; Lucas vs. State, 23 Conn., 18; Berlin vs. Berlin, 52 Mo., 151; Tingley vs. Cowgill, 48 Mo., 291; Fugate vs. Pierce, 49 Mo., 441; Owen vs. Brockschmidt, 54 Mo., 285.)

WAGNER, Judge, delivered the opinion of the court.

This case comes before us on an appeal from the judgment of the General Term of the Circuit Court, where the judgment at Special Term, which was in favor of the defendant, was reversed.

The suit was instituted on two policies of insurance, issued by the defendant on the life of one R. P. Clark, payable to plaintiff as trustee for his wife, Catharine Evers, and Eliza H. Dunstan, wife of R. W. Dunstan. The record shows that the notes on which the policies were issued were for $5,000 each, made by Clark in consideration of their relinquishment of their dower interest in a large quantity of lands purchased by him and turned over to the firm of Evers & Co., of which firm Clark was admitted as a member.

At the trial, against the objection of the plaintiff, the defendant was permitted to introduce a great deal of testimony tending to show that the lands purchased by Clark of Evers and Dunstan were poor or worthless; that the titles were not good; that the conveyances were not made in good faith; that the partnership business was unproductive, and that therefore the consideration for the notes failed.

Evidence was also introduced of the admissions made by Clark in his life-time, to a third person, not in the presence of the plaintiff or the beneficiaries in the policies respecting his past habits and life.

In rebuttal, the plaintiff called Mrs. Evers as a witness, but her testimony was excluded by the court.

1. It is not perceived upon what principle the evidence was admitted showing that Clark, when he bought the lands and entered into the partnership business with Evers & Co., made a bad bargain. The question of trying titles, or investigating the value of lands was not before the court. If the facts as contended for by the defendant were true, Clark might well have complained; but we know of no authority by which the defendant could do it for him, and in his stead. Clark lived for some time after he made the purchases and become a member of the firm, and it does not appear that he ever expressed any dissatisfaction--and he was the only person concerned--as to whether the transaction was beneficial or advantageous. Moreover, it is shown that before the company issued the policies and assumed the risk, their agent examined the matter and was made acquainted with all the facts, and reported them to the superintendent, who declared that the insurable interest in the life of Clark was sufficient, and the policies were then made out and delivered and the premiums paid. It does not appear that there was any suppression or concealment of facts, and in the absence of such suppression or concealment, the company ought not to be allowed to aver anything against its previous action.

The counsel for the plaintiff have argued here that no pecuniary interest in the lives of the insured was necessary to uphold the policies. Our opinion on this subject was expressed in Chisholm vs. National Capitol Life Insurance Co., (52 Mo., 213,) to some extent; but it is not necessary to examine the question further in this case, as the plaintiff's own instructions assume that such an interest is necessary. He cannot be allowed to contest in this court, the propositions that he advanced in the court below.

2. Did the court rule correctly in allowing the admissions of Clark to be received to invalidate the policies? The rule on this subject is very simple. To render the admissions of one party receivable against another, a joint interest between them must be established. (1 Greenl. Ev., § 176.)

By the terms of the policies they were made payable to Clark himself in the year 1917, in case he lived to that period; but in the event of his dying previously, then they were made payable to the plaintiff as trustee for the beneficiaries therein expressed.

There was no joint interest in the policies during the...