Ferril v. Kansas City Life Ins. Co.

• Decision Date: 06 March 1940
• Docket Number: 35994
• Citation: 137 S.W.2d 577,345 Mo. 777
• Parties: Eunice Ferril, Executrix of the Estate of Clifford Hix, v. Kansas City Life Insurance Company, Appellant
• Court: Missouri Supreme Court

137 S.W.2d 577

345 Mo. 777

Eunice Ferril, Executrix of the Estate of Clifford Hix, v. Kansas City Life Insurance Company, Appellant

No. 35994

Supreme Court of Missouri

March 6, 1940

Motion for Rehearing Overruled January 23, 1940.

Appeal from Gentry Circuit Court; Hon. Ellis Beavers Judge.

Affirmed.

F M. Frisby, J. W. McKnight and McAllister, Humphrey Pew & Broaddus for appellant.

(1) The trial court erred in not sustaining defendant's demurrer offered at the close of all the evidence for the reason there was no substantial evidence showing that insured died on the Sixth day of May, 1927, in Gentry County, Missouri, as alleged in plaintiff's petition. Plaintiff's theory that insured was at that time and place murdered, was not supported by any substantial evidence of the corpus delicti. Tillotson v. Travelers' Ins. Co., 263 S.W. 819. (2) The trial court erred in giving plaintiff's Instruction A, for the reason (a) it purports to cover the entire case and directs a verdict and singles out and informs the jury it must take into consideration the facts and circumstances which would be inconsistent with insured's voluntary absence, to the exclusion of other facts and circumstances shown by the evidence and which were consistent with his voluntary absence, and (b), it is in direct conflict with defendant's Instruction 5. Clark v. Hammerle, 27 Mo. 70; Wingfield v. Wabash Ry. Co., 257 Mo. 362, 166 S.W. 1041; Norton v. Kowazek, 193 S.W. 556; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 656, 195 S.W. 725; Seithel v. St. Louis Dairy Co., 300 S.W. 282. (3) The court erred in admitting plaintiff's Exhibit 2, being the letters testamentary issued to plaintiff, Eunice Ferril, for the reason her status as such executrix was not attacked by defendant. State ex rel. v. Fidelity & Deposit Co., 317 Mo. 1091, 298 S.W. l. c. 89. (4) The court erred in admitting in evidence that portion of plaintiff's Exhibit 2 referred to as proof of death, for the reason no affirmative defense was made by defendant that the requirements of the policy relative to formal proof of death had not been complied with, and it was not an issue in the case, and, containing self serving statements and assertions not supported by any evidence, was highly prejudicial to defendant. Hilburn v. Phoenix Ins. Co., 140 Mo.App. 365, 124 S.W. 66; Shaw v. Mut. Protective Ins. Co., 9 S.W.2d 687; Shearlock v. Mut. Life Ins. Co., 193 Mo.App. 430, 182 S.W. 89; Greene v. Gallagher, 35 Mo. 226; Brooks v. Blackwell, 76 Mo. 309; Wilcox v. K. C. Western Ry. Co., 201 Mo.App. 514, 213 S.W. 158.

F. P. Stapleton and DuBois & Miller for respondent.

(1) There was substantial evidence that Clifford Hix died on May 6, 1927, in Gentry County, Missouri, as alleged in plaintiff's petition. Whether he did so die was and is a jury question, and the court did not err in overruling defendant's demurrer to the evidence. Springmeyer v. W. O. W., 163 Mo.App. 338; Hancock, Admr., v. Amer. Life Ins. Co., 62 Mo. 26; Bonslett v. N. Y. Life Ins. Co., 190 S.W. 870; Miller v. Mut. Life Ins. Co., 79 S.W.2d 750; Grandgenett v. Natl. Protective Co., 73 S.W.2d 341; Schell v. Met. Life Ins. Co. (Mo. App.), 3 S.W.2d 269; Goodlow v. Met. Life Ins. Co., 115 S.W.2d 11; Karst v. Chicago Fraternal Life Assn., 40 S.W.2d 732; Bailey v. Met. Life Ins. Co., 115 S.W.2d 151; Bergman v. Supreme Tent, 203 Mo.App. 685; Johnson v. W. O. W., 163 Mo.App. 728; Bradley v. Modern Woodmen, 146 Mo.App. 428. (2) The trial court did not err in giving plaintiff's Instruction A and such instruction is not in conflict with defendant's Instruction 5. Karst v. Chicago Fraternal Life Assn., 40 S.W.2d 732. (3) The trial court did not err in admitting in evidence plaintiff's Exhibit 2, being the proof of death to which was attached the letters testamentary issued to the plaintiff, Eunice Ferril. 33 C. J., Insurance, p. 119, sec. 845; Schell v. Met. Life Ins. Co., 3 S.W.2d 271; Bonslett v. N. Y. Life Ins. Co., 190 S.W. 870; Stephens v. Fire Assn. of Philadelphia, 139 Mo.App. 369; Bathe v. Met. Life Ins. Co., 152 Mo.App. 87.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action on a $ 10,000 insurance policy on the life of Clifford Hix, payable to his estate. Plaintiff, his wife, sued as executrix named in his will. The verdict was for plaintiff for $ 10,443, and defendant has appealed from the judgment entered.

Defendant contends that there was no substantial evidence that Hix died on May 6, 1927 (as alleged by plaintiff), or at any time while the policy was in force (it was paid up to June 25, 1927), and that its demurrer to the evidence, at the close of the case, should have been sustained. Hix disappeared on the night of May 6, 1927, and had not been seen (defendant had testimony that he was seen in Kansas City later in that month) nor heard from during a period of more than ten years preceding the trial of this case in January, 1938. After his absence had continued more than seven years, his will (made in 1917) was probated and letters testamentary were issued to plaintiff in April, 1937. Proof of death (in form of plaintiff's affidavit and copy of letters) was then submitted to defendant, and, upon rejection of plaintiff's claim, this suit was brought during that month. Because of defendant's contention, we hereafter state the facts which the evidence tended to establish when considered most favorably to plaintiff.

Hix was thirty-two years old at the time of his disappearance. He married plaintiff in 1916 soon after they both graduated from high school at Bethany. They went to school at the Teachers' College at Maryville for a year and, in 1917, went to New Cambria where Hix taught school. In 1918 he enlisted in the United States Army and was stationed at Camp Raritan, New Jersey. Plaintiff went there with him. In January, 1919, plaintiff's father died and she inherited a considerable estate consisting of 320 acres of land in Harrison County and between five and six thousand dollars in money. After Hix was discharged from the Army, they went to Columbia where Hix attended the law school of the University of Missouri for two years. Thereafter, he passed the bar examinations, was admitted to the bar, came back to Bethany and opened a law office. He also had an insurance and farm loan agency. Hix soon began to invest rather heavily in real estate, buying two farms in Harrison County and several residence properties in Bethany. To finance these purchases and improvements on the farms, plaintiff's land was mortgaged for $ 20,000. Mortgages were assumed by Hix on some of the properties purchased, and in other transactions new mortgages were made, on the properties purchased, to the Bethany Building & Loan Association. These provided for monthly payments to which the rentals of the properties were applied.

In 1924 Hix was elected Prosecuting Attorney of Harrison County. This office paid a salary of $ 2500 per year. Hix was a vigorous prosecutor, and having made campaign promises to "down the bootleggers," thriving during the national prohibition era, he filed a number of charges in liquor cases against alleged liquor law violators. He also filed several charges of automobile theft against persons alleged to have been connected with a "car theft ring" operating in Harrison, Livingston and adjoining counties. It was shown that this aroused considerable antagonism, and on one occasion Hix was assaulted on the Bethany fairgrounds by a man he had "prosecuted on some bootlegging charge." A lawyer in Bethany testified "Clifford Hix told me he was afraid he would be bumped off. He told me he was afraid of his life." This lawyer knew the man who had assaulted Hix, and others he had prosecuted, and expressed his opinion as to one of them that "he was the kind of a fellow that would bump a fellow off." In the primary election in 1926 Hix was defeated for the nomination for another term as prosecuting attorney. His father explained this, as follows: "He was pretty hard on bootleggers and the next time they put him out." Immediately after the primary Hix told his successful opponent that he was going to resign and asked him to apply for appointment. His opponent said: "He didn't seem to be unfriendly or sore at me. He joked about it -- that the people didn't want him or they would have nominated him." Another lawyer, who tried to persuade him not to resign, said: "He told me he had sufficient business and property to resign." He did resign the week after the primary and his successful opponent was appointed by the Governor for his unexpired term.

It was defendant's theory that after this time Hix became despondent, drank heavily and took no pride in his personal appearance, although he was previously a very neat dresser. Plaintiff, however, testified that he was always a very clean and well dressed man and that he did not change in any way after his defeat; that he was at all times very temperate in the use of liquor; and that he never smoked and "was particularly proud of never having tasted tobacco." Plaintiff had testimony of Bethany lawyers and other close associates of Hix to the same effect. Hix was a member of the American Legion post at Bethany and took an active part in it. He was also an active member of the Masonic Lodge. He taught a boys' Sunday school class, and, for their use he equipped the basement of his home for boxing and wrestling, with a punching bag and also a basket ball practice ring. He frequently entertained the members of his class there. Plaintiff, and others, testified that their home life was pleasant; that she and Hix went to dances and entertainments together; that he never stayed away from home except a few times when he would stop at the farms overnight; and that there was no...