Foster v. Modern Woodmen of America

• Decision Date: 29 January 1940
• Citation: 138 S.W.2d 18,235 Mo.App. 386
• Parties: BESSIE I. FOSTER, RESPONDENT, v. MODERN WOODMEN OF AMERICA, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

138 S.W.2d 18

235 Mo.App. 386

BESSIE I. FOSTER, RESPONDENT, v. MODERN WOODMEN OF AMERICA, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 29, 1940

Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

ORDER GRANTING NEW TRIAL AFFIRMED.

Order affirmed.

George G. Perrin, George H. McDonald, Alfred S. Edler and Adams Adams & Adams for appellant.

(1) Respondent cannot complain of instructions to jury if no submissible case was made. Jacoby v. New York Life Ins Co., 229 Mo.App. 333, 77 S.W.2d 840; Kansas City Stockyards Co. v. Federal Grain Co., 279 S.W. 771; Koehler v. Franklin Paving Co., 269 S.W. 400; Barr v. Missouri P. R. Co., 37 S.W.2d 927; Shepard v. Metropolitan Life Ins. Co., 231 Mo.App 148, 99 S.W.2d 144. (2) It is not error to omit uncontroverted and conceded facts in an instruction. Hartley v. McKee, 86 S.W.2d 359; Shouse v Dubinsky, 38 S.W.2d 530; Bowers v. Kansas City Public Service Co., 328 Mo. 770, 41 S.W.2d 810; Mott v. Kansas City, 60 S.W.2d 736. (3) All acts and omissions of the insured are chargeable to beneficiary suing on insurance contract. University of Missouri Bar Bulletin, Volume 26, Number 33, page 23; Ellis v. Harrison, 104 Mo. 270, 16 S.W. 198; American Natl. Bank v. Klock, 58 Mo.App. 335. (4) A party is bound by his election between inconsistent remedies. 20 C. J., p. 4; Headlee v. Cain, 250 S.W. 611; 20 C. J., p. 17; Nanson v. Jacob, 93 Mo. 331, 6 S.W. 246; Commercial Bank v. Central Nat. Bank, 203 S.W. 662; 20 C. J., p. 19; Tower v. Compton Hill Improvement Co., 192 Mo. 379, 91 S.W. 104. (5) Where a wrong is committed by a third person, the one making possible such wrong must bear the loss occasioned thereby. (a) The conduct of respondent and of the insured before his death bars a recovery herein. Kuraner v. Columbia Nat. Bank of Kansas City, 230 Mo.App. 358, 90 S.W.2d 465; Roumeloitis v. Railroad, 183 Mo.App. 139, 165 S.W. 818; New York Indemnity Co. v. Andrew County Bank, 227 Mo.App. 878, 59 S.W.2d 741; American Employers Ins. Co. v. Manufacturers & M. Bank, 229 Mo.App. 994, 85 S.W.2d 174. (b) The acts and omissions of respondent after the alleged fraud upon her bars a recovery herein. R. S. of Mo., 1929, sec. 183, Amended Laws, 1933, p. 163; Withers v. Railroad, 226 Mo. 373, 126 S.W. 432; Palmer v. Welch, 171 Mo.App. 580, 154 S.W. 433; Price v. Hallett, 138 Mo. 561, 38 S.W. 451; Leonard v. Shale, 266 Mo. 123, 181 S.W. 16. (6) Respondent's cause of action is barred by the Statute of Limitations. R. S. of Mo., 1929, sec. 862; Webb v. Webb (Ky. App.), 64 S.W. 839; Webb v. Webb, 78 S.W. 166; Brown v. Irving-Pitt Mfg. Co., 316 Mo. 1023, 292 S.W. 1023.

Edgar J. Keating and Robert B. Vaughan for respondent.

Appellant's brief is not sufficient to present a complaint for review in this court. Williams v. Jenkins, 107 S.W.2d 938; Bank of Brimson v. Graham, 76 S.W.2d 376; Clay v. Owens, 93 S.W.2d 914; Pence v. Kansas City Laundry Co., 59 S.W.2d 633; Rathke v. Rathke, 118 S.W.2d 77. (1) The trial court did not err in sustaining plaintiff's motion for a new trial on account of error in giving Instruction G on the ground that the plaintiff failed to make a submissible case and therefore could not complain of errors in giving instructions as contended by the dependant. Under the pleadings, the burden of proof was on the defendant on every issue involved and plaintiff had the absolute right to have the jury pass on the credibility and weight of defendant's evidence regardless of whether or not she had evidence contradicting the evidence introduced by defendant. Cruwell v. National Council of K. & L. of S., 126 Mo.App. 496, 104 S.W. 884, 885; Blood v Sovereign Camp, W. O. W., 140 Mo.App. 526, 120 S.W. 700; Clay v. Owens, 93 S.W.2d 914; Smith v. Metropolitan Life Ins. Co., 107 S.W.2d 809; Cox v. Mut. Life Ins. Co. of Baltimore, 109 S.W.2d 694; State v. Cox, 30 S.W.2d 462; Young v. Hoover, 233 S.W. 501. Defendant not only was not entitled to a directed verdict but to the contrary it did not make a submissible case on any of its affirmative defenses, and the court erred in refusing plaintiff's separate withdrawal instructions, the same being Instructions Nos. 3, 4, 5, 6 and 7, withdrawing said defenses from the jury. Blood v. Sovereign Camp, W. O. W., 140 Mo.App. 526, 120 S.W. 700; Dunavant v. Mountain State Life Ins. Co., 67 S.W.2d 785, 787; Seitz v. Hudson, 106 S.W.2d 523, 524; Adelsberger v. Sheeley, 59 S.W.2d 644, 647; O'Neal Implement Co. v. Gardner, 269 S.W. 636; Meyer v. Golloday, 104 S.W.2d 1007, 1015; Christman v. Railroad, 64 S.W.2d 752; Weeks v. A. T. & S. F. Railroad Co., 109 S.W.2d 374; Grafeman Dairy Co. v. Northwestern Bk., 315 Mo. 849, 288 S.W. 359; Blodgett v. Perry, 97 Mo. 263, 272, 273, 274; Hequenbourg v. Edwards, 155 Mo. 514, 522; Burke v. Adams, 80 Mo. 504, 514; Parrott v. Barrett, 70 S.C. 195, 196, 49 S.E. 563; Pemberton v. Price Piano Co., 144 Ky. 518, 524, 139 S.W. 742; Wilkinson v. Lieberman, 37 S.W.2d 533, 536; 21 C. J., sec. 175, p. 1170; Northrup v. Coltur, 150 Mo.App. 639, 649; Powell v. Denton, 12 S.W.2d 562; Waugh v. Williams, 119 S.W.2d 223, 225-226; Trimble v. Bank, 71 Mo.App. 467, 486; Auto Car Sales & Service Co. of Mo. v. Holscher, 11 S.W.2d 1072, 1074; Maiden v. Fisher, 17 S.W.2d 562, 565; Massachusetts Bonding & Ins. Co. v. Ripley County Bank, 237 S.W. 182, 186; Reynold v. Union Station Bk., 200 S.W. 711, 714; Lewis v. Thompson, 96 S.W.2d 938, 945; First Nat. Bk. v. Security Mut. Life Ins. Co., 222 S.W. 832, 835; Nef v. Sovereign Camp, W. O. W., 48 S.W.2d 564, 549; Sheppard v. Travelers Protective Association of America, 124 S.W.2d 526, 533; Smith v. Met. Life Ins. Co., 107 S.W.2d 809; Young v. Hoover, 233 S.W. 501. The trial court did not err in sustaining plaintiff's motion for a new trial on account of error in giving Instruction G as contended by defendant. Said instruction purports to cover the whole case and directs a verdict for defendant without covering the essential elements of either estoppel in pais or estoppel by election of remedies, which are the two alleged affirmative defenses attempted to be submitted therein. Willock Realty & Loan Co. v. Smith, 253 S.W. 45, 46; State v. Allen, 124 S.W.2d 1080, 1082, 1083; Blodgett v. Perry, 97 Mo. 263; Burke v. Adams, 80 Mo. 504, 514; Hequembourg v. Edwards, 155 Mo. 514; Waugh v. Williams, 119 S.W.2d 223, 226; Maiden v. Fisher, 17 S.W.2d 562, 565. Said Instruction G is inconsistent with defendant's Instructions I and J because Instruction G is based on the theory that the purported application for change of beneficiary in question was a forgery and Instructions I and J are based on the theory that the same was genuine. Kirk v. Franklyn, 107 S.W.2d 284, 289; Dillalo v. Lynch, 101 S.W.2d 7, 10; State v. Shain, 101 S.W.2d 3. It broadens the issues made by the pleadings in that said instruction directs a verdict for defendant if the jury found that plaintiff had constructive knowledge that her sister was claiming the full amount of said benefits, whereas defendant's said answer charged that plaintiff actually knew that her sister was claiming all of said money and that she knowingly assisted her sister in obtaining said money. State ex rel. Central Coal & Coke Co. v. Ellison (Mo.), 195 S.W. 772, 724; Rucker v. Alton Railroad Co., 123 S.W.2d 24, 26. Defendant failed to make a submissible case on either of the two alleged affirmative defenses attempted to be submitted in Instruction G and said instruction is therefore not supported by the evidence. The trial court erred in giving defendant's Instructions I and J, both of which purport to cover the whole case, and directed a verdict for defendant on a finding by the jury that the insured executed the purported application for change of beneficiary in question as charged in defendant's first affirmative defense for the reason that defendant failed to make a submissible case on said first affirmative defense, and therefore neither of said instructions were supported by any substantial evidence. The trial court erred in admitting in evidence the purported application for a change of beneficiaries from plaintiff and her sister to her sister alone, the same being the purported application for change of beneficiaries in question which is on the back of defendant's Exhibit I over the objection and exception of plaintiff that the purported signature of the insured had not been identified, for the reason that no foundation was laid for its introduction in that the purported signature of the insured was not identified. Gruwell v. National Council of K. & L. of S., 126 Mo.App. 496, 104 S.W. 884; Blood v. Sovereign Camp, W. O. W., 140 Mo.App. 526, 120 S.W. 700; Dunnavant v. Mountain State Ins. Co., 67 S.W.2d 785, 787; United Factories, Inc., v. Brigham, 117 S.W.2d 662, 665. The trial court erred in refusing to give plaintiff's instruction number two offered at the close of all the evidence directing the jury to return a verdict for plaintiff in the sum of $ 1500 together with interest thereon at the rate of six per cent from the date suit was filed for the reason that plaintiff's cause of action is based upon an admitted contract and defendant's evidence failed to disclose any valid defense to said contract. Knisely v. Leathe, 178 S.W. 453, 461; Home Trust Co. v. Josephson, 95 S.W.2d 1148, 1152; State v. McElhinney, 100 S.W.2d 36. Under such circumstances this court should affirm the order of the trial court granting plaintiff a new trial and remand the cause with directions to the trial court to enter judgment in favor of the plaintiff and against the defendant for the sum of $ 1500 plus interest from the date suit was filed. Knisely v. Leathe, 178 S.W. 453, 461; Sonnenfeld Millinery Co. v. Zornheld, 75 S.W.2d 608; Kristanik v. Chevrolet Motor Co., 70...