Gibson v. Pioneer Life Ins. Co.
| Decision Date | 01 June 1914 |
| Parties | JAMES A. GIBSON, Guardian and Curator of CHARLES F. SIGLER and THOMAS G. SIGLER, Minors, LUCILE M. SIGLER, a Minor, by J. W. CLINE, her Guardian and Curator, and ELNORA SIGLER and EDWARD O. SIGLER, Respondents, v. PIONEER LIFE INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
Howard & Washburn for appellant.
(1) The court erred in overruling defendant's application for a continuance. Nichols v. Grocer Co., 66 Mo.App. 321; Alt v. Grosclose, 61 Mo.App. 409. (2) The court erred in refusing Instruction "A," requested by defendant, which was an instruction to direct verdict in defendant's favor, for the reason that it appeared from the evidence of plaintiffs that the policy sued on herein was issued on an application made to the National Security Life Insurance Company, a company organized under the stipulated premium plan; and for the further reason that the defendant in executing said policy exceeded its corporate powers, and that no legal contract of insurance ever existed between defendant and said E. B. Sigler. Drug Co. v Robinson, 81 Mo. 26; Hill v. Coal Co., 119 Mo 31; Insurance Co. v. Smith, 117 Mo. 261; State v. Murphy, 134 Mo. 566-567; Chenoweth v. Pacific Express Co., 93 Mo.App. 185.
Charles F. Strop and Eugene Silverman for respondents.
(1) The testimony upon defendant's application for a continuance showed an entire absence of diligence on the part of defendant and the application was properly overruled. The granting and refusing of a continuance is largely discretionary and there must be a satisfactory showing that the trial court has abused its discretion. And the ruling of the trial court is entitled to every intendment in its favor. Rhodes v. Guhman, 156 Mo.App. 361; Pidgeon v United Rys. Co., 154 Mo.App. 27; Railway v. Holladay, 131 Mo. 457; Shirk v. Shirk, 75 Mo.App. 581; Bartholow v. Campbell, 56 Mo.App. 118; Leabo v. Goode, 67 Mo. 132. (2) Where all the evidence in a case is of such character that it affords no room for reasonable controversy about an ultimate fact, there can be no issue, and therefore nothing concerning such fact for the triers of fact to determine. Richey v. W. O. W., 163 Mo.App. 246; Dunham v. Joyce, 129 Mo.App. 5; Straus v. Chewing Gum Co., 134 Mo.App. 114; Callahan v. Warne et al., 40 Mo. 137; Boland v. Railroad, 36 Mo. 491.
This is an action begun April 20, 1912, by the beneficiaries of a policy of life insurance issued by defendant April 10, 1911, on the life of Edward B. Sigler, who died March 6, 1912, at his home in St. Joseph. The principal defenses are based on the alleged facts that the assured failed to pay the premium of $ 241.10, for the first year or any part thereof, and that the policy was issued without a written application to defendant but upon an application addressed to another company for a different kind of policy. After taking the deposition of the former president of defendant who was in office at the time the policy was issued, plaintiffs on May 5, 1913, amended the petition by adding the charge of a vexatious refusal to pay and demanding the assessment of a penalty and attorney's fees as allowed by statute in such cases. An answer was filed to the amended petition May 8th, and the cause was set for hearing May 23d. When it was called, defendant filed a motion for a change of venue which was sustained and the cause was transferred to another division of the court and set for trial on June 3d. On that date defendant filed an application for a continuance which was heard and overruled on the ground of a lack of diligence in defendant.
The cause then was tried with the aid of a jury and a verdict was rendered for plaintiffs in the sum of $ 6325.00, which included the amount due on the policy with interest, and attorney's fees and penalty to the amount of $ 1000.00. Motions for a new trial and in arrest were filed by defendant and overruled by the court whereupon defendant appealed.
At the time the policy was issued the corporate name of the defendant was the St. Louis National Life Insurance Company but in a short time thereafter its name was changed to the Pioneer Life Insurance Company of America and the headquarters of the company were removed from St. Louis to Kansas City. Sigler was a life insurance agent at St. Joseph and there is evidence tending to show that he was an agent of defendant when he applied for and received the policy in suit. It appears that during the second month following the issuance of the policy internal dissensions in the company culminated in a complete change of officers. George H. Harrison who had been president about three months resigned and his retirement was followed by that of T. A. Roberts, secretary. In the following July, R. C. Van Dyke, who had been a special examiner for the State Insurance Department and as such had recently investigated the affairs and books of defendant, was elected secretary. He appeared as the principal witness for defendant but his knowledge of vital facts pertaining to the issues made by the pleadings was confined to that received from an inspection of defendant's books and papers which contained no record of the payment of the premium on this policy and did include a written application for a policy signed by Sigler and addressed to another company. The court sustained plaintiff's objection to the admission of this application in evidence.
The facts about which there is no controversy are that the policy was issued and delivered by defendant to Sigler on or about April 10, 1911; that Sigler died March 6, 1912, with the policy in his possession and that in response to notice of his death and to the request of his beneficiaries for blank proofs of loss, defendant replied denying liability on the ground of nonpayment of the first premium.
The policy introduced in evidence by plaintiffs is known as a "Twenty Payment Life, Double Indemnity Non-Participating Policy" and recites that it "is issued in consideration of the written and printed application therefor, which is hereby made a part hereof, and of the payment in advance of two hundred and forty-one and ten/100 dollars for one year's term insurance," and closes with copies of the "Answers made to medical examiner" of defendant and of an application which purports to have been made in writing to defendant and contains the statement and agreement: "I have paid . . . the first premium, as stated above, and hold the detached receipt from my application therefor, showing that I have paid the agent for the first annual premium which shall be forfeited by me should I refuse or neglect to be examined by the company's regular examining physician," and "I hereby agree that this application and the answers made to the medical examiner and the policy applied for shall constitute the entire contract between the parties hereto." It is pertinent to add that the application was for a policy in the amount and of the class of that issued by defendant and now in controversy.
A copy of the following letter obtained from defendant's files and addressed to Sigler was introduced in evidence by defendant:
St. Joseph, Mo.
Dear Sir:
When I saw you in Kansas City you told me you would send in the notes you had in settlement of the St. Louis National Insurance policies, but as yet we have not heard from you.
Kindly let us hear from you by return mail in regard to this matter.
A copy of another letter which Van Dyke testified he wrote to Sigler three days later also was introduced and is as follows:
St. Joseph, Mo.
Dear Sir:
As a representative of the State Insurance Department, I have found upon examination of the company's books, that there have been eight policies sent to you for delivery and upon which the company has received no settlement. Upon presentation of this letter by Mr. Roberts you will please turn over to him the policies designated in the enclosed list or settlements in accordance with your contract.
Van Dyke states that the policy in suit was one of the eight mentioned in this letter for which Sigler, as the agent of defendant, had not settled. So far as the records of defendant disclosed Sigler did not answer either of these letters. No demand was subsequently made by defendant upon Sigler for the return of his policy or of any of the other policies referred to in Van Dyke's letter which was written...
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