Gordon v. Metropolitan Life Ins. Co., 20182.

• Decision Date: 08 November 1943
• Docket Number: No. 20182.,20182.
• Citation: 176 S.W.2d 506
• Parties: MINNIE L. GORDON, PUBLIC ADMINISTRATOR OF THE ESTATE OF JOHN JUSS (SOMETIMES KNOWN AS JOHN JUSIS AND JOHN P. JUSS), DECEASED, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

176 S.W.2d 506

MINNIE L. GORDON, PUBLIC ADMINISTRATOR OF THE ESTATE OF JOHN JUSS (SOMETIMES KNOWN AS JOHN JUSIS AND JOHN P. JUSS), DECEASED, APPELLANT, v. METROPOLITAN LIFE INSURANCE COMPANY, A CORPORATION, RESPONDENT.

No. 20182.

Kansas City Court of Appeals, Missouri.

November 8, 1943.

Appeal from Buchanan Circuit Court. — Hon. Sam Wilcox, Judge.

AFFIRMED.

Groves & Watkins, Fred M. Wanger and O.W. Watkins, Jr., for appellant.

(1) The evidence offered was evidence of pedigree and is admissible under the exception to the hearsay rule. Osmak v. Am. Car. & Foundry Co., 328 Mo. 159, 40 S.W. (2d) 714; Rauch v. Metz, 212 S.W. 357; State v. Bowman, 278 Mo. 492, 213 S.W. 64; Allen et al. v. Protected Home Circle (Kan.), 212 Pac. 95; Peniston v. Schlude, 171 Mo. 132; Washington v. Bank for Savings in City of New York, 171 N.Y. 166, 63 N.E. 831, 89 Am. St. Rep. 800; Northrup v. Hale, 76 Me. 306, 49 Am. Rep. 615; 31 C.J.S., sec. 227, p. 970. (2) To satisfy the pedigree exception to the hearsay rule three requirements must be met and are present here: (1) That declarant be related by blood or marriage to the person of whom he speaks, (2) That the statements were made ante litem motam or before there was a motive to falsify, (3) That the declarant is dead, or otherwise unavailable. Osmak v. Am. Car & Foundry Co., 328 Mo. 159, 40 S.W. (2d) 714; State v. Bowman, 278 Mo. 492, 213 S.W. 64; Northrup v. Hale, 76 Me. 306, 49 Am. Rep. 615. (3) If the pedigree evidence satisfies the three requirements set forth under point (2) above, and tends to prove an issue in the case, the evidence is admissible regardless of whether or not the case is one otherwise involving questions of pedigree. Osmak v. Am. Car & Foundry Co., 328 Mo. 159, 40 S.W. (2d) 714; Rauch v. Metz, 212 S.W. 357; State v. Bowman, 278 Mo. 492, 213 S.W. 64; Allen et al. v. Protected Home Circle (Kan.), 212 Pac. 95. (4) In the case at bar pedigree was directly in issue. Osmak v. Am. Car & Foundry Co., 328 Mo. 159, 40 S.W. (2d) 714; Allen et al. v. Protected Home Circle (Kan.), 212 Pac. 95; Washington v. Bank for Savings in City of New York, 171 N.Y. 166, 63 N.E. 831, 89 Am. St. Rep. 800.

John C. Landis, III, and Paul S. Schmid for respondent.

Harry Cole Bates and Landis & Landis of counsel.

(1) If pedigree was not directly in issue, the unsworn statements of the employee as to the death of his mother were not admissible, as exceptions to the hearsay rule. 22 C.J. 248; Evidence, sec. 237; 31 Corp. Jur. Secundum, 979; Evidence, sec. 231; Jones on Evidence in Civil Cases (3 Ed.), p. 477, sec. 314; Eisenlord v. Clum, 162 N.Y. 566, 27 N.E. 1024; National Aid Life Ass'n. v. Wiles (Okla.), 41 Pac. (2d) 655; Pickering v. Peskind (Ohio), 183 N.W. 301; Tuite v. Supreme Forest Woodmen's Circle, 193 Mo. App. 619, 187 S.W. 137; Bailey v. Met. Life Ins. Co., 115 S.W. (2d) 151. (2) The question of pedigree was not directly in issue in this case, but only a question of whether or not the direct beneficiary was dead, as a condition precedent to the right of recovery by a contingent beneficiary. Eisenlord v. Clum, 162 N.Y. 566, 27 N.E. 1024; National Aid Life Ass'n v. Wiles (Okla.), 41 Pac. (2d) 655; Pickering v. Peskind (Ohio), 183 N.W. 301; Trite v. Supreme Forest Woodmen's Circle, 193 Mo. App. 619, 187 S.W. 137; Bailey v. Met. Life Ins. Co., 115 S.W. (2d) 151.

ON REHEARING.

BLAND, J.

This is an action on a policy of life insurance. This appeal involves the question of the propriety of the action of the trial court in refusing to set aside an involuntary nonsuit taken by the plaintiff.

The facts show that in 1926 defendant issued a policy of group life insurance covering certain employees of Armour & Company; that in 1931 one John P. Juss, an employee of said company, made application to come within the coverage of said policy, and received a certificate for $1200 reciting to the effect that he was insured under said policy in that amount. In said certificate, Emma Juss, mother of the insured, living in Russia, was named as the beneficiary. John Juss died on May 22, 1940, while still an employee of Armour & Company, and the plaintiff was appointed administratrix of his estate. Her claim for the payment of the amount of the certificate being denied by the defendant, she brought this suit on the policy for the sum of $1200.

The group policy provided: "In the event of the death of any beneficiary, prior to that of the Employee, the interest of such Beneficiary shall vest in the Employee, by whom he was designated. If there be no designated Beneficiary at the time when any insurance hereunder shall be payable to the Beneficiary, then such insurance shall be payable as follows: To the wife, or husband, if living, of such Employee; if not living, to the children of such Employee who survive such Employee, equally; if none survive, to the father and mother of such Employee equally, or to the survivor; if neither survive such Employee, to the estate of such Employee."

The petition alleges that Emma Juss departed this life before the insured; that he was not survived by a widow nor descendants nor brothers nor sisters, nor any heirs-at-law.

For the purpose of proving that insured's mother, who never left Russia, the designated beneficiary, was dead; that his father was dead; that he had never been married and that he had left no children evidence was offered, on the part of the plaintiff, to the effect, that insured, in his lifetime, made certain declarations to the effect that his mother and father were dead; that he had never been married and that he had no children. The court refused to permit the introduction of this testimony. This is assigned as error by plaintiff.

Plaintiff concedes that this testimony was hearsay but insists that it comes within one of the exceptions to the hearsay rule, it being evidence of pedigree. Plaintiff insists that the proffered evidence meets the three elements necessary to satisfy the pedigree exception. "(1) That declarant be related by blood or marriage to the person of whom he speaks; (2) That the statements were made ante litem motem or before there was a motive to falsify; (3) That the declarant is dead, or otherwise unavailable."

Defendant admits that these are necessary elements in pedigree cases, but states that these are not the only elements that must be present; that it is also necessary to show that pedigree is directly in issue and not merely related to the issue; that pedigree is not directly in issue in this case.

There is conflict in the authorities in reference to this matter. Some of the courts hold that a case is not necessarily one of pedigree because it involves questions of birth, death, parentage, age, or relationship; that where these questions are incidental, and the judgment will simply establish a debt or a liability on a contract, etc., the case is not one of pedigree; that genealogy or descent must be the direct subject of the suit or the main issue in order to make the evidence admissible.

Other cases hold that the evidence is admissible even though the suit involved pedigree only indirectly, but in such cases, the facts sought to be established must be required to be proved for some genealogical purpose.

Other courts take a broad view of the matter and permit the introduction of such testimony on issues wherein the facts may be entirely disassociated from the question of pedigree, that is, where pedigree is only related to the main issue. [See 3 Jones Commentaries on Evidence (2 Ed.), pp. 2102-2107; 5 Wigmore on Evidence (3 Ed.), pp. 324, 325, 326; Pickering v. Peskin (Ohio), 183 N.E. 301.]

The main controversy between the parties in this case is as to what view of the matter had been taken by the courts of this State. The case was tried below by the plaintiff upon the theory that the policy provision relating to the beneficiary means that, upon the death of the named beneficiary before the employee, upon the failure of the employee to name another beneficiary, the insurance should go to the surviving spouse, children or parents. In other words, that the insurance should not go to the estate of the employee unless there be no surviving spouse, child or children. The case was not tried upon the theory that the policy is to be construed as providing merely that, if there be no designated beneficiary by the insured employee at the time the insurance was taken out, the insurance should go to the estate of the employee, and not to the surviving spouse, children or parents of the insured, if any. Plaintiff claims that the latter theory is more beneficial to her but, in deciding the case, we will assume that the policy is to be construed in accordance with the theory of plaintiff in the trial court. [James v. Casualty Co., 113 Mo. 622.]

We are of the opinion that the issue of pedigree is not directly or indirectly present herein, in the sense that genealogy or inheritance is involved. It is not disputed that the excluded testimony is related to the issue, and there is no question that this is true.

There are but few cases on the subject in this State, but from an examination of those before our Supreme Court, we are forced to conclude that the broad view of the matter is the one adopted in this State. In Rauch v. Metz, 212 S.W. 357, 362, the Supreme Court said: "The character of the litigation in which the evidence is offered is immaterial. It is the nature of the statement which determines its admissibility, and not the character of the litigation in which it is offered. [1 Greenleaf on Evidence, p. 203.]" We construe this language to mean that such evidence is competent in other cases than genealogy or inheritance cases and not merely in any case, regardless of the character of the litigation, in which genealogy is involved. The court meant to make a distinction between the restricted rule and the one it was announcing, and our construction of the language used is made even more evident by the authority...