Graves v. Metropolitan Life Ins. Co.

• Decision Date: 25 June 1919
• Docket Number: No. 19442.,19442.
• Citation: 213 S.W. 846,279 Mo. 240
• Parties: GRAVES et al. v. METROPOLITAN LIFE INS. CO.
• Court: Missouri Supreme Court

213 S.W. 846

279 Mo. 240

GRAVES et al. v. METROPOLITAN LIFE INS. CO.

No. 19442.

Supreme Court of Missouri, in Banc.

June 25, 1919.

Rehearing Denied July 7, 1919.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Action by Emery Graves and another against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

For opinion in St. Louis Court of Appeals, see 179 S. W. 947.

This action, originally instituted before a justice of the peace in the city of St. Louis, seeks to recover the sum of $160, and interest thereon, upon a policy of life insurance issued by defendant upon the life of one Ollie M. Graves. Plaintiff recovered judgment in the justice court, and defendant appealed to the circuit court.

Upon trial in the circuit court, judgment was rendered for defendant, and plaintiffs duly appealed to the St. Louis Court of Appeals, which court (see 179 S. W. 947) reversed the judgment of the circuit court, with directions, but, deeming its decision to be in conflict with certain decisions of the Kansas City Court of Appeals, certified the cause to this court. The case was first heard and written in division 1, but upon a dissent the cause was transferred to and heard by the court in banc.

After the opinion was written in division 1, and before the cause was submitted in banc, appellant filed a supplemental abstract of the record, setting forth a copy of the original statement which was filed in the justice court. This statement alleged that the insurance policy was lost. The statement was not verified; neither was there any affidavit filed with the justice which undertook to comply with section 7414, R. S. 1909. The following facts are quoted from the divisional opinion:

"The beneficiary died on September 5, 1906, and the insured on the 16th day of March, 1907. The insured was never married. The plaintiffs are the next of kin, and are the sole surviving heirs of the insured and beneficiary. Both died intestate and left no estate. There was no indebtedness against said policy. The insured reserved the right to change the beneficiary. It was admitted at the trial that said policy was dated October 20, 1902, and that the premiums were paid until the 22d day of October, 1906. It was admitted that by reason of the payment of these premiums the policy acquired a net value, three-fourths of which, when applied as a net single premium for temporary insurance, carried the policy to the death of the insured, figured according to the nonforfeiture statute of the state of Missouri.

"The insured died less than five months after default. It. J. Douglass, who wrote the application, and F. M. McDonald, collected part of the premiums thereon. The plaintiffs testified that, soon after the death of the insured, they notified agents Douglass and McDonald thereof, and made claim under said policy, but McDonald testified that he had quit the employ of defendant before the death of insured. The testimony of McDonald in this respect was conceded to be true.

"At the conclusion of the trial the plaintiffs asked a peremptory instruction, and a declaration of law in respect to their damages, both of which were refused and exceptions saved. Defendant likewise asked instructions, which were refused, and exceptions duly saved. The case was taken under advisement by the court, and on May 26, 1913, judgment was entered in favor of defendant and against plaintiffs. The court, at the time of the rendition of said judgment, filed the following memorandum:

"`It seems clear from the evidence that plaintiffs in the case failed to furnish any proofs of the death of the deceased, as required by the policy, or by section 6948, R. S. Mo. 1909, and failed to show any acts on the part of the defendant that can be construed as a waiver of proofs. The testimony satisfies me that at the time of the conversations, or alleged conversations, of plaintiffs with Douglass and McDonald, neither of them was connected with defendant. This suit was not instituted until four years after death of deceased, which indicates that plaintiffs must have considered at the time of suit that they had no claim. For this reason, judgment will go for defendant.'"

James J. O'Donohoe, of St. Louis, for appellants.

Nathan Frank and Louis B. Sher, both of St. Louis, for respondent.

WILLIAMS, J. (after stating the facts as above).

I. Respondent insists that the justice court (and hence the circuit and appellate courts) acquired no jurisdiction over the subject-matter of this case, because the appellant failed to file an affidavit before the justice, as required by the statute, when a suit is instituted before a justice upon certain lost instruments. This was the point upon which the decision turned in the Court of Appeals. Section 7413, R. S. 1909, among other things, provides:

"When the suit is founded upon any instrument of writing purporting to have been executed by the defendant, and the debt or damages claimed may be ascertained by such instrument, the same shall be filed with the justice, and no other statement or pleading shall be required."

Section 7414, R. S. 1909, provides:

"If such instrument be alleged to be lost or destroyed, it shall be sufficient for the plaintiff to file with the justice the affidavit of himself, or some other credible person, stating such loss or destruction, and setting forth the substance of such instrument."

If the life insurance policy upon which this suit is founded is such an instrument as is embraced within the meaning of the foregoing statutes, then, under the former rulings of this court, the plaintiff having failed to file the required affidavit with the justice, jurisdiction of the subject-matter was not acquired. Hudson v. Wright, 204 Mo. 412, loc. cit. 431, 103 S. W. 8.

But is the insurance policy such an instrument? With all due deference to the learned Court of Appeals we feel constrained to rule that it is not such an instrument. Under the statute the instrument of writing mast purport to have been executed by the defendant, and must be a writing by which the debt or damages claimed may be ascertained.

In the case of Hudson v. Wright, supra, the instrument involved was a negotiable promissory note, and the statute was quite properly held to apply because the debt could be easily ascertained from the face of the instrument itself....