Holman v. Met. Life Ins. Co.

• Decision Date: 15 June 1936
• Docket Number: No. 18621.,18621.
• Parties: SARAH GODDING HOLMAN, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

98 S.W.2d 343

SARAH GODDING HOLMAN, RESPONDENT, v. METROPOLITAN LIFE INSURANCE COMPANY, APPELLANT.

No. 18621.

Kansas City Court of Appeals. Missouri.

June 15, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.

AFFIRMED.

George D. McIlrath for respondent.

Ralph M. Jones and Kenneth E. Midgley for appellant.

Harry Cole Bates and Michaels, Blackmar, Newkirk, Eager & Swanson of counsel.

CAMPBELL, C.

In the original opinion we discussed plaintiff's requested instruction No. 2 as though it were given. Following a showing in the record that said instruction was refused there is a recital which indicates that the instruction was given.

The defendant in its brief and in one of its assignments of error presented matters which were in the case only in event said instruction No. 2 was given.

Having arrived at the conclusion that the result of the appeal is not affected by the question as to whether said instruction was or was not given we shall, upon the authority of the case State ex rel. Funk v. Turner; 328 Mo. 604, 611, withdraw our former opinion and "rewrite the case."

The defendant, on April 13, 1915, issued a policy of life insurance in the sum of $500 to Harrison Holman. The insured, at the time of his death, January 4, 1923, was 29 years of age. Thereafter, plaintiff, mother of insured and beneficiary in the policy, brought this action to recover the amount stated in the policy with interest thereon. She obtained a judgment in the sum of $727.26, of which $300.70 was interest. The defendant has appealed.

The premiums on the policy were due semi-annually on April 13 and October 13 of each year. The plaintiff's evidence was to the effect that the April, 1922 premium was paid and that the October, 1922 premium was not paid; that on January 11, 1923 she went to the office of defendant in Kansas City, Missouri, made claim for the insurance and was told that she did not have "anything coming;" that after several calls at the defendant's said office she was told that "they would write the Home Office;" that later she again went to the office of defendant and was told "we have a letter from the Home Office. We have a little something for you, just a token ... you haven't anything coming but we just give you this." Thereupon plaintiff accepted a check in the sum of $11 and signed a statement on the back of the check in which it was recited that plaintiff accepted the check in full discharge of all claims or demands under or by reasons of the policy sued upon.

When said instruction No. 2 is withdrawn from consideration, the record discloses that instruction C-1, given by the court of its own motion, is the only instruction which submitted the case to the jury and allowed a verdict for either the plaintiff or the defendant. Said instruction is as follows:

"The Court instructs the jury that if you find and believe from the evidence that the premium of $6.22 on the policy of insurance mentioned in evidence due on April 13, 1922, was not paid, then your verdict must be for the defendant.

"The Court instructs the jury that if you find and believe from the evidence that the premium of $6.22 on the policy of insurance mentioned in evidence due on April 13, 1922, was paid and accepted and retained by the defendant, then your verdict must be for plaintiff."

This instruction, to the giving of which the defendant does not assign error, told the jury in plain terms that if the April, 1922 premium were paid, the plaintiff was entitled to recover, and if it were not paid the defendant was entitled to a verdict. We must assume that the instruction was correct for the reason that defendant makes no complaint of it.

The plaintiff testified in effect that she paid premiums at the defendant's office in Kansas City, Missouri, and that she paid the April, 1922 premium at that office. We shall not further detail her evidence for the reason that the defendant concedes that "there is no doubt she (plaintiff) testified she paid" the April, 1922 premium. The defendant, however, argues that its documentary and record evidence showing that the premium was not paid "completely overcomes plaintiff's testimony."

The defendant introduced in evidence despositions of certain of its employees. The sum of their evidence was that the records in defendant's Home Office show that the April, 1922 premium was not paid. The plaintiff was not a party to such records and, therefore, was not bound by the recitals therein.

The defendant's Exhibit 2, which was admitted over the objections of the plaintiff, is as follows:

"Received of the Metropolitan Life Insurance Company $12.44 representing the amount of deposit by me for revival of policy 1992250-C, Holman on which no action was taken. I hereby release the Metropolitan Life Insurance Company for any and all liabilities that may arise by reason of this deposit having been made. In addition to the above mentioned amount, I acknowledge the receipt of $1.00 paid to Dr. Halberg for examination which was never made.

                          "[Signed]     Sarah Holman
                          "[Witnessed]  Lee Miller."
                

Concerning the receipt, plaintiff said that the signature thereto "looks like my signature but I never seen that reading up there on the top;" that she did not know Lee Miller, whose purported signature was placed upon the exhibit as a witness to plaintiff's signature; that she did not receive from the defendant the sum of $12.44 nor had ...