Huskey v. Metropolitan Life Ins. Co.

• Citation: 94 S.W.2d 1075
• Decision Date: 02 June 1936
• Docket Number: No. 23269.,23269.
• Parties: HUSKEY v. METROPOLITAN LIFE INS. CO.
• Court: Court of Appeal of Missouri (US)

94 S.W.2d 1075

HUSKEY v. METROPOLITAN LIFE INS. CO.

No. 23269.

St. Louis Court of Appeals. Missouri.

June 2, 1936.

Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.

"Not to be published in State Reports."

Action by Mary Huskey against the Metropolitan Life Insurance Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Edgar & Banta, of Ironton, and Fordyce, White, Mayne & Williams, of St. Louis (Leroy A. Lincoln, of New York City, of counsel), for appellant.

W. A. Brookshire, of Farmington, for respondent.

BENNICK, Commissioner.

This is an action by plaintiff, the beneficiary, to recover the disability benefits alleged to be due under certain serial certificates theretofore issued to her deceased husband while an employee of St. Joseph Lead Company, and as such insured under a policy of group insurance issued by defendant, Metropolitan Life Insurance Company, to the lead company for the benefit and protection of the latter's employees.

It is agreed that the deceased was insured in the aggregate sum of $3,750 under the policy in question, which provided that in the event the employee became totally and permanently disabled as the result of bodily injury or disease while insured thereunder, and prior to his sixtieth birthday, the company, upon the performance or satisfaction of certain conditions precedent, would pay certain limited monthly installments of benefits to the employee personally during the continuance of such disability, and that in the event of his death during such disability period, any installments remaining unpaid at the date of death would be commuted and paid to the beneficiary in one sum.

Plaintiff undertook the burden of proving that the deceased had become totally and permanently disabled within the meaning of the policy during the course of his employment by the lead company, which was terminated on February 12, 1932. She sued for and recovered the full sum of $3,750, and defendant's appeal to this court has followed in the usual course.

Defendant invokes our decision only upon certain points having to do with the propriety of certain argument of plaintiff's counsel to the jury and the action of the court thereon. The matters complained of appear in the abstract of the record as follows:

"Mr. Brookshire: * * * Mr. Banta represents the party who has the money.

"Mr. Banta: I object to the statement of Mr. Brookshire as to who represents any particular party; it is improper argument and I ask that counsel be rebuked and appropriate instruction be given to the jury.

"The Court: The jury know who counsel represent. Go ahead.

"Mr. Banta: Save an exception.

"Mr. Brookshire: Defendant claims Mr. Huskey worked at Rivermines after he was laid off on February 12. They never brought the men down from Rivermines who they claimed worked with Mr. Huskey, and used them as witnesses, and the facts are he did not work else his foreman and fellow workmen would have been present to prove it.

"Mr. Banta: I object to that argument of Senator Brookshire to the effect we failed to produce certain witnesses, because law suits are tried upon the evidence adduced and not upon the absence of witnesses; it is improper for counsel to refer to the absence of witnesses available alike to himself and the defendant. Request that counsel be rebuked for his improper argument, and upon the Court's failure to do so, request the jury be discharged and a mistrial declared.

"The Court: Make your objection and go ahead.

"Mr. Banta: Note an exception.

"Mr. Brookshire: * * * It was funny when the premiums were being paid but it wasn't so funny when the premiums stopped and somebody wanted a loss paid. * * *

"Mr. Banta: I object to the statement of counsel for plaintiff to the effect, `It was funny when the premiums were being paid but it wasn't so funny when the premiums stopped and somebody wanted a loss paid,' as improper argument intended to inflame the minds of the jury.

"The Court: All right. Let it be stricken.

"Mr. Banta: I move that counsel be rebuked therefor, and on failure of the Court so to do, that the jury be discharged and a mistrial declared.

"The Court: Overruled.

"Mr. Banta: Save an exception."

Though there is some question raised in plaintiff's brief about the accuracy of the above quotation as it appears in the abstract, the same must nevertheless be held to import verity in so far as we ourselves are concerned. This for the reason that plaintiff has neither specified her objections to defendant's abstract in writing, nor has she filed an additional abstract purporting to correct that portion of defendant's abstract with which she professes to be dissatisfied, and absent the taking of any such steps on her part we must accept defendant's abstract just as it is submitted to us. Smith v. Lore, 325 Mo. 282, 29 S.W.(2d) 91; Martin v. Castle, 182 Mo. 216, 81 S.W. 426.

Defendant first complains of the court's action upon its objection to the reference of plaintiff's counsel to the fact that his opponent was representing the party "who has the money." It insists that counsel was impliedly contrasting defendant's wealth with plaintiff's poverty, which, if true, would indeed have been most improper on counsel's part, and would unquestionably have called for an emphatic reprimand from the court as the minimum of punishment to be meted out for such a transgression.

But we doubt if the record fairly warrants the conclusion defendant now seeks to have us draw from it, and plaintiff's counsel in the course of his brief strenuously disclaims any such intention on his part. He says that the argument had been made that the policy had lapsed, and that it was in answer to such argument, and by way of insisting that premiums had in fact been paid, that he referred to defendant as the party "who has the money," meaning the money that had been paid defendant as premiums upon the policy.

Of course, we may not decide the point in plaintiff's favor upon the mere strength of the explanation her counsel undertakes to give in his brief, but there are nevertheless legitimate and valid reasons why we think defendant's present claim of error should not be allowed to stand. In the first place, the abbreviated record brought to us shows no more than what we have heretofore set out, and we therefore have no way of knowing what preceded or prompted the argument complained of. But this much we do know, and that is that in making his objection to the argument at the time of its utterance, defendant's counsel did not object because of the reference of plaintiff's counsel to the fact that defendant was the party "who has the money," but only to the "statement of Mr. Brookshire as to who represents any particular party." Moreover, the court must have so understood the objection as is strongly evidenced by its mere rejoinder that "the jury know who counsel represent." We certainly may not presume that the court would have in effect approved any argument designed to have the ulterior purpose now ascribed by defendant to the argument of plaintiff's counsel, and with the record not unmistakably disclosing any such intention on counsel's part, and in the absence of an objection indicating that defendant's counsel so understood the argument at the time, we would be wholly unwarranted in reading into the record the inference which defendant would now have us draw from it.

Next defendant complains of the court's refusal to have declared a mistrial and discharged the jury because of the argument of plaintiff's counsel to the effect that "it was funny when the premiums were being paid but it wasn't so funny when the premiums stopped and somebody wanted a loss paid."

We see no merit to this contention. The court did sustain the objection interposed by defendant's counsel, thus indicating its own belief that the argument was improper, but having sustained the objection, the further course to be pursued was a matter reposing largely in its sound discretion. It is difficult to see how this portion of the argument could have had any particularly prejudicial effect, and, to say the least, the record affords no basis for a claim of judicial indiscretion based upon the court's refusal to have declared a mistrial of the case because of it. This point must likewise be ruled against defendant. Arnold v. Metropolitan Life Ins. Co. (Mo.App.) 89 S.W.(2d) 81.

Finally defendant complains of the court's action upon its objection to that portion of the argument of plaintiff's counsel commenting upon the fact that defendant had failed to produce the fellow workmen of the deceased to testify to its charge or assertion that he had worked at Rivermines after he was laid off by the lead company on February 12, 1932. It will be...