Kansas City Life Ins. Co. v. Davis

• Decision Date: 08 April 1938
• Docket Number: No. 8524.,8524.
• Citation: 95 F.2d 952
• Parties: KANSAS CITY LIFE INS. CO. v. DAVIS.
• Court: U.S. Court of Appeals — Ninth Circuit

95 F.2d 952 (1938)

KANSAS CITY LIFE INS. CO. v. DAVIS.

No. 8524.

Circuit Court of Appeals, Ninth Circuit.

April 8, 1938.

John T. Gose and George B. Gose, both of Los Angeles, Cal., for appellant.

W. W. Hindman and E. Eugene Davis, both of Los Angeles, Cal., for appellee.

Before DENMAN, STEPHENS, and HEALY, Circuit Judges.

STEPHENS, Circuit Judge.

This is an appeal from a judgment of the District Court in an action brought by appellee on an insurance policy, appellee being the named beneficiary thereof. A jury having been waived, the court gave judgment for appellee for the face value of the policy.

Throughout this opinion we shall refer to the plaintiff, appellant here, as the company, and to the defendant, appellee here, as the beneficiary.

The company appeals upon eighteen assignments of error, but all are determined by our consideration of assignment I which raises, as we hold, the broad question as to whether the judgment is supported by the evidence. Assignment I is based on an exception taken to the denial of appellant's motion for judgment, which motion was made before submission of the case. The motion was not based on the specific ground that there was no substantial evidence to sustain any other judgment or upon any other specific ground, but was general in form. There is authority that an exception to the denial of such a motion raises no question on appeal. Denver Live Stock Commission Co. et al. v. Lee et al., 8 Cir., 1927, 20 F.2d 531; Henry H. Cross Co. v. Texhoma Oil & Refining Co., 8 Cir., 1929, 32 F.2d 442; Lyle v. Phillips Petroleum Co., 8 Cir., 1934, 72 F.2d 347; Salt Bayou Drainage Dist. v. Futrall, 8 Cir., 1934, 72 F.2d 940.

However, we feel that the better-reasoned cases are those which hold that where, as here, the contention is the broad one that proof as a whole fails to disclose liability, a general motion is sufficient to challenge the attention of the court and counsel to the legal point and that, consequently, the denial of such a motion raises on appeal the legal question of the sufficiency of the evidence to support a judgment. The majority of the circuits have taken this latter position. See New York Life Ins. Co. v. Doerksen, 10 Cir., 1935, 75 F.2d 96, which collates the holdings of the various circuits finding that of the ten circuits, only one — the Seventh — has definitely refused to consider a reviewable question raised, while of the remainder, six (First, Second, Fourth, Fifth, Sixth, and Tenth) have held a reviewable question raised (the Ninth Circuit is by this court thought to follow the same rule).

In our own Circuit the question was considered in Balaklala Consol. Copper Co. v. Reardon, 9 Cir., 1915, 220 F. 584. In that case it was said at page 589: "It does not appear that the request was argued before the court, or that the particular grounds of the motion were at any time specified. It has been held in the Seventh Circuit that such a motion is insufficient to raise a question for review in the Circuit Court of Appeals. Adams v. Shirk, 104 F. 54, 43 C.C.A. 407. We are disposed to assume, however, that the court below passed upon the question which is now presented in this court — that is, whether or not there was sufficient evidence to go to the jury to show the defendant's negligence — and to hold that the motion was sufficient."

Feather River Lumber Company v. United States, 9 Cir., 1929, 30 F.2d 642, 643, is not directly in point, since in that case the defendant made no motion for judgment. However, the following language of the court is indicative of the attitude of this Circuit where the court below has not been misled: "The record shows that both parties made oral requests for special findings, but such a request without specifying the findings desired does not serve to bring to the court's attention any question of law. In view, however, of the fact that the parties and the court below regarded the requests as preserving a right to review the evidence on appeal, we have given careful consideration to the testimony, and we are of the opinion that it was sufficient to sustain the allegations of the complaint."

In Babbitt Bros. Trading Co. v. New Home Sewing Mach Co., 9 Cir., 62 F.2d 530, 535, the main opinion decided the case on its merits. In a concurring opinion it was said: "This matter cannot be reviewed on this appeal for several reasons. No motion for judgment because of the insufficiency of the evidence to sustain plaintiff's cause of action was made by the defendant at the conclusion of the evidence. Plaintiff, therefore, relies and must rely upon the rulings of the court made when it presented its special findings of fact." Since the main opinion reviewed the case on its merits, and since no further consideration was given to the point involved here, other than as quoted above, it cannot be taken to be an expression of the rule of this Circuit sufficient to overrule the direct holding in the Balaklala Case, supra.

Nor did Krumm v. Southwest Finance Co. of Calif., 9 Cir., 1933, 67 F.2d 1, change the rule of this Circuit. In that case the court refused to consider the sufficiency of the evidence to support the judgment because there was nothing in the record to show a motion for judgment, or its equivalent, and, further, because it did not appear that the motion for nonsuit (recited in the preamble to the special findings as having been made during the progress of the trial) "was based on the insufficiency of the evidence to support a finding or judgment for plaintiff or that it was made at the conclusion of all the evidence or that defendant excepted to its denial by the court." In view of the cases cited by the court (Balaklala Consol. Copper Co. v. Reardon, supra, was not noticed), it seems fair to conclude that the holding was based not upon the failure to specify the grounds for the motion, but upon one of the other mentioned points.

In Seaboard Surety Co. v. United States et al., 9 Cir., 1936, 84 F.2d 348, 351, the following language is found: "The underlying purpose of the requirement that there shall be a motion for judgment, either of nonsuit or for the defendant, on the ground of insufficiency of evidence, before it can be reviewed on appeal, is that the court shall be advised of the claim with such argument thereon as is required for its presentation. The same reason underlies a denial on appeal of a review of the sufficiency of evidence to support a judgment on a certain issue, in the absence of a request specifically made that a certain set of facts be found by the court."

This statement was offered by way of argument upon another point, and since it appears from the opinion that there was no motion for judgment, but only a request for specific findings, without any specific findings being offered, it is not authority for the point under consideration.

With the conclusion that the motion was sufficient and that consequently assignment I is proper, we shall proceed to examine the facts as to whether or not there is substantial evidence in the case to support the judgment.

The policy was delivered to the deceased, Benjamin Thomas Davis, husband of appellee, on the 1st day of July, 1931. One of the terms of the policy was as follows: "Upon failure to pay a premium when due, or upon the failure to pay any premium rate when due, this policy will become null and void without any action or notice by the company, and all rights shall be forfeited to the Company, except as hereinafter provided." One of the provisions following was: "In case of default in the payment of any premium hereunder or any premium note when due, the Company will reinstate the Policy * * * at any time upon written request by the Insured to the Company at its Home Office, accompanied by evidence of insurability satisfactory to the Company and the payment of all premium arrears and the payment or reinstatement of any indebtedness existing at the date of the default, together with interest thereon at the rate of six per cent per annum. * * *"

The insured paid all premiums due on said policy up to the monthly payments due December 1, 1934. Insured defaulted in the payment of said monthly premium and by reason thereof the policy lapsed. On January 7, 1935, insured furnished the company with an application for reinstatement, together with the premium arrearages, and the policy was reinstated on or about January 14, 1935.

Thereafter, insured promptly paid the premiums when due, until October 1, 1935, when he again defaulted. He also defaulted as to the November premium and the policy again lapsed. On December 10, 1935, the company received from the insured a cash remittance of $10.18 to apply on the October 1, 1935, and November 1, 1935, monthly premiums of $5.09 each, and the company thereupon advised insured that said remittance was being held subject to his order, pending receipt of other requirements, i. e., application for reinstatement, and final action by the company. The account of insured with the Company was not at this time credited with this sum.

The company heard nothing from the insured until January 14, 1936. In the meantime, the monthly premium due December 1, 1935, had become due and the grace period of 31 days had expired without the premium for that month having been paid. On January 14, 1936, the company received from insured a letter inclosing an application for reinstatement of his policy, together with a check for $10.18 to cover the unpaid monthly premiums due December 1, 1935, and January 1, 1936. The check, dated January 9, 1936, was drawn by the Johnston Hotel of Richfield, Utah, on a bank of that city in favor of the company.

Four days after receipt of the check, the company deposited it with its bank for collection and, meanwhile, on January 16th forwarded to the insured two certificates of reinstatement — one covering the premiums due for October and November of 1935, and the other covering the premiums due for December, 1935...