Kirk v. Metropolitan Life Ins. Co.
| Decision Date | 02 April 1934 |
| Docket Number | 18015 |
| Citation | 72 S.W.2d 185 |
| Parties | KIRK v. METROPOLITAN LIFE INS. CO. |
| Court | Kansas Court of Appeals |
Rehearing Denied May 21, 1934.
Appeal from Circuit Court, Grundy County; Ira D. Beals, Special Judge.
“ Not to be published in State Reports.”
Action by Harry A. Kirk, administrator of the estate of Belva Kirk deceased, against the Metropolitan Life Insurance Company. From a judgment for the plaintiff, defendant appeals, and plaintiff moves to affirm the judgment.
Motion overruled, judgment affirmed, and case transferred to Supreme Court.
See also, 225 Mo.App. 756, 38 S.W.2d 519.
Landis & Landis, of St. Joseph, for appellant.
R. E. Kavanaugh and George E. Woodruff, both of Trenton, for respondent.
This is a suit in three counts instituted by the plaintiff, Harry A. Kirk, as administrator of the estate of his deceased wife, Belva Kirk, against the defendant, Metropolitan Life Insurance Company, wherein the plaintiff seeks to recover on three life insurance policies issued by defendant on the life of the said Belva Kirk, deceased. The issues are so presented in this cause that same will be more clearly understood by a statement of the history of the transactions as the same are disclosed by the pleadings and evidence presented in the record.
All three policies were issued on July 23, 1923, and conform in all respects except as to numbers and amounts.
The policies involved are of that class that, while made payable to the estate of deceased, also have provisions for payment or grant of any nonforfeiture privilege to the insured, husband or wife, or any relative or other person equitably entitled by reason of expense incurred.
It appears that two of these policies were taken out and the premiums thereon paid by a Mrs. McDonald, a sister-in-law of the insured, and the other was taken out and premiums paid thereon by Mrs. Mattie Kirk, mother-in-law of deceased. The insured died on December 11, 1923. Thereafter it appears that claim for the insurance was made by the parties above, who had kept up the premium payments. It appears further that due notice of death and due proof of death was made to the defendant by said parties who were claiming the insurance.
Thereafter the defendant company instituted a suit in equity against the heirs of the estate of the insured asking that said policies be declared void and cancelled. In this suit the insurance company made tender and deposited with the clerk of the court premiums collected.
Thereafter the plaintiff herein was appointed administrator of the estate of insured and thereafter instituted the suit at bar.
This case was before this court and an opinion handed down by Bland, J., at the October term, 1930. A rehearing was granted, and in an opinion by Campbell, C., at the March term, 1931, the opinion of Judge Bland was adhered to and the same is found reported in 225 Mo.App. 756, 38 S.W.2d 519.
The opinion in the case when it was here before does not deal with the issues of the law as they are presented in this appeal, except as to the question of plaintiff’s right to sue.
In this cause, as is shown in the record before us, due allegations of issuance of the three policies, due allegation of death of insured, and due allegation that notice of death and proof of death was made in conformance to the terms of the policies, are all pleaded by the plaintiff, and all of the above allegations are duly admitted in defendant’s answer. The plaintiff pleads failure to pay, and further pleads vexatious delay, and asks for recovery of face of policies and for statutory penalty and attorney fees and for interest.
The defendant, after admission of matters as above stated as admitted by it, further answered by denying liability on three specific grounds, to wit: That the plaintiff was not the proper plaintiff because not designated as beneficiary in the policy; falsity of breaches of warranties alleged as inducing the issuance of the policies; and, lastly, that the policy by its terms provides that no obligation is assumed unless insured be in sound health when the policy is issued and that insured was not in good health at said time.
The plaintiff, presenting that the pleadings and admissions therein made a prima facie case, submitted the case without introduction of evidence in chief. Thereafter the defendant purports to introduce the contracts of insurance in evidence and, over the objection and exception of the plaintiff, offers in evidence the proofs of death that had been submitted by Mrs. McDonald and Mrs. Kirk, as aforesaid stated as made by them.
The defendant also over the objection and exception of plaintiff, introduced the depositions of two doctors who had examined and treated the insured in her lifetime, and also the deposition of one W. H. Wells, a former employee of the defendant. The proofs of death and the evidence of the doctors is to the effect that the insured died of tuberculosis, and is strongly evidential of the fact that same was contracted long before the application for, and the issuance of, the policies in issue.
In rebuttal, the plaintiff testified as a witness and called as witnesses Mrs. McDonald and Mrs. Kirk, and their testimony was to the effect that in their observations of the insured, with whom they were closely associated, it had not come to their knowledge that the insured was afflicted with tuberculosis until after the policies were issued.
Trial was by jury. The verdict on each count was for the plaintiff for the full amount of each policy with added penalty and attorney fees and interest. The verdict shows as being for a lump sum on each count. Judgment was entered in accordance with the jury verdict, and defendant appeals.
Opinion.The plaintiff, respondent herein, has filed a motion to affirm, based upon allegations of failure to properly index and on allegations that matters included are improperly included. There is no provision in our rules for affirming a judgment for insufficient index of an abstract of record, and assuming, but not deciding, that the index to the abstract in this case is insufficient, there is nothing that we can do about it.
As to the inclusion of matters objected to, we conclude that plaintiff’s point is not well taken, in that the language used as to including matters seem sufficient.
There is an established custom in this state of filing a skeleton bill of exceptions and permitting exhibits referred to to be printed in the record. In the present instance the matters included are stated as introduced, and the expression is thereafter used, "is in words and figures as follows." We deem same sufficient. The motion is therefore overruled.
The defendant, appellant herein, in its brief makes seven assignments of error in declarative form to the effect that same was error, without assignment of reason, comment, or citation. Such, under our rules, does not call for a review by us. However, under its heading of points and authorities there is sufficiently set out claims of error in proper form and substance, and these call for our consideration.
The specifications of error claimed, with the exception of two, all go as to the question of whether or not a demurrer to the evidence should have been sustained. One specification presents claim of error in excluding an entry showing that the plaintiff in the former trial had adopted the proofs of loss by introducing same at that trial. The other specification is a claim of error in admitting lay testimony to the effect that the witnesses in their observations of the insured had discovered no evidence of ill health complained of and coupled therewith a claim of error in altering and giving, as altered, defendant’s offered instruction No. 5.
As to defendant’s specification of error of exclusion of evidence offered, we conclude that the fact that plaintiff had offered the proofs of death at a former trial gives to these proofs no added weight, and, as the proofs are admitted for whatever purpose they serve, that therefore no reversible error to exclude the matter offered.
As to the specification that the testimony of lay witnesses as to their observations of conditions of health is inadmissible, we conclude that such evidence, while limited in its effect as contradicting proofs of loss, still such evidence has been held admissible for what it is worth. Smiley v. Life Ins. Co. (Mo. App.) 52 S.W.2d 12, loc. cit. 15; Bruck v. Life Ins. Co., 194 Mo.App. 529, 185 S.W. 753.
As to claimed error as to change in instruction No. 5, we pass for the present.
We have taken up the above specifications first, for the reason that the issue in this case resolves itself to the issue as to whether or not a demurrer to the evidence should have been sustained at the close of all the evidence.
As to the claim that plaintiff herein has no right to sue, we conclude that, as the policies provide for payment to the estate of insured, the point is not well taken. Further, we conclude that that point was settled by the opinion when the cause was before this court on the former occasion, wherein the opinion is found in 225 Mo.App. 756, 38 S.W.2d 519.
As to the defense pleaded concerning misrepresentations alleged as made in the application of July 7, 1933, the defendant has made no showing that is presented in the record filed. The defendant nowhere pleads that the application was attached to or made a part of the contract; and, even though the pleading could be so construed, the application containing the alleged representation is not shown as embraced in the record. Further, there is no oral testimony as to representations made as an inducement for the issuing of the policies. In the absence of evidence, nothing...
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