Luna v. Williams

• Decision Date: 19 May 1915
• Parties: EVERETT LUNA, Appellant, v. S. J. WILLIAMS, Respondent
• Court: Missouri Court of Appeals

176 S.W. 550

190 Mo.App. 266

EVERETT LUNA, Appellant, v. S. J. WILLIAMS, Respondent

Court of Appeals of Missouri, Springfield

May 19, 1915

Appeal from Christian County Circuit Court.--Hon. John T. Moore Judge.

AFFIRMED.

Judgment affirmed.

George W. Boone and Barrett & Moore for appellant.

(1) Under our practice act the court should have entered judgment against respondent on the pleadings as prayed for in appellant's petition for the reason that this cause coming on for trial in the circuit court of Ozark county and respondent failing to plead to this action at such time, as required by statute, such could not be done after said term of court had ended, and respondent was never granted time within which to plead. R. S. 1909, sec. 1799; Const. Co v. McArthur Bros. Co., 236 Mo. 41; Stevens v Fitzpatrick, 218 Mo. 708; Whitwell v. City of Aurora, 139 Mo.App. 597. (2) The respondent should have been required to elect on which count of his answer he would proceed to trial, as said counts were inconsistent, and the second count of said answer even failed to plead or set up a plea of confession and avoidance. Peoples' Bank v. Stewart, 136 Mo.App. 24; Wertheimer-Swartz Shoe Co. v. McDonald, 138 Mo.App. 328.

Fred Stewart, G. Purd Hays and G. W. Thornberry for respondent.

(1) There is substantial evidence to prove the allegations in the petition, and also to prove the allegations in the answer, hence it is a question of fact to be tried by a jury and they are the sole judges of the evidence, and the appellate court has no power to disturb same. Levels v. Railroad, 196 Mo. 606, and cases cited. (2) Appellant complains of respondent's answer, and avers that the two counts pleaded therein as defense are inconsistent. The authorities cited by them in support of this contention hold the contrary doctrine, hence we cite the same cases. People's Bank v. Stewart, 136 Mo.App. 24; Wertheimer-Swartz Shoe Co. v. McDonald, 138 Mo.App. 328, and cases therein cited. (3) And where pleadings are inconsistent the objections filed by appellant in this case would not avail them. See cases last above cited.

ROBERTSON, P. J. Sturgis, J., concurs; Farrington, J., dissents.

OPINION

ROBERTSON, P. J.

This is an action on a promissory note given for a premium on a life insurance policy. The plaintiff is an agent of the insurance company. A jury trial resulted in a verdict for defendant and plaintiff has appealed. The cause originated in Ozark county and at the return term of the circuit court there the defendant obtained a change of venue to Christian county on account of the plaintiff having an undue influence over the inhabitants of Ozark county. Ozark is one of those counties in which the defendant is required to appear and plead on the first day of the term (R. S. 1909, Section 1799). This the defendant did not do, nor were the issues made up as required by section 1933, Revised Statutes 1909, before the change of venue was granted, but the case was transmitted to Christian county under section 1934 without any pleading having been filed on behalf of defendant. No objection was made by the defendant to this procedure until the case reached Christian county where the defendant, without objection on the part of the plaintiff, asked and obtained leave until the sixth judicial day of the August term, 1914, of that court in which to plead. Thereafter and on the same day the plaintiff filed a motion for judgment on the pleadings, because of defendant's failure to plead when the case was in Ozark county, which was overruled.

The defendant within the time allowed filed his answer under oath as follows:

"Now comes the defendant herein and for answer to plaintiff's petition herein, defendant says that he did not sign and deliver to the said Everett Luna the note in the petition described and filed with said petition, wherefore he asks to go hence without day.

"Defendant for other and further answer says that the plaintiff herein as an insurance agent or representing himself to be an insurance agent for the Franklin Life Insurance Company, Springfield, Illinois, solicited this defendant to take out a policy with said company. That this defendant agreed with the representatives of said company to take out and purchase from said company a twenty year endowment policy and pay to said company for such policy one hundred ninety-nine dollars and forty-five cents yearly payments for the term of twenty years if the defendant lived so long and that said plaintiff agreed to sell defendant said policy and it was further agreed between plaintiff and defendant that on or before the first day of January, 1914, that if said policy was issued to this defendant as per agreement that said defendant would pay or execute his note for the first yearly payment for the above sum. That said company has failed to deliver to this defendant the policy agreed upon, although oftentimes requested so to do and that this defendant has received no consideration growing out of the agreement as above stated, wherefore defendant asks to be discharged with his costs."

The plaintiff filed a motion to strike the answer from the files because of the omission of the defendant to plead on the first day of the term of court in Ozark county; because before the change of venue the pleadings were not filed and the issues made up as by law required, and because the defendant joined in his answer inconsistent defenses. This motion was overruled and then the plaintiff filed a motion to require the defendant to elect upon which defense in his answer he would proceed to trial. This was overruled and the cause proceeded to trial without further objection on the part of the plaintiff. The plaintiff, however, in the face of the verified answer, offered in evidence the note and rested, the defendant assuming the burden of disproving the execution of the note.

The defendant, without objection, testified that he did not sign the note and also that at the time the application for the policy was made out, and signed by him, he did not have his glasses and, therefore, could not read it and that it was read to him by plaintiff as being an application for a twenty-year endowment policy, although as a matter of fact it contained the description of the policy as "O. L.," meaning an ordinary or full life policy. The defendant and some of his witnesses testified that at the time the agreement was made that defendant should have a twenty-year endowment policy; this the plaintiff's testimony sharply contradicted and tended to prove that the note was executed and delivered when the application was signed. Defendant further testified that when he received the policy he read it, had it read by others and also sought advise on the question of the kind of policy it was, finally deciding that it was not a twenty-year endowment policy and notified the insurance company's agent that by reason thereof he would not accept it. He at once returned it.

At the close of the testimony instructions were given upon the issues made by the pleadings and the unobjected to evidence at the trial. In the plaintiff's motion for a new trial complaint is made of only one instruction, (5), reading as follows: "The court instructs the jury that if you find and believe from the evidence in the case that there was no consideration given for said note you will find the issue for the defendant.

"You are further instructed that by no consideration is meant, that said company did not furnish the defendant the insurance policy contracted for."

The points urged here are that error was committed in sending the case to Christian county before the issues were made up; that defendant had no right to file his answer in Christian county; that the defenses contained in the answer are so inconsistent that they cannot stand together; that instruction 5 is erroneous because there was no testimony on which to base it, and that it submits an issue not raised by the pleadings.

The contention that reversible error was committed in not making up the issues in Ozark county before sending the case to Christian county must be ruled against the...