Miller v. John Hancock Mut. Life Ins. Co.
| Decision Date | 04 November 1941 |
| Docket Number | 25558 |
| Citation | 155 S.W.2d 324 |
| Parties | ANNA M. MILLER, Respondent, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Appellant, |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of City of St. Louis, Missouri. Honorable Eugene J. Sartorius, Judge.
William C. Hughes
This is a suit on a policy of life insurance in the face amount of $1000.00 issued on May 8, 1922, by the defendant on the life of Cecil F. Miller. Plaintiff is the named beneficiary in the policy. Cecil F. Miller died on December 20, 1936. The defense was based on the claim that the premium due on August 8, 1936, was not paid; that on that ditto the policy had a surrender value of $263, which the defendant applied to the payment of loans made to the insured, which, with accumulated interest thereon amounted to $263 and that after making such application the policy had no net value that could be applied under the nonforfeiture provisions of the policy, and the policy having lapsed the plaintiff was not entitled to recover.
It is not questioned that in the trial plaintiff's evidence made a prima facie case. Defendant, seeking to overcome plaintiff's prima facie case sought, to introduce in evidence certain oral testimony and records and files from its offices in proof of its defense as above generally outlined, end the only errors assigned are as to adverse rulings of the trial court on its offers of evidence. Hence it is unnecessary to set out herein the issues involved further than sufficient to give on understanding of the court's rulings on the admission of evidence.
The first assignment of error is that the trial court erred in excluding; testimony contained in the deposition of Waldo F Richardson, the manager of Western Policy Division of the secretaries department at the Company's home office in Boston, Massachusetts, and who has general supervision and control over the administrative matters and the making and keeping of records pertaining to ordinary policies issued through the St. Louis agencies of the Company. The witness had with him the records pertaining to the policy in suit and was asked to refer to those records and state what they showed with respect to the payment of a premium on the policy due November 8, 1934. An objection made by plaintiff's counsel, that the records are the best evidence was sustained. Thereupon defendant's counsel stated that the records ore in Boston, Massachusetts, end that he could not get the records hero and that the purpose of taking the deposition was to examine the records and to read the records in evidence.
The testimony was clearly inadmissible. It has been a uniform rule of evidence and so announced by our Supreme Court as early as the year 1850 in the case of Benton v. Craig, 2 Mo. 198, that "A witness cannot testify to the contents of a record or of any written instrument, unless its absence be accounted for." The only exception to this rule is that the trial court may in its discretion permit a witness to testify as to the result shown by an audit and examination of voluminous and complicated records, as in the case of Dawes v. Starrett, 336 Mo. 897, 931, 82 S.W.2d 43, 60, and the case of Benz v. Powell, 338 Mo. 1032, 93 S.W.2d 877. There is nothing in the proferred evidence here to justify that rule being invoked. It appears that this record consisted of less then a typewritten page.
It was held by this Court in the case of Best v. Equitable Life Assur. Soc., 299 S.W. 118, that the testimony of doctors as to the contents of hospital attendant's written reports as to assured's blood condition, which reports were exhibited to the doctors while testifying, was not admissible, since the writing itself constituted the best evidence..
Appellant's assignment No. 2 is that the court erred in excluding from evidence defendant's exhibit 11, which witness Horace N. Reed in a deposition had said was a transcript of the record of the policy in suit in the controlling division of the auditing department of the company, of which he was manager. The record was in defendant's possession and with no excuse why it could not be produced, we know of no rule of evidence which would permit the introduction of a copy.
By assignment No. 3 appellant complains that the court sustained en objection to witness Reed testifying as to what the record showed. Such testimony was clearly inadmissible.
Assignments Nos. 4 and 5 are that the court erred in refusing to admit in evidence defendant's exhibit 12, which is a canceled check dated February 16, 1935, for $52.10, signed by defendant and payable to Cecil F. Miller, and defendant's exhibit 14 being a receipt for $52.10 dated February 20, 1935, purporting to be signed by Cecil F. Miller. It was defendant's contention that this check and receipt were for the amount of the accumulated dividends then due on the policy. We cannot see how this check and receipt could have been material or of aid to defendant's case in the absence of any evidence to show what the accumulated dividends amounted to, and which could only be shown by the record of this policy in the defendant's possession, and which, as we have herein ruled, was not properly brought in evidence. The plaintiff also objected to these exhibits for the reason that there was no evidence proving the signature of Cecil F. Miller on the back of the check or on the receipt, which objection the court sustained, end we think properly so.
By assignment No. 6 appellant complains that the court erred in refusing to permit in evidence memoranda appearing on defendant's exhibit 15. Exhibit 15 is the record of this policy as kept in the St. Louis office of defendant, showing premiums paid by the insured, and interest paid by the insured on policy loans, with the dates of such payments, and also showing the dates and amounts of policy loans made to the insured. At the bottom of the record showing these matters, and under the printed word "memoranda", appears in script the following (As read for the purpose of the offer by witness Brown):
Those notations appear to be just what the heading indicates, "memoranda", which is an informal record of something which it is desired to remember. Evidently it is not a pert of the record of this policy, but merely notations of facts shown by the record itself, and being objected to because not a port of the record and purely self serving declarations, they were properly excluded.
By assignments Nos. 7, 8 and 9 appellant complains that the court erred in refusing to admit in evidence defendant's exhibit 18, purporting to be a carbon copy of a letter dated February 16, 1935, from defendant's district manager in St. Louis to Cecil F. Miller, and of oral testimony that exhibit 12 was enclosed in the letter, and defendant's exhibit 19 purporting to be a carbon copy of a letter dated February 12, 1935, from defendant's district manager in St. Louis to Cecil F. Miller.
The general rule as stated in 20 Am. Jur. 364, § 403, is as follows:
And...
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