Newman v. John Hancock Life Insurance Company

• Decision Date: 24 January 1927
• Docket Number: 26542
• Citation: 290 S.W. 133,316 Mo. 454
• Parties: Vera Newman v. John Hancock Life Insurance Company, Appellant
• Court: Missouri Supreme Court

290 S.W. 133

316 Mo. 454

Vera Newman v. John Hancock Life Insurance Company, Appellant

No. 26542

Supreme Court of Missouri

January 24, 1927

Motion for Rehearing Denied January 24, 1927.

Appeal from Dunklin Circuit Court; Hon. W. S. C. Walker Judge.

Transferred to Springfield Court of Appeals.

Leahy Saunders & Walther and Ward, Reeves & Oliver for appellant.

Shepard & Hawkins for respondent.

White J. All concur, except Graves and Ragland, JJ., absent.

OPINION

WHITE

Plaintiff brought suit in the Circuit Court of Dunklin County upon a policy for $ 2,000, issued by the defendant, insuring the life of her husband, who died in August, 1918. The insured had borrowed $ 80 on the policy and judgment was asked for $ 1920 and interest.

Defendant filed an answer pleading numerous defenses to the effect, in general, that the insured had not met his payments, nor otherwise complied with the terms of the policy, setting out certain provisions, and raising certain alleged constitutional questions.

The reply denied, in general, the allegations of the answer, and set up additional facts to show that the insured had performed his contract.

On a trial before a jury in January, 1925, there was a verdict for the plaintiff for the full amount sued for and the interest, amounting to $ 2350. The defendant thereupon appealed to the Springfield Court of Appeals. Afterwards, in June, 1925, appellant filed an application to have the cause transferred to this court on the ground that certain constitutional questions were involved, which application was sustained and the case transferred.

I. Whether this court has jurisdiction depends upon whether the constitutional question has been properly raised in the trial court.

There was a former trial in which the trial court sustained a demurrer to the evidence. The case was appealed to the Springfield Court of Appeals where the judgment was reversed and the cause remanded. [Newman v. Hancock Mut. Life Ins. Co., 257 S.W. 190.] The opinion of the Court of Appeals in that case stated in substance the pleadings on which the judgment was rendered. On the second trial the plaintiff introduced in evidence the first answer and the first amended answer filed by the defendant. The latter, in substance, if not in terms, is exactly the same as the second amended answer upon which the trial was had, with the exception of the statement regarding the violation of the defendant's constitutional rights. That is to say, the answer to the merits in the first amended answer is the same as the answer to the merits in the second one, upon which the trial was had. From this we infer that the first amended petition was the same in substance as the second amended petition upon which the trial was had. And from the statement of the facts in the opinion of the Springfield Court of Appeals, on the first appeal of the case, the petition seems in substance the same as the petition upon which the last trial was had, so the defendant instead of raising his constitutional question as soon as possible, deferred raising it until after the Court of Appeals had passed upon the issues tendered by the petition and until the second trial in the case. It was not raised in time to give this court jurisdiction. [Williams v. Short, 263 S.W. 200, and cases cited; Strother v. Railroad, 274 Mo. 272, l. c. 277; State v. Swift & Co., 270 Mo. 694.]

The insurance contract, the construction of the terms of which was involved from the time the first petition was filed, was presented in that petition and challenged the attention of the defendant from the start. The fact that the plaintiff asked judgment on that particular contract, the rendition of which judgment the defendant now says would deprive it of its property without due process of law, presented the matter so that the defendant must have then perceived the attempted infringement upon its constitutional rights and had the opportunity from that time forward to present its constitutional question, but failed to do so until on the eve of the last trial.

II. No constitutional question was raised. The answer says that certain provisions of the policy, mentioning them, are protected and secured to the defendant by Section 30, Article II, of the Constitution of Missouri, and by Section 15 of Article II of the Constitution of Missouri, and by Section 10, Article I, of the Constitution of the United States, and by Section I of the Fourteenth Amendment to the Constitution of the United States.

Section 10, Article I, of the Constitution of the United States provides that no State shall enact "any law impairing the obligation of contracts." Section 15 of Article II of the Constitution of Missouri has the same provision. Those sections of the Constitution of the United States and of the Constitution of Missouri cannot be violated unless by some enactment of the Legislature of the State of Missouri. Since no statute of the State is mentioned we conclude that no constitutional question was raised by reference to them.

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