Parr v. Illinois Life Ins. Co.

• Decision Date: 06 April 1914
• Docket Number: No. 10,949.,10,949.
• Citation: 165 S.W. 1152,178 Mo. App. 155
• Parties: PARR v. ILLINOIS LIFE INS. CO.
• Court: Missouri Court of Appeals

165 S.W. 1152

178 Mo. App. 155

PARR v. ILLINOIS LIFE INS. CO.

No. 10,949.

Kansas City Court of Appeals. Missouri.

April 6, 1914.

1. EVIDENCE (§ 121)—DECLARATIONS OF AGENT.

Declarations of an agent, to be admissible against the principal, must be made in doing an act within the scope of his authority; that is, be part of the res gestæ.

2. EVIDENCE (§ 244)—DECLARATIONS OF AGENT.

Declarations of an insurance agent that he had collected a premium of P., made after he had done so and gone away, are inadmissible, though made to neighbors, while he was in the same locality and engaged in collecting premiums from others, for which purpose he was sent on the trip by the insurer.

3. EVIDENCE (§ 244)—DECLARATIONS OF AGENT.

Declarations of an insurance agent after death of insured, in answer to inquiry by relatives, that his policy was in force are inadmissible.

4. APPEAL AND ERROR (§ 1052)—HARMLESS ERROR—ADMISSION OF EVIDENCE—OTHER EVIDENCE.

Admission of declarations of an insurance agent that insured paid him a premium was not cured by the agent subsequently testifying that the premium was not paid by him; they not having been offered to impeach him, because offered before he testified.

5. EVIDENCE (§ 123)—DECLARATIONS OF AGENT.

Though insured paid the premium in the afternoon, the declaration of the insurance agent to insured a few hours later, after supper, when they were talking over the policy, "This pays your insurance all up, and you won't have to bother again with it for a long time," is admissible, as being part of the same transaction.

6. INSURANCE (§ 186)—AGENTS—COLLECTING PREMIUMS BEFORE DUE.

An insurance agent having authority to collect from insured a past due premium and take an application from him for reinstatement had authority to collect from him another premium due in a few days, necessary to preserve the insurance under the reinstatement.

7. EVIDENCE (§ 121)—DECLARATIONS OF AGENT.

Declarations of an insurance agent, when persons saw insured pay him money, and the

agent give him a receipt, a few days before a premium was due, "That will carry your insurance now for over a year," are admissible, being part of the res gestæ, and explanatory of the act.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Rosa T. Parr against the Illinois Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Henry W. Price, of Chicago, Ill., and Harkless & Histed, of Kansas City, for appellant. Wade & Wade, of Kansas City, for respondent.

TRIMBLE, J.

In the second count of her petition, plaintiff sued upon a policy of insurance issued by defendant to Elisha V. Parr for $1,000, payable at his death to plaintiff, as his widow and beneficiary. The annual premium thereon was $60.43, and was due on the 17th of June of each year. The first premium was paid; the second premium fell due on June 17, 1908. The insured gave his note to defendant for this premium. The next premium would, of course, become due June 17, 1909. A short time before this due date of the next premium, to wit, about May 17, 1909, defendant sent its agent out to the insured's place of residence in Johnson county, Kan., to collect the note and to attend to other business for the company in that community, such as collecting premiums, taking applications for insurance, applications for reinstatement, etc.

It is the contention of plaintiff that this agent came to the insured's house twice on that trip, once on May 17th, when the insured, by check, paid the note given for the second premium, and again on May 19, 1909, when the insured paid him in cash the third premium, which would be due June 17, 1909. If Parr paid this third premium to the agent, then his insurance was in force until June 17, 1910, and was in force on the date of Parr's death, which occurred June 13, 1910. Defendant contends that, while Parr paid the note given for the second premium, yet he never paid the third premium in cash or in any other manner, and that the policy had lapsed at the time of his death. The whole contest is over the alleged payment of this third premium, which would fall due June 17, 1909. The defendant insists that all the testimony introduced by plaintiff to prove the payment of said premium to said agent was improper, and should not have been admitted. If that contention is true, then there is no other testimony in the case proving such payment, and plaintiff, in that event, cannot recover.

The court refused to exclude the testimony objected to, and submitted to the jury the issue whether or not the premium was paid to the agent. The jury found for plaintiff for the amount due on the policy, and defendant has appealed.

It was clearly shown, and is conceded, that George Withers was defendant's agent, sent for the purpose of collecting premiums, obtaining applications for new insurance, applications for renewals, and other business of the company in the community in which the insured, Parr, lived. There was evidence tending to show that on the 17th of May, 1909, this agent collected of the insured, Parr, the note given for the second premium, and that Parr paid this note by check of that date on the State Bank of Stilwell, Kan. At that time, May 17, 1909, the third premium was nearly due, being payable on June 17th. After collecting the note, the agent went about the neighborhood attending to the business of the company. There was evidence tending to show that on May 19th, two days after collecting the note for the second premium, the agent, Withers, returned to Parr's residence. On this occasion a neighbor, James B. Kentch, and his niece, Miss Myrtle Kentch, were present. Plaintiff offered their testimony to prove that Parr, at this time, paid the third premium in cash. Defendant objected to their testimony, and now claims that its admission was error.

James B. Kentch testified that he was at Mr. Parr's May 19, 1909, fixing the date by the date of a note he gave next day to the agent, Withers, at Stilwell for the next premium due on his policy. He says that the agent, Withers, and the insured, Mr. Parr, were present. After testifying to some remarks made which are not pertinent here, Mr. Kentch says he heard Mr. Parr and the agent, Withers, talking about insurance premiums; that Mr. Parr said he had paid a premium, and Mr. Withers replied to Mr. Parr that he had paid his last premium, but that another would be due soon; that Mr. Parr said he knew that, and remarked: "I have got the money and I will just pay it;" that thereupon Mr. Parr took a roll of money in bills out of his pocket, and paid Withers some amount over $50, "and Mr. Withers wrote something on a receipt—looked like a receipt book, and wrote him out a receipt. I suppose it was; I don't know whether it was a receipt or not, but I did not see that. ...