Patten v. Miller

• Decision Date: 02 April 1918
• Citation: 202 S.W. 417,199 Mo.App. 287
• Parties: FRED B. PATTEN, Appellant, v. J. G. MILLER, Respondent
• Court: Missouri Court of Appeals

202 S.W. 417

199 Mo.App. 287

FRED B. PATTEN, Appellant, v. J. G. MILLER, Respondent

Court of Appeals of Missouri, St. Louis

April 2, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon. Kent K. Koerner, Judge.

AFFIRMED.

Judgment affirmed.

Berthold & Lister, for appellant.

(1) Where there is any evidence of a material fact in issue, no amount of force in the rebutting testimony will authorize the court to take the question of fact from the jury. Hunt v Missouri R. Co., 14 Mo.App. 160. If, on all the facts and circumstances, there is room for fair and sensible men to differ in their conclusions, the jury should decide. Roddy v. Mo. P. Ry. Co., 104 Mo. 234. The weight and sufficiency of the evidence is for the jury. Dooly v Jennings, 6 Mo. 61; Patterson v. McClanahan, 13 Mo. 507; State v. Upton, 20 Mo. 397; Chouquette v. Barada, 28 Mo. 491; Kirk v. Sportsman, 48 Mo. 383; Moore v. Pieper, 51 Mo. 157; Burham v St. Louis, I. M. R. Co., 56 Mo. 338; Reynolds v. Rogers, 63 Mo. 17; State v. Peebles, 178 Mo. 475, 77 S.W. 518. (2) The credibility of witnesses is a question for the jury. Glasscock v. Swafford Bros. Dry Goods Co., 106 Mo.App. 657. The fact that plaintiff and defendant are the only witnesses and directly contradict each other does not necessarily render the evidence equally balanced, so that no verdict can be rendered thereon, but the credibility of the witnesses is in such a case wholly a matter for the jury. Utz v. Hoerr, 20 Mo.App. 36. (3) Where there is any evidence tending to support the issues in the case, although slight, it should be submitted to the jury, and it is error to order a non-suit or direct a verdict. Magoon v. Whiting, 1 Mo. 613; Chouteau v. The St. Anthony, 12 Mo. 389; Fine v. St. Louis Public Schools, 39 Mo. 59; Williamson v. Fischer, 50 Mo. 198; Holliday v. Jones, 59 Mo. 482; Flori v. City of St. Louis, 3 Mo.App. 231; Baum v. Fryrear, 85 Mo. 151; Moody v. Deutsch, 85 Mo. 237; Groll v. Tower, 85 Mo. 249; Hadley v. Orchard, 77 Mo.App. 141; Tapley v. Herman, 95 Mo.App. 537; Carr v. Ubsdell, 97 Mo.App. 326; Morrow v. Pullman Palace Car Co., 98 Mo.App. 351; Rosenbaum v. Gilliam, 101 Mo.App. 126. Where there is any evidence tending to prove the issues of fact in a case, it must go to the jury, though the legal effect of the facts is a question of law on which instructions may be given. Bowen v. Lazalere, 44 Mo. 383. Fortune v. Missouri R. Co., 10 Mo.App. 252. A peremptory instruction to find for defendant permissible only when there is no testimony tending to support plaintiff's case. Heman v. Larkin. 70 S.W. 907.

Holland, Rutledge & Lashly for respondent.

(1) The record proper in this case contains nothing but the petition and fails to show that a motion for new trial was filed and ruled on and that an appeal was taken and a bill of exceptions filed, all of which details are essential before this court will or can pass on the rulings of the trial court. The record proper only is before this court for review and no error can be found therein. State v. Sly, 180 Mo.App. 379; Dalton v. Register Co., 248 Mo. 150; St. Louis v. Young, 248 Mo. 346; State v. Scobee, 255 Mo. 270; Blumer v. Lowenhart, 188 S.W. 1131, l. c. 1132; Fleming v. Meals, 192 Mo.App. 38; Clark v. Clark, 191 Mo.App. 278; Reiner v. Cement Co., 177 Mo.App. 198. (2) The evidence as shown by the document on which plaintiff seeks to recover provided for no date of maturity and the testimony in connection therewith discloses that no interest was to be charged on the money therein specified and thus stamps the transaction as one of rebating a premium. (Record, pp. 2, 26-27). Hoffman v. Ins. Co., 92 U.S. 161, 23 L.Ed. 539; Metropolitan Life Insurance Co. v. People, 209 Ill. 42; Hefron v. Daly, 133 Mich. 613; State Life Insurance Co. v. Strong, 127 Mich. 346; Tillinghart et al. v. Craig, 9 Ohio C. D. 459; Thomson v. McLaughlin, 79 S.E. 182. (3) The evidence establishing rebating in connection with this transaction shows there is no life in the document relied on by plaintiff and no validity or merit to his cause, and the court committed no error in directing a verdict for defendant. Section 6934, Revised Statutes Mo. 1909; Hoffman v. Insurance Co., 92 U.S. 161, 23 L.Ed. 539; Admission Appellant's Brief, p. 50, paragraph 3; See also cases cited under Point 2.

ALLEN, J. Reynolds, P. J., and Becker, J., concur.

OPINION

ALLEN, J.

This is an action, instituted before a justice of the peace, wherein plaintiff seeks to recover as assignee of the following instrument, viz:

"St. Louis, Missouri, November 17, 1911.

"I hereby acknowledge myself to owe and be indebted to S.D. Martin, in the sum of Three Hundred Fifty-seven & 93-100 Dollars, for value received, with interest at the rate of per cent per annum, payable annually in advance. To secure the payment of same, I hereby pledge, as sole security, all profits and other benefits now accrued, or that may hereafter accrue, to Policy Number K-17100, issued to me by Meridian Life Insurance Company, and dated November 10, 1911, and I authorize and direct said company to pay S.D. Martin, from such proceeds, the amount shown to be due him. J. G. MILLER."

At the trial in the circuit court, before the court and a jury, the court, at the close of plaintiff's case, gave a peremptory instruction offered by defendant in the nature of a demurrer to the evidence. In obedience to this instruction the jury returned a verdict for defendant, and from a judgment duly rendered thereon the plaintiff prosecutes this appeal.

The evidence shows that plaintiff is the general agent for a life insurance company doing business in the city of St. Louis, and that in the course of his business he had certain dealings with S.D. Martin, a life insurance agent, mentioned in the instrument, supra, whereby Martin became indebted to him, and that as security for such indebtedness the instrument in suit was assigned to him by Martin.

It appears that this instrument was signed by the defendant, Miller, at the request of Martin when the latter delivered to him a policy of insurance on his life in the sum of $ 10,000, issued by the "Meridian Life Insurance Co.," of which Martin was then agent, upon which policy the annual premium was $ 421.10. The first annual premium on this policy, it is said, was "settled for" by defendant by the payment to Martin of $ 63.17 in cash and the execution by him of the instrument sued upon. Defendant did not keep the policy in force after the first year.

Martin, called as a witness for plaintiff, stated that prior to the issuance to defendant of the policy of insurance he told defendant that he could offer him a policy for which the cash outlay for the first year would be small, "about fifteen per cent," and that defendant would owe him the remainder. He further testified that nothing was said as to defendant's keeping the policy in force after the first year. When asked how defendant's continuance of the insurance after the first year would have affected the instrument sued upon, he said: "Why the company would have taken that off my hands. . . . The company would have taken that up and held it against the policy." When asked if the defendant "would have had to pay this paper" if he had continued the policy after the first year, the witness said: "It would have been paid some day to somebody from Mr. Miller indirectly, because all of the proceeds of the policy come from the policy-holder. . . . If he had kept the policy in force I would have turned it over to the company and Mr. Miller would have paid it. . . . The balance of the policy which Mr. Miller contributed to the company would have done it." He further testified:

Q. "The company would have paid it?" A. "No, sir; his money." Q. "You mean out of certain proportion of the--A. "That goes into the reserve fund." . . . Q. "Out of that reserve this paper would have been paid?" A. "Eventually." Q. "It would have been worked out in the process of the policy?" A. "Yes, sir."

He also testified that defendant was to pay no interest on the indebtedness; that he sent this paper to the Meridian Life Insurance Company, and that the company returned it to him several months later; that on this policy he paid the company $ 42.11 out of the cash payment received by him all over and above this sum constituting his commission.

The defendant, called as plaintiff's witness testified that under the agreement between him and Martin all that he was to pay for the policy of insurance...