Poland v. Fisher's Estate

• Decision Date: 14 December 1959
• Docket Number: No. 1,No. 47254,47254,1
• Citation: 329 S.W.2d 768
• Parties: Carroll P. POLAND, Plaintiff-Respondent, v. ESTATE of Robert G. FISHER, Deceased, Defendant-Appellant
• Court: Missouri Supreme Court

Page 768

329 S.W.2d 768

Carroll P. POLAND, Plaintiff-Respondent, v. ESTATE of Robert G. FISHER, Deceased, Defendant-Appellant.

No. 47254.

Supreme Court of Missouri, Division No. 1.

Dec. 14, 1959.

William M. Turpin, Bowling Green, F. D. Wilkins, Louisiana, Mo., for appellant.

Kappel & Neill, Walter S. Berkman, St. Louis, for respondent.

WESTHUES, Judge.

Plaintiff filed a claim for $10,600.03 in the Probate Court of Pike County, Missouri, against the estate of Robert G Fisher, deceased. The case was transferred to the Circuit Court of Pike County where, by amendment, the claim was increased to $11,287.53. Plaintiff had collected $21,000 on life insurance policies on the life of Fisher wherein Poland was named beneficiary. A counterclaim was filed by the administrator of the Fisher estate claiming the difference between the amount of Poland's claim and the $21,000. A trial was had before the court without a jury and the court found for plaintiff in the sum of $11,287.53 plus interest from November 5, 1957, in the sum of $423.28, or a total sum of $11,710.81. The trial court denied the counterclaim on the theory that plaintiff was entitled to the entire amount of the insurance. The amount in dispute is $9,289.19. The administrator appealed from the judgment entered.

Three points were briefed by the administrator. In the first assignment, complaint is made that the trial court excluded four exhibits, Nos. 3, 4, 9, and 11, offered by him. These exhibits were checks signed by Fisher and made payable to plaintiff. In the second point, defendant says that the court erred in holding that plaintiff had an insurable interest in Fisher's life. In the third point briefed, defendant claims that at the time the insurance policies were procured Fisher was indebted to plaintiff; that the policies were written to protect plaintiff against loss and that plaintiff was entitled only to such sum as would discharge the indebtedness and the balance should be paid to Fisher's estate.

The facts as shown by the record were: The decedent, Robert G. Fisher, was a dealer in livestock which business consisted mostly in Fisher's purchasing stock and selling it through the facilities of the Mississippi Valley Stockyards and the Valley Brokerage Company which companies were owned by plaintiff Carroll P. Poland. Poland, as owner of these companies, received compensation on a per-head basis for the use of the stockyards and for feeding the stock. Plaintiff also received a per cent of commission charged for the sale of the livestock. Plaintiff testified that the amount received through the business handled for Fisher amounted to about $3,000 per month; that Fisher brought more livestock to the yards than any other commissionman. Plaintiff stated that his business relationship with Fisher began in 1951 at which time Fisher was in financial difficulties and he, Poland, advanced Fisher $5,000. From that time until June 27, 1957, when Fisher was killed in an automobile accident, plaintiff, at various times, advanced substantial sums of money to help Fisher in his business. The evidence was, and it seems to be agreed by both parties, that Fisher was not an employee of plaintiff; nor were he and plaintiff partners or engaged in a joint enterprise. The only business connection was that the deceased used the facilities of plaintiff's companies in the sale and handling of livestock at the stockyards.

The sole complaint made by the defendant with reference to the finding of the court as to the amount due from the estate to plaintiff was that the court excluded the exhibits mentioned above which were checks payable to plaintiff and signed by Fisher. At the trial, defendant offered sixteen checks. Of these, all were admitted in evidence except the four above mentioned which were excluded on the theory that such checks were irrelevant and that no showing had been made that they pertained to any item involved in the case. Defendant cited the case of Bass v. Daetwyler, Mo.App., 305 S.W.2d 339, to support his position. We find no ruling in that case which supports defendant's contention. The checks themselves did not indicate that the amounts stated thereon were in payment on any items claimed to be due from Fisher to plaintiff. There was no evidence either oral or otherwise from which a finding could be made that the checks were involved in any transaction making up the amount due from the estate. In holding that the checks rejected by the trial court in the Bass case, supra, should have been admitted, the Springfield Court of Appeals stated in 305 S.W.2d loc. cit. 343(6, 7), the following: 'Of course, whether the payments evidenced by defendant's cancelled checks were for items properly chargeable as partnership expenses was not established by the checks themselves, but rather depended upon defendant's credibility and the weight and value of his oral testimony concerning the items for which the checks were issued.' As indicated by that statement, in that case there was oral evidence to the effect that the checks were for items involved in the accounting between Bass and Daetwyler. No such evidence was produced by the defendant in the case before us. We rule the trial court committed no error in rejecting the exhibits as evidence of any payment made by Fisher to Poland for any of the items sued on in this case.

In the second point briefed, defendant says that plaintiff Poland did not have an insurable interest in the life of the deceased, Fisher. It seems to be well settled that the administrator of Fisher's estate cannot, in the circumstances of this case, plead lack of insurable interest. Poland, with the consent of Fisher, procured the policies and paid the premiums and the insurance company paid the amount of insurance to Poland. Generally speaking, lack of insurable interest may be pleaded by the insurer and no one else. In 44 C.J.S. Insurance Sec. 212, p. 915, the rule is stated thus: 'The question of the lack of insurable interest in a...