Spencer v. Travelers Ins. Company
| Decision Date | 18 April 1905 |
| Citation | 86 S.W. 899,112 Mo.App. 86 |
| Parties | SPENCER, Appellant, v. TRAVELERS INSURANCE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
AFFIRMED.
Judgment affirmed.
O. T Hamlin for appellant.
(1) The statements made in the letter from Messenger were binding. He was not only an agent, but I contend acting as a principal as he was one of the officers of the defendant, and the statements made were in his line of duty. Costigan v Michael Transfer Co., 38 Mo.App. 219; McDermott v. Railroad, 87 Mo. 285; Kaes v. Lime Co., 71 Mo.App. 101; Campbell v. Railioad, 86 Mo. App.--. (2) In determining whether a case should have been submitted to the jury the testimony on the part of plaintiff should be taken as true and every reasonable inference therefrom in plaintiff's favor should be made. Dorsey v. Railroad, 83 Mo.App. 528; Streube v. Christopher et al., 85 Mo.App. 640; Pauk v. St. Louis Dressed Beef and Provision Co., 150 Mo. 467.
Sebree & Farrington for respondent.
In all the appellate courts in this State it has been repeatedly held that the declarations of an officer of a corporation, to be admissible, must be made at the time of the transaction. Investment Company v. Fillingham, 85 Mo.App. 540; Chillicothe v. Raynard, 80 Mo. 189; Harper v. Telephone Co., 92 Mo.App. 313; Adams v. Railroad, 74 Mo. 553. A statement of an agent concerning a past event is no part of the res gestae, and is inadmissible. Ruschenberg v. Electric Co., 161 Mo. 79, 61 S.W. 626.
On August 20, 1892, defendant insured the life of James W. Spencer for the sum of two thousand dollars for the benefit of plaintiff, the wife of the insured, in consideration of an annual premium of $ 84.16, payable for a term of fifteen years. The defendant agreed that the annual premium might be paid in quarterly installments of $ 21.88 each. The policy contained the following clause: "In case of default in payment of any premium after the third, this policy will remain in force for the term specified in the table of 'Paid-up Insurance' indorsed hereon." The indorsement referred to by this clause is as follows:
"Paid Up Term Insurance Allowed at the End of the Years Designated.
Years from
Paid Up
Term
date of issue.
3
4
11
4
6
8
5
8
5
Spencer died on the twenty-second day of January, 1903. The defendant denied all liability on the policy, claiming that it had expired as extended insurance prior to the death of Spencer. The suit is to recover on the policy. At the close of plaintiff's case, the court peremptorily instructed the jury that she could not recover whereupon she took a nonsuit with leave to move to set the same aside. The motion to set aside the nonsuit was overruled and she appealed.
Plaintiff contends that the policy lapsed and went into extended insurance November 20, 1896. If this contention is shown by the evidence to be true, then it is conceded by defendant that the policy was in force on the day of J. W. Spencer's death and plaintiff is entitled to recover. Defendant's contention is that the policy lapsed on May 20, 1896, and that it expired as extended insurance before the death of Spencer; and plaintiff admits that if the policy lapsed on the twentieth of May, 1896, she is not entitled to recover. To show that the policy did not lapse until November 20, 1896, plaintiff offered in evidence the following letter:
Messenger was the actuary of the company, and the letter was in answer to a letter dated at Springfield, Missouri, January 27, 1903 (written and signed by L. D. Fafth but purporting to be signed by James W. Spencer) making inquiry in respect to the status of the policy. Messenger's deposition was taken by plaintiff and offered in evidence. He testified that he did not personally write the letter, but signed it and inferred from initial marks upon it that it was written by his assistant. Messenger also testified that premiums were not paid to him; that he had no personal knowledge as to the number or dates or payments of premiums by Spencer on the policy, but had ascertained from the books of the company that the policy lapsed May 20, 1896, and that the statement in the letter, that the policy lapsed November 20, 1896, was a mistake.
James Donnell, a son-in-law of James W. Spencer, testified that on January twenty-second or twenty-third, 1904, he went to the office of the defendant company, in the city of St. Louis, and made inquiry about the policy, and when asked what occurred there, over the objection of defendant, testified as follows:
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