State ex rel. Gneckow v. Hostetter, 35364.

• Decision Date: 05 June 1937
• Docket Number: No. 35364.,35364.
• Citation: 105 S.W.2d 928
• Parties: STATE OF MISSOURI at the relation of CORA M. GRIFFIN GNECKOW, Relator, v. JEFFERSON D. HOSTETTER, WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals.
• Court: Missouri Supreme Court

105 S.W.2d 928 STATE OF MISSOURI at the relation of CORA M. GRIFFIN GNECKOW, Relator,
v.
JEFFERSON D. HOSTETTER, WILLIAM DEE BECKER and EDWARD J. McCULLEN, Judges of the St. Louis Court of Appeals. No. 35364. Supreme Court of Missouri. Court en Banc, June 5, 1937.

Certiorari.

OPINION QUASHED.

J.M. Massengill and John P. Griffin for relator.

(1) The scope of the writ of certiorari to review the decisions of an appellate court is limited to the finding of a conflict between the Court of Appeals' opinion and the last controlling opinion of this court on the subject, so as to secure uniformity and harmony in the law, and this court will examine any pleading, instruction or contract referred to in the opinion. State ex rel. Kroger Gro. & Bak. v. Haid, 323 Mo. 9, 18 S.W. (2d) 480; State ex rel. John Hancock Mut. Life Ins. Co. v. Allen, 282 S.W. 48. (2) The respondents' opinion approving the holding that the testimony of Kirk, the administrator, and W.R. Griffin, brother of the insured, and F.B. Rauch, a creditor of the estate, of what the insured said to them during his lifetime about his opinion of the divorce and the effect of it, and that the relator had no interest in his property, and that he was under no obligation to her, was hearsay and self-serving declarations, and the opinion is in conflict with the last controlling decisions of this court in holding this testimony admissible. Baker v. Keet-Rountree D.G. Co., 318 Mo. 969, 2 S.W. (2d) 741; Pursifull v. Pursifull, 257 S.W. 118; Townsend v. Schaden, 275 Mo. 244, 204 S.W. 1076; Littig v. Urbauer-Atwood Heating Co., 292 Mo. 226, 237 S.W. 785; McFarland v. Bishop, 282 Mo. 551, 222 S.W. 147; O'Day v. Annex Realty Co., 191 S.W. 46. (3) Oral evidence was not admissible to contradict the written policy, and the approval of this testimony is contrary to and in conflict with the ruling of this court. Standard Fire Proofing Co. v. St. Louis E.M. Fire Proofing Co., 177 Mo. 559, 76 S.W. 1010. (4) The decree of divorce was objected to by the relator because it did not refer to this insurance or any insurance, and did not have any effect on this insurance, and there was no evidence as the respondents' opinion stated as to a change of the beneficiary from the relator; and in addition to not being admissible the hearsay testimony of the witnesses or the self-serving declarations of what the insured thought the effect of the decree was, which is approved by respondents' opinion could not estop the relator to claim the proceeds of this insurance, and the decision is in conflict with the controlling decisions of this court on this point. Sutton v. Dameron, 100 Mo. 150, 13 S.W. 500; Noell v. Remmert, 326 Mo. 148, 30 S.W. (2d) 1015.

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