State ex rel. Met. Life Ins. Co. v. Shain, 36149.

• Decision Date: 19 November 1938
• Docket Number: No. 36149.,36149.
• Citation: 121 S.W.2d 789
• Parties: STATE OF MISSOURI at the relation of METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, ROBERT M. REYNOLDS and EWING C. BLAND, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

121 S.W.2d 789 STATE OF MISSOURI at the relation of METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, Relator,
v.
HOPKINS B. SHAIN, ROBERT M. REYNOLDS and EWING C. BLAND, Judges of the Kansas City Court of Appeals. No. 36149. Supreme Court of Missouri. Division One, November 19, 1938.

[121 S.W.2d 790]

Certiorari.

RECORD QUASHED.

William C. Michaels, Robert E. Coleberd and Albert L. Reeves, Jr., for relator; Harry Cole Bates and Michaels, Blackmar, Newkirk, Eager & Swanson of counsel.

(1) The opinion of the Kansas City Court of Appeals, in holding that the testimony of plaintiff and her witnesses, Rice and Madigan, that they were told the insured was dead, was admissible as part of the res gestae, conflicts with the controlling decisions of this court, which hold that testimony as to declarations which are not spontaneous and are a mere narrative of a past event is not admissible as part of the res gestae. State v. Gabriel, 88 Mo. 639; Leahey v. Cass Ave., Ry. Co., 97 Mo. 165, 10 S.W. 58; State ex rel. Bankers Life Co. v. Reynolds, 277 Mo. 14, 208 S.W. 618; Redmon v. Met. St. Ry. Co., 185 Mo. 1, 84 S.W. 26; Woods v. Southern Ry. Co., 73 S.W. (2d) 376. (2) The opinion of the Kansas City Court of Appeals, in holding that Plaintiff's Exhibit 5, a copy of a death certificate of an unknown man, when taken with the testimony of plaintiff's witness Borland, cannot be classed as hearsay, but was direct evidence, is in conflict with the decisions of this court which hold that such evidence is hearsay and inadmissible, and that an inference cannot be built upon an inference to prove a material fact in a case. Filley v. Talbott, 18 Mo. 416; Lynch v. Railroad Co., 208 Mo. 1, 106 S.W. 68; Sharp v. Railroad Co., 213 Mo. 517, 111 S.W. 1154; Scrivner v. American Car & Foundry Co., 330 Mo. 408, 50 S.W. (2d) 1001; Phillips v. Insurance Co., 288 Mo. 175, 231 S.W. 947; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437; State v. Capps, 311 Mo. 683, 278 S.W. 695. (3) The opinion of the Kansas City Court of Appeals in approving the submission of the issue of penalties and attorney's fees to the jury conflicts with the decisions of the Supreme Court. Camdenton School Dist. v. New York Cas. Co., 104 S.W. (2d) 331; State ex rel. Met. Life Ins. Co. v. Shain, 334 Mo. 385, 66 S.W. (2d) 871; State ex rel. Continental Life Ins. Co. v. Allen, 303 Mo. 608, 262 S.W. 43.

Richard C. Southall for respondents.

(1) The opinion of the Kansas City Court of Appeals that the declarations of McClelland and the landlord at insured's last place of abode were part of the res gestae did not conflict with the decisions of this court. Scism v. Alexander, 93 S.W. (2d) 36; Landau v. Travelers' Ins. Co., 305 Mo. 563, 267 S.W. 378; Roach v. Great Northern Ry. Co., 133 Minn. 257; Drake v. Kansas City Pub. Serv. Co., 63 S.W. (2d) 75; St. Louis v. Worthington, 52 S.W. (2d) 1009; Sotebier v. St. Louis Transit Co., 203 Mo. 702, 102 S.W. 651; Hill v. Guth Co., 35 S.W. (2d) 924; State v. Avery, 113 Mo. 475, 21 S.W. 193; Philadelphia & T. Railroad Co. v. Stimpson, 14 Peters, 448, 10 L. Ed. 535. (a) Because there is no conflict with a case upon the same or similar state of facts. State ex rel. v. Cox, 46 S.W. (2d) 849; State ex rel. v. Trimble, 52 S.W. (2d) 864; State ex rel. v. Daues, 19 S.W. (2d) 703; State ex rel. v. Ellison, 256 Mo. 644, 165 S.W. 369; State ex rel. v. Trimble, 10 S.W. (2d) 519; Boone v. Burnell, 28 Md. 607; Spaulding v. Railroad Co., 98 Iowa, 205; Ringhouse v. Keever, 49 Ill. 471; Scott v. Ratcliffe, 5 Peters, 85; Fidelity Mut. Life Ins. Co. v. Mettler, 185 U.S. 320, 22 Sup. Ct. 662; 22 C.J., sec. 593, p. 498; 10 R.C.L. 158. (b) Because the declarations were competent as showing an existing condition. Amick v. Kansas City, 187 S.W. 582; McMahon v. United Rys., 203 S.W. 500; McNicholas v. Continental Baking Co., 112 S.W. (2d) 856; Weiler v. Peerless White Lime Co., 64 S.W. (2d) 125; State v. Kaiser, 124 Mo. 651, 28 S.W. 182; Toon v. Evans Coffee Co., 103 S.W. (2d) 538; Young v. Met. Life Ins. Co., 84 S.W. (2d) 1065; State ex rel. v. Mason, 112 Mo. 374, 20 S.W. 629; Brocket v. Steamboat Co., 18 Fed. 156; Kleiber v. Ry. Co., 107 Mo. 240, 17 S.W. 946, 14 L.R.A. 613. (c) Because the declarations were spontaneous and had a logical relation to the main event. Smith v. Southern Ill. & Mo. Bridge Co., 305 Mo. 575, 267 S.W. 376; State v. Martin, 124 Mo. 514, 28 S.W. 12; Bennett v. Hader, 87 S.W. (2d) 413; German Evangelical Church v. Reith, 39 S.W. (2d) 1065; Collins v. Harrell, 219 Mo. 279, 118 S.W. 432; Leahey v. Cass Ave. & Fairgrounds Ry., 97 Mo. 165, 10 S.W. 58. (d) Because the declarations were competent by reason of necessity. State v. Levy, 90 Mo. App. 646; McKelvey on Evidence (4 Ed.), p. 289; McAdoo v. Met. Life Ins. Co., 110 S.W. (2d) 850; Cuthbert v. Holmes, 14 S.W. (2d) 446; Guthrie v. Gillespie, 6 S.W. (2d) 890; State v. Ellis, 28 S.W. (2d) 367; Ringhouse v. Keever, 49 Ill. 471; Sugden v. Lord St. Leonards, 1 Prob. Div. 241; Bonslett v. New York Life Ins. Co., 190 S.W. 870; State v. Gabriel, 88 Mo. 631; 1 Starkie's Ev. (6 Ed.) 65. (e) Because even if erroneously admitted the testimony was not prejudicial. (2) The opinion of the Kansas City Court of Appeals, in holding that plaintiff's Exhibit 5 was not hearsay, did not conflict with the decisions of this court. State ex rel. v. Allen, 240 S.W. 117; State ex rel. v. Smith, 43 S.W. (2d) 1054; State ex rel. v. Haid, 60 S.W. (2d) 41; State ex rel. v. Trimble, 62 S.W. (2d) 756; Pfeiffer v. Supreme Tribe, 176 S.W. 710; State v. Avery, 113 Mo. 475, 21 S.W. 193; State ex rel. v. Trimble, 52 S.W. (2d) 864. (3) The opinion of the Kansas City Court of Appeals in approving the submission of penalties did not conflict with the decisions of this court. State ex rel. v. Shain, 110 S.W. (2d) 721; Grandgenett v. Natl. Protective Assn., 73 S.W. (2d) 345; Unwin v. Hancock Mut. Life Ins. Co., 43 S.W. (2d) 900; State ex rel. v. Cox, 274 S.W. 373; Bonslett v. New York Life Ins. Co., 190 S.W. 873.

FERGUSON, C.

This is an original proceeding by certiorari whereby the relator, Metropolitan Life Insurance Company, seeks to quash the opinion of the Kansas City Court of Appeals in the case of Bailey v. Metropolitan Life Insurance Company, 115 S.W. (2d) 151, which was an action, by the administratrix of the estate of Dan L. Bailey, deceased, on a life insurance policy "issued to deceased by the defendant under date of September 14, 1925." Plaintiff had verdict and judgment in the Circuit Court of Jackson County. On defendant Insurance Company's appeal the Kansas City Court of Appeals affirmed the judgment of the trial court. Relator claims said opinion, by certain rulings therein made and hereinafter discussed, contravenes, and is in conflict with, controlling decisions of this court; In stating the facts we limit ourselves to the facts disclosed by the opinion and pertinent on the questions of conflict involved in this proceeding.

The insured, Dan L. Bailey, was the husband of Inez Bailey, who, as administratrix of the estate of Dan L. Bailey, deceased, brought the action on the policy. The issuance of the policy and that premiums thereon "were duly paid up to October 1, 1928," was "admitted." It was also "admitted by defendant" that the provision of the policy "for extended insurance ... carried the insurance in full effect to November 22, 1931." Bailey "left his home and went to Chicago in the fall of 1925 for the purpose of securing work." He "communicated with his wife until November, 1926; after which time no letter or postal card was ever received from the insured." The wife "made diligent effort to locate her husband whose last-known address was 18 South Jefferson Street, Chicago, Ill. Her efforts were of no avail." The opinion observes: "It is fair to infer that the seven year statute ... began to run in the latter part of 1926;" "this suit was begun in August, 1936;" "Under the evidence ... the presumption of death of insured existed at the date this action was brought. Such being the case, the issue is narrowed to the question of time of death;" and "the real issue ... is ... whether or not the insured died prior to November 22, 1931," the date (see supra) that the policy "lapsed."

As shown by respondents' opinion, the trial court, overruling the defendant Insurance Company's timely and pertinent objections thereto, permitted plaintiff and two of her witnesses to testify to statements or declarations said to have been made to them by another person, who was not a party to the action or a witness in the case, which declarations were admitted as evidence tending to prove that the insured, Bailey, had died prior to November 22, 1931. On its appeal defendant assigned error in the admission of this testimony but the opinion of the Court of Appeals

121 S.W.2d 791

hold that same was properly admitted. Relator herein claims such ruling of the Court of Appeals is in conflict with controlling decisions of this court. Much of the testimony referred to, together with defendant's objections thereto and exceptions to the action of the trial court in overruling same, is set out, in question and answer form, in the opinion. No question is made as to the sufficiency of...