State ex rel. Met. Life Ins. Co. v. Allen

• Decision Date: 14 December 1936
• Docket Number: No. 34668.,34668.
• Citation: 100 S.W.2d 487
• Parties: STATE OF MISSOURI at the relation of METROPOLITAN LIFE INSURANCE COMPANY, Relator, v. PERRY T. ALLEN, ROBERT J. SMITH and WALTER E. BAILEY, Judges of the Springfield Court of Appeals.
• Court: Missouri Supreme Court

100 S.W.2d 487

STATE OF MISSOURI at the relation of METROPOLITAN LIFE INSURANCE COMPANY, Relator, v. PERRY T. ALLEN, ROBERT J. SMITH and WALTER E. BAILEY, Judges of the Springfield Court of Appeals.

No. 34668.

Supreme Court of Missouri.

Division One, December 14, 1936.

Certiorari.

WRIT QUASHED.

Edgar & Banta, Fordyce, White, Mayne & Williams and Raymond E. LaDriere for relator; Harry Cole Bates of counsel.

(1) The defense of premature filing of suit was not lost to the defendant because of failure to plead the same in its answer. Heard v. Ritchey, 112 Mo. 516; Bush Construction Co. v. Withnell, 190 Mo. App. 33, 175 S.W. 206; Lawler v. Vette, 166 Mo. App. 342, 149 S.W. 43; Jenkins v. Wiley, 254 S.W. 96; State ex rel. v. Trimble, 262 S.W. 359; Houtz v. Hellman, 128 S.W. 1001, 228 Mo. 663; State ex rel. Jones v. Chemical Works, 249 Mo. 721. (2) The letter of November 7, 1932, was not a waiver by defendant of the six months' waiting period, which commenced to run at the filing of due proof. Leon v. Barnsdall Zinc Co., 309 Mo. 276, 275 S.W. 699; Young v. Penn. Fire Ins. Co., 187 S.W. 856, 269 Mo. 1; Moss v. Met. Life Ins. Co., 84 S.W. (2d) 395; Farmer v. Met. Life Ins. Co., 85 S.W. (2d) 235; Buis v. Prudential Ins. Co., 77 S.W. (2d) 133; Allen v. Natl. Life & Acc. Ins. Co., 67 S.W. (2d) 534; Wood v. General Ins. Co. of Am., 77 S.W. (2d) 167; Hundley v. Met. Life Ins. Co., 205 N.C. 780, 172 S.E. 361; Penn. Mut. Life Ins. Co. v. Milton, 160 Ga. 168, 127 S.E. 799; N.Y. Life Ins. Co. v. Farrell, 187 Ark. 984, 63 S.W. (2d) 520; Atlas Life Ins. Co. v. Wells, 187 Ark. 979, 63 S.W. (2d) 533; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 Sup. Ct. 230, 76 L. Ed. 416; Puckett v. Natl. Annuity Assn., 134 Mo. App. 501. (3) The trial court did not have jurisdiction of the amount involved, and, therefore, no judgment for the plaintiff could be recovered in any event. Lanham v. Boggs, 1 Mo. 476; Pike v. Farmers Mutual, 251 S.W. 115, 215 Mo. App. 303.

Davis & Damron and L.W. Chapman for respondents.

(1) On certiorari to quash the opinion of the Springfield Court of Appeals the Supreme Court is concerned only with the question of conflict between such opinion and prior decisions of the Supreme Court. State ex rel. Mo. Mutual Assn. v. Allen, 78 S.W. (2d) 862; State ex rel. Ely & Walker D.G. Co. v. Cox, 73 S.W. (2d) 743. (a) The Supreme Court is not concerned with mere possible conflicts of decisions but there must be actual conflicts between statements of general principles of law clearly intended as such, or between rulings necessary to matters presented for decision. State ex rel. Gatewood v. Trimble, 62 S.W. (2d) 756. (b) Alleged conflict must be based upon same or similar set of facts. State ex rel. Gatewood v. Trimble, 62 S.W. (2d) 756; State ex rel. Continental Ins. Co. v. Reynolds, 235 S.W. 88; State ex rel. John Hancock Ins. Co. v. Allen, 267 S.W. 832. (c) The Supreme Court will disregard conflicts of opinions of the several Courts of Appeals and with opinions of courts of other jurisdictions. State ex rel. Mann v. Trimble, 232 S.W. 100; State ex rel. Am. Packing Co. v. Reynolds, 230 S.W. 642; State ex rel. Mechanics Am. Natl. Bank v. Sturgis, 276 Mo. 549. (d) As long as the Court of Appeals promulgates no rule of law which can be said to conflict with former rulings of the Supreme Court on the same or similar facts, the Appeals Court has inherent right to decide in its own way the issues involved. State ex rel. Fichtner v. Haid, 22 S.W. (2d) 1045. (e) The Springfield Court of Appeals having referred to and quoted from the policy in its opinion, it is thereby drawn into the opinion by reference and is for consideration as if the policy had been written into the opinion in full. State ex rel. Western Auto Ins. Co. v. Trimble, 249 S.W. 902. (2) In this case the plaintiff's petition on its face stated a cause of action, and the court had jurisdiction of the subject matter of the suit. The relator's defense of premature suit was in the nature of a plea in abatement, not a plea in bar, and to be available such defense had to be specifically pleaded, a general denial not being sufficient. Young v. Penn. Fire Ins. Co., 187 S.W. 856; Giboney v. Ins. Co., 48 Mo. App. 185. (a) If in ruling that the defense of premature suit was lost because relator failed to affirmatively plead such defense, and that the six months waiting provision of the policy was inapplicable, or waived, because of relator's denial of liability, it could be said that the opinion of the Court of Appeals conflicts with controlling decisions of the Supreme Court, the latter court can do no more than quash the opinion of the Court of Appeals in so far as conflict exists. State ex rel. Am. Mfg. Co. v. Reynolds, 194 S.W. 878; State ex rel. St. Louis Basket & Box Co. v. Reynolds, 224 S.W. 404. (3) Relator's denial of liability which occurred within the waiting period provision of the policy, deprived it of such waiting period, and permitted plaintiff to file suit immediately. The opinion of the Springfield Court of Appeals in so ruling is not in conflict with, but is in harmony, with the decisions of the Supreme Court and with the decisions of the Courts of Appeal. Phillips v. Protection Ins. Co., 14 Mo. 167; State ex rel. Ins. Co. v. Becker, 77 S.W. (2d) 100; Baker & Laskey v. Phoenix Ins. Co., 221 S.W. 761; McKeon v. Natl. Casualty Co., 270 S.W. 707; Landis v. Home Mut. F. & Marine Ins. Co., 56 Mo. 591; Martin v. Continental Ins. Co., 256 S.W. 120; Hosmer Bros. v. Ins. Co., 80 Mo. App. 419; Norman v. U.C.T., 163 Mo. App. 175.

BRADLEY, C.

Certiorari to review the record of the Springfield Court of Appeals in Young v. Metropolitan Life Insurance Company, 84 S.W. (2d) 1065. In such proceeding we are concerned only with the question of whether or not the challenged opinion conflicts with the last controlling decision of this court on the points ruled. [State ex rel. Missouri Mut. Assn. v. Allen et al., 336 Mo. 352, 78 S.W. (2d) 862, l.c. 863, and cases there cited.] The Young case, we ascertain from the opinion, was an action "to recover certain benefits provided in the total disability clause contained in a group life insurance policy" issued by relator to St. Joseph Lead Company, by which policy certain employees of the lead company were insured. Young was a former employee of the lead company and sought to recover on the theory that he was covered by the policy and was totally and permanently disabled while so covered. We quote from the opinion the following (more appears hereinafter) as to the pleadings: "In his petition, after setting out the terms of the policy, plaintiff alleges, among other things, that on the 10th day of February, 1932, and long prior thereto, while said insurance was in force and at a time when he was employed by the St. Joseph Lead Company, he was afflicted with certain ailments and diseases in the petition described, as a result of which he was and is totally, permanently and continuously disabled, and wholly prevented from performing any work for compensation or profit; that he became so disabled before attaining the age of sixty years; that he completed due proof of said disability on June 17, 1932; that defendant rejected said proof and refused to pay plaintiff the amount due under said policy; that there is now due eleven monthly installments of $44.92 each, or a total of $494.12, which upon demand defendant has refused to pay, for which judgment is prayed.

"Defendant filed a demurrer to the petition on the ground that the petition showed upon its face that the trial court had no jurisdiction; the theory being that but one installment was due at the time suit was filed, which was below the jurisdiction of the court. This demurrer was overruled. Defendant thereupon filed an answer denying that plaintiff was totally and permanently disabled while employed by the St. Joseph Lead Company and while the insurance was in force; that if he was totally and permanently disabled, such disability arose after plaintiff's employment ceased. The answer further contained a denial that due proof had been made as required by the policy.

"Plaintiff filed a reply denying generally the allegations of the answer, and alleged further that since the filing of the suit defendant had become indebted to plaintiff for eight additional installments for which judgment was prayed. Defendant's motion to strike the reply was overruled."

[1] Relator contends that the opinion by respondents conflicts with the last controlling decision of this court in three particulars, viz.: (1) In holding that the defense of premature filing of the suit was lost to relator because not pleaded in its answer; (2) in holding that the letter, of relator, dated November 7, 1932, waived, not only due proof, but also waived the six months waiting period, which, under the policy, commenced to run on filing due proof; and (3) in holding that the trial court had jurisdiction.

Respondents disposed of the defense of premature filing as follows: "Defendant contends that this suit was premature for the reason that the purported proof of disability was not completed until October 24, 1932, and since monthly payments were not to commence under the terms of the policy until six months thereafter, a suit brought January 11, 1933, was therefore premature. Whatever merit there may be in this contention is lost to defendant because no such defense was pleaded in its answer. The only reference to the six months' period is couched in the following language: `And defendant, further answering the petition of plaintiff herein, denies that six months prior to the filing of his petition plaintiff made due proof to the home office of defendant, in accordance with the terms and conditions of said policy of insurance, to the effect that plaintiff became totally and permanently disabled while in the employ of the St. Joseph Lead Company, and while said insurance was in force and effect as to plai...