State ex rel. United Mut. Ins. Ass'n v. Shain

• Citation: 162 S.W.2d 255,349 Mo. 460
• Decision Date: 16 April 1942
• Docket Number: 37730
• Parties: State of Missouri at the relation of United Mutual Insurance Association, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

162 S.W.2d 255

349 Mo. 460

State of Missouri at the relation of United Mutual Insurance Association, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals

No. 37730

Supreme Court of Missouri

April 16, 1942

Rehearing Denied June 3, 1942.

Writ quashed.

Atwood & Atwood and Douglas Stripp for relator.

(1) In holding that the trial court properly overruled relator's demurrer offered at the close of the case respondents failed to follow the last controlling decisions of this court. A plaintiff before bringing his action to avoid a release for insanity or other cause must allege and prove a tender back to the other party of the money received for the release. Althoff v. Transit Co., 204 Mo. 166, 102 S.W. 642; Jarrett v. Morton, 44 Mo. 275; McCoy v. McMahon Const. Co., 216 S.W. 770; State ex rel. Order of the United Commercial Travelers of America v. Shain, 339 Mo 903, 98 S.W.2d 597; McKenzie v. Donnell, 151 Mo 461, 52 S.W. 222; Jamison v. Culligan, 151 Mo. 410; Wells v. Mutual Benefit Assn., 126 Mo. 630; Wiggington v. Burns, 216 S.W. 756. (2) In holding that the giving of relator's Instructions D and J constituted reversible error respondents failed to follow the last controlling decisions of this court. Instruction D withdrew the abandoned issue of want of consideration. If Instruction J reinjected that issue, relator's defense was thereby made more burdensome, and plaintiff was not prejudiced. First Natl. Bank v. Security Mutual Life Ins Co., 283 Mo. 336, 222 S.W. 832; Jones v. Chicago, B. & Q. Ry. Co., 343 Mo. 1104, 125 S.W.2d 5; Kimmel v. Benna, 70 Mo. 52; Wells v. City of Jefferson, 345 Mo. 239, 132 S.W.2d 1006; Bollinger v. Curtis & Co. Mfg. Co., 249 S.W. 907; Harrington v. Sedalia, 12 S.W. 342, 98 Mo. 583; Kemmler v. Richmond Heights, 114 S.W.2d 994. (3) In requiring the inclusion in Instruction J of the words "Or Offered to Return" respondents failed to follow the last controlling decisions of this court. The tender referred to in this connection was neither pleaded nor proved, and instructions must not be broader than the pleadings and the evidence. Rucker v. Alton Ry. Co., 343 Mo. 929, 123 S.W.2d 24; State ex rel. Jenkins v. Trimble, 236 S.W. 651, 291 Mo. 227; Stack v. Gen. Baking Co., 223 S.W. 89, 283 Mo. 396. (4) In holding that relator's Instruction F, should not have been given respondents have failed to follow the last controlling decisions of this court. All persons not under guardianship or other legal disability are presumed to be sane in contemplation of law until evidence is adduced indicating the contrary, which evidence must satisfy a jury. State v. Palmer, 161 Mo. 152; Fendler v. Roy, 58 S.W.2d 459, 331 Mo. 1083; State v. Corrington, 116 S.W.2d 87; State ex rel. Bartlett v. Littrell, 26 S.W.2d 768; State v. Barker, 216 Mo. 532, 115 S.W. 1102; State v. Redemeier, 71 Mo. 173.

Walter J. Gresham for respondents.

(1) No conflict arises from the ruling of respondents that it was improper to instruct on a presumption in face of the facts. The presumption of sanity is a rebuttable presumption of law, being procedural in its purpose, and having no probative value when evidence is introduced to rebut it. Fields v. Luck, 335 Mo. 765, 74 S.W.2d 35; Norton v. Paxton, 110 Mo. 456, 19 S.W. 807; Griffith v. Casualty Co., 299 Mo. 426, 253 S.W. 1043; Bailey v. Bailey, 11 S.W.2d 1026. (2) No conflict arises from the suggestion of respondents that defendant's Instruction J be modified on retrial. Relator cites no controlling decision holding that an appellate court may not, in remanding a cause, suggest modification of instructions to meet evidence already in the case, or which is likely to be offered at a succeeding trial. State ex rel. Clark v. Becker, 335 Mo. 785, 73 S.W.2d 769. (3) No conflict arises from the ruling of respondents with reference to defendant's conflicting instructions. One of defendant's instructions have put the issue into the case, and another having taken it out, the instructions were erroneous and confusing to the jury, those issues having been raised by defendant's own pleading. They could not have been abandoned by plaintiff. Enright v. Schaden, 242 S.W. 89; State ex rel. v. Stuart, 111 Mo.App. 478, 86 S.W. 471; Meeker v. Railroad Co., 215 Mo.App. 492, 255 S.W. 340; Hunt v. Iron & Metal Co., 39 S.W.2d 369; State ex rel. Ry. Co. v. Shain, 108 S.W.2d 351; State ex rel. Benefit Assn. v. Cox, 321 Mo. 130, 9 S.W.2d 953. (4) Respondents' ruling that the demurrer to the evidence was properly overruled creates no conflict. That ruling was not based upon any question of tender, but specifically rested on the established principle that trial courts are bound to follow the holding on a former appeal in the same case. Relator does not assert any conflict because of the subsequent statement in the opinion of the rule governing tender when knowledge of insanity exists. State ex rel. Winkle Terra Cotta Co. v. U. S. F. & G. Co., 328 Mo. 295, 40 S.W.2d 1050; State ex rel. K. C. Pub. Serv. Co. v. Shain, 343 Mo. 1066, 124 S.W.2d 1097; State ex rel. Lashly v. Becker, 290 Mo. 560, 233 S.W. 1017; Jamison v. Culligan, 151 Mo. 410, 52 S.W. 224; Halley v. Troester, 72 Mo. 73; Dickson v. Kempinsky, 96 Mo. 252. (5) The present rule concerning tender is unsound and ought to be overruled. The requirement is based solely on a technical common law principle which disabled the holder of an equitable title to sue at law. The Legislature abrogated that rule by an enabling statute, but the statute has been nullified by judicial construction. State ex rel. School Dist. v. Gordon, 231 Mo. 547, 133 S.W. 44; State v. Campbell, 210 Mo. 202, 109 S.W. 706; Girard v. St. Louis Car Wheel Co., 123 Mo. 358, 27 S.W. 648; Och v. Railroad Co., 130 Mo. 27, 31 S.W. 962; Courtney v. Blackwell, 150 Mo. 245, 51 S.W. 668; Paquin v. Millikin, 163 Mo. 79, 63 S.W. 417; Brown v. Norman, 65 Miss. 369, 4 So. 293, 7 Am. St. Rep. 663; Sec. 654, R. S. 1899; Althoff v. Railroad Co., 204 Mo. 166, 102 S.W. 642; Berry v. Railroad Co., 223 Mo. 358, 122 S.W. 1043; McCoy v. McMahon Const. Co., 216 S.W. 770; State ex rel. U. C. T. v. Shain, 339 Mo. 903, 98 S.W.2d 597; Met. Paving Co. v. Inv. Co., 309 Mo. 638, 274 S.W. 815; State ex rel. Nevins v. Hughes, 149 S.W.2d 836; State ex inf. McKittrick v. Ins. Co., 336 Mo. 406, 80 S.W.2d 876; Haydon v. Railroad Co., 222 Mo. 126, 121 S.W. 15; Lomax v. Railroad Co., 119 Mo.App. 192, 95 S.W. 945; McCormack v. Transit Co., 154 Mo. 191, 55 S.W. 253; Reed v. Goldneck, 112 Mo.App. 310, 86 S.W. 1104; State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 10; State ex rel. Bixby v. St. Louis, 241 Mo. 131, 132 S.W. 1059; Clark v. Railroad Co., 219 Mo. 524, 118 S.W. 40; Hunt v. Hunt, 307 Mo. 375, 270 S.W. 365; Bank v. Ragsdale, 158 Mo. 668, 59 S.W. 987; Wynn v. Cory, 43 Mo. 301; Hudson v. Wright, 204 Mo. 412, 103 S.W. 8; State ex rel. Pollock v. Becker, 289 Mo. 660, 233 S.W. 641; Taylor v. Pullem, 152 Mo. 434, 53 S.W. 1086; State v. Lee, 303 Mo. 246, 259 S.W. 798; State v. Swarens, 294 Mo. 139, 241 S.W. 934; Heller v. Lutz, 254 Mo. 704, 164 S.W. 123; City to Use of Bank v. Donohue, 190 Mo. 407, 89 S.W. 386; Klocke v. Klocke, 276 Mo. 572, 208 S.W. 425; State ex rel. Dept. Stores Co. v. Haid, 327 Mo. 567, 38 S.W.2d 44; Erie Railroad Co. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Helvering v. Pollock, 60 S.Ct. 444, 84 L.Ed. (adv. 382).

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

This is an original proceeding by certiorari to quash, for alleged conflicts, the opinion of respondents in the case of Howard W. Kelley, Administrator of the estate of Aurilla B. Ervin, deceased, v. United Mutual Insurance Association, 149 S.W.2d 905.

Respondents stated the facts as follows: "This is a suit on four life insurance policies issued by United Mutual Insurance Association, hereinafter referred to as 'defendant,' upon the life of Buford W. Ervin, deceased, who will be referred to as 'insured.' Aurilla B. Ervin was the wife of insured and was named as beneficiary in the policies. Insured died on June 19, 1934, and this suit was instituted by Aurilla B. Ervin, but she has since died and the cause was revived in the name of Howard W. Kelley, her administrator, who will be referred to as 'plaintiff.' The cause was tried to a jury, resulting in a verdict for defendant. Plaintiff's motion for new trial was sustained 'because of error in defendant's instructions.'

"This is the second appeal of this cause to reach us, having previously been tried, resulting in a verdict and judgment for plaintiff, which judgment was, upon appeal to this court reversed, and the cause remanded. [Kelley v. United Mutual Insurance Association (Mo. App.), 112 S.W.2d 929.]

"The pleadings in the instant case are about as they were in the first trial. They are set out at length in the former opinion above cited, and we see no good purpose to be served by again setting them out in detail. Suffice it to say that plaintiff's petition is in five counts, the first four are each conventional in form, declaring upon the policies and pleading requisites of such cause of action. The fifth count of plaintiff's petition seeks to set aside a release in full executed by Aurilla B. Ervin on the ground of mental incompetency, and misrepresentation.

"Defendant's answer, as to each of the first four counts, is in conventional form, denying liability on the grounds of misrepresentation by insured in his application for insurance, and further pleads a compromise settlement and release; the answer to the fifth count alleged that the insured made certain false representations in his application for the insurance, and that after his death a controversy arose between the defendant and the beneficiary and that...