The State ex rel. Bankers Life Company of Des Moines v. Reynolds

• Decision Date: 15 February 1919
• Citation: 208 S.W. 618,277 Mo. 14
• Parties: THE STATE ex rel. BANKERS LIFE COMPANY OF DES MOINES, IOWA, v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

208 S.W. 618

277 Mo. 14

THE STATE ex rel. BANKERS LIFE COMPANY OF DES MOINES, IOWA, v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

February 15, 1919

Record quashed.

I. M Earle and S. C. Rogers for relator.

(1) The opinion of the Court of Appeals conflicts with the controlling decisions of the Supreme Court, when it holds that, under the evidence in this case, the demurrer was properly refused. Swinhart v. St. Louis & Suburban Ry Co., 207 Mo. 434; Fulwider v. Gas, Light & Power Co., 216 Mo. 594; Cummings v. Dent, 189 S.W 1162. (2) The said opinion in affirming the action of the trial court in refusing leave to relator to amend its answer by pleading specifically the limitation provision as shown in the policy, conflicts with the controlling decisions of the Supreme Court. Southern R. E. & Financial Co. v. Bankers Surety Co., 184 S.W. 1030; Sec. 1833, R. S. 1909; Sessinghaus Milling Co. v. Hanebrink, 247 Mo. 219; Feary v. Metrop. St. Railway, 162 Mo. 75; Rodney v. Ry. Co., 127 Mo. 676; Madden v. Mo. Pac. Ry Co., 192 S.W. 455. (3) The said opinion in holding that it was proper to admit the hearsay admissions of Leonhard, cashier of the Farmer's Bank at Trenton, conflicts with the controlling decisions of the Supreme Court. Atkinson v. School of Osteopathy, 240 Mo. 355; McDermott v. Ry. Co., 73 Mo. 516; State ex rel. Wabash Ry. Co. v. Ellison, 204 S.W. 397; Redmon v. Metrop. Street Railway, 185 Mo. 1. (4) The said opinion in affirming the refusal of the trial court to submit to the jury the question of acquiescence in this case conflicts with the controlling decisions of the Supreme Court. Johnson v. Ins. Co., 197 S.W. 132; Ashbrook v. Phoenix Mutual, 94 Mo. 78.

Alfred Kehde and James J. O'Donohue for respondents.

(1) Point three of relator's brief reads: "The opinion of the Court of Appeals in holding that it was proper to admit the hearsay admissions of Leonhard, cashier of the Farmer's Bank at Trenton, conflicts with the controlling decisions of the Supreme Court." The opinion of the Court of Appeals does not conflict with the decisions of this court. The first on the list is Atkinson v. School of Osteopathy, 240 Mo. 338. The admissions in that case were those of Dr. Laughlin to the effect that he had stated that the plaintiff's second, third and fourth ribs were broken, caused from Dr. Still's treatments, and did not relate to any admission concerning the acts of Dr. Laughlin himself. In the case of McDermott v. Railway, 73 Mo. 516, the admission was in reference to what defendant's roadmaster said concerning the section foreman's incompetency. It was not the admission of the foreman himself. The case of State ex rel. v. Ellison, 204 S.W. 397, scarcely deals with the question here involved. The admission in Redmon v. Railroad, 185 Mo. 1, was an alleged statement of the conductor to the plaintiff after plaintiff had been hurt in explanation of the cause of the sudden stop of the train. (2) The evidence which the Court of Appeals in its opinion holds competent and which the defendant contends is incompetent, reads: "He said that all but the October premium was paid, and for that reason I couldn't get it. I considered him as a friend." There was no exception taken or saved to the action of the trial court in admitting that evidence. So that neither the trial court nor the St. Louis Court of Appeals should, we think, be convicted of error, since an exception was necessary even to a review of the question. This, of itself, establishes that the opinion of the St. Louis Court of Appeals is not out of accord with the decisions of this court cited by relator. (3) And, in any event, what Leonhard said was competent. The nature and character of his business for relator was that of collector. And he was the only one who could of his own knowledge make any statement as to the fact of payment or non-payment. To the people of Trenton, Leohard was justly regarded as the representative of the company with complete power touching the performance of the duties which he constantly exercised in their presence. In this view, the admissions of Leonhard were made concerning acts which he had power to perform and were entirely within the scope of his agency and in fulfillment of his office. Hence, his acts were those of the company. (4) Besides, Leonhard's admissions were harmless, since plaintiff had already proven payment of the April, 1913, intallment. Moreover, plaintiff was entitled to a peremptory instruction.

FARIS, J. Blair, Williams, Woodson and Graves, JJ., concur; Bond, C. J., dissents in separate opinion, in which Walker, J., concurs.

OPINION

In Banc

Certiorari.

FARIS J. --

This is an original proceeding in certiorari, whereby it is sought to quash the judgment of the St. Louis Court of Appeals, in a cause lately pending in that court, wherein Emma A. Rasch was respondent and the relator herein was appellant. This case will be referred to hereinafter, for brevity, as the Rasch case. Upon a hearing had in the Court of Appeals, the Rasch case was in all things affirmed. After an unsuccessful motion for a rehearing, the relator, who was the appellant therein, sued out its writ of certiorari.

The facts in the Rasch case, in so far as they are disclosed by the opinion of the Court of Appeals and in so far as those facts are involved here, run briefly thus: One August F. Rasch, the husband of said Emma A. Rasch, and a citizen at all times of Illinois, became on the 27th day of October, 1911, a member of relator company, which is an assessment life insurance corporation organized under the laws of Iowa. On the latter date there was issued to Rasch, the assured, a certificate of membership for the sum of two thousand dollars, in which certificate said Emma A. Rasch, as wife of assured, was the beneficiary. The premiums, or assessments as they were called in the scheme of insurance here discussed, were payable quarterly, with one month's grace. When the assessment of April 1, 1913, fell due, a letter, or notice was sent by the relator to the assured advising him of the fact, and of the amount of such assessment. This notice contained among other things this statement: "This sum is due April 1, 1913 and payable only to this Company at its Home Office, or to a Despository Bank. One month's grace is allowed so that payment may be made on or before May 1, 1913. If not made by that date your membership and insurance will thereby cease without action by the Company." This notice also further advised the assured that the assessment then due could be paid at a "depository bank," in which latter event the notice should be stamped "paid" by the banker to whom payment was made and would then constitute a receipt, or voucher, for the payment.

Assured, theretofore residing at Trenton, Illinois, removed thence to East St. Louis in March, 1913, prior to the making of the April, 1913, assessment, and thereafter on October 18, 1913, died. The certificate of membership provided that any failure to pay an assessment when due, or after the expiration of the month of grace, should forfeit the membership of the defaulting member, and the certificate of membership should thereupon, ipso facto, lapse absolutely.

Upon the trial the sole issue was whether the assessment due April 1, 1913, and payable not later than on, or before, May 1, 1913, had been in fact paid. Since assured died in October, 1913, prior to the expiration of the month of grace allowed within which to make payment, the October, 1913, assessment never became payable by him, and as to it therefore he never became in default.

All of the evidence which came in tended either to prove or disprove payment of the April, 1913, assessment, and matters apposite thereto. It was shown that the Farmer's Bank of Trenton, Illinois, was a "depository bank" within the meaning of the notice above quoted, and that one Leonhard was the cashier thereof when the April assessment became payable.

Upon a trial by a jury, verdict went for plaintiff for the full amount of the certificate with interest. Whereupon relator appealed to the St. Louis Court of Appeals, and being cast upon its appeal, brought this proceeding to review the judgment of that court.

Other facts sufficient to make clear and to eke out this brief, thumb-nail sketch will be found in our opinion. Should these prove insufficient to an understanding of the facts of the Rasch case and of the questions we find it necessary to discuss, the curious may read these facts at large in the reported case. [Rasch v. Bankers' Life Co., 201 S.W. 919.]

I. The first point of alleged conflict urged upon us by relator is that the holding by the learned Court of Appeals that the demurrer to the evidence offered nisi was properly overruled, contravenes the rule announced in the case of Swinhart v. Railway, 207 Mo. 423; Fulwider v. Gas, L. & P. Co., 216 Mo. 582, 116 S.W. 508, and the case of Cummings v. Dent, 189 S.W. 1162. Specifically the point urged is that the demurrer ought to have been sustained nisi, because the plaintiff did not prove the payment of all premiums or assessments falling due up to the date of the assured's death.

Upon this point the Court of Appeals (201 S.W. 923), said:

"The defendant's answer, however, having admitted the issuance of the certificate or policy of insurance upon the life of August F. Rasch, and that the plaintiff was the designated beneficiary in said policy, and further admitting the death of the insured, and that demand had been made upon it for payment, and admitting that payment had been refused, it was necessary for the plaintiff merely to introduce the policy of insurance in evidence, which it did in the instant case, and she thereby made a prima-facie...