Wilson v. Kansas City Life Ins. Co.

• Decision Date: 08 May 1939
• Docket Number: No. 19414.,19414.
• Citation: 128 S.W.2d 319
• Parties: MARTHA M. WILSON, RESPONDENT, v. KANSAS CITY LIFE INSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

128 S.W.2d 319

MARTHA M. WILSON, RESPONDENT, v. KANSAS CITY LIFE INSURANCE COMPANY, APPELLANT.

No. 19414.

Kansas City Court of Appeals. Missouri.

May 8, 1939.

Appeal from Circuit Court of Jackson County. — Hon. Thomas F. Walsh, Special Judge.

AFFIRMED.

McAllister, Humphrey, Pew & Broaddus, and Joseph R. Stewart for appellant.

(1) The court erred in refusing to give defendant's instruction in the nature of a demurrer offered at the close of all the evidence in the case, for the reason that the written or documentary evidence and all the facts and circumstances in the case show that insured's policy lapsed on June 1, 1931, for failure to pay the premium extension note due on that date, and was, therefore, not in force on June 22, 1931, the date of insured's death. Evans v. Equitable Life Assur. Soc. (Mo. App.), 109 S.W. (2d) 380; Scotten v. Metropolitan Life Ins. Co., 336 Mo. 730, 731, 81 S.W. (2d) 313; Lacy v. American Central Life Ins. Co. (Mo. App.), 115 S.W. (2d) 193; Malone v. State Life Ins. Co. (Mo. App.), 213 S.W. 877; Wilson v. Illinois Life Ins. Co. (Mo. App.), 300 S.W. 553; Davis v. Mutual Life Ins. Co. (Mo. App.), 119 S.W. (2d) 488; Hussey v. Ohio Nat. Life Ins. Co. (Mo. App.), 119 S.W. (2d) 455; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 369-370, 1 S.W. (2d) 101.

L.W. Littick and Walter A. Raymond for respondent.

(1) Plaintiff's prima-facie case was not overcome as a matter of law by defendant's evidence. Hence the issues were properly submitted to the jury. Parker v. Atlanta Life Ins. Co. (Mo. App.), 112 S.W. (2d) 885, 886; Girvin v. Metropolitan Life Ins. Co. (Mo. App.), 75 S.W. (2d) 596, 597, 599; Johnson v. Missouri Ins. Co. (Mo. App.), 46 S.W. (2d) 959, 961; Missouri State Life Ins. Co. v. California State Bank, 202 Mo. App. 374, 216 S.W. 785, 786; Fernandez v. Mutual Life Ins. Co. of Baltimore, 230 Mo. App. 857, 78 S.W. (2d) 526; Williams v. American Life & Accident Ins. Co. (Mo. App.), 112 S.W. (2d) 909, 915; Stout v. Independent Order of Foresters (Mo. App.), 115 S.W. (2d) 32, 35; Allen v. American Life & Accident Ins. Co. (Mo. App.), 119 S.W. (2d) 450, 454. (2) This policy provided it should not become effective until the time it was delivered and the first premium paid in full. The policy was delivered and the first premium paid in full on September 12, 1929. Starting the premiums from that date instead of the date specified in the policy renders it apparent the policy was in force at the time of insured's death. Tabler v. General American Life Ins. Co. (Mo.), 117 S.W. (2d) 278, 281, 283; Halsey v. Amer. Cent. Life Ins. Co., 258 Mo. 659, 167 S.W. 951; Schuerman v. General American Life Ins. Co. (Mo. App.), 106 S.W. (2d) 920, 922; Kennedy v. National Accident & Health Ins. Co. (Mo. App.), 76 S.W. (2d) 748, 752; State ex rel. Mills Lumber Co. v. Trimble, 327 Mo. 899, 39 S.W. (2d) 355, 358; Rieger v. London Guarantee & Accident Co., 202 Mo. App. 184, 215 S.W. 920, 928. (3) By its conduct defendant waived any right it may have had to declare the policy forfeited for non-payment of premiums. National Fire Insurance Co. v. Munger (Mo. App.), 106 S.W. (2d) 10, 17; Loduca v. St. Paul Fire & Marine Ins. Co. (Mo. App.), 105 S.W. (2d) 1011, 1013; Garvin v. Union Mut. Life Ins. Co. (Mo. App.), 79 S.W. (2d) 496, 501; O'Donnell v. Kansas City Life Ins. Co. (Mo. App.), 222 S.W. 920, 921, 924.

SPERRY, C.

Martha M. Wilson was plaintiff below and Kansas City Life Insurance Company was defendant. The parties will be referred to herein as plaintiff and defendant in the order above mentioned.

Plaintiff was beneficiary in a life policy issued by defendant upon the life of her son, James Oliver Wilson, now deceased, whom we will refer to as insured. Suit was by plaintiff and from a judgment in her favor defendant appeals.

Plaintiff testified in her own behalf to the effect that she took the policy for her son; that insured died June 22, 1931; that she made demand for payment under the policy and that payment was refused. The policy was later introduced in evidence and plaintiff was named therein as beneficiary with no right to change beneficiary reserved. It also showed the policy issue and premium paying date as of July 27, 1929, and that it was issued in "further consideration of the annual premium of thirteen dollars and eighty-nine cents for one year term insurance from date hereof. This policy will be continued upon the further payment of a like amount on or before the twenty-seventh day of July each year thereafter until the anniversary of this policy nearest the insured's 80th birthday." The application was dated July 18, 1929, and signed:

                          "James Oliver Wilson
                          "Martha M. Wilson
                               "Mother."
                

The age of insured at nearest birthday, when the policy was issued, was fourteen years.

The above evidence made out a prima-facie case for plaintiff. "Plaintiff made a prima-facie case by introducing the policy in evidence, making formal proof of the death of the insured, that she had been made beneficiary in the policy, and had made due proof of notice. The burden of proving nonpayment of the premiums and lapse of the policy was thereby cast upon defendant." [Girvin v. Metropolitan Life Ins. Co. (Mo. App.), 75 S.W. (2d) 596, l.c. 597; Waters v. Bankers Life Ass'n (Mo. App.), 50 S.W. (2d), 183, 226 Mo. App. 1188, l.c. 1190 and l.c. 1199; Gannon v. Laclede Gas Light Company, 145 Mo. 502, l.c. 514, 515, 516, 517.]

The defense offered was that the policy lapsed prior to death of insured because of failure to pay the second annual premium, which premium had theretofore fallen due. This was an affirmative defense and the burden of proving it rested on defendant. [Parker v. Atlanta Life Ins. Co. (Mo. App.), 112 S.W. (2d) 885, l.c. 886.]

Ordinarily the rule is that when plaintiff has once made a prima-facie case, as was done here, the case made is one for the jury to pass on and the court has no power to sustain a demurrer or instruct a verdict. This is on the theory that under our system the jury is the sole judge of the weight and credibility of the evidence offered on both sides. [Gannon v. Laclede Gas Light Company, supra; Williams v. American Life & Accident Ins. Co. (Mo. App.), 112 S.W. (2d) 909, l.c. 915.] But this rule, like most others recognized by the law, has its exceptions. The exception applicable here is thus stated by the St. Louis Court of Appeals in Johnson v. Missouri Ins. Co., 46 S.W. (2d) 959, l.c. 961:" Arguments are frequently made that indicate a belief that documentary evidence, whatever the character of the writing may be, supersedes and overcomes parol evidence to a contrary effect, and leaves no issue of fact for the jury to determine. However, such is not the case. Before a writing may be said to be conclusive in respect to the truth of what it contains, it must be an instrument of record having legal efficacy, and the person to be bound thereby must be a party to it or else must have vouched for, or be estopped to deny, its truth." (Italics ours.)

Defendant's sole contention that error was committed in this case is predicated on the failure of the trial court to sustain its demurrer to the evidence, offered at the close of the whole case. It contends that it offered evidence of such a character that, in law, it completely overcame and destroyed the prima-facie case of plaintiff, and that it was the duty of the trial court, as a matter of law, to take the case from the jury.

In passing upon the above contention it is necessary to consider defendant's evidence under two general classifications, to-wit: (a), Unsigned documentary records relative to this policy which were kept by the company in the usual way; and, (b), written documents introduced in evidence by defendants, which are alleged to be, in effect, signed by insured. In discussing the effect of evidence under both class (a) and (b) above, we recognized the rule to be that documentary evidence of every character may be supplemented by parol evidence to the extent that it is necessary to do so in order that its connection with the case may be established; and such connective and explanatory parol evidence does not change the character of the documentary evidence, or otherwise affect its legal efficacy as documentary evidence. [Yarber v. Connecticut Fire Ins. Co., 10 S.W. (2d) 957, l.c. 961; Kazee v. Kansas City Life Ins. Co., 217 S.W. 339, l.c. 341.] But parol evidence necessarily introduced in connection with such documentary evidence as above mentioned, does not thereby take on the character of documentary evidence. It remains parol evidence and will be so regarded by the courts, especially where such parol evidence goes further than is really necessary to connect the documentary evidence with the case on trial. This is but the converse of the rule announced in the two last-cited cases. Parol evidence offered by defendant favorable to it, of a character not necessary to connect or explain its documentary evidence, will be disregarded by this court after verdict for plaintiff.

Under class (a), above, defendant introduced in evidence its exhibit No. 1, the policy record card, which is herewith reproduced:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

First, this is a record made and kept by defendant, not signed or admitted to be true by either insured or plaintiff, and it is not binding on either. [Girvin v Metropolitan Life Ins. Co. (Mo. App.), 75 S.W. (2d) 596, l.c. 599; Parker v. Atlanta Life Ins. Co. (Mo. App.), 112 S.W. (2d) 885, l.c. 886; Johnson v. Missouri Ins. Co. (Mo. App.), 46 S.W. (2d) 959, l.c. 961.] Second, the record is such that it requires parol evidence to explain contradictory features apparent on its face. For instance, there appears the following entry thereon: "Lapsed 6-1-31;" but there also appears therein, in the column headed: "Paid to," the figures "7-27-31." Undeciperable writings are also evident. True, parol evidence was...