194 Mo. App. 666 | Mo. Ct. App. | 1916
In 1898 the defendant issued to William Gooden a benefit certificate of insurance for $1000 payable at his death, if in good standing, to his mother Emily Gooden. He died April 16, 1914. Defendant refused to pay and plaintiff brought this' suit.- She recovered judgment in the trial court.
The defense is, first, that Gooden was suspended for nonpayment of assessments for the months of January, February and March, 1914, and non-payment of dues payable March 31, 1914; second, that Gooden had abandoned the policy as evidenced by a letter which defendant claims Gooden wrote to it in December, 1913.
The existence of the benefit certificate and the membership of Gooden (barring the alleged suspension and abandonment), having been admitted, the plaintiff proved his death and that she was the beneficiary, and rested. The defendant then undertook the burden of proving the suspension and the abandonment. At the conclusion of the evidence, defendant asked a peremptory instruction directing the jury to return a verdict for it, which was refused. All other instructions asked by defendant were given and there is no objection to the one instruction
Of course, before the trial court can be convicted of error in this regard the record must show that either a suspension or an abandonment was established so conclusively as to take away from the jury any right to make a contrary finding. The admission that defendant had issued the benefit certificate to Gooden and that he was a member of the Order, coupled with plaintiff’s proof that he was dead and that she was the beneficiary, made out a prima facie case for plaintiff. [Bange v. Supreme Council Legion of Honor, 179 Mo. App. 21.] When that is done, the burden is on the defendant to establish an affirmative defense to the satisfaction of the jury. And even though the evidence in support of such defense is uncontradicted, still the issue must be submitted to the jury in order that they may determine the credibility of that evidence. The court in such case cannot direct a verdict. [Winn v. Modern Woodmen, 157 Mo. App. 1; Troll v. Protected Home Circle, 161 Mo. App. 719; Printz v. Miller, 233 Mo. 47, l. c. 49; Milliken v. Thyson Com. Co., 202 Mo. 637, l. c. 655; Hunter v. Wethington, 205 Mo. 284, l. c. 293; Mowry v. Norman, 204 Mo. 173, l. c. 191; Wolf, Admx., v. Campbell, 110 Mo. 114; Keily v. Knights of Father Matthew, 179 Mo. App. 608.]
The above statement of the rule presupposes that the evidence is of such character as to present a question of credibility for the jury to pass upon. If plaintiff admits that defendant’s evidence is true, or if the evidence is such that plaintiff is conclusively bound by it, then there is no question for the jury but only one of law for the court. A careful examination and statement of defendant’s evidence and its character is, therefore, necessary in order to determine whether the case comes under the general rule requiring the submission of the issues to the jury or whether it is within one of the exceptions to the rule.
To prove this non-payment of assessments and dues, the defendant introduced the “pass report” of the local camp sent to the office of the Head Clerk in February, 1914. This pass report was signed by the presiding officer and clerk of the local camp, and showed the name of William Gooden as having failed to pay the assessment for January, 1914, known as assessment 294, and as being suspended for that reason. The pass report of the local camp for assessment 295, levied for February, 1914, was next introduced showing no payment by William Gooden of said assessment nor did his name appear among those reinstated. No reference whatever is made to him therein. Likewise pass report of the local camp for the month of March, 1914, was introduced showing no payment of assessment for that month. These pass reports were identified by McNamara, the Head Clerk, as having been received through the mail from the local camp in the regular course of business. No objection was made to the introduction of these pass reports.
The defendant also introduced as exhibit 6, a book, identified by Connor as the “Ledger Account” of the local camp, with especial reference to pages 78 and 79, showing William Gooden s account with the local camp wherein he had paid, twenty-four assessments of 50 cents each, being assessment No. 270 levied January,
The Head Clerk further identified Exhibit J, which he termed was a "permanent record of his office” which record stated that a notice of suspension was mailed to William Gooden February 28, 1914. McNamara then testified that "under the rules of the office” a letter accompanied the notice of suspension and offered copies of two circular letters from the Plead Office to William Gooden urging him to reinstate himself by payment of his assessments and dues, if in good health. The copies of these circulars were not dated, but McNamara testified that ■ the original of the first was sent out under date of February 28, 1914, and the second under date of ¡March 29, 1914. He then produced what purported to be a letter signed by William Gooden dated April 2, 1914, which, among other things, said: "I have dropped the Woodmen voluntarily with the advice of my beneficiary. I gave the Camp Clerk notice to that effect in January.” The letter, after saying: "It is useless for me to go into detail and give my reasons why,” nevertheless proceeded to state several matters as a reason for his action and closed by saying he admitted their success "by dropping my policy in the Woodman. Very sincerely yours. Wm. Gooden Camp 2147.”
Under the terms of the insurance contract, suspension for non-pa3mient, rendering the policy void, was not effected or waived by giving or failing to give notice. The offering in evidence of the alleged notices and of the letter purporting to be from insured was for the double purpose of showing that Gooden impliedly admitted non-payment and that he had abandoned the policy, the notices being shown in evidence, merely as a means of identifying the letter as having been writ
We now take up the question of whether a failure to pay assessments was conclusively shown or not. As stated, defendant’s evidence in this regard was the pass reports sent to the Head office by the officers of the local camp, the oral evidence of the Head Clerk that no assessments had been received from Gooden since December, 1913, and defendant’s exhibit 6, being a book kept by the local camp wherein it appeared that Gooden had not paid any assessment after December, 1913.
After these were introduced, the plaintiff, in cross-examination of defendant’s witnesses, established the fact that up to the year 1912, the Head Camp had advised its members to pay as much as a year in advance and that a number of members had done so and the local camp had sent them in to the Head Camp. Thereupon the plaintiff, in cross-examination of Connor, the
But did the records in evidence show that any assessment or dues were due and unpaid? And this brings us to another phase of the case. The plaintiff, after showing that members had been invited to pay in advance and that a number had been in the habit of doing so, then showed, on cross-examination of Connor, the number of assessments levied by defendant from the assessment made for January, 1901, down to and including the assessment due and payable in December, 1913, and also showed the number of assessments made for each year from 1901 to 1913 both inclusive. The books and records showing these assessments and the number and amounts paid by Gooden were then introduced in evidence by plaintiff. With this evidence-before the jury they could determine whether or not Gooden had failed to pay his dues or the assessments' levied against him for January, 1914, and thereafter, or whether, by advance and over payments made by him, defendant 'had received enough to cover the amounts it claimed were not paid. With all the evidence before the court and jury, the latter found a verdict for plaintiff and the former approved the verdict.
Now, the abstract of the record, which defendant has brought to this court in an attack upon the finding and judgment, shows the contents of these record books as to assessments and dues paid by Gooden for the years
Defendant contends that it abstracted all that the records show, but we cannot accept this statement in opposition to the record itself which shows on its face that the records contained the account for all of said years and that the account for five, of those years is not abstracted. The record also shows that the records containing the entire account was introduced in evidence by plaintiff. And from the procedure thereafter adopted by defendant, as shown by the abstract of the record, it is apparent that defendant understood that the defendant’s books, as offered by plaintiff, contained the account of William Gooden for all of the years, and recognized the fact that they at least tended to support plaintiff’s.theory that there was a fund on hand.from excess payments made by him sufficient to cover the amounts it was charged he had failed to pay.
It is also urged that if plaintiff was not satisfied with the manner in which defendant had abstracted the records showing Gooden’s account, she should have filed an additional abstract supplying the deficiency. But it is not incumbent upon the one who has recovered the judgment, to maintain it. The burden of showing its invalidity is on the one attacking the judgment., [Brand v. Cannon, 118 Mo. 595, 597-8.] Section 2048, Revised Statutes 1909, provides that the respondent “may if dissatisfied” with appellant’s abstract file an additional abstract according to the rules of the court; and Rule 15 provides that the respondent shall file such additional abstract “as he may deem necessary.” But inasmuch as it was not necessary for plaintiff to show what was disclosed by the account of Gooden for the years omitted, it was not incumbent upon her to supply the omission. Of course, if the appellant’s abstract did not show on its face that there were some records not abstracted, then it would have been incumbent upon respondent to show that fact by furnishing an abstract
Finding, as we do, that upon the question of abandonment there was an issue for the jury, and that upon the question of suspension for non-payment we cannot, owing to the state of the record, say there was no question for the' jury upon that issue, we are compelled to affirm the judgment. It is so ordered.