*1 grand testimony June, 1942 anyway. of the two excluded But the founda- testimony them jurors appellant’s sworn before faulty. were tion the State’s case. Their memories somewhat of 851(3), 343 Mo. discretion, Pierson, The had a v. court State court 149, 152(4). 123 S. W. its reasonable exercise grand notes jury might permitted appellant have to examine the testimony. covering his own wanton not a record where there was
We have encountered more guilty disregard appellant’s of of evidence than counsel the rules opinions The Personal comments of. of counsel were volunteered. concerning counsel, questions were asked opposing were made hearsay in- plainly which or otherwise called for evidence that objection after an competent and immaterial. some instances proof presence had an offer was made in the thereto been sustained of thereby greatly jury. impeded trial was record largely extended. the conduct of a trial rests discretion While judge, of be allowed the attor- and considerable latitude should neys litigants approximations they in view the for the of hurried must offering objecting evidence, yet beyond there make in limit or they go. permitted which should not be many assignments,
We shall not other are review which procedural probably will not recur another For error: trial. insufficiency deposition Johnson; the exclusion of of Wanita proof appellant’s prior the State’s conviction the Federal offense money forging’ post orders; incompetency office of the evidence of appellant’s prior larceny person; conviction crime of from witnesses; giving expert and in of the State’s instruction No. 6 on judgment All is reversed and remanded. concur. cause Marguerite Company, Appellant. A. Nick v. Insurance Travelers No. 39455. 189 S. W. 532. September One,
Division 1945.
Rehearing Denied, October 1945. *2 Clay Rogers Mosman, C. Rogers, appellant. Bell <& Conrad *3 respondent. C. Chilcott for and Clarence Spalding A. Leo *4 McHaney, Powell B. Aschemeyer Frank P. and Paul G. Ochterheck curiae. amici *5 Michaels, Black-
Henry Eager curiae; K. B. Hixson and I. amicus Eager mar, Newkirk, & counsel. Btoanson
.382 *7 BRADLEY, C. This an action by beneficiary is named in the certificate issued to an by covered a group life in- surance policy issued employer, to the the Great & Atlantic Pacific Company. Tea The deceased was Joseph Nick, A. The Jr. 3, cause February was filed October and 1935, 25, tried 1943. Plaintiff judgment obtained and $4312.00, verdict for ($3,000) the face amount of the certificate,’plus appealed interest. Defendant to Kansas City Appeals. Court of That court affirmed judgment, Nick v. Co., Insurance
Travelers W. opinion S. but deemed its in opinion conflict with the St. Appeals Louis Court in Longley v. Prudential Insurance 161 W. and certified supreme cause to court. husband, Joseph Nick, Jr.,
Plaintiff’s A. employee, deceased employed Missouri, baker and was Kansas City, by the Tea Company. employer, by direction, The Nick’s per deducted $1.80 earnings apply premium month from his “to toward the for in- this September 23, 1932, plaintiff contends, surance.” On so Nick and employer’s superintendent, Chiarelli, argument his had some or words (Nick) about the manner in which pan”, he threw “some bread in the off.’,’ temporarily and on that date Nick was laid off “until he cooled hand, Nick discharged Sep- On other defendant contends that 17, 1932. tember Defendant’s records that the last show deduction pay apply from Nick’s September 3, made Company September 17, and that Nick left the Tea 1932. Nick was killed in an automobile accident on October 1932. group policy, policy, provisions called the master also contained we, convenience,
(a) (b), designate provisions for them. These are as follows:
(a) “Employee’s Company (defendant) individual certificate: The life delivery will issue to the for to each whose setting forth state- hereunder an individual certificate entitled, protection to the insurance he is whom ment as to which payable, containing provisions to the in case of the effect any reason whatsoever em- termination of the by Company without ployee shall have issued him the be entitled to upon application made to the insurability, evidence of further Company thirty-one days upon within after termination and risks to which he payment premium applicable to the class of belongs at his then attained policy and to the form and amount of the customarily insurance, any one of the age, policy life forms insurance, by Company, except permanent term with total issued disability provided hereunder, in an amount equivalent to benefit employee’s protection this under equal to the amount of the employment.” at the time of the termination *8 any employee The (b) of Insurance: insurance of “Termination end, employer employment his with'the hereunder shall when covered end, at time such termination the except shall in a case where the of prevented by bodily injury wholly and or employee shall be disabled wage employment for any occupation in or or engaging from disease in as such insurance will remain force to profit. In such case the disability for during period of such the of the continuance employee employee the ceased to work upon from date which three months the disability such and while during the continuance of and thereafter employer notify shall the in force until the policy shall remain this employee. as the insurance to Company to terminate per- or extend the shall limit Nothing' paragraph contained in this employee an to which shall become disability benefit manent total policy. under this entitled absence reasons than or leave of for other
“Temporary lay .off not be considered as termination disability aforesaid shall as physical employer insurance unless the purpose this for the of employment of ours). (italics elect” shall so Nick contained issued and delivered to certificate The (a), supra, group policy, in and that the with provision identical paragraph provision (b), the first contained also certificate the insurance that the would terminate provision the added supra, with notify employer no the “to make further should if the premium for pay apply toward this in- his to from deductions ’’ surance. wages by propositions, plaintiff both affirmed controversy, two The (1) That Nick’s defendant: was not by denied and both terminated, merely temporarily off; that he (2) but laid and per in view the month $1.80 fact was deducted from Nick’s pay apply payment, on the and in view of the to Conversion (cid:127) provision group policy certificate, in both the the insurance lawfully absent could not be terminated notice to Nick. secretary group
II. Adams was of defendant’s department, W. home by office, by put him and statement evidence defendant under stipulation though could be read evidence that the statement as explained deposition operandi had been taken. Adams the modus employer the defendant follows: Defendant .between cards, yellow. employer furnishes blank record white and There yellow by is a white and a card for each covered policy. employer yellow on both the white cards of The entérs necessary cards, information about him. The two by are sent defendant’s home The employer, filled out office. retained, yellow is returned to em- card is but the card white any employer ployer. From to time the furnishes the defendant time employee. Adams necessary additional information about said: changed or cancelled
“When the insurance on the employer through employment, indicates such the termination yellow on the card and forwards it to the home office information (such) then its in- company. Company insurance enters company’s which is the insurance record.” formation on the white card (Nick) he had au- Adams said that Nick’s card showed that white a month employer pay $1.80 deduct from his thorized the the last deduction was made on premium on his insurance and that by “yellow kept card record 3, 1932; that his September company by given) to the insurance (date sent not Company (Nick) Tea information that he left the containing the employment being down as of his set the date of said termination ’’ receipt upon further said that 17, 1932. Adams September *9 containing as to the information yellow card from the nota- employment defendant “entered the the termination of Nick’s ’’ card. upon card and also the white upon yellow ink the in red tions September, 1932. by Company in employed the Tea Lela Dixon was super- Chiarelli, employer’s the direction of the She testified at “depart- is a she, concerning Nick, filled out what termed intendent, ’’ Nick, on the name Joe address notice. This had it termination mental day (meaning 6.16 baker, rate Temple 9-17-32, position, date Labor ours). (italics termination, carelessness day); reason for per $6.16 Dixon, handwriting Mrs. the others of were in the italicized words The Chiarelli, signature of and upon it-the The card had printed. were Rose, initials F. C. warehouse R.”, being the of “F. initials C. the Mrs. Dixon said that she superior to Chiarelli. superintendent ordinary business, that she but course this card the filled out this no claim that it. There is independent no recollection of had he had given Nick, or that to or mailed to notice card was termination concerning any notice it. from that Nick’s cessation jury conflicting evidence found on Company’s Tea off, so, even the only temporary lay but
work was an election consider the premises equivalent to to conduct in Company Tea employment, and the lay termination of the off as a terminated defendant that effect and the notified defendant to Nick to entitled question is: Was Hence, the insurance. the decisive ? insurance terminated notice that his or case, and present City Appeals in the Court of so held The Kansas App. Soc., 233 Equitable Assurance Mo. v. Life in Butler In the same effect. facts, ruled to (2d) 93 W. similar on c. : said S. W. l. Butler case the court [93 1025] toas authorities, conclude that study of the we “After careful group case, wherein the in this group policy such a as involved provides upon the insured imposes itself burdens policy protection and by employee for the paid for a consideration be insured event, such an thereunder, then and such benefits he secures ’’ to notice cancellation. is entitled Pa. States, 343 the United Equitable In v. Life Soc. of Poch Assur. pay to the insured’s (2d) 590, made from 119, 22 deduction was Atl. group policy contained group policy, and the apply premium of the on entitled the insured was It was held that provision. a conversion ruling or termination of his insurance. cancellation to notice of c. Pennsylvania Atl. l. said Supreme that case Court of [22 : 594] authorities, upon well, reason our as “Upon a review the us, policy now that, like that before conclusion is under a insurance contract regarded party to the insured must be be cancelled group policy cannot the extent at least to eliminated, by either the any provisions of its or effective giving provided by policy, without insurer, except in a manner or modification, or so intended cancellation such notice of may be may timely any privilege exercise which that he privilege such policy, or, terms of where available him under the insurance may seasonably similar in order that he obtain given, is not elsewhere; further, that in the absence protection on his own account modification that here notice, agreement cancellation or like is, Society and the as to the Association entered into between company from legally insurance employee, ineffective to relieve the ’’ liability original policy. under General Life Ins. Conn. Emerick v. Connecticut from .(by contributed deduction 179 Atl. group policy pay) payment *10 Judgment was for the de provision. below conversion contained a
387
judg
fendant,
judgment
this
reversed with direction to enter
but
in this
plaintiff.
ruling
In
the case
court reasoned
ment for the
the
Atl.,
;
l. c.
wise [179
338]
employee,
who
employer
“If
terminate the status
an
the
could
leave, simply by
temporarily
or
on
was at the time
laid off
absent
him, he
notifying the’company
so,
that it had done without notice to
enabling him to take
very likely
provision
lose
of the
might
the benefit
insurance,
right
independent
the
to
so is limited
out
because
do
this
employment.
cannot
thirty-one days after the termination of
We
to
jeo-
or
intended
to
company
assume
either the
the
so
that
given
employee. In
to make
pardize
apparent right
to the
order
the
knowledge
employee,
part
his
right
of assured benefit to
on
one
the
’’
necessary.
employment
would
of the termination of
be
following
necessary
It will not
to review
cases. The
are
be
other
rulings
cases,
are
similar
the facts to the above
therein
.
general
Casualty Co.,
same
effect Johnson v. Inter-Ocean
to the
411;
N.
112 W.
164 E.
Ins.
204 C.
396,
Va.
Deese v. Traveler’s
341,
Ga.
Ferguson,
Ins. Co. v.
App.
167 S. E.
Prudential
797;
In 29 Am. Sec. it stated that who group policy emplojmr pays an the rule insurance issued to subject employees cancellation and forfeiture the is to goes provisions policy, this same text pursuant to therefor the but ‘‘However, cancellation life insurance say on to this: the agreement employees, by mutual policy, notice the the without to employee insured the insurer ineffective as to the is imposes upon employee, burdens policy, under the where by protection for the requires payment him a consideration and benefits he secures therefrom.” contributes support
For for the rule where the Jurisprudence makes reference to premium payment, to American present case, L. 430-432. both the the annotation in A. R. only Nick required pay not group policy and certificate to his in- premium necessary carry if all part, substantial of the not group policy carried the surance, but certificate both the provision, appears, supra. as conversion Insurance, “The Group p. Sec. it said: Crawford’s group policy
interest because of conversion require generally held be that notice clause is not to be given him before cancellation. The wisdom of this rule a valid may seriously questioned, especially where contributes be given premium. of his Notice be that the payment should so may insurance. seasonably noted, obtain other It should be however, frequently privilege be can exercised terminates, when only and not insurance is when Group perhaps this policies for other reasons. should offer cancelled *11 388
privilege employee’s any whenever an' insurance ceases reason for ours). (italics present policy whatsoever” The this. does 39,
Note sentence in supra: the first Crawford’s Sec. “The inter of employee group policy est the because of the conversion the require generally clause is held be not to such as to that notice be given Supporting him statement, before a valid cancellation.” such Magee Soc., cases v. Life Equitable these are cited: Assur. 62 N. D. 244 1457; Metropolitan N. W. 85 A. R.L. Chrosniak v. Life Co., 211; Ins. 201 Y. Thull Equitable Soc., N. v. Life Assur. 40 486, 178 App. 850; N. Equitable Ohio E. Stoner Life Assur. v. Soc. (Pa.), Dauphin Rep. 28 Co. 235. contained, case, Magee group In the a supra, policy the conversion provision upon termination the reason any of what- In present discharged, soever as the that “If case. case is this: not (the employee) he insured could not convert certificate into this and, it, form discharged, other of life if insurance, he knew and failed advantage right.” present employer to take of this case the the (by conduct) lay elected the temporary off!as termination treat of employment, the election, and Nick not and no did know of had important Magee notice of it. And still a more difference the between present case and in Magee employee the case is that the case the made no payment. contribution to case,
In the -supra, policy Chrosniak contained a con- provision version employees insured half of contributed premium payment. policy provided The the insurance an of employee automatically upon terminated of “termination active em- ployment.” employee a strike, The insured went on that was and held a to be employment, termination of active and that the insured em- ployee case, was bound supra, to so know. the Thull there a employee’s apply deduction from the pay premium, insured on the policy Also, a provision. policy contained conversion provided employees that the were- for the policy insured term the part or such they respectively employ- thereof shall remain “as in the ment of employer.” employee temporarily The only insured off, discharged, that, laid not it was policy, but held under the there difference, terminating was no so far off, as the insurance while be- lay temporary discharge. case, tween off' In the supra, Stoner group policy provision, contained but insured premium. no to payment Also, made contribution plant at which the insured worked was shut down, plant the insured died while was shut down. held, It was policy, paid hourly under the that- one who was (insured was) basis employment” could not be said in the to be keep plant so alive while the shut down.
389 support following eases are cited to the contention Doty case was not entitled to notice. present in the 862; Williams v. W. Co., Ins. 350 Mo. 165 S. v. Am. Nat. 112; (2d)W. White App. 741, 235 Mo. 148 S. Sun Life Assur. Co.; (2d) 98; W. App. 127 S.
v. Prudential Life Ins. 235 Mo. (2d) 915; Long S. W. (Mo. App.), 167 Met.
Crawford v. Life Ins. Co. (re ley (Mo. App.), S. W. v. Life Ins. Co. Prudential in conflict with the court to, supra, as deemed ferred the case *12 Co., Ins. 143 present case); Miller Travelers appeals opinion in the v. 907; Co., 82 (2d) Duval v. Met. Life Ins. Super. 270,
Pa. 17 Atl. (La. 142 App.), Ins. 400; v. Met. Life Co. 543, N. H. 136 Atl. Austin Soc., Beecey v. supra; 337; Equitable v. Life Assur. So. Stoner Szymanski John Co., 135, 571; v. 166 N. E. Travelers Ins. 267 Mass. 146; v. 483, 8 Davis Co.,
Hancock
Ins.
304 Mich.
N. W.
Life
655,
(2d) 1034; Metropolitan
32 W.
Co.,
Met.
S.
LifeIns.
Tenn.
(2d) 852;
1103, 160 W.
Curd
Life Ins. Co. v. 249; 306, E. Boseman v. App. 180 S.
v. Travelers Ins. 51 Ga. 686, 81 196, 57 Ct. Co., 301 U. S. S. General Life Ins. Connecticut App. 727, 14 W. Co., 64 Ga. 1036; Berry L. v. Travelers Ins. Ed.
(2d) 196. Austin, Duval, White, Crawford, Longley, Williams, Doty, such B do involve Stoner, cases, supra, not Davis and osman case, supra, reason- Miller question In the as we have here. on notice Beeeey case, employee. In the given to the insured able notice was but the provision, a conversion supra, group' policy the contained and a premium payment employee contribution to insured made no reaching conclusion seems, in the it importance, was of some- statute his insurance. the termination that was not entitled to notice of he to contributed employee Szymanski case, supra, insured the not contain policy did payment premium, but however, did, con- It policy. provision present as in conversion of his em- upon termination whereby employee, provision tain examination, and without upon application,' ployment; right, had the necessary premium. upon payment of the insurance” “to continue employee’s Szymanski insured Also, in case the However, on the “in' the force’’. terminated because of' reduction had employment, of the day following the termination “in him placing purpose employee'for an interview with the opening.” department'if an some other there was con- Thompson, supra, v. Metropolitan Life Ins. Co. made from wére provision and deductions
tained a case the premium. In that on'payment employee’s pay apply to insurance 1937, for 15, March application employee made 24, him on Juñe to A was issued group policy. certificate under the recover, 26, 1937, did not inhaling gas June ill from 1937. He became Although work. doing any more July 13, 1938, without and died employee work, employer paid premium was not the full at employee employee up April for the and to advanced to inclusive, per August, 1937, 1, 1938, $25.00 month from March both to charged part premium to the his of the and the advance theory ments “on the would recover and return work.” he But no for paid April 9, 1938, him was after and no ad “His dropped vancements were made thereafter. name was as an employee”, and the notified cancel his insur the insurer to ance as of February done, premiums 1938. This was paid were employee subsequent February for the were returned employer. however, given No notice, to the the insured “except that his he may insurance cancelled have known it from the fact that further March, 1938, no advances made to him were after employed attorney from the fact he about this time to sue (the employer) damages personal injuries causing Lion Oil for In Metropolitan Thompson, illness.” Life Ins. Co. v. the court said S. W. : l. c. [160 855] right provision is a “There for the of the to convert his ordinary certificate to life when he ceases to be an insurance without re-examination, it right is contended that this valuable him, would lost be if he discharge is not notified of his or *13 Ordinarily cancellation of employee his certificate. an is bound to know if he is or if discharged, he ceases to an employee, be but here he was employee continued as about ten months becoming after employed lawyer disabled until bring a damage he suit against employer. his We think he should then have surmiséd that status an employee be likely to terminated.”
It employee may would seem that in what term Thompson we case knew employment that his was terminated also, and his insurance but the court went on to hold that he was not entitled to notice. following this connection is S. W. l. c. : [160 855] generally “It is a provision policy held that in a of insurance coverage for termination employment when ceases does not amount agent to forfeiture and furnishing that is the the. regarding information to insurer the status of employees”, citing Metropolitan v. Duval Life Ins. Co., supra; Chrosniak v. Met. 453, Co., Life Ins. 121 Misc. 211; Kowalski, 201 N. Y. Joe Admr., v. Aetna Life Ins. 266 Mass. 165 N. E. 1030; A. L. R. Magee Equitable Soc., v. supra. Assur. Life We do not think that point these rule question cases on the of notice involved in the Thompson case. case, supra, Curd the' insured made no contribution payment premium did not contain conversion
provision. Counsel, including curiae, those as amici have filed briefs in able present carefully We case. all these, have examined but we are say constrained to in view of provision fact that the insured payment, contributed to requires better reason ruling that the
entitled to notice from his that his was termi- nated before his be during period insurance could terminated he only temporarily discharged. laid off and not Otherwise the con- provision version be of would value. uncertain City
We think the Kansas Court of Appeals, by in the able opinion Judge Dew, correctly presentíase ruled the and we are not convinced the result there reached judgment should be overruled. The affirmed, should be so it is ordered. Dalton Osdol, GO., and Van concur.
PER foregoing CURIAM: —The opinion by Bradley, C., adopted opinion as the judges court. All the concur. at the Relation of the Northwestern Missouri,
State Mutual Ewing a Corporation, Petitioner, v. Life Company, Insurance Judges C. T. Cave and Samuel A. Bland, Nick Dew, Appeals. City No. 39361. 189 S. W. Kansas Court 542. September Banc,
Court en 1945.
Rehearing Denied, October 1945.