295 S.W.2d 190 | Mo. Ct. App. | 1956
This is an appeal by the State Department of Public Health and Welfare from a-.
Based on evidence taken at a hearing before a referee the director found that claimant, a widower, owned three life insurance policies having a total cash surrender value of $568.88, and that in May, 1954 claimant paid a chattel mortgage of $700 on his son’s automobile, with no agreement as to repayment. Citing Sec. 208.010, RSMo 1949, V.A.M.S., and Departmental Regulation No. 14
The law in force and effect at the time of the hearing governs in the disposition of this claim.
On this appeal the sole question is whether there is substantial evidence in the record to support the decision of the director denying the application for old age assistance. If so, his decision is binding upon the court of appeals. Bollinger v. State Dept. of Public Health & Welfare, Mo.App., 254 S.W.2d 257. That there is substantial evidence to support both findings of fact upon which the director’s decision was based is manifest from a review of the record.
With respect to claimant’s ineligibility by reason of the ownership of life insurance policies having cash surrender values exceeding $500: It was admitted by claimant
The .letters were declarations against interest and as such were admissible in evidence as an exception to the hearsay rule, notwithstanding the fact that the declarants were not parties to the action, Moore v. Metropolitan Life Ins. Co., Mo.App., 237 S.W.2d 210, and notwithstanding there was no proof as to, the genuineness of the signatures. Hays v. General Assembly American Benev. Ass’n, 127 Mo.App. 195, 104 S.W. 1141; Kloes v. Wurmser, 34 Mo.App. 453. The declarations in the letters that there were cash surrender values were made by agents of the companies in the course of their duties. Such declarations, made in the face of the fact that there were no such provisions in the policies, were directly and immediately against and adverse to the interests of the companies at the time the letters were written, an interest so apparent as presumably to have' been in the minds of the writers of the letters. The writers of the letters were unavailable as witnesses by reason of absence from the jurisdiction. The letters meet all of the tests for the admission in evidence of declarations against interest. Osborne v. Purdome, Mo.Sup., 250 S.W.2d 159; Tennison v. St. Louis-San Francisco Ry. Co., Mo.Sup., 228 S.W.2d 718; McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548; Neely v. Kansas City Public Service Co., 241 Mo.App. 1244, 252 S.W.2d 88; Chicago & A. R. Co. v. Cox, 8 Cir., 145 F. 157, 76 C.C.A. 127. Nor was their admission in evidence foreclosed by the fact that the letters contradict the policies which contained no cash surrender provisions. Considering the evidence most favorable to support the decision of the director, as we must do, Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, we are satisfied that the unequivocal declarations against interest contained in the insurance companies’ letters that the policies have certain cash surrender values constitute substantial evidence of the fact.
With respect to claimant’s ineligibility by virtue of his transfer of property without receiving consideration therefor: There was substantial evidence that approximately one year previously claimant transferred $700 of his own. money to a bank in order to “lift” a chattel mortgage the bank held on an automobile owned by claimant’s son. That fact was evidenced by the testimony of the division caseworker as well as by claimant’s own testimony. The statutory presumption that such transfer was made for the purpose of rendering claimant eligible for benefits obtains. There was no evidence that the sum was merely a loan or advance, or that the son promised to repay the sum to claimant. No other evidence was introduced for the purpose of attempting to rebut the presumption.
After submission of the cause on appeal to the circuit court the circuit clerk, at the direction of the circuit judge, wrote a letter to the director requesting informa
Accordingly, the Commissioner recommends that the judgment of the Circuit Court of Franklin County be reversed and the cause remanded with directions to affirm the decision of the director.
PER CURIAM.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The judgment of the Circúit Court of Franklin County is, accordingly, reversed and the cause remanded with directions to affirm the decision of the director.
. Which provides: “A single individual owning insurance with a cash or loan value of $500 or more will not be considered eligible for assistance on the basis of available resources * *
. Under paragraph (1) of Sec. 208 010, supra, as amended Haws 1953, p. 644, § 1; Haws 1955, p. 689, H.B. No. 106.
. Even as the eligibility of an applicant for assistance must be based upon his condition at the time of the hearing. Edwards v. State Social Security Commission, Mo.App., 187 S.W.2d 354.
. Haws 1955, p. 689, H.B. No. 106 did not become effective until ninety days after May 31, 1955, the date of adjournment of the 68th General Assembly.