Locher v. Kuechenmiester

98 S.W. 92, 120 Mo. App. 701, 1906 Mo. App. LEXIS 440

• Court: Missouri Court of Appeals
• Decided: November 27, 1906
• Status: Published

Opinion

NORTONI, J.

(after stating the facts).

1. The duebill is as follows:

“St. Louis, September 26, 1904.

“Due W. H. Loeher seven hundred, thirty-six and 90-100 ($736.90) dollars.

“Henry Kuechenmiester.”

The petition treats it as a promissory note, and is in the usual form employed in such cases designating the writing sued on as a note. The defendant insists, first, that the paper writing is not a promissory note; that inasmuch as it does not contain a promise to pay in express words, it does not import a consideration under the provisions of our statutes (sec. 894, R. S. 1899), and that the court erred in admitting the same as evidence of the indebtedness mentioned prima facie without requiring the plaintiff to prove further that it was executed for a valuable consideration. Our statute referred to (sec. 894, R. S. 1899), provides that all instruments of writing made and signed, etc., “whereby he shall promise to pay to any other . . . any sum of money . . . shall import a consideration,” etc. The question therefore is, in the absence of an express promise to pay, does the paper contain an equivalent of such express promise in words which import a promise to pay so as to bring it within the influence of that provision of the statute which imports consideration on a promise to pay? It is true that the paper is not a negotiable note, as it does not recite that it was executed “for value received,” and to be a negotiable instrument, it must contain words, “for value received.” [Sec. 457, R. S. 1899; Bailey v. Smock, 61 Mo. 213; Taylor v. Newman, 77 Mo. 257; International Bank v. German Bank, 3 Mo. App. 362.] It is settled that non-negotiable instruments, by force of the statute (sec. 894), import a consideration (Montgomery Co. v. Auchley, 92 Mo. 127, 4 S. W. 425; Taylor v. Newman, 77 Mo. 257), and that under the provisions of that statute all promises for the payment of money, whether conditional or absolute, likewise import a consideration. [Wulz v. Schaefer, 37 Mo. App. 551.] The fact that the paper does not contain express words of promise to pay does not preclude it from being a promissory note within tbe meaning of the law. It is well settled that the employment of the word “due” in a paper of this nature imports a promise to pay. The principle is that if' the paper contains a direct acknowledgment of indebtedness in a specied sum, this of itself imports a promise to pay and therefore under the statute last cited, imports a consideration and the instrument is a promissory note within the meaning of the adjudicated law. [Finney v. Shirley, 7 Mo. 42; McGowan v. West, 7 Mo. 569; Ubsdell v. Cunningham, 22 Mo. 124; Brady v. Chandler, 31 Mo. 28; 1 Daniel, Negotiable Instruments (5 Ed.), sec. 36a; Norton, Bills and Notes (3 Ed.), 30.]

2. It is next insisted by the defendant that the court erred in rejecting his proposition embodied in defendant’s refused instruction number four to the effect that plaintiff could not recover so- much of the premium represented in the duebill as pertained to the insurance on the life of John H. Kuechenmiester on the theory that such premium arose out of a void contract as being in the nature of a wager for the reason, he asserts, that the defendant had no insurable interest in the life of his brother, the evidence showing that Jno. H. Kuechenmiester was not his debtor nor had other pecuniary interest in his life. We are not impressed with this argument for two reasons, either one of which is eminently satisfactory. The first is, we regard it as entirely immaterial on the evidence in this case whether the contract in this respect was or was not void, inasmuch as the jury found the fact to be that the defendant and his brother accepted the policies and that the defendant executed the duebill in consideration of the plaintiff’s paying the premiums thereon to the company on September 30th. Now, if this is true, and in the light of the jury’s verdict, it must be so understood, it was wholly immaterial whether the plaintiff, acting for the defendant, advanced the money to the company on a contract void or valid in law. The crucial question is, did he advance the money at the instance and request of the defendant and in consideration therefor, receive the’ duebill on the payment of which he was to be reimbursed? The jury found this fact for the plaintiff and we are unable to appreciate how plaintiff’s right of recovery on the duebill could be either abrogated or abridged by the fact that the defendant requested and procured him to pay out money on a void contract or, in other words, on a debt which could not be enforced by the insurance company against the defendant. But aside from this, there is a second and valid reason why this theory of the case and the refused instruction should have been rejected. It is that on the evidence in the record before us the premium mentioned did not arise out of a contract void on account of its being in the nature of a wager. It is very true and it is the law of this State, that one brother has no insurable interest in the life of another brother in the absence of some pecuniary interest such as creditor or something of that sort, in such a sense as to permit one brother to take out an insurance on the life of his brother in favor of himself. In such cases, the contract is condemned as a wager and void as being against public policy. [Masonic Ben. Assn. v. Bunch, 109 Mo. 560, 19 S. W, 25; Reynolds v. Prudential, etc., Co., 88 Mo. App. 679; 3 Amer. and Eng. Ency. Law (2 Ed.), 929.] This principle does not obtain, however, with respect to such contracts as are made between the insured and insurer. In such cases, the proposed insured applying for insurance on his life, can select any person he sees fit for his beneficiary thereunder, whether that person has an insurable interest in his life or not, so long as he confines himself within the limits of good faith and acts without fraud, the principle being that if the insured himself, in good faith, is willing to enter into a contract whereby an interest may accrue to another which would tend to offer temptation to the beneficiary to dispose of the insured in order that he might obtain the insurance, the insured is permitted so to do and the courts will decline to declare the contract void as against public policy. Mr. Cook, in his work on Life Insurance, states the law thus:

“Insurable interest unnecessary, where the contract is between insurer and insured. Assuming the soundness of the doctrine of insurable interest, it seems a proper limitation on the application of it, that where the insured himself makes the contract with the insurer, he may select as beneficiary one having no insurable interest. This is seemingly on the ground that, if the insured himself chooses to place his life in a situation of hazard, there is no sufficient reason for preventing him from doing so.” [Cook on Life Insurance and Mutual Benefit Societies, sec. 60.]

See also 3 Am. & Eng. Ency. Law (2 Ed.), 929, where the rule stated does not preclude a recovery on or condemn a contract as void when entered into by the insured and the insurer but only precludes the beneficiary contracting with the insurer for insurance on the life of one in whom he has no insurable interest. Indeed, this proposition is abundantly well settled by the adjudicated cases and this, too by the courts of this State, and it is the rule with us that one may, of his own free will, in good faith, insure his life, paying the premiums therefor himself, for the benefit of another who has no insurable interest therein and the policy will be held valid.. The proposition is pointedly decided in the following Missouri cases: Ashford v. Ins. Co., 80 Mo. App. 638; Van Cleave v. Union Casualty Co., 82 Mo. App. 668; Reynolds v. Prudential Co., 88 Mo. App. 679. Our Supreme Court, in express terms, recognized the principle and cited Cook on Life Insurance, sec. 60, above quoted in Masonic Ben. Assn. v. Bunch, 109 Mo. 569-578-579. This court in McFarland v. Creath, 35 Mo. App. 112-122, also recognized the principle. [See also Connecticut Life Ins. Co. v. Schaefer, 94 U. S. 460; Aetna Life Ins. Co. v. France, 94 U. S. 561; Ingersoll v. Knights of Golden Rule, 47 Fed. 272.] It is true the cases of Ashford v. Ins. Co., 80 Mo. App. 638, and Van Cleave v. Ins. Co., 82 Mo. App. 668, are expressly overruled by the Supreme Court in Kern v. Supreme Council Legion of Honor, 167 Mo. 471, 67 S. W. 252, but a careful reading of tbe opinion in that case demonstrates that it was on another and distinct question those cases were overruled and that their authority on the proposition here in judgment is not criticised.

Now with this rule before us, let us examine the facts. The defendant, Henry Kueehenmiester, did not take out insurance on the life of his brother, nor did John H. Kueehenmiester take out insurance on the life of Henry Kueehenmiester. The evidence shows that each brother, of his own free will and in good faith, insured his own life in favor of the other brother. There is no word in the evidence to the effect that Henry Kuechenmiester was to pay for the insurance of John H. Kuechenmiester, as between themselves, even though he executed the duebill to cover the premiums on both policies. The defendant, having pleaded the wager contract and no insurable interest, it devolved upon him to develop the facts in proof which would bring the case within the rule which he seeks to invoke. This he wholly fails to do. While it is true the duebill was executed by Henry Kueehenmiester alone, the evidence on the part of the plaintiff tends to show that it was done with the authority and consent of John H. Kueehenmiester given immediately prior to his being called out of the room and that as between the brothers, John H. Kueehenmiester was of course to pay for his policy, or in other words, his premium; whereas the evidence on the part of the defendant is that the duebill was executed as a mere receipt for the policies and that neither he nor Henry Kueehenmiester was expected to pay the premium on either policy. There is not a word in evidence tending to show that as between these parties, Henry Kuechenmiester, the beneficiary in the policy of John H. Kuechenmiester, was to pay the premiums on the policy of John H. Kueehenmiester and it devolved upon the defendant to so show. And it further appears conclusively from all the evidence, that Henry Kueehenmiester, as between the brothers, was not expected to pay the premium on the life policy of John H. Kueehenmiester, for on several occasions both prior and after the signing of the duebill, John H. Kueehenmiester urged the objection that the premium on his policy was so large that he could not afford to pay it. Nothing was said between them indicating that Henry Kueehenmiester was to pay his premium. In fact, the matter which seemed to worry him more than any other was the large premium he was called upon to pay upon his own policy. There is nothing in the record here indicating that Henry Kueehenmiester insured the life of John H. Kueehenmiester and was to pay the premium thereon in that sense which would bring the policy within the purview of the rule which prohibits one person from obtaining insurance on the life on another on whose life he has no insurable interest. It is palpable that each brother, of his own violition and in good faith, insured his own life in favor Of the other, on his own account, and in no sense is the case one where one person obtains insurance on the life of another under such circumstances as to render the policy void as a wager. The court very properly rejected this theory of the case. As said before, the proposition advanced was entirely irrelevant, however, to the facts of the case as we view them.

3. It is next insisted that the court erred in refusing to instruct that as the applications for the policies or their substance was not set out in or attached to the policies, the policies were void and therefore there was no consideration for the duebill and plaintiff cannot recover. We do not understand such to be the law of this case. Whatever might be .the opinion of the court on this question, were the suit one by the insurer against this defendant for the premiums on the policies, which question is not before us, we certainly know of no principle in our jurisprudence which would render these policies void in the hands of the insured by reason of this default of the insurer and preclude a recovery by the insured on the policies for no other reason than that the company which issued them failed to- comply with the statute by annexing the copies or the substance of the applications thereto: But aside from this, the question seems entirely irrelevant on this record. Suppose the policies were void for the reasons stated, and that in a suit by the company against the insured for the premium, it could not recover, yet the insured could pay the premium if he saw fit to do so, or he could cause another person to pay it for him and if the plaintiff, at the instance and request of the defendant, advanced the means and discharged the debt, which the defendant was under no valid obligation in law to pay, and for that consideration, the defendant executed the due-bill in evidence, the law will hold him to respond to the plaintiff therefor even though the debt discharged by plaintiff at his request arose out of a void undertaking and one that could not have been enforced against him. The court properly refused the instruction.

4. It is next insisted that as the court instructed the jury in event their finding should be for the plaintiff, the verdict should be for the amount of the note and interest, to-wit, $760, that this was reversible error inasmuch as under the authorities in this State and the construction by the Supreme Court of our statutes, secs. 721-726, R. S. 1899, providing that in suits for a recovery of money only, “the jury shall assess the amount of the recoverythat it is error for the court to compute the interest on the note and instruct the jury that their finding, if for the plaintiff, must be in a certain sum, as this invades the domain of the jury,'it being in such suits the peculiar province of the jury to calculate the interest, or in other words, “assess the amount of recovery.” This- rule is discussed and the authorities cited in Dawson v. Wombles, 111 Mo. App. 532, 86 S. W. 271. See also Cates v. Nickell, 42 Mo. 169; Burghart v. Brown, 60 Mo. 24; Ryors v. Prior, 31 Mo. App. 555; Poulson v. Collier, 18 Mo. App. 583; Dyer v. Coombs, 65 Mo. App. 148; Corbitt v. Mooney, 84 Mo. App. 645. In none of the cases last cited, where the court was held to have invaded the province of the jury by either computing the amount and instructing for a fixed sum or correcting a verdict so as to include interest, was the error corrected by remittitur, as it was in the case now in hand. It is very true that under these authorities, the instruction for a fixed amount, including principal and interest, was error, but in this case, the issue was not the amount of the recovery so much as it was whether the plaintiff should recover at all on the duebill. Under the evidence, the real question in decision was, whether the duebill was given in consideration of the plaintiff’s paying the premiums to the company and to reimburse the plaintiff for his advancement of such premiums, or whether it, was obtained by him through deceit, and should be held to be a mere receipt for the policies, etc., as contended by the defendant, and on this issue, if plaintiff was entitled to recover at all, he was entitled to recover the face of the bill and interest after demand. Under the issues as made by the evidence and the law of the case, the amount of the duebill not being a controverted fact, we are persuaded that while the court committed technical error in computing the interest and instructing for an amount certain, that this error was properly rectified by the learned trial judge in requiring a remittitur of the $23.10 interest on a hearing of the motion for new trial. This is not a case where the jury were erroneously instructed on the measure of recovery, except on the item of interest, which was remitted. Nor does the instruction, aside from the computed interest, include improper elements by which a recovery, if any, could be measured. The error was eliminated by the remittitur. [Creve Coeur Lake Ice Co. v. Tamm, 90 Mo. App. 189.]

5. There were certain letters, the contents-of which had been given to some extent in evidence by the parties on either side, but the letters themselves, as well as their contents, were excluded by the court on objection. Plaintiff’s counsel in his concluding argument, in reply to the argument of defendant’s counsel, made the following allusion thereto, and the following objection and colloquy was had and the court ruled as therein indicated, to which exception was saved, as stated in the record as follows:

“Now, when he talks about these letters here, he prevents you from knowing what is contained in those letters and he asks you to take his version of what those letters contain.

“Mr. Gilliam: X object to that, for the testimony is excluded and the gentleman is not permitted, to talk about them.

■ “Judge Collier: You talked about them and pretended to tell the jury why we should have sent them, but I wanted them in here, and I want to keep them in.

“The Court: One moment; confine yourself to the testimony that is admitted.

“Judge Collier: Your Honor, he discussed them.

“The Court: Well, if you had called him down, I would have stopped him.

“Judge Collier: Very well, the court says I can’t discuss them.

“Defendant’s counsel excepted to the action of the court in not reprimanding counsel for improper argument and not directing the jury to disregard the same.”

A reversal of the judgment is asked here because the court did not reprimand counsel in the presence of the jury. Now the matter of confining counsel to the record in the argument of a case is one peculiarly within the province of the trial judge and the matter as to when counsel should be reprimanded for transgression in that behalf is one within the sound discretion of the court in which the alleged offense occurs, and although cases are sometimes reversed for the failure of the court to administer proper rebuke under such circumstances, reversals are not always had therefor. In other words, there is no hard and fast rule on the subject in such a sense as will warrant a reversal in every instance of transgression and failure to reprimand on objection and exception, inasmuch as the exercise of this discretion by the trial court must be measured by the facts and circumstances surrounding each particular instance. Reversals are only had in such cases when it is manifest that the court abused its discretion. Now, the record presented here upon which the defendant asks a reversal, discloses that the plaintiff’s counsel first offended, and that it was in reply to improper argument and comments advanced by him. that defendant’s counsel made the remarks complained of. It is true that as a rule an offense of this nature on the part of one counsel will not necessarily open the way for a free hand to the same end by counsel representing the adverse party, but such conduct by counsel in the first instance had, in the presence and hearing of the trial court, as it is, necessarily appeals to and influences its judgment in exercising that sound discretion with which it is vested by the law in the trial of a case, which conduct can only be fully understood and appreciated by the judge presiding. And such conduct by the first transgressor may so mitigate the offense of the other as to make it appear unjust and unfair to the trial court to reprimand counsel complained of in the presence of the jury in an instance where the court would otherwise administer a proper rebuke. In view of this statement of the law, as we understand it, it is not manifest to this court that the learned trial judge abused a sound discretion in this instance. [Obuchon v. Boyd, 92 Mo. App. 412.] It will be noted by reference to the remarks of plaintiff’s counsel that he did not attempt to state the contents of the letters nor did lie comment on their contents whatever that might have been, prior to the court’s admonishing him to confine his remarks to the record, and for this reason we would be unable to hold the remarks so improper, in the absence of a reprimand, as to warrant a reversal.

There are other questions in the briefs. We have examined each and. find them of no merit, and without prolonging the opinion, which is now unduly extended in a case where the issues are so few and simple, they will be overruled. The judgment is manifestly for the right party and it will be affirmed. It is so ordered.

Blancl, P. J., and Goode, J., concur.