Saettele v. Metropolitan Life Insurance

Missouri Court of Appeals

Saettele v. Metropolitan Life Insurance

86 Mo. App. 156, 1900 Mo. App. LEXIS 322

DecidedDecember 4, 1900

StatusPublished

This text of 86 Mo. App. 156 (Saettele v. Metropolitan Life Insurance) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Saettele v. Metropolitan Life Insurance, 86 Mo. App. 156, 1900 Mo. App. LEXIS 322 (Mo. Ct. App. 1900).

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Opinion

BOND, J.

This is an action by an assignee, who was also a creditor of the assured, upon two policies of insurance. When first instituted it was only against the company issuing the policies. After the decision of this court on the first appeal (81 Mo. App. 509), the plaintiff joined the administrator of the assured as a party defendant; The facts are fully stated in the former opinion of this court and need not be further stated than is necessary to dispose of the questions preserved for review upon the appeal of the defendant insurance company from a judgment against if fox the full amount of the policies in suit in favor of plaintiff to the extent of the indebtedness to her secured by the assignment of the policies and in favor of the administrator of the assured for the residue.

The first point urged for a reversal is, that one of tiñe policies, termed “industrial” was not assignable. That point was made on the former appeal and ruled adversely to appellant, upon the evidence tending to show waiver of the provision of the policy against its assignment. The present record presents substantially the same evidence as to waiver which was adduced on the former trial, and the law applicable to it having been correctly stated in the former opinion, [159]*159the point is not, therefore, open to review on a second appeal.

The second point relied on for a reversal is, that plaintiff was an incompetent witness to testify to the assignment of the policies in suit, or to the extent of her demands against the assured which the assignment was intended to secure. The administrator of the assured stated in open court that he had no objection to such testimony, and himself examined plaintiff fully as to the assignment to her and the indebtedness of the assured. This worked a removal of the statutory disability of the witness, who was evidently called to testify, in order to establish the right of the administrator to share in the sum due upon the policies, notwithstanding both of them apparently belonged to the plaintiff as assignee. Her testimony on these points, limiting her rights as assignee, enured to the benefit of the estate in the hands of the administrator, hence it was clearly his province to use the same in an action on the policies to which he was a party.

The final point insisted upon by appellant is, that the policies were void because obtained by fraud and misrepresentation. It is sufficient to say in answer to this contention that apt and full declarations of law covering this phase of the evidence were given by the trial court, and that the finding of the court, sitting as a jury, was adverse to appellant, upon whom rested the burden of proof to establish this defense, and that there is nothing in the record which suggests passion, prejudice or unjudicial conduct ron the part of the trier of the facts.

The result is the judgment herein is affirmed.

All concur.

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BOND, J.

This is an action by an assignee, who was also a creditor of the assured, upon two policies of insurance. When first instituted it was only against the company issuing the policies. After the decision of this court on the first appeal (81 Mo. App. 509), the plaintiff joined the administrator of the assured as a party defendant; The facts are fully stated in the former opinion of this court and need not be further stated than is necessary to dispose of the questions preserved for review upon the appeal of the defendant insurance company from a judgment against if fox the full amount of the policies in suit in favor of plaintiff to the extent of the indebtedness to her secured by the assignment of the policies and in favor of the administrator of the assured for the residue.

The first point urged for a reversal is, that one of tiñe policies, termed “industrial” was not assignable. That point was made on the former appeal and ruled adversely to appellant, upon the evidence tending to show waiver of the provision of the policy against its assignment. The present record presents substantially the same evidence as to waiver which was adduced on the former trial, and the law applicable to it having been correctly stated in the former opinion, [159]*159the point is not, therefore, open to review on a second appeal.

The second point relied on for a reversal is, that plaintiff was an incompetent witness to testify to the assignment of the policies in suit, or to the extent of her demands against the assured which the assignment was intended to secure. The administrator of the assured stated in open court that he had no objection to such testimony, and himself examined plaintiff fully as to the assignment to her and the indebtedness of the assured. This worked a removal of the statutory disability of the witness, who was evidently called to testify, in order to establish the right of the administrator to share in the sum due upon the policies, notwithstanding both of them apparently belonged to the plaintiff as assignee. Her testimony on these points, limiting her rights as assignee, enured to the benefit of the estate in the hands of the administrator, hence it was clearly his province to use the same in an action on the policies to which he was a party.

The final point insisted upon by appellant is, that the policies were void because obtained by fraud and misrepresentation. It is sufficient to say in answer to this contention that apt and full declarations of law covering this phase of the evidence were given by the trial court, and that the finding of the court, sitting as a jury, was adverse to appellant, upon whom rested the burden of proof to establish this defense, and that there is nothing in the record which suggests passion, prejudice or unjudicial conduct ron the part of the trier of the facts.

The result is the judgment herein is affirmed.

All concur.

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86 Mo. App. 156, 1900 Mo. App. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saettele-v-metropolitan-life-insurance-moctapp-1900.

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