Opinion
May 23, 1938.
1. — Judgment. Where piano tuner, who had lost part of hand, recovered total disability indemnities for successive periods in two suits, and judgment on first suit was treated as res judicata on second appeal as to total disability, and defendant failed to rebut evidence that insured was unable to tune piano, insurer had no defense in third suit.
2. — Costs. Where insured recovered judgment against insurer in three successive suits, and adjuster told insured after second suit that defendant would not pay even if liable, and in first suit, insurer was adjudged to pay penalties for vexatious refusal to pay, adjudged to have no defense in second suit, and certiorari by Supreme Court was denied, and insured then prosecuted appeal in third suit, appeal was taken after insurer was judicially advised to pay and not litigate, and penalty for vexatious appeal will be awarded.
Appeal from Pettis Circuit Court. — Hon. Dimmit Hoffman, Judge.
AFFIRMED.
Davis Davis and C.W. Armstrong for appellant.
(1) If Mr. Boillot can now tune a piano — having recovered from his disability — and is able to perform some of the duties of a piano tuner, appellant has a right to contest the matter, even to the extent of requiring him to file suit; and it is competent for appellant to show this at the trial. Paul v. Missouri State Life Ins. Co., 52 S.W.2d 437. (2) (a). The phrase "totally and continuously disabled" contemplates a physical condition at the time of the claim which reasonably convinces the judging authorities that (a) the subject is then totally disabled, and (b) will so remain for life. Paul v. Missouri State Life Ins. Co., 52 S.W.2d 437. (b) An insured, under an accident and health disability policy, does not have a right of action and cause of action except for installments as they fall due. New York Life Ins. Co. v. Viglas (U.S.), 80 L.Ed. 971; Mobley v. New York Life Ins. Co. (U.S.), 79 L.Ed. 1621. (c) An insurance company has the right to contest the disability claimed under an accident and health insurance policy for every period of time provided by the policy. New York Life Ins. Co. v. Stoner, 92 F.2d 845; United States Fidelity Guaranty Co. v. McCarthy, 33 F.2d 1, (3) The Kansas City Court of Appeals is not a trier of the facts. That is the sole duty and province of the jury or the court sitting without a jury. 5 C.J.S. 550; O'Donnell v. B. O.R. Co., 26 S.W.2d 929, 324 Mo. 1097; King v. Mauer, 286 S.W. 100, 315 Mo. 318; Phillips v. Wilson, 250 S.W. 408, 298 Mo. 186; Davis v. Alexander, 183 S.W. 563; Schell v. F.E. Ransom Coal Grain Co., 79 S.W.2d 543; Bender v. Midwest Pipe Supply Co., 57 S.W.2d 707; Scott v. Missouri-Kansas-Texas R.C., 22 S.W.2d 654, 224 Mo. App. 1; Kapros v. Pierce Oil Co., 25 S.W.2d 777, 324 Mo. 992; Craig v. Rhodes, 298 S.W. 756; 5 C.J.S. 552. (4) In the Sullivan County Case (Kansas City Court of Appeals, 102 S.W.2d 132) the trial court found as a fact that Mr. Boillot was disabled from the time of the accident to the filing of the petition. The Kansas City Court of Appeals did not have power, authority or jurisdiction to go beyond that finding and find, hold or decide that he was disabled beyond that period. Any such judgment was void. Authorities, Point 3, this brief. (5) It is the duty of courts to override previous decisions if such departure is necessary to avoid the perpetration of pernicious error. It is the obligatory duty — a duty imperiously demanded by litigants whose rights are affected — that courts reexamine decisions previously rendered, and, if found to be erroneous, to recede from them. 7 R.C.L. 1008, 1009. The Kansas City Court of Appeals has recognized this duty in a total and permanent accident insurance disability case, and reversed itself to correct error. See: Schuerman v. General American Life Ins. Co. (1937), 106 S.W.2d 920; Kingsland v. Missouri State Line Ins. Co., 66 301 S.W.2d 869. (6) The only issue tendered and joined in the Audrain County suit as to Mr. Boillot's disability was that he was unable to perform the duties of a piano tuner from the time of the accident to the filing of the petition. Boillot v. Income Guaranty Company, 83 S.W.2d 119. (7) (a) A court cannot decree to a plaintiff more than he asks. Charles v. White, 214 Mo. 187, 112 S.W. 545. (b) A judgment which is not responsive to the pleadings and the proofs is void. Evans v. Gibson, 29 Mo. 225; 15 R.C.L. 604. (c) Missouri courts have held: A court cannot put into the record a judgment which is not a proper sequence to the pleadings; the judgment must be supported by and conform to the pleadings; recovery must be had, if at all, on the facts alleged in the pleadings; facts proved but not pleaded will not support the judgment; proof different to facts alleged constitute variance; a judgment based on issues not made is void. Gatewood v. Trible Co., 62 S.W.2d 756; Massey-Harris Harvester Co. v. Federal Reserve Bank of Kansas City, 48 S.W.2d 158; Newcomb v. Payne, 250 S.W. 553; Petrie v. Reynolds, 219 S.W. 934; Elliott v. Delaney, 217 Mo. 14; Weissenfels v. Cable, 208 Mo. 515; Algeo v. Algeo, 207 S.W. 942; Advance Thrasher Co. v. Speak, 167 Mo. App. 440; Central Mfg. Co. v. Montgomery, 144 Mo. App. 494; Rogers v. Shawnee Fire Ins. Co., 132 Mo. App. 275; Orchard v. National Exchange Bank, 121 Mo. 239; Nichols v. Dodson Lead Co., 83 Mo. App. 584; Woolridge v. LaCrosse Lumber Co., 291 Mo. 239; Germer Mfg. Co. v. Combs, 287 Mo. 275; Stewart v. Omaha L. T. Co., 283 Mo. 364; Scott v. Lusherman, 273 Mo. 363; Zasenowich v. American Mfg. Co., 213 S.W. 799; Spindle v. Hyde, 247 Mo. 32; 310 Mo. 339, 275 S.W. 579; 273 S.W. 145; 31 S.W.2d 86. (8) (a) The positive authority of a decision is coextensive only on the facts on which it is founded. Bender v. Weber, 250 Mo. 551, 157 S.W. 570. (b) Judgments of appellate court on one state of facts may not be applied automatically to another state of facts, but, on the contrary, the general language in decisions must be read in the dry light of the very case held in judgment, and not otherwise. State ex rel. v. City of St. Louis, 241 Mo. 238, 145 S.W. 801; Bender v. Weber, supra. (c) Where the evidence on a second trial is different from that produced at the first trial, this may justify a departure from the rulings on the former trial, or on a former appeal, as to questions in regard to which the evidence must govern. 5 C.J.S. 963. (9) Either party is entitled to introduce evidence to rebut that of his adversary, and for this purpose any competent evidence to explain, repel, counteract or disprove the adversary's proof is admissible. 64 C.J. 152. (10) Mr. Boillot testified, in answer to a question by his counsel: "In my present condition I am unable to tune a piano." This fact had been pleaded and denied and was an issue in the case. Appellant was entitled to introduce evidence to explain, repeal or counteract this evidence offered by the respondent to maintain his case. 64 C.J. 152; Rose v. St. Louis-San Francisco R. Co., 289 S.W. 913, 315 Mo. 1181; Hite v. St. Joseph G.I.R. Co., 225 S.W. 916; Seibel-Suessdorf Cooper Iron Mfg. Co. v. Manufacturer's Ry. Co., 130 S.W. 288, 230 Mo. 59; Dean v. Wabash R. Co., 129 S.W. 953, 229 Mo. 315; Burgess v. Garvin, 272 S.W. 108, 219 Mo. App. 162; Kramer v. Britt Printing Publishing Co., 263 S.W. 866; Parris v. Deering Southwestern Ry. Co., 227 S.W. 1071; Brim v. Alexander, 186 S.W. 544; Steddings v. Dobbins, 171 S.W. 979, 185 Mo. App. 43. (11) (a) The power to take judicial notice is to be exercised with caution, and due care must be taken to see that the subject comes within the limits of common knowledge. 23 C.J. 175; 179 N.Y. 235, 72 N.E. 97, 103 Am. St. Rep. 859, 70 L.R.A. 796, 1 Ann. Cas. 334. (b) Care must be taken that the requisite notoriety exists; every reasonable doubt must be promptly resolved in the negative. 23 C.J. 173; Timson v. Manufacturer's Coal Co., 220 Mo. 580, 119 S.W. 565. (c) When judicial notice is taken, the party dissatisfied may introduce evidence to the contrary. Wigmore on Evidence, sec. 2567 (a); 132 Wis. 534, 112 N.W. 40, 6 Ann. Cas. 893. (d) Uncertainty of a fact precludes recognition by judicial notice. 249 U.S. 265, 39 S.Ct. 273, 63 L.Ed. 597. (e) Judicial knowledge cannot be resorted to to raise controversies not presented by the record. 6 R.C.L. 1062; 180 U.S. 533, 21 S.Ct. 488, 45 L.Ed. 656; Mutual Life Ins. Co. v. McGraw, 188 U.S. 291, 23 S.Ct. 376, 47 L.Ed. 480, 63 L.R.A. 33. The Kansas City Court of Appeals had no warrant in fact or authority in law to judicially assume that Mr. Boillot "for all time to come" would be disabled and unable to perform the duties of a piano tuner. This was not within the issues, is not common knowledge or true. (12) An offer of proof is unnecessary where the offer would be a useless ceremony, or the evidence would be rejected, or where the court indicates such offer would be unavailing or holds that the evidence is not admissible under the pleadings, or where the rulings of the court show that it would be unavailing. 64 C.J. 123. (13) The due process clause of the Federal Constitution applies to annual adverse legislation as well as executive and judicial acts affecting individual rights. Simkins, Federal Practice, p. 394; Raymond v. Chicago Union Traction Co., 207 U.S. 20-36, 52 L.Ed. 78-87, 28 S.Ct. 7, 12 Ann. Cas. 757; Scott v. McNeal, 154 U.S. 45, 38 L.Ed. 901, 14 S.Ct. 1108; United States v. Cruikshank, 92 U.S. 542-545, 23 L.Ed. 558-590; Nashville C. St. L. Co., 86 F. 184, 185; Chicago, B. Q.R. Co. v. Chicago, 166 U.S. 226, 41 L.Ed. 979, 17 S.Ct. 581.
Boillot Teters and Irwin, Bushman Buchanan for respondent.
(1) Issues are created by the pleadings of the parties. Kleinlein v. Foskins, 13 S.W.2d 648, 654; Silverthrone v. Summit Lumber Co., 176 S.W. 441, 444; Coleman v. Drain, 116 Mo. 387, l.c. 392. (2) It is the duty of a trial court to follow the law as laid down by the appellate courts, regardless of the opinion of the trial court as to whether the decision of the appellate court is right or wrong. If it follows such decision, it commits no error. Bealy v. Smith, 158 Mo. 515, l.c. 522; Citizens Nat'l. Bank v. Donnell, 195 Mo. 564, l.c. 570; Gammon v. Paulk, 200 Mo. 75, l.c. 96; Bouvier's Law Dictionary under definition of " stare decisis." (3) (a) Respondent did not waive his right under res adjudicata in his pleadings, or by testifying that he was still totally disabled. A waiver is said to be the intentional abandonment or relinquishment of a known right. "A waiver must be intentional; it must be an intentional act with knowledge; waiver is mainly a question of intention which lies at the bottom of the doctrine." Francis Hunter v. A.C.U.W., 150 Mo. App. 347, 355; Michigan Sav. Loan Assn., v. M.K. T. Trust Co., 73 Mo. App. 161, 165. (b) Where res judicata is pleaded, the right is not waived by pleading to the merits or by joining issue with defendant thereon. Schwabacher v. Jennings, 246 P. 588, l.c. 590; Logan City v. Utah Power Light Co., 16 P.2d 1097, l.c. 1100; Hawkins v. Howard, 30 P.2d 697, l.c. 700; Killit v. Marvel, 58 P.2d 649, l.c. 654; Rock Springs Coal Co. v. Black Diamond, 272 P. 12, l.c. 18. (c) All defenses available where the causes of action are the same must be pleaded in the first suit or otherwise they will be waived and forever barred. Crnic v. Croatian Frat. Union, 66 S.W.2d 161, 163 and 89 S.W.2d 683, 690; Boillot v. Income Guaranty Co., 102 S.W.2d 132, 139. (4) (a) The liability of the insurer accrues upon the happenings of the accident insured against, and not when the obligation to pay arrives. Scheurman v. General American Life Ins., 106 S.W.2d 920, 922. (b) In a policy of insurance of the occupational type, it is the duty of the insurer to pay the indemnity if the occupation named in the policy has been lost. Bellows v. Travelers Ins. Co., 203 S.W. 978, 982 and 984; Fidelity Casualty Co. v. Bynum, 298 S.W. 1080; Heald v. Aetna Life Ins. Co., 90 S.W.2d 797, l.c. 800 and 801; Parks v. Maryland Casualty Co., 91 S.W.2d 1186, 1195; Gross v. Continental Casualty Co., 101 Alt. 169, l.c. 171. (5) (a) "The scope and effect of a State judgment is primarily a question of State law and therefore a decision relating only to such, involves no Federal question." Kenny v. Craven, 215 U.S. 125, l.c. 130, 30 S.C. 64; Swords v. Nutt, 9 F.2d 421, l.c. 422; Newman v. John Hancock Ins. Co., 290 S.W. 133, l.c. 134. (b) A decision that the question in issue is res ajudicata, does not present a Federal question. San Francisco v. Itsell, 133 U.S. 65, l.c. 66, 33, L.Ed. 570, 10 S.C. 240; North Pac. R.R. Co. v. Ellis, 144 U.S. 458, l.c. 465, 36 L.Ed. 504, 12 S.C. 427; Adams v. La., etc., 144 U.S. 651, l.c. 653, 12 S.Ct. 756, 36 L.Ed. 578; Beals v. Cone, 188 U.S. 184, l.c. 188, 23 S.Ct. 755, 47 L.Ed. 435. (c) If a party fails to raise a constitutional question at the first opportunity, he thereby waives the question. Newman v. John Hancock Ins. Co., 290 S.W. 133, 134; Williams v. Short, 263 S.W. 200, 201; Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108, 214 Mo. 685, 689. (d) Where a party pleads a constitutional question and fails to point out the particular clause violated, the point will be ignored. State ex rel. Schuler v. Noltre, 285 S.W. 501, 503; First National Bank v. Foster, 271 S.W. 536, 537; Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108, 214 Mo. 685, 689; Consol. School Dist. G.C. v. Day, 43 S.W.2d 428, 429. (6) (a) Vexatious delay is shown if defendant urges defenses without merit. Hampe v. Met. Life Ins. Co., 21 S.W.2d 926, 929; Gibson v. Insurance Co., 181 Mo. App. 302, l.c. 311, 168 S.W. 818; Nat'l Battery Co. v. Standard Acc. Ins., 41 S.W.2d 599, 605. (b) An Insurance Company is liable to the penalties for vexatious refusal to pay if it fails to answer a demand for payment, or alleges a falsehood in its answer, or misrepresents, or if it sets up defenses to the action which it knows, or should know, were not valid. Bigalke v. Mutual Life Ins. Co., 34 S.W.2d 1019, 1023; Gibson v. Pioneer Life Ins. Co., 168 S.W. 818, 181 Mo. App. 302, 311; Hampe v. Met. Life Ins. Co., 21 S.W.2d 926, 929; Nat'l Battery Co. v. Standard Acc. Ins. Co., 41 S.W.2d 599, 605. (7) It is the duty of the Court of Appeals to review the decision of the trial court and if no error was there committed, to affirm the judgment. Sec. 1063, R.S. Mo. 1929: Joy v. Cale, 102 S.W. 30, 124 Mo. App. 569, 575; Bretzfelder v. Waddle, 99 S.W. 806, 122 Mo. App. 462, 467; In re Hutton's Estate, 92 Mo. App. 132, 136. (8) (a) Where a point of law has become the law of the case by final ajudication, in a new suit between the same parties on the same cause of action, the question has become res adjudicata. Scheer v. Trust Co., 49 S.W.2d 135, l.c. 143; Crnic v. Croation Fraternal Union, 66 S.W.2d 161, l.c. 163; Id., 89 S.W.2d 683. l.c. 690; Boillot v. Income Guaranty Co., 102 S.W.2d 132, l.c. 139. (b) And even where the causes of action are different, in a subsequent suit between the same parties, the matter or issue first determined becomes res ajudicata. State ex rel. Buchanan County v. Patton, 271 Mo. 554, l.c. 559; State ex rel. v. Mining Co., 262 Mo. 490, l.c. 502. (9) Where a point, matter or question becomes res ajudicata, no court anywhere has authority or power to override it, but must enforce it. 34 C.J., p. 750, sec. 1162; Chotean v. Gibson, 76 Mo. 38, l.c. 47; Turnverein v. Hagerman, 232 Mo. 693, l.c. 702.
This is the third suit between the same parties, based on the same contract. In the first suit ( 83 S.W.2d 219) plaintiff recovered total disability indemnities for the period ending January 11, 1933; in the second suit ( 102 S.W.2d 132) plaintiff recovered for the period January 11, 1933, to September 11, 1935. In the present suit recovery was sought and obtained for the period September 11, 1935, to January 11, 1936.
The questions of fact concerning disability and the issues of law in the case at bar are the same as the questions and issues presented to the second suit. Hence, a restatement of the facts would be useless.
The defendant argues "that when this Court in the second suit, the Sullivan county suit, said the first suit was res judicata of Mr. Boillot's disability on the latter suit — or for any other period of time — this Court went outside the issues and made a ruling it did not have authority or power to do. If that is correct, that ruling of this Court was void, has no force anywhere, and can be attacked in this or any other proceeding, collaterally or otherwise."
The court in determining the second suit did not go "outside the issues" as the opinion clearly shows. In speaking of the first suit, the record of which was introduced in the trial of the second suit, this court said:
"That the plaintiff's disability was total and continuous because of the loss of the part of his hand was determined in the former suit; and, since it was so determined in that suit that the loss of the part of the hand created total disability, it is res adjudicata in this suit that the loss of the same member is total disability; and, that such disability is continuous and permanent, the court will take judicial notice. The court must take judicial notice of the fact that a member of the body being completely severed is lost forever."
Defendant further says it had the right to rebut plaintiff's evidence showing he was unable to tune a piano. If it be true defendant had the right to rebut the proof of plaintiff, it is equally true it utterly failed to exercise that right; it did not offer any evidence except a letter from the insurance department of Missouri concerning the filing of its form of policy.
The defendant asks that we "re-examine and explore" the opinion of this court in the second suit. That opinion is sound law and we adhere to it. From which it follows defendant, on this record, has no defense.
The plaintiff asks we affirm the judgment and award damages of ten per cent of the amount of the judgment under the provisions of section 1064, Revised Statutes 1929.
The penalty should be awarded if it clearly and unmistakably appears the appeal was unwarranted.
The undisputed evidence shows that after the second suit was brought defendant's claim adjuster told plaintiff that the defendant would not have paid the $600 and hospital charge, evidently the amount involved in the first suit, even if it had known it was liable therefor, because in order to make such payment it would have to sell some of its securities which were then below par "and they had made money by litigating the matter; . . . he said `we are going to have a big lawsuit about this business and it will be money in your pocket to accept $2500.' He said, `in the future suit I would have to employ attorneys and by time I paid them, I wouldn't have anything left; I would be far better off to take the $2500.'"
In the first suit defendant was adjudged to pay penalties for vexatious refusal to pay plaintiff's claim.
In the second suit it was adjudged to have no defense. That opinion was handed down February 1, 1937; motion for rehearing overruled March 1, 1937; and certiorari denied by the Supreme Court May 6, 1937.
The judgment in the present case was rendered May 22, 1937; appeal allowed June 5, 1937, and short form transcript filed August 12, 1937. Thus it appears the appeal has been prosecuted since the defendant has been judicially advised it should pay, not litigate. In such circumstances we hold the penalty should be awarded.
Therefore, it is ordered the judgment be affirmed and, in addition thereto, plaintiff have and recover from the defendant the sum of $67.57, being ten per cent of the amount of the judgment.
Campbell, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. It is ordered the judgment be affirmed and, in addition thereto, plaintiff have and recover from the defendant the sum of $67.57, being ten per cent of the amount of the judgment. All concur.