Kuhn v. Germania Life Insurance , 71 Mo. App. 305 ( 1897 )

C-tt.t,, J.

On the fourteenth day of October, 1892, defendant issued a policy of insurance on the life of Frederick Busse. By the terms of the policy Busse was to pay to the company yearly, on October 14, for the period of ten years, the sum of $166.25; and if not so paid, then the policy and all rights of the assured thereunder were forfeited. Busse died June 17, 1894, and the plaintiff as his administrator sued on the policy. The defense was that the assured failed to pay the premium due October 14, 1893, and that all rights of the assured had become forfeited. On this issue there was a trial by jury, resulting in a verdict and judgment for defendant, and plaintiff appealed.

Wd™hSFFwhcr SfcorpFnuSn: I. The sole errors assigned relate to the court’s action in admitting certain testimony over plaintiff’s objections. Defendant offered and read the deposition of one Doremns, who testified that he was vice-president of the defendant company, etc. Plaintiff’s counsel objected to the deposition on the sole ground that the “witness was an officer of the defendant company and not competent to testify, the other party being dead.” The court overruled the objection, and this furnishes the first matter of complaint. There is no merit in the point, and the court’s ruling was clearly correct. The witness was competent either at common law or under our statute. Doremus was, according to the showing, a mere officer or agent of the corporation called to testify substantially as to whether or not the premium on the Busse policy due October 14, 1893, was ever paid. He was not shown to be a stockholder or to have any financial interest in the company. He testified that the premium had not been paid to the company. He was a competent witness for that purpose even under the rigid rules of the common law. 1 Greenl. Ev., sec. 416; Bates v. Forcht, 89 Mo. 121-127. And we may say here as was said in the Bates case, that the party being a competent witness at common law, was not rendered incompetent by section 8918 of our witness statute, “inasmuch as it was not the purpose of said section to disqualify witnesses who were qualified before its enactment, but on the contrary, to qualify witnesses who, but for the statute, would be disqualified. It is an enabling and not a disabling statute.” The deposition should not have been excluded even had the witness been a stockholder in addition to being an agent or officer; for in reading the deposition, it is seen that his testimony went not to the negotiation or making the contract with Busse, the assured, but concerned other matters not connected with such negotiations. These were all conducted with another agent of the company. In the case cited by plaintiff’s counsel, Banking House v. Rood, 132 Mo. 256, it is said, “that the stockholders of a corporation are not incompetent on account of interest to testify as witnesses in a case involving a contract with the corporation, though the other party to the contract be at the time dead. His competency depends upon the character of the evidence offered. He will be incompetent to testify in regard to transactions and negotiations between himself as agent of the corporation, and deceased; in regard to independent facts he will be competent.” Under this rule the deposition was properly read.

Evidence : irrelJiv0nnt: exclu" In regard to the evidence given by witness Sweigler, and which was objected to, it is sufficient to say that the court subsequently, by instruc- . a , v v ^lon» excluded the objectionable features, and the plaintiff was not therefore harmed, as we think.

ApracücAe?judgright party!0 But beyond all this, the merits of this case are so manifestly and overwhelmingly in defendant’s favor that we should be justified in overlooking mere technical errors. A careful reading of all the testimony, as shown by the abstracts, forces the conclusion that plaintiff has no case. ' It establishes, without any substantial contradiction, that the assured Busse absolutely declined after the first year to make any further payments and abandoned his insurance. He voluntarily abandoned and forfeited his policy and so declared ' himself prior to his death.

The judgment will be affirmed.

All concur.