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) 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 . ( Certiorari denied.) (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., 324 Mo. 1097 , 26 S.W.2d 929 ; King v. Mauer, 315 Mo. 318 , 286 S.W. 100 ; Phillips v. Wilson, 298 Mo. 186 , 250 S.W. 408 ; 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. Co., 224 Mo. App. 1 , 22 S.W.2d 654 ; Kapros v.
Pierce Oil Co., 324 Mo. 992 , 25 S.W.2d 777 ; 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. (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 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) 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. Dulaney, 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, repel or counteract this evidence offered by the respondent to maintain his case. 64 C.J., 152; Rose v. St. Louis-San Francisco R. Co., 315 Mo. 1181 , 289 S.W. 913 ; Hite v. St. Joseph G.I.R. Co., 225 S.W. 916; Seibel-Suessdorf Copper Iron Mfg. Co. v. Manufacturer's Ry. Co., 230 Mo. 59 , 130 S.W. 288; Dean v. Wabash R. Co., 229 Mo. 215 , 129 S.W. 953; Burgess v. Garvin, 219 Mo. App. 162 , 272 S.W. 108 ; 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, 185 Mo. App. 43 , 171 S.W. 979; (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 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) (a) The disability of the insured during the period sued for
is a question of fact. New York Life Ins. Co. v. Stoner (Jan. 10, 1938, Federal Reporter), 92 F.2d 845 . (b) Appellant had a right to show, if it could, by evidence that respondent had recovered from his disability during the period sued for and that he was then able to perform some of the duties of his occupation. Paul v. Missouri State Life Insurance Company, 52 S.W.2d 437 . It was error to refuse to permit appellant to make this proof. (13) The due process clause of the Federal Constitution applies to annul 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; Silverthorne 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; Bonvier'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 (Ky.), 298 S.W. 1080 ; Heald v. Aetna Life Ins. Co. (Mo. App.), 90 S.W.2d 797, l.c. 800 and 801; Parks v. Maryland Casualty Co. (Mo. App.), 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 adjudicata, 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. 643, 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; Lohmyer 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., 214 Mo. 685 , 689, 113 S.W. 1108; 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., 181 Mo. App. 302 , 311, 168 S.W. 818; 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. '29; Joy v. Cale, 124 Mo. App. 569 , 575, 102 S.W. 30; Bretzfelder v. Waddle, 122 Mo., l.c. 702.