United States Casualty Company v. Kacer

• Decision Date: 18 June 1902
• Citation: 69 S.W. 370,169 Mo. 301
• Parties: UNITED STATES CASUALTY COMPANY v. KACER, Administrator of HARRY C. YOCUM, Interpleader, Appellant, and ZUMBALEN, Trustee of FLORENCE L. YOCUM, also Interpleader, Respondent
• Court: Missouri Supreme Court

69 S.W. 370

169 Mo. 301

UNITED STATES CASUALTY COMPANY v. KACER, Administrator of HARRY C. YOCUM, Interpleader, Appellant, and ZUMBALEN, Trustee of FLORENCE L. YOCUM, also Interpleader, Respondent

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

William F. Woerner for appellant.

(1) Where title to property depends upon the question of survivorship of persons shown to have perished in a common catastrophe, and further direct evidence is not obtainable the law will raise no presumptions of survivorship based on age, sex or condition, and the person claiming through survivorship must fail. It may also be safely conceded here that there is no technical legal presumption that all died simultaneously; but neither is there any presumption to the contrary. And it follows from the necessity of the case, and is consistently so held by the courts that where the fact of survivorship is unascertainable, property rights dependent on such survivorship are disposed of as if all had perished at the same instant. Whether we choose theoretically to call this a "rule of distribution" or a presumption of law, the practical result is precisely the same for the purposes of this case. It unavoidably results that the burden of proof rests upon that party who would fail if all claimants died co-instantaneously. Florence could take (so the policy provides) only "if surviving;" and "if not" (i. e., in case of either prior or simultaneous death), then appellant takes. Appellant is therefore entitled to the fund under the above principles of law. Fuller v. Linzee, 135 Mass. 468; Newell v Nichols, 75 N.Y. 89 (a leading case); Hildenbrandt v. Ames (Tex.), 66 S.W. 128; Johnson v. Merithew, 80 Maine 111; Balder v. Middeke, 92 Ill.App. 227; Russell v. Hallett, 23 Kans. 278; Wilbor v. Petitioner, 20 R. I. 126; Paden v. Briscoe, 81 Tex. 563; Railroad v. Miller, 2 Colo. 464 (statutory right to sue for death in accident caused by negligence); Ehle's Will, 73 Wis. 459; Wing v. Angrave, 8 H. L. 205; Woerner on Administration (2 Ed.), sec. 207, p. *446. (2) The rule of distribution above stated is in no way affected or influenced by the claim that Florence Yocum, as soon as the policy issued, had a present vested right to a future conditional enjoyment which could not be revoked so long as she lived. The question is not whether in her lifetime she had any vested rights, for, conceding she did, the point is, were they shown to have become consummate? A conditional right under an unearned and unmatured policy depending on her survivorship is a very different thing from an unconditional right to the proceeds. The former could not, the latter would, descend to her representative. Unless she is shown to have survived in fact, or is presumed to have survived in law, she never had even a momentary right or cause of action to recover the proceeds and, therefore, had nothing to transmit to her representative. By the terms of the policy the insured's representative takes in case of simultaneous death. The policy, like a will or benefit certificate, calls for the beneficiary only at the moment of his death, and, unless she is then alive to answer, she can not take. The question, therefore, is, not what Florence's interests prior to her death were, but what they were when insured died. 53 Cent. Law Jour. (Sept., 1901), pp. 188-189; Fuller v. Linzee, supra; Hildenbrandt v. Ames, supra. (3) The provision in the policy is purely in the alternative; the proceeds are to go to Florence only, "if surviving," and "if not," to appellant. She is therefore no more a "primary beneficiary" for the purpose of survivorship than is appellant. Indeed, all such words as "if surviving," when occurring in dispositive instruments, clearly create a condition precedent, which must be shown to have existed before any right to the fund can pass thereunder. 53 Cent. Law Jour., 189, col. 1; Woerner on Administration (2 Ed.), sec. 436, pp. *941, *942; Owen v. Eaton, 56 Mo.App. 567; Hildenbrandt v. Ames, supra. Moreover, where the bounty or insurance intended for the individual benefit of the appointee first named, can not enure to her personally, because of the prior or practically simultaneous death of the object of his bounty, the just tendency of the courts in arriving at the intention of the insured is always to keep the fund within the insured's estate or line of heirs, rather than give it to those of the deceased beneficiary, who have no claim on his bounty; more especially where his designation is to the beneficiary personally, designated by relationship, and is not expressed to be to her and her heirs or representatives. Hildenbrandt v. Ames, supra; Fuller v. Linzee, 135 Mass. 470; Lamberton v. Bogard, 46 Minn. 411; Bickerton v. Jaques, 28 Hun 120; Expressmen's Aid Soc. v. Lewis, 9 Mo.App. 415; Johnson v. Epps, 110 Ill. 560; 53 Cent. Law Jour., p. 189, col. 1; Ryan v. Rothweiler, 50 Ohio St. 595; Gambs v. Ins. Co., 50 Mo. 44. (4) Although it is not material in this case (because, as above shown, the question of vested interest or expectancy is irrelevant in determining the proper distribution of the fund), yet the proposition that Florence Yocum had a vested interest in the accident policy is one that is by no means a settled one, and if it were applicable in this case, could well be questioned. Such a policy does not look forward, like an ordinary life policy to an event certain in law -- death of the insured -- but is payable to her only in case insured is accidentally killed, in a certain manner, and within a certain time, and if she be then living; the main idea being the protection to the insured himself. Hoffman v. Indemnity Co., 56 Mo.App. 306; 53 Cent. Law Jour., p. 187; Tickton v. Fid. & Cas. Co., 87 F. 543; Ins. Co. v. Carroll, 86 Fed. (C. C. A.) 567; Lamberton v. Bogart, 46 Minn. 409; Tompkins v. Levy, 87 Ala. 269.

W. S. Anthony, Wm. H. Clopton, Joseph H. Zumbalen and Joseph S. Lowrie for respondent.

(1) Circumstantial evidence in the case establishes the fact that Mr. Yocum died before his daughter. Such evidence has controlled in similar cases. Pell v. Ball, Cheeve's Eq. (S. C.) 103; Smith v. Croom, 7 Fla. 147; Coye v. Leach, 8 Met. (Mass.) 373; Ehle's Estate, 73 Wis. 445; 24 Am. and Eng. Ency. of Law, p. 1027; 51 L. R. A. 863, note In re Wilbor. (2) The benefit certificate is payable to Florence L. Yocum. Any one claiming adverse to her interest must prove that she died before her father. Cowan v. Rogers, 73 Md. 403; Underwood v. Wing, 19 Beav. 459; s. c., 8 H. L. C. 183; Taylor v. Diplock, 2 Phill. 251; Newell v. Nichols, 12 Hun 604; s. c., 76 N.Y. 78; Coye v. Leach, 8 Met. (Mass.) 371; Johnson v. Merithew, 80 Maine 111; Wharton on Ev., sec. 1282; Best on Ev. (2 Ed.), p. 478; Lawson on Presumptive Ev., pp. 298, 302. (3) The interest of Florence Yocum was a vested one. Pingree v. Ins. Co., 144 Mass. 374; Bank v. Hume, 128 U.S. 206; Packard v. Ins. Co., 9 Mo.App. 469; Glans v. Gloeckler, 104 Ill. 573; Splawn v. Chew, 60 Tex. 532. (4) Conceding, for the sake of the argument, that the contract between the parties is correctly stated in that clause of the policy itself, whereby the company agrees to pay the amount stated, upon the death of Mr. Yocum, to Florence if surviving, if not, to his personal representative, we contend that immediately upon the issuance of the policy the right thereto became vested in Florence, and that the burden of proof rests upon the personal representative of Mr. Yocum to show that the title thus vested was divested by the failure to survive her father. 3 Am. and Eng. Ency. of Law (2 Ed.), p. 980-5; 28 Cent. Dig., col. 2391, sec. 1470; Ins. Co. v. Buxer (62 Ohio St.), 49 L. R. A. 737; Millard v. Brayton (177 Mass.), 52 L. R. A. 117. A vested right is not necessarily indefeasible, but may be defeated by conditions appearing in the policy. Such conditions, however, are necessarily conditions subsequent. Ins. Co. v. Palmer, 42 Conn. 60; Voss v. Ins. Co., 119 Mich. 161; Glenn v. Burns, 100 Tenn. 295; Bank v. Flynn (Neb.), 78 N.W. 505; Smith v. Ins. Co., 44 A. (N. H.) 531; Walsh v. Ins. Co., 133 N.Y. 409.

OPINION

MARSHALL, J.

This is a bill of interpleader, in equity, to determine the right to eight thousand dollars, proceeds of two policies of accident insurance, issued by the plaintiff upon the life of Harry C. Yocum, and by the company paid into court. The interpleaders represent, respectively, the legal representatives of Harry C. Yocum, the assured, and his daughter Florence, the primary beneficiary under the policies.

At the request of the appellant, the circuit court made a special finding of fact under section 685, Revised Statutes 1899, which, although not binding upon this court in this equity case, fairly, and for all the purposes of this case substantially, states the facts shown upon the trial, and it is therefore adopted by this court. It is as follows:

"On June 16, 1897, Harry C. Yocum, of St. Louis, a widower, made two applications, on the printed blanks furnished by the company, to the United States Casualty Company of New York for policies of accident insurance of five thousand dollars each. These applications were made to the agent of the company in St. Louis. These applications are in the usual form, containing information as the basis for the policy. They include a printed form as follows: '14. I desire the death benefit made payable' -- then follows a blank for the name of the beneficiary, relationship and postoffice address. This blank was filled in with the written words 'Miss Florence Yocum, daughter, Planter's House, St. Louis, Mo.' On these applications two several accident policies were issued on July 6, 1897, to Yocum, containing the...