Aetna Life Ins. Co. v. Phillips
Decision Date | 21 March 1934 |
Docket Number | No. 912.,912. |
Citation | 69 F.2d 901 |
Parties | ?TNA LIFE INS. CO. v. PHILLIPS. |
Court | U.S. Court of Appeals — Tenth Circuit |
W. E. Green, of Tulsa, Okl. (J. C. Farmer and Gerald Fitz-Gerald, both of Tulsa, Okl., on the brief), for appellant.
Chas. B. Rogers, of Tulsa, Okl. (E. O. Patterson, of Tulsa, Okl., on the brief), for appellee.
Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.
Nancy Potter Phillips brought this action against the Insurance Company to recover upon a policy of life insurance. The petition alleged that on March 21, 1921, Jesse M. Phillips made application to the Insurance Company for a seven-year term policy of life insurance for $15,000 payable to plaintiff, his wife, as sole beneficiary; that pursuant to such application the Insurance Company issued to Jesse M. Phillips its policy No. 281,024 for $15,000, payable to plaintiff upon the death of insured; that on April 8, 1928, the Insurance Company issued to insured, in lieu of policy 281,024, a converted modified-life policy No. N 744,237 for $15,000; that insured died on November 19, 1931; that policy 744,237 was then in full force and effect, and that due proof of death was made in accordance with the requirements thereof; that $15,000 was payable thereunder to plaintiff as sole beneficiary, and that the Insurance Company had failed and refused to pay the same.
There was attached to the petition copies of the original application, the application for conversion, and policy 744,237. The portions thereof here material are these:
The first amended answer of the Insurance Company alleged that on March 21, 1921, insured made an application to the Insurance Company for two policies of term life insurance, one for $15,000 and one for $2,000; that two seven-year term policies were issued on the life of insured, one for $2,000 naming H. B. Alexander as beneficiary, and one numbered 281,024 for $15,000 designating plaintiff as beneficiary; that a copy of such application was attached to each of such policies; that the $2,000 policy lapsed for non-payment of premiums; that prior to the expiration of policy 281,024, and upon the written application of the insured, the Insurance Company changed the beneficiary named therein from plaintiff to the insured's estate; that thereafter such term policy was converted into modified life policy 744,237, wherein the estate of the insured was designated as beneficiary, and that a copy of the original application was attached to policy 744,237.
It further alleged
Such answer further alleged that the Insurance Company received a written assignment of policy 744,237 wherein insured assigned all of his interest therein to Alexander, and noted such assignment on its records; that after the death of the insured, Alexander submitted proof of death and filed his claim under such policy, and such claim was paid and the policy surrendered.
The answer denied that plaintiff had any right under policy 744,237 at the date of the death of the insured, and denied that it owed plaintiff $15,000 or any other amount on such policy.
The answer also alleged certain other facts by way of estoppel.
Plaintiff moved to strike the above quoted portions of the answer and demurred to the remainder thereof. The court entered an order sustaining such motion and demurrer, and gave the Insurance Company seven days in which to file a second amended answer. Within that time the Insurance Company filed a second amended answer. It repleaded the allegations of the first answer which had been stricken, adding thereto that the phrase, "Subject to change only on request of beneficiary and myself," was written into the application in red ink.
The second amended answer greatly amplified the plea of estoppel. It alleged that long prior to the expiration of policy 281,024 plaintiff had knowledge that the insured had changed the beneficiary therein to his estate; that plaintiff, at the time policy 744,237 was issued, had knowledge of the conversion of policy 281,024. for policy 744,237, and the designation of the estate of insured as the beneficiary under the latter policy; that prior to the death of the insured plaintiff had knowledge that the insured had assigned such policies to Alexander; that after the death of insured plaintiff asserted that insured's indebtedness to Alexander was approximately $7,000 and demanded that Alexander account to her for the balance of the monies paid him under policy 744,237, and that because of such facts plaintiff had acquiesced in such changes in such policies, the assignments thereof and the payment to Alexander, and was estopped to assert her alleged cause of action.
Thereafter plaintiff moved to strike the second amended answer from the files on the ground that it repleaded matters stricken from the original answer, and matters to which the demurrer had been sustained.
The court struck said second amended answer from the files "particularly for the reason that said second amended answer of defendant" did "not state a defense to plaintiff's petition." Exceptions were duly reserved to the sustaining of the demurrer and the two motions to strike.
After the court had sustained the second motion to strike, the Insurance Company refused to plead further. The plaintiff thereupon moved for judgment on the pleadings. The court sustained this motion and gave judgment for $15,000. The Insurance Company has appealed.
Counsel for the plaintiff contend that the Insurance Company waived any error committed by the court in sustaining the first motion to strike and the demurrer when it pleaded further and filed its second amended answer, and that there was no error in striking the second amended answer, because it repleaded matters theretofore stricken or held insufficient on demurrer.
Where a demurrer has been sustained to a party's pleading and he elects to plead over, he waives any error in the ruling on the demurrer.1
The rule has its basis in the fact that the amended pleading supersedes and takes the place of the original pleading.2
Where however an amended or supplemental pleading is stricken from the files, the original pleading is restored.3
Therefore, if we consider the second amended answer as stricken at the time the Insurance Company elected not to further plead, the original was restored and the Insurance Company must be regarded as having stood thereon.
However, the ruling of the trial court clearly indicates that it treated the motion to strike the second amended answer as a demurrer thereto. The order recited that the answer was stricken principally because it did not state a defense to plaintiff's petition. In State v. American Surety Co., 78 Mont. 504, 255 P. 1063, it was held that a motion to strike...
To continue reading
Request your trial-
National Labor Rel. Bd. v. Atlanta Metallic Casket Co.
...1 Wall. 25, 17 L.Ed. 604; Brown Sheet Iron & Steel Co. v. Maple Leaf Oil & R. Co., 8 Cir., 68 F.2d 787, 788; Aetna Life Ins. Co. v. Phillips, 10 Cir., 69 F.2d 901, 903; Grubbs v. Smith, 6 Cir., 86 F.2d 275, certiorari denied 300 U.S. 658, 57 S.Ct. 437, 81 L.Ed. 867; U. S. v. Gentry, 8 Cir.,......
-
Davis v. Modern Indus. Bank
...of an assignee where the right to change the beneficiary and to assign the policy is reserved. AEtna Life Ins. Co. v. Phillips, 10 Cir., 69 F.2d 901;Matter of Hogan, 7 Cir., 194 F. 846;Malone v. Cohn, 5 Cir., 236 F. 882;Rawls v. Penn. Mut. Life Ins. Co., 5 Cir., 253 F. 725 (although there w......
-
Leggett v. Montgomery Ward & Co.
...complaint in that form, plaintiff completely waived any error in the ruling relating to the original complaint. Aetna Life Insurance Co. v. Phillips, 10 Cir., 69 F.2d 901. The motion to dismiss the action for failure of the amended complaint to state a cause of action for which relief could......
-
Loux v. Rhay
...to the original complaint. Grubbs v. Smith, 86 F.2d 275 (6 Cir.) cert. den. 300 U.S. 658, 57 S.Ct. 437, 81 L.Ed. 867; Aetna Life Ins. Co. v. Phillips, 69 F.2d 901 (CA 10). The appeal is from the judgment dismissing the action. The dismissal was for failure to state a claim upon which relief......