Anglen v. Heimburger, WD
| Citation | 803 S.W.2d 109 |
| Decision Date | 26 December 1990 |
| Docket Number | No. WD,WD |
| Parties | Harry J. ANGLEN, Appellant, v. Elizabeth HEIMBURGER and Homer Whitaker, Jr., Respondents. 43035. |
| Court | Court of Appeal of Missouri (US) |
Mitchell J. Moore, Columbia, for appellant.
William Gay Mays, II, Columbia, for respondents.
Before BERREY, P.J., and FENNER and ULRICH, JJ.
This appeal is from an interpleader action wherein appellant, Harry J. Anglen, and respondents, Elizabeth Heimburger and Homer Whitaker, Jr., all claimed to be entitled to life insurance and pension benefits payable upon the death of Elizabeth Whitaker. Appellant is the former husband of Elizabeth Whitaker and respondents are her parents. The life insurance and pension benefits were payable by Principal Mutual Life Insurance Company (Principal Mutual). Principal Mutual paid the total amount in controversy, $32,392.70, into court and was dismissed from the cause.
Harry Anglen claimed to be entitled to the funds by virtue of his being the named beneficiary on both the life insurance and pension policies. Respondents claimed that their daughter had substantially complied with the requirements to change the beneficiary of her policies from Harry Anglen to them prior to her death. The trial court ruled in favor of respondents and Harry Anglen appeals.
In his first point on appeal, appellant argues that the trial court erred by allowing hearsay statements of the decedent, Elizabeth Whitaker, to be received in evidence. Respondents argue that Elizabeth Whitaker's hearsay statements were admissible under the provisions of § 491.010, RSMo 1986. 1
Section 491.010 replaced what was previously known as the deadman statute. Although the current version of the statute as adopted in 1985, proclaims in its title portion to be the abrogation of the deadman statute, this section is still commonly referred to as the deadman statute. Section 491.010 provides as follows:
1. No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity, by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility.
2. In any such suit, proceeding or probate matter, where one of the parties to the contract, transaction, occurrence or cause of action, or his agent in such matter, is dead or is shown to be incompetent, and the adverse party or his agent testifies with respect thereto, then any relevant statement or statements made by the deceased party or agent or by the incompetent prior to his incompetency, shall not be excluded as hearsay, provided that in trials before a jury, the trial judge shall first determine by voir dire examination out of the hearing of the jury that the declarant would have been a competent witness and that his alleged statement or statements would have been admissible in evidence if he were available to testify.
3. The provisions of this section shall apply to all trials commenced after September 28, 1985.
At the trial herein, Harry Anglen was present in person, but was not called as a witness. Anglen's counsel presented evidence on behalf of Anglen's claim to the funds in question. Anglen's evidence showed that at the time of Elizabeth Whitaker's death Harry Anglen was the beneficiary of record on her life insurance and her pension policies.
Counsel for respondents then presented evidence in support of their claim to the funds. At the beginning of the respondents' evidence, the deposition of Harry Anglen was offered. Appellant objected on the basis of relevancy, which objection was overruled. Appellant does not allege that the court erred by finding his deposition testimony relevant and he made no further objection to the admission of his deposition. The question arises as to whether the admission of appellant's deposition allowed hearsay statements of Elizabeth Whitaker to be admitted in evidence pursuant to the provisions of § 491.010.
Generally, a deposition is not to be read in evidence when the deponent is present, except as an admission against the deponent's interest or to impeach his testimony. Oventrop v. Bi-State Development Agency, 521 S.W.2d 488, 494 (Mo.App.1975); Rule 57.07. Appellant did not object to the introduction of his deposition on the basis of his presence in court. He also did not request that his deposition testimony not act as a waiver of any objection that he would otherwise have to hearsay statements of the decedent, Elizabeth Whitaker. Although appellant did not take the witness stand in person, he allowed his testimony to be received in evidence without appropriate objection.
The matter before the court was a proceeding in equity, interpleader, to determine the rights of rival claimants, appellant and respondents, to the life insurance and pension benefits payable upon the death of Elizabeth Whitaker. The insurance company from which the benefits were payable, Principal Mutual, had paid the funds into court. The proceeding became one to interpret who Elizabeth Whitaker intended to benefit upon her death. When appellant allowed his testimony to be received in evidence, without proper objection, the out of court statements of Elizabeth Whitaker, the deceased party to the transaction at issue, became admissible against him. § 491.010.2.
Appellant's first point is denied.
In his second point, appellant argues that the trial court erred by finding that respondents should be declared beneficiaries of Elizabeth Whitaker's life insurance and pension policies because the respondents did not prove by substantial and competent evidence that Elizabeth Whitaker had done all within her power to change beneficiaries prior to her death.
The standard of review in suits of an equitable nature is that the judgment of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo banc 1976).
Missouri recognizes the equitable doctrine of substantial compliance to carry out the intent of an insured where the insured has not strictly complied with the method provided by an insurance policy to change the beneficiary. The equitable doctrine of substantial compliance makes an incomplete or irregular change of beneficiary effective against the original beneficiary where the insured has done all within his power to exercise his right to change...
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