Badeau v. National Life & Acc. Ins. Co.

• Decision Date: 01 October 1957
• Docket Number: No. 22559,22559
• Citation: 305 S.W.2d 876
• Court: Missouri Court of Appeals
• Parties: Arthur L. BADEAU, Appellant, v. The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, a corporation, Respondent.

Page 876

305 S.W.2d 876

Arthur L. BADEAU, Appellant, v. The NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, a

corporation, Respondent.

No. 22559.

Kansas City Court of Appeals, Missouri.

Oct. 1, 1957.

Southall & Southall, Kansas City, for appellant.

Paul Van Osdol, Jr., Kansas City, for respondent.

HUNTER, Judge.

This is an appeal by plaintiff-appellant from the judgment of the trial court which taxed the costs of the case against the fund deposited in court by a defendant as an interpleader action.

On January 25, 1943, defendant-respondent, The National Life and Accident Insurance Company, issued its policy of life insurance in the amount of $260 to Will Turner, the insured, with his daughter, Rosetta Turner, designated therein as beneficiary. Will Turner died August 10, 1955, while the policy was in force. On October 19, 1955, Arthur L. Badeau, plaintiff-appellant herein, a funeral director, obtained an ex parte order from the Probate Court denying letters of administration upon the estate of Will Turner and awarding the policy to plaintiff, as a creditor of deceased, for the purposes stated therein.

Plaintiff brought suit in the Magistrate's Court on the policy in the sum of $260 against the defendant insurance company. Defendant filed its answer in the form of a general denial in which it also alleged that the named beneficiary of the policy, Rosetta Turner, was believed by defendant to be presently alive, and that, therefore, plaintiff, Arthur Badeau had no legal claim to the proceeds of the policy. Thereafter, defendant filed a motion to transfer the cause to the circuit court to permit equitable defenses to be established. By agreement of parties the court sustained this motion, and the cause was transferred.

In the circuit court on February 11, 1956, defendant filed its motion to add as a third-party defendant the named beneficiary, Rosetta Turner, alleging that under the terms of the policy its assignment was specifically prohibited and therefore in the event of the death of the assured while the policy was in effect, Rosetta Turner was the named beneficiary and would be entitled to the proceeds thereof, and is a necessary party; that she had absented herself from her usual place of abode in the state so that personal service could not be obtained upon her and since her address is unknown that an order for service by publication was necessary. With leave of court defendant filed its answer in which it called to the court's attention the policy by its terms was not assignable; that Rosetta Turner was the named beneficiary therein and believed by defendant to be alive and thus entitled to the proceeds of the policy; that, therefore, plaintiff has no legal claim to the policy or its proceeds; and that in order to enable the court to fully determine all the rights of the various parties in and to the policy the defendant interpleaded and tendered the policy and its proceeds into court and requested the court to make full and final determination of the rights of all the parties in and to the policy and its proceeds; and that defendant be dismissed with its costs. Also with leave of court defendant filed its third-party petition against third-party defendant, Rosetta Turner, praying, among other things, that the court require strict proof of all the allegations contained in plaintiff's petition, and that after hearing all the evidence, determine who is entitled to the proceeds of the policy which it had tendered into court; that defendant be relieved of further liability under the policy and that the costs be assessed against the proceeds of the policy.

Service by publication was made on third-party defendant. On June 28, 1956, the cause came on for trial before the court. Third-party defendant, Rosetta Turner, did not appear. Defendant Insurance Company appeared by its counsel and tendered into court $260, the face value of the policy and admitted the death of the assured. Plaintiff adduced some evidence, mostly hearsay in nature, to the general effect that the named beneficiary, Rosetta Turner, had left her home with her father in Kansas City, Missouri, in 1945 or 1946, and had probably gone back to the State of Oklahoma where she was born. She had not returned to Missouri so far as the two witnesses knew. See Presumption of Death, Section 490.620 RSMo 1949, V.A.M.S. Defendant offered no evidence but its counsel did cross-examine one of plaintiff's witnesses and otherwise participated in the trial.

The trial court found that Rosetta Turner was deceased and that plaintiff was entitled to $260, the full amount of the policy which defendant had paid into court; ordered that defendant be fully discharged of any liability arising under the policy and that after paying from the proceeds of the policy all the costs of this proceeding the balance was to be paid to plaintiff. Thereafter, plaintiff filed and presented his motion to retax the costs against defendant. The trial court overruled this motion. The motion was timely filed, and its content is such that we treat it as a motion to amend under Section 510.310 RSMo 1949, V.A.M.S. Cf. State ex rel. State Highway Commission of Mo. v. Graeler, Mo.App., 303 S.W.2d 944; Christian County v. Dye, Mo.Sup., 132 S.W.2d 1018; Supreme Court Rule 3.23, 42 V.A.M.S.

We express no opinion in this case as to the validity of the mentioned probate court order since counsel has neither raised nor preserved any such question.

On this appeal plaintiff's sole contention is that the trial court erred in ordering the costs of the case, and particularly the costs of service by publication on third-party defendant, to be paid out of the interpleaded fund. See Graden v. Patrick, Mo.App., 162 S.W.2d 287, 289. We limit ourselves to the consideration of that question.

It has long been the practice to allow a stakeholder, who has made out a case for interpleader, his costs of the interpleader suit out of the fund deposited in court. Heinrich v. South Side National Bank in St. Louis, en Banc, 363 Mo. 220, 250 S.W.2d 345; Concordia Fire Insurance Co. v. Alexander, Mo.App., 50 S.W.2d 687; Oldham v. McKay, 235 Mo.App. 348, 138 S.W.2d 735; Eves v. Sovereign Camp, W.O.W., 153 Mo.App. 247, 133 S.W. 657; 30 Am.Jur., ...