Baker v. Mardis, et al.

Decision Date03 January 1928
Docket NumberNo. 15965.,15965.
Citation1 S.W.2d 223
CourtMissouri Court of Appeals
PartiesGUSTA BAKER, BY JAMES BAKER, NEXT FRIEND, RESPONDENT, v. D.V. MARDIS; ET AL., APPELLANTS.<SMALL><SUP>*</SUP></SMALL>

Appeal from the Circuit Court of Linn County. Hon. J.E. Montgomery, Judge.

REVERSED AND REMANDED.

C.B. Burns for respondent.

H.K. West and Chas. K. Hart for appellants.

ARNOLD, J.

This is an action in damages based upon an alleged fraudulent change in the beneficiary of a life insurance policy. Plaintiff is a minor, and the suit was brought in her name by her uncle and next friend, James Baker. Defendants are D.V. Mardis who was cashier of the Farmers Bank of North Salem, Linn county, Missouri, and Robert Baker, grandfather of Gusta Baker. All the parties reside in the vicinity of North Salem.

It appears that on November 18, 1919, the Central States Life Insurance Company of St. Louis, Mo., issued a policy of insurance on the life of Benjamin H. Baker, in the sum of $1500, naming as beneficiary therein Ida Esther Baker, wife of the insured. It further appears the said policy was retained in the Farmers Bank of North Salem by defendant Mardis who was the agent of the insurance company in the procurement of the policy. The insured, Benjamin H. Baker with his wife Ida Esther, sometimes referred to in the record as Ida May Baker, and their three children (including plaintiff herein) lived in the home of defendant Robert Baker, father of the insured, and his wife Nan Baker, and had lived there for many years. The record shows that in the autumn of 1918, the influenza was prevalent in the vicinity of North Salem and Benj. H. Baker and his family became afflicted with that disease. Ida E. Baker died on November 25, and on the same day, one of the children succumbed to the disease and the two were buried in one casket. About the same time, another one of the children died, and on the 28th of November, Benjamin H. Baker himself died, leaving of this family only the child Gusta, plaintiff herein.

It is in evidence that the insurance policy contained the following provision:

"Beneficiary — Change of, —

"Provided the insured has reserved the right to change the beneficiary in the application herefor, the insured may at any time while this policy is in force, by written notice to the company at its home office, change the beneficiary, such change to take effect only upon endorsement of the same on the policy by the company, whereupon, all rights of the former beneficiary shall cease, provided that no such change of beneficiary shall be valid if the policy or any interest therein be assigned at the time of such change. If any beneficiary shall die before the insured, the interest of such beneficiary shall vest in the insured."

It appears that after the death of Ida E. Baker and while her remains and those of one child were in the home, a request for a change in the name of the beneficiary from Ida Esther Baker to Robert A. Baker, father of insured, was made in writing purporting to have been signed by the insured. The testimony shows this request was made by telephone communication to defendant Mardis; that Mardis prepared such request in letter form directed to the insurance company at St. Louis, Mo., and the name of the beneficiary was so changed and endorsed on the policy. The request for such change was sent by Mardis to the home of insured for his signature through a Doctor Nevins who was his attending physician.

At this point there is much conflict in the testimony. In behalf of defendants, it is to the effect that Dr. Nevins was accompanied to the home of Benj. H. Baker by James Nevins (son of the doctor) and one Leland McCollum. Dr. Nevins died before the suit was tried and did not testify; but James Nevins and McCollum testified that Dr. Nevins presented the paper to Benj. H. Baker for his signature and that insured, reclining in bed, signed the same while his hand was being guided by Dr. Nevins.

There was testimony in behalf of plaintiff contradictory of James Nevins and McCollum, to the effect that the said paper was never in the Baker home. There was further testimony bearing on this point to the effect that Benj. H. Baker was delirious and not of sane mind at the time of the alleged signing of said request. It is upon this point that this legal battle is waged.

It further appears that after the purported signing, the paper in question was retained by Dr. Nevins and by him delivered to Mardis at the bank. On the death of the insured and within forty-eight hours of the death of Ida E. Baker, according to plaintiff, proofs of loss were made and in due time the face of the policy, to-wit, $1500 was paid to defendant Robert Baker, by draft, and by him deposited to his own credit in the Bank of North Salem. Out of this amount Robert Baker testified he paid the doctor bills, the funeral expenses, put up monuments to insured's family and paid a note of $465 at the Farmers Bank of North Salem, on which he was obligated as surety for his son, James Baker, next friend herein, and used the remainder as his own. He further testified he made no report of the insurance collected to the probate court of Linn county.

The petition herein was not filed until May 22, 1926, and then was filed by James Baker, as next friend of plaintiff. It appears that at the time of the events complained of, James Baker was with the American Expeditionary Forces in France and did not learn of the matters in question until long after his return. Upon hearing the facts, this suit was instituted in the manner above indicated.

The petition alleges plaintiff is thirteen years of age and that she is the daughter of Benjamin H. and Ida May Baker who died on or about November 25 and November 28, 1918, respectively; that the death of plaintiff's mother preceded that of her father; that her father at his death had a policy of insurance on his life in the amount of $1500, the beneficiary named therein being her mother, Ida May Baker; that on the 26th or 27th of November, 1918, and after the death of plaintiff's mother, defendants, with unlawful, wicked and designed intent to cheat and defraud plaintiff, wrongfully, unlawfully, wickedly and designedly changed the name of the beneficiary from Ida May Baker to that of Robert Baker, defendant herein; that at the time of the change in the beneficiary, defendants well knew that Benj. H. Baker was unconscious, delirious and unable to know or discern any action whatever, and never knew that said beneficiary was changed at the time of his death; that the collaboration of both defendants was used wrongfully, unlawfully, wickedly and designedly to change the beneficiary in said policy and cheat and defraud this plaintiff out of the just sum of $1500; that said policy was kept by defendant Mardis on the pretext that Benj. H. Baker was indebted to the bank of North Salem, of which defendant Mardis is the cashier; that the said acts of defendants have become known only within the past three weeks, and known to plaintiff only within that period of time; that plaintiff is entitled to the proceeds of said insurance policy; that the same has been usurped, kept and controlled by defendants and each of them, acting jointly and in unison, for the sole purpose of defrauding plaintiff. Damages are sought in the sum of $1500.

Defendants' first amended answer admits the relationship of plaintiff, as pleaded in the petition, and that Benj. H. Baker and Ida May Baker are deceased and that plaintiff is now about the age of thirteen years; as to all other allegations in the petition, a general denial is pleaded. As affirmative defense the answer avers that plaintiff is a minor under the age of fourteen years and that she cannot maintain this action except through a duly appointed and qualified next friend; that James Baker, named in the petition as such next friend, has never been legally appointed and qualified as such next friend; that plaintiff, at the time, was residing with Robert Baker and that no notice of application for the appointment of next friend for plaintiff was given the said Robert Baker; that the court therefore is without jurisdiction to proceed to trial in the case; that no lawful appointment of next friend has been made herein, and that said James Baker has no legal right to maintain this action as next friend.

The cause was tried to a jury in the Brookfield division of the circuit court of Linn county, Mo., and resulted in a judgment for plaintiff in the sum of $1100. A motion for a new trial was overruled and defendants have appealed.

The first point urged by defendants is that James Baker was never legally appointed plaintiff's next friend for the purposes of this suit. The answer raised this point. The record shows that on October 4, 1926, the consent of James Baker so to act was filed in the circuit court, of Linn county, as follows:

"Comes now James Baker, and hereby agrees to act as next friend for Gusta Baker an infant, in the prosecution of this action.

                                  "(Signed) James Baker."
                

And on the same day the following order of the court was entered of record:

"Now on this fourth day of October, 1926, it being the first day of the regular October term of the circuit court of Linn county, Missouri, the court hereby appoints and approves James Baker as and for the next friend of Gusta Baker, an infant, in the prosecution of this action."

It is defendants' position that there was irregularity in the appointment of James Baker, as next friend, in that no request therefor was made by plaintiff; and no notice thereof was served on Robert Baker, in whose custody Gusta Baker was.

This objection is based upon the provisions of sections 1165, 1166, 1167 and 1168, Revised Statutes 1919. These sections provide:

(a) "Suits by infants may be commenced and prosecuted, either: First, by the guardian or curator of such infant; or, second, by a next friend appointed for him in such suit.

(b) "The appointment of...

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3 cases
  • Trolinger v. Cluff
    • United States
    • Idaho Supreme Court
    • April 21, 1936
    ... ... or defect. ( Trask v. Boise King Placers Co., 26 ... Idaho 290, 142 P. 1073; Baker v. Mardis, 221 Mo.App ... 1185, 1 S.W.2d 223, 226; Audsley v. Hale, 303 Mo ... 451, 261 S.W. 117 (122); Ingram v. Raiford, 174 Ark ... ...
  • Concerned Parents v. Caruthersville School Dist. 18
    • United States
    • Missouri Supreme Court
    • April 11, 1977
    ...State ex rel. Missouri Pac. R. R. v. Cox, 306 Mo. 27, 267 S.W. 382 (banc 1924); Jones v. Steele, 36 Mo. 324 (1865); Baker v. Mardis, 221 Mo.App. 1185, 1 S.W.2d 223 (1928). In any event, the adult plaintiffs are entitled to maintain the suit on their own behalf and the petition cannot be dis......
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    • United States
    • Kansas Court of Appeals
    • January 3, 1928

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