Beck v. Security Ben. Ass'n

• Decision Date: 29 May 1939
• Docket Number: No. 19296.,19296.
• Citation: Beck v. Security Ben. Ass'n, 129 S.W.2d 1073 (Mo. App. 1939)
• Parties: BECK v. SECURITY BEN. ASS'N.
• Court: Missouri Court of Appeals

129 S.W.2d 1073

BECK v. SECURITY BEN. ASS'N.

No. 19296.

Kansas City Court of Appeals. Missouri.

May 29, 1939.

Rehearing Denied June 19, 1939.

Appeal from Circuit Court, Jackson County; Emory H. Wright, Judge.

"Not to be published in State Reports."

Action by Crystal D. Beck, née Wilson, against the Security Benefit Association on an alleged policy of life insurance. Judgment for plaintiff, and defendant appeals.

Appeal dismissed.

A. W. Fulton, of Chicago, Ill., Harry L. Ladbury, of Topeka, Kan., and Edw. E. Naber, of Kansas City, for appellant.

Goodwin Creason and Franklin D. Glore, both of Kansas City, for respondent.

SHAIN, Presiding Judge.

The plaintiff's petition in this case seeks to recover on an alleged policy of insurance issued by defendant on the life of one Laura A. Wilson wherein the plaintiff herein is alleged as beneficiary. The amount of insurance is alleged as two thousand dollars. Plaintiff further alleges elements of vexatious delay and asks judgment for face value of policy, interest, penalty and attorney fees.

Plaintiff's petition appears to be in due form and alleges death of insured and due performance on part of plaintiff of all conditions specified as requisite to recovery.

Defendant joins issue by general denial and asserts that no policy of insurance was issued but admits the issuance of a benefit certificate. Defendant disclaims any knowledge of the death of insured and makes specific denial as to all elements of vexatious delay.

Defendant alleges itself to be a mutual company organized under the laws of Kansas and licensed to do business in Missouri. Defendant further alleges by-laws and contitution of the society as part of the contract and also alleges the application for membership as part of contract.

Defendant in its answer sets out in detail the application of the insured and also provisions of the by-laws and constitution and pleads the law of Kansas as applying to the provisions of the contract.

Plaintiff makes reply by general denial and affirmative allegation of waiver and estoppel.

Trial was by jury. The court ruled out consideration of vexatious delay and submitted case on face value of policy and interest. The verdict of the jury was for the face value of the policy $2000.00, no interest being allowed. Judgment was entered in accordance with verdict and defendant appeals. We will continue to refer to respondent as plaintiff and to appellant as defendant.

Opinion.

At the outset, we are confronted with a motion filed by plaintiff to dismiss the appeal on alleged grounds. First, failure of defendant to comply with rule 16 of this court requiring a clear and concise statement without argument, reference to issues of law or repetition of testimony. Second, failure to follow the rule 17 of this court as to assignment of errors.

The first three paragraphs of defendant's statement appear as follows:

"This action to recover upon an insurance contract was commenced August 23, 1937, by plaintiff filing a verified petition in the Circuit Court of Jackson County, Missouri, at Kansas City. Summons was issued the same day and executed August 24, 1937. On Novemer 29, 1937, defendant filed its verified Second Amended Answer (R. 12) and on December 15, 1937, plaintiff filed her Reply.

"The cause was tried to a jury on December 27 and 28, 1937 (R. 61, 165) resulting in a verdict and judgment for plaintiff for $2000.00 (R. 223, 58). On December 29, 1937, defendant filed its Motions for New Trial (R. 223) and in Arrest of Judgment (R. 226). Thereafter on February 2, 1938, both of said motions were overruled (R. 227, 228).

"On February 18, 1938, defendant filed application and affidavit for appeal (R. 228), which, on the same day, was sustained and appeal granted to this Court."

Following above is the "Petition" and under this head, the contents of the plaintiff's petition are described in two paragraphs. Following this is entitled the "Second Amended Answer." Under this head the contents of the answer are described in approximately three printed pages. Thereafter, under the head of "Reply" is an abridged statement of the contents of the reply.

Thereafter, the statement under various heads, "Plaintiff's Evidence", "Defendant's Evidence", "Plaintiff's Evidence in Rebuttal", gives in narrative form the writer's conclusion as to what the testimony of designated witnesses "tended to show". This statement of the writer's conclusions as to what the testimony "tended to show" covers eight pages of printed matter.

From the statement the court is informed in a general way of events that happened in the trial court and as to the conclusion of counsel of what the evidence tended to show. However, there is but slight, if any, indication as to...