Bindley v. Metropolitan Life Ins. Co.

• Decision Date: 11 April 1960
• Docket Number: No. 47518,No. 1,47518,1
• Citation: Bindley v. Metropolitan Life Ins. Co., 335 S.W.2d 64 (Mo. 1960)
• Parties: Gladys L. BINDLEY, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 64

335 S.W.2d 64

Gladys L. BINDLEY, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, a Corporation, Respondent.

No. 47518.

Supreme Court of Missouri, Division No. 1.

April 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 6, 1960.

Martin J. O'Donnell and Paul E. Bindley, Kansas City, for appellant.

Henry G. Eager, Arthur M. Wright, Kansas City, for respondent. Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, of counsel.

HOLLINGSWORTH, Judge.

Plaintiff has appealed from a judgment of the Circuit Court of Jackson County (sitting in Kansas City) denying her motion to set aside an order dismissing her amended petition without prejudice, in which petition she had sought to recover from defendant the sum of $10,000 actual and $115,000 punitive damages. The asserted right of reversal of the judgment is predicated upon grounds that the other of dismissal without prejudice was void, in that it was entered without notice, contrary to the provisions of the due process clause of the Fourteenth Amendment of the Constitution of the United States.

Plaintiff's action was originally brought on January 6, 1943, subsequent to the death of her husband on August 26, 1939, on which latter date he was the holder of a policy of life insurance issued by defendant, Metropolitan Life Insurance Company, for the face amount of $1200, with the additional provision for payment of double indemnity benefits if his death should be caused by accidental means. The amended petition alleged an unlawful conspiracy entered into by Metropolitan, its agent and its physician (both of the latter being now dead and against whom the action has abated by reason of nonrevivor) for the purpose of cheating and defrauding plaintiff of her rights and property, to wit: (1) a cause of action for the wrongful death of her husband by means of the negligent administration of an allegedly excessive amount of ether by Metropolitan's physician and (2) the right to recover the double indemnity benefits provided in the aforesaid policy, together with penalties and attorneys' fees for vexatious refusal to pay the same. (The transcript reveals, however, that all policy benefits have been finally adjudged and paid.)

The record shows that on April 1, 1946, the trial court unqualifiedly dismissed the action for want of prosecution. It seems that thereafter, on March 26, 1947, the action was again filed and again, on motion of defendants, unqualifiedly dismissed. Upon appeal to this court, we held, under the facts shown, that the order of dismissal should have been without prejudice and, on July 12, 1948, reversed and remanded the cause. See Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387. The mandate was received and filed in the circuit court on September 30, 1948. The cause thereafter lay dormant on the docket of the Circuit Court of Jackson County for nearly eight years until May 21, 1956, when it was dismissed without prejudice for want of prosecution.

At the hearing of the instant motion to set aside the dismissal of May 21, 1956, Edwin G. Bush, deputy clerk of the circuit court en banc and the assignment division thereof (Division No. 1), called as a witness by plaintiff, identified certain 'Rules of the Circuit Court,' including Rule 14, to which we will revert. He testified that the provisions of Rule 14 were not followed in disposing of the instant case (and some 6000 other 'old cases') for the reason that the members of the court en banc, at an informal conference of which there was no record, decided 'they would clean up the docket of those old cases' and that 'Judge Hunter was good enough to take them on, so we made a blanket order assigning all [of these old cases] to Division No. 3, and whatever notices were given, were given after they come into Division 3 * * *.'

Pursuant to that arrangement, Division No. 1, on May 2, 1956, made the following order in the case: 'Now on this day it is ordered by the Court that this cause be and the same is hereby returned to the General Docket,' and notice thereof was published in The Daily Record on Friday, May 4, 1956.

On May 11, 1956, the following entry was made:

'Now on this day it is ordered by the court that the following numbered and entitled causes be and the same are hereby assigned to Division No. 3:

'* * *

519292 Gladys L. Bindley v. Metropolitan Life Insurance Company.

* * *'

After the cases referred to in the order of May 11, 1956, reached Division 3, The Daily Record (a newspaper officially designated for dissemination of reports of action taken in court proceedings, legal notices, etc.) published on Tuesday, May 15, 1956, and each day thereafter, excepting Sunday, May 20, 1956, through May 21, 1956 (a total of six publications), the following:

'NOTICE

ASSIGNMENT DIVISION

'The following cases are assigned to Div. No. 3 for trial on Monday, May 21, 1956, at 9:30 A.M. (Filed in 1950)

'* * *

545814 Opal Lockwood versus Clyde Lockwood same; Sol Yarowsky

519292 Gladys L. Bindley vs. Metropolitan Life Ins. damages; Martin O'Donnell

545827 James Edward Smith vs. Linnie Belle Smith divorce; Wm. Pevehouse

* * *'

Thereafter, on May 21, 1956, Division 3 made and entered its order of dismissal of the cause, reading as follows:

'Now on this day in each of the following numbered and entitled causes, the parties hereto having been duly notified fail to appear.

'It is therefore ordered and adjudged by the court that said causes be and the same are hereby dismissed without prejudice and that said defendants recover of plaintiff their costs and that execution issue therefor.

'* * *

519292 Gladys L. Bindley vs. Metropolitan Life Ins. Company

* * *'

The record shows that probably, in the regular course of business, the order of dismissal was published in The Daily Record following the date of its entry.

On January 21, 1959, two years and eight months after the cause was dismissed without prejudice, plaintiff filed the instant motion to set aside that order. Attached thereto were the affidavits of plaintiff and each of her counsel reciting they had no notice or knowledge of the placing of the cause on the peremptory call set in Division 3 on May 21, 1956. The motion alleged the provisions of Rule 14 of the circuit court (portions of which are hereinafter set forth) and the failure to comply therewith, and further:

'That this cause (the amended petition) was filed in the year 1947 while the alleged published notice referred to cases filed in 1950 and did not comply with the provision of Rule No. 14 requiring cases to be called for trial in their numerical order and that the cases described as the 'following cases' filed in 1950 began with cause No. 545,431 and ended with cause No. 546,270, while the above case is numbered 519,292 and was inserted between causes No. 545,814 and No. 545,827 so that when plaintiff's counsel read the said notice he was misled or rather he was advised thereby that cause No. 519,292 filed in 1947 was not included in the list of cases so published so that neither plaintiff nor her counsel had any notice that the above numbered cause was assigned to Division No. 3 for trial on Monday, May, 21, 1956.'

And further:

'The above numbered cause, to wit: 519,292 was not included in the said list but was omitted between Nos. 519,277 and 519,292 and that when plaintiff's counsel saw that it was not included in said list of cases he correctly assumed that it was still pending in Division No. 1 and when he saw the list published to have been assigned for trial on May 21, 1956, he was misled by the recital that said list of cases referred to cases that were filed in 1950, and not in 1947, so that the notice to him was never given.'

Rule 14 deals essentially with the active trial list. It provides, insofar as is deemed pertinent:

'The Presiding Judge shall, as deemed necessary, cause to be published in the Daily Record * * * and posted in the Assignment Division and in the office of the Circuit Clerk, a notice requiring parties or their attorneys to file with the Clerk of the Assignment Division on or before a date therein fixed, a separate listing card of each case between the numbers stated in such notice, which is at issue and trial of which is desired. * * * All cases triable to the Court shall be listed in accordance with published notification.

'A sufficient number of jury cases to be known as the active trial list, shall be published in The Daily Record * * * under the direction of the Presiding Judge in order that the attorneys engaged therein may have reasonable notice of the proximity of any case for trial. The Bar shall be charged with notice that cases may be added to such published list after The Daily Record * * * for any particular day [goes] to press and shall keep informed of such additions so made. Cases on the active trial list shall be tried in their regular numerical order except as may be necessary because of engaged counsel or other proper cause.'

Another section of an older Rule 14 provides:

'The Clerk of the Assignment Division, under the direction of the Presiding Judge, shall arrange settings of 'Weekly Trial Calendars' and enter thereon causes listed for trial in the numerical order of the filing of such causes and causes shall be assigned for trial, so far as practical, in the order in which they were filed with the Clerk of the Court, * * *.

'Notice of at least four weeks of settings on the trial calendars of jury cases shall be given to attorneys of record both by publication in The Daily Record and by written notice mailed by the Clerk of the Assignment Division on a form prescribed by the Court, * * *.'

Plaintiff's essential contention is that the court erred in overruling her motion to set aside the judgment of May 21, 1956, dismissing her action without prejudice, for the reason:

'That the only alleged notice of trial was newspaper notice which neither plaintiff nor her counsel ever...