Blood v. Sovereign Camp W. O. W.

• Decision Date: 22 June 1909
• Parties: BLOOD v. SOVEREIGN CAMP W. O. W. et al.
• Court: Missouri Court of Appeals

120 S.W. 700

140 Mo. App. 526

BLOOD v. SOVEREIGN CAMP W. O. W. et al.

St. Louis Court of Appeals. Missouri.

June 22, 1909.

Rehearing Denied July 6, 1909.

1. ACTION (§ 25)—NATURE OF PROCEEDING— LEGAL OR EQUITABLE—ACTION ON BENEFIT CERTIFICATE.

Where, in an action on a benefit certificate, the insurance company shows that the beneficiary has been changed, and tenders the money into court, and the new beneficiary interpleads for the fund, and takes the affirmative of the issue, the proceeding is one in equity.

2. EQUITY (§ 380)—SUBMISSION OF ISSUES TO JURY—INSTRUCTIONS.

Where, in an equity suit, the court submits the issue of fact to a jury, requested instructions need not be given.

3. EQUITY (§ 381) — JURY TRIAL — CONCLUSIVENESS OF VERDICT.

Where, in an equity suit the issue of fact is submitted to a jury, the court may either adopt or reject their verdict.

4. INSURANCE (§ 819)—BENEFIT CERTIFICATE —CHANGE OF BENEFICIARIES—SUFFICIENCY OF EVIDENCE.

In an action on a benefit certificate by the beneficiary named in the certificate, in which a person claiming as a beneficiary interpleads for the amount of insurance paid into court, evidence held to sustain a finding that the change of beneficiaries was made when testator was not in possession of all his faculties, and procured through undue influence of the beneficiary.

5. PLEADING (§ 291)—EXECUTION OF WRITTEN INSTRUMENTS—DENIAL UNDER OATH.

Where, in a suit on a benefit certificate by, the named beneficiary, an instrument executed by insured changing the beneficiary is pleaded, the execution of such instrument need not be denied under oath under Rev. St. 1899, § 746 (Ann. St. 1906, p. 731), requiring the party charged with the execution of a document to deny its execution under oath.

6. PLEADING (§ 20)—ALTERNATIVE ALLEGATIONS.

Under Rev. St. 1899, § 626 (Ann. St. 1906, p. 650), providing that either party may allege any fact in the alternative, declaring his belief in the one or the other and his ignorance whether it be one or the other, it is proper in an action on a benefit certificate in which an instrument is shown changing the beneficiary to aver that the instrument was never executed by the insured, or that it was executed by him under undue influence.

7. PLEADING (§ 369)—ALTERNATIVE ALLEGATIONS—ELECTION.

Where, in a suit on a benefit certificate, the petition is in the alternative as to the execution of an instrument changing the beneficiary, a motion to elect comes too late after the answer has been on file for some time, and the case is called for trial.

8. WITNESSES (§ 144)—COMPETENCY—TRANSACTIONS WITH DECEDENT.

Under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), providing that, where one of the original parties to a contract or cause of action is dead, the other party is not a competent witness, a person named as a beneficiary in an instrument changing beneficiaries, purported to be executed by insured, is not a competent witness in a suit involving the validity of such instrument.

9. APPEAL AND ERROR (§ 1009)—REVIEW— EQUITY—CONCLUSIVENESS OF FINDING.

Though in an equity case the finding of a jury and judge are not binding on the appellate court, it is always persuasive.

Appeal from Circuit Court, Greene County; Geo. E. Pepperdine, Special Judge.

Action on a benefit certificate by Alice M. Blood against the Sovereign Camp, Woodmen of the World, in which defendant interpleaded Ira A. Blood. From a judgment for plaintiff, Ira A. Blood appeals. Affirmed.

The plaintiff, Alice M. Blood, filed her petition in the circuit court of Greene county against the Sovereign Camp of the Woodmen of the World, in which petition she avers that on the 12th of January, 1895, the Sovereign Camp issued to Charles C. Blood, then a resident of Springfield, in this state, its beneficiary certificate for the sum of $2,000, the benefit payable at his death to Alice M. Blood, plaintiff herein, designated in said certificate as his wife, averring that Charles C. Blood during his lifetime had paid up all assessments and dues chargeable against him, and, being in good standing, died on the 16th of April, 1906, the certificate then being in full force; that proofs of the death of Charles C. Blood had been properly executed and forwarded to the officers of the Sovereign Camp; that thereby the sum of $2,000 became due to plaintiff, but that the same had not been paid, although demanded. Judgment is prayed for the $2,000 and costs. The defendant Sovereign Camp appeared and answered, admitting all the allegations in the petition, except that the certificate set out by plaintiff is a true copy of the benefit certificate held by Charles C. Blood at the time of his death. Setting up the right of a member under the by-laws of the organization to change the designation of the beneficiary, the answer of the Sovereign Camp avers: That on the 6th of March, 1906, Charles C. Blood indorsed a request upon the back of the certificate that it be changed from his wife, Alice M. Blood, to his brother, Ira A. Blood, whereupon a new certificate was issued to him by the Sovereign Camp, in which new certificate Ira A. Blood was designated as beneficiary, the new certificate being issued on the 22d of March, 1906. That the Sovereign Camp had received proper proofs of the death of Charles C. Blood as having occurred on the 16th of April, 1906, and were about to approve the evidence of death and pay the $2,000 to Ira A. Blood as the beneficiary named in the last-mentioned beneficiary certificate, when they received notice from plaintiff contesting the validity of the change of beneficiary, averring that, when the change was made, Charles C. Blood was non compos mentis, and that the change was made under the undue influence of his brother, and was void. Averring its liability under the certificate, and its willingness to pay the amount to whoever is entitled to it, the Sovereign Camp tenders the money into court, and asks that the plaintiff and Ira A. Blood be required to interplead. The court directed the $2,000 to be deposited with the clerk, and discharged defendant Sovereign Camp, with its costs. It was also ordered that Ira A. Blood be served with process, directing him to appear and interplead for the fund. On June 11, 1907, Ira A. Blood appeared and filed his interplea, claiming the money, averring he is the brother of the deceased, Charles C. Blood, and that the certificate of membership was issued to Charles C. Blood on the 12th of January, 1905, by which the $2,000 was payable at the death of Charles to his wife, Alice M. Blood; that, in pursuance of the power vested in him so to do. Charles C. Blood on the 6th of March, 1906, had changed the designation of his beneficiary, surrendered his old certificate, and had a new one issued to him for the same amount, payable to Ira A. Blood, therein declared and designated as his brother, and that thereby Charles had canceled the former certificate; that Charles died on the 16th of April, 1906: that Ira A. Blood is his brother, and that he is entitled to the $2,000, which the Sovereign Camp owes him by virtue of the certificate, and, denying each and every other allegation in the plaintiff's petition, prays judgment for the sum of $2,000 and for costs.

On June 21, 1907, plaintiff answered this plea, in which answer she sets up: That after the issue and delivery of the certificate to Charles C. Blood, in which she was designated as the beneficiary, Charles C. Blood, by reason of an incurable ailment known as Bright's disease, and other diseases, not only became infirm and helpless in body, but his mind was so enfeebled and impaired as to render him unfit for the transaction of any business and wholly incapable of making a valid change, transfer, or assignment of said certificate, and that he remained so until the day of his death. That, while he was in this feeble and infirm state of mind and body, the defendant and certain other parties named became inmates of the household of Charles C. Blood, and to the exclusion of plaintiff, his wife, and against her win, took full charge and control of the business affairs and of the nursing of said Charles C. Blood, and that Ira A. Blood, gaining the confidence and trust of his brother, fraudulently combined and conspired with the parties named to deprive plaintiff of her rights as the wife of Charles C. Blood, and to cheat and defraud her of all rights in his property, among other things to deprive her of the benefits of the certificate so issued on the 12th of January, 1895, in her favor, and that, while he was in the enfeebled condition aforesaid, they had induced Charles C. Blood, either through fraud, misrepresentation, covin, deceit, and undue influence of said Ira A. Blood and his co-conspirators, to sign a paper purporting to be an indorsement of the change of beneficiary from plaintiff to and in favor of Ira, or, in the alternative, that the pretended signature of Charles C. Blood to the change of beneficiary is not in fact and in truth his signature, was not signed by him or any one for him or any one thereto authorized by him, but was affixed by some person unknown to plaintiff, and in furtherance of the common design to wrong, cheat, and defraud her. Wherefore plaintiff avers that on this state of facts either said Charles C. Blood was unduly influenced and through fraud, misrepresentation, covin, and deceit induced to sign the paper, or that the pretended signature is not the signature of said Charles C. Blood, the plaintiff averring that she is ignorant whether it is one or the other, but declaring that the alleged new certificate and change of beneficiary is invalid and void and of no effect, wherefore she asks judgment.

By stipulation of all the parties the Honorable Geo. E. Pepperdine was selected to act as special judge to try the case; this being done to avoid a change of venue, the circuit judge having disqualified himself. The case was called for trial before Mr....