Bolin v. Farmers Alliance Mut. Ins. Co., 59647

• Decision Date: 10 May 1977
• Docket Number: No. 59647,59647
• Citation: 549 S.W.2d 886
• Parties: Albert J. BOLIN et al., Appellants, v. FARMERS ALLIANCE MUTUAL INSURANCE CO., a corporation, Respondent.
• Court: Missouri Supreme Court

Page 886

549 S.W.2d 886

Albert J. BOLIN et al., Appellants, v. FARMERS ALLIANCE MUTUAL INSURANCE CO., a corporation, Respondent.

No. 59647.

Supreme Court of Missouri, En Banc.

May 10, 1977.

Paul McGhee, McGhee & McGhee, Dexter, for appellants.

Robert A. Wulff, St. Louis, for respondent.

FINCH, Judge.

This is a suit on a trip accidental death insurance policy issued on the life of Alma Mae Bolin on May 31, 1974. Following the accidental death of the insured on June 1, 1974, suit was brought by the heirs at law and the personal representative of Alma Mae Bolin (hereinafter plaintiffs) against Farmers Alliance Mutual Insurance Co., the company which issued the policy, and Marilyn Abernathy, a friend of the insured who is designated in the policy as beneficiary.

The trial court rendered summary judgment in favor of Farmers on March 21, 1975. On March 25, 1975, the court sustained without prejudice Marilyn Abernathy's motion to dismiss as to her. Subsequently, on April 21, 1975, plaintiffs filed their notice of appeal from the summary judgment entered on March 21, 1975. The court of appeals, Springfield district, dismissed that appeal on the basis that said judgment, not having made any finding or disposition of the case against defendant Abernathy, did not finally dispose of all the parties and issues and was not a final judgment from which an appeal would lie. On application, we ordered the case transferred and we now decide it as though here on direct appeal. Mo.Const. art. V, § 10.

Plaintiffs first sought suit against only Farmers. It alleged (1) issuance by Farmers of a policy of insurance whereby it insured the life of Alma Mae Bolin for $50,000 if through accidental means she received injuries which resulted in her death, (2) the death of Alma Mae Bolin from such causes during the term of the policy, (3) that plaintiffs were entitled as next of kin and personal representative to the proceeds of the policy and (4) that payment had not been made although proof of loss had been furnished.

In answers to requests for admissions, plaintiffs admitted that the policy sued upon listed Marilyn Abernathy as beneficiary. ¹ Farmers then filed a motion for summary judgment, alleging that the beneficiary listed in the policy was Marilyn Abernathy, the effect of which is that under the policy provision relating to the payment of claims, plaintiffs are not entitled to the proceeds of the policy and are precluded from maintaining this cause of action. ²

Before the motion for summary judgment was acted upon, plaintiffs obtained leave to and actually filed an amended petition wherein Marilyn Abernathy was added as an additional defendant. The amended petition, in addition to allegations substantially the same as those in the original petition, alleged that Marilyn Abernathy had no insurable interest in the life of Alma Mae Bolin, that her designation as beneficiary was not effective and that she was not entitled to the proceeds of the policy. It stated further that Farmers knew when it issued the policy that Marilyn Abernathy had no insurable interest, that it negligently issued the policy, and that it was estopped from refusing to pay the benefits provided by the policy. Finally, the amended petition alleged that Marilyn Abernathy obtained the policy at the instance and request of Alma Mae Bolin and that she had directions from Alma Mae Bolin to name plaintiffs as beneficiaries in said policy. It asked for judgment against Farmers for the amount of the policy, plus interest, and sought a declaration that Marilyn Abernathy had no interest in the proceeds of the policy.

After the amended petition was filed, defendant Abernathy, on December 17, 1974, filed a special entry of appearance and moved to dismiss plaintiffs' petition as to her for failure to state a claim against her on which relief could be granted and also for the reason that the petition improperly united several claims.

Meanwhile, Farmers refiled its motion for summary judgment and on March 21, 1975, the court sustained that motion and entered judgment against plaintiffs and in favor of defendant Farmers. The judgment stated that "This judgment shall not affect the rights, if any, of defendant Marilyn Abernathy".

Four days later, on March 25, 1975, the court entered this order:

"Motion of Defendant Marilyn Abernathy to dismiss is hereby sustained and said cause is hereby dismissed as to Defendant Abernathy and said dismissal is without prejudice as to any rights between plaintiffs and Defendant Abernathy."

In deciding sua sponte to dismiss the appeal herein as premature, the court of appeals relied primarily on its decisions in Wile v. Donovan, 514 S.W.2d 177 (Mo.App.1974) and Wile v. Donovan, 532 S.W.2d 891 (Mo.App.1976). In Wile I plaintiffs sued Marie Donovan and Jack Donovan in an action wherein they sought to have a warranty deed declared to be a mortgage and then to have the property reconveyed to them upon tender of the amount due. The trial court entered a decree which resolved the issues in favor of plaintiffs and against Marie Donovan but did not grant plaintiffs any relief as against Jack Donovan nor did it discharge him from liability to plaintiffs. On appeal the court of appeals held that the judgment did not dispose of all parties and all issues and was not a final judgment in the case. The appeal was dismissed as premature.

On remand to the circuit court, the plaintiffs filed a motion to dismiss their cause of action against Jack Donovan. The motion was sustained and the case against Jack Donovan was dismissed without prejudice. No new judgment was entered and there was no order or judgment which made reference to the prior judgment entered against Marie Donovan. A new notice of appeal was filed which recited that it was from the findings and judgment entered September 24, 1973, (the judgment against Marie Donovan) and January 30, 1975, (the date of the order of dismissal as to Jack Donovan). The court in Wile II again dismissed the appeal as premature. It held that the dismissal order was not a final judgment and that the judgment of September 23, 1973, still did not constitute a final appealable order. It is obvious that the court of appeals concluded that a judgment or order fully disposing of issues in the case as to only one of the two defendants in a case, followed subsequently by an order of dismissal without prejudice as to the other defendant, did not result in a final judgment in the case. The opinion did not indicate what else would have been necessary for there to have been a final judgment. ³

After the court of appeals rendered its opinion herein, both plaintiffs and Farmers sought a rehearing in which they would have an opportunity to brief the question of whether there was a final appealable judgment. Both requests were denied. Plaintiffs then sought a transfer and we concluded that the question merited further consideration.

In this court supplemental briefs have been filed. Both sides argue strenuously that the circuit court disposed of this case as to all parties and issues and that there was a final judgment. However, after considering the briefs filed and the cases therein cited, we have concluded, for reasons which follow, that there was not a final judgment and that the case must be dismissed as premature.

The right of appeal is purely statutory. Dudeck v. Ellis, 376 S.W.2d 197, 204 (Mo.1964). Sec. 512.020 RSMo 1969 governs who may appeal a case from the trial court and when. Insofar as pertinent here, it provides that any aggrieved party may appeal "from any final judgment in the case". In deciding what constitutes a final judgment, our courts have stated repeatedly "that, since an appeal must be from a final judgment (with specified exceptions), the trial court must have disposed of all issues and all parties". Spires v. Edgar, 513 S.W.2d 372, 373 (Mo. banc 1974). This requirement that all issues and all parties have been disposed of is for the purpose of avoiding piecemeal presentation of cases on appeal, except where specifically so authorized. Weir v. Brune, 364 Mo. 415, 262 S.W.2d 597, 599 (1953).

The amended petition in this case listed as plaintiffs the personal representative and the heirs at law of Alma Mae Bolin. Defendants were Farmers and Marilyn Abernathy. The issue as between plaintiffs and Farmers was whether plaintiffs should recover $50,000, the policy amount, plus interest. As to Marilyn Abernathy, the suit sought a declaration that, although named in the policy as beneficiary, Abernathy had no right, title or interest in the proceeds of the policy sued upon. Various grounds for such a result, such as a lack of an insurable interest and a violation by Abernathy of instructions from the insured to have plaintiffs named as beneficiaries, were alleged.

The trial court made two entries of record whereby these issues and these parties were disposed of in this case. The first was...