Borchers v. Barckers

• Citation: 138 S.W. 555,158 Mo. App. 267
• Parties: BORCHERS v. BARCKERS et al.
• Decision Date: 06 June 1911
• Court: Court of Appeal of Missouri (US)

138 S.W. 555

158 Mo. A. 267

BORCHERS v. BARCKERS et al.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

Rehearing Denied June 30, 1911.

1. DEPOSITS IN COURT (§ 10)—WITHDRAWAL.

Where a fund is deposited in court in a suit in equity and plaintiff fails to prove his cause of action, the court should only dismiss the suit and distribute the fund.

2. WITNESSES (§ 141) — DISQUALIFICATION — NOTARY.

On an issue as to the validity of an assignment, a notary public who took the acknowledgment of the assignor since deceased, witnessed it, and saw its delivery to the assignee, but who was the agent of neither, was not disqualified as a witness by Rev. St. 1909, § 6354, providing that no person shall be disqualified to testify by reason of interest as a party or otherwise, except that a party to the transaction shall not testify where the other party is dead.

3. INSURANCE (§ 207)—ASSIGNMENT OF POLICY—ASSENT—WAIVER.

Where an insurance company paid over the proceeds of a policy which had been assigned and claimed no benefit under a provision requiring its assent to the validity of an assignment, it thereby waived a failure to secure its assent to the assignment which could not be attacked for that reason by claimants of the fund.

4. WITNESSES (§ 224)—EXAMINATION—MATTER PREVIOUSLY COVERED.

It is not error to refuse to require a witness to answer further questions concerning a subject fully gone over.

5. INTERPLEADER (§ 31) — NATURE OF PROCEEDING.

A suit in the nature of an interpleader to determine the validity of an assignment of a policy of insurance and the right to the proceeds which the insurance company had paid to a depositary for the benefit of the person ultimately determined to be entitled thereto was triable as in equity.

6. INTERPLEADER (§ 32)—JUDGMENT—DISTRIBUTION OF FUND—INTEREST.

In an action in the nature of interpleader to determine the ownership of the proceeds of a policy, which came into plaintiff's hands as administrator pending suit, plaintiff having taken a nonsuit, the court properly rendered judgment that defendant was entitled to the fund and interest from the date plaintiff received it.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by John Borchers, Jr., as administrator of John Borchers, deceased, against Henry N. Barckers and others. Judgment for defendant, and plaintiff appeals. Affirmed.

Collins & Chappell, for appellant. H. A. Loevy, for respondents.

REYNOLDS, P. J.

This is the second appeal of this case to this court; as it was here before and is reported 143 Mo. App. 72, 122 S. W. 357, it was on the appeal of defendant Henry N. Barckers; now it is here on the appeal of plaintiff. It was reversed by this court for error in an instruction on undue influence, this court holding that there was no evidence of undue influence in the case. The facts and issues are so fully set out in the report of the case when before us on the first appeal that it is unnecessary to repeat them. The cause was then remanded because it was thought by the court that on careful examination of the testimony, there was evidence, although slight, tending to show a weakened mental condition in deceased and that this question of mental capacity should have been submitted to the jury under the facts then in evidence. On this second trial, the evidence of one of the witnesses for plaintiff, Dr. Martin, a physician, which on the first trial we especially referred to as tending to prove lack of mental capacity on the day the assignment of the policy was made, which was the day the deceased died and when he had lapsed into a semiconscious condition, was not introduced. With that exception the testimony of the other witnesses was substantially as before, except that the testimony of the other witnesses, that of the sisters, daughters of the deceased, bearing on the mental capacity of their father, is hardly consistent with that given on the former trial, and certainly is no more persuasive. Neither lived with him; neither was present when he made the assignment; the doctor, who was there present, did not testify at this trial and Mr. Loevy, who was present as notary and took the acknowledgment, testified as to the fact of the acknowledgment and acts of the father. The court again tried this case with the aid of a jury. As we held before, this is really a case of interpleader and distinctly one that should have been tried as in equity. In such cases it is not error and is within the power of the court, to take the opinion of the jury on any issue of fact, but he is not bound by the finding the jury may make. Blood v. Sovereign Camp Woodmen of the World, 140 Mo. App. 526, 120 S. W. 700. It was also within the power of the court, by instructions which it gave, to direct a verdict, which, in effect, was what was done here, for at the conclusion of all the testimony, the court, at the instance of defendants, gave two instructions. First, that there is no evidence in the case that at the time John Borchers signed his name to the assignment of the policy read in evidence, he did not have legal capacity to sign the same. Second, that there is no evidence in this case that at the time John Borchers signed his name to the assignment of the policy read in evidence, that he did so through the undue and improper influence of Henry N. Barckers, one of the claimants herein, or any other person. Upon the court giving these instructions, plaintiff took a nonsuit with leave to move to set it aside, and the jury was thereupon discharged from further consideration of ...