Burns v. Prudential Ins. Co.

Decision Date08 December 1922
Docket NumberNo. 21672.,21672.
Citation295 Mo. 680,247 S.W. 159
PartiesBURNS v. PRUDENTIAL INS. CO. OF AMERICA (NEWELL, Public Administrator, Intervener).
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Action by Thomas B. Burns against the Prudential Insurance Company of America, in which James P. Newell, as Public Administrator, in charge of the estate of Patrick Kearney, deceased, intervened. Judgment for plaintiff, and defendant and intervener appeal. Cause certified to the St. Louis Court of Appeals for its determination.

Jones, Rocker, Sullivan & Angert, of St. Louis, for appellant public administrator.

Fordyce, Holliday & White, of St. Louis (Alfred Hurrell, of New York City, and James H. Guest, of Newark, N. J., of counsel), for appellant Prudential Ins. Co. of America.

H. C. Whitehill, of St. Louis, for respondent.

Statement.

RAILEY, C.

On January 12, 1918, plaintiff, Thomas E. Burns, filed in the circuit court of the city of St. Louis aforesaid a suit against said defendant Prudential Insurance Company, on a policy of insurance issued and delivered to Pat Kearney in his lifetime. The case was tried on an amended petition filed September 18, 1918, which, among other recitals, contained the following:

"Second. Facility of Payment.—The company may make any payment provided for in this policy to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his or her burial, or, if the insured be more than 15 years of age at the date of this policy, for any other purpose, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied."

Plaintiff alleged that, when said policy was executed, said Patrick Kearney was over 15 years of age, to wit, over the age of 45 years; that he (plaintiff) paid the premiums clue on said policy and complied with the terms and conditions mentioned therein; that shortly after said policy was delivered to said Kearney, the latter, for a valuable consideration, with the approval and consent of said insurance company, delivered said policy and premium receipt book to this plaintiff, who agreed to pay the premiums thereon as they became due; that at the above-mentioned date said insured was greatly indebted to plaintiff; that he assigned and delivered said policy to respondent in order to pay said indebtedness, and plaintiff was to advance to him such small amounts of money as insured might desire; that defendant's agent, with knowledge of such assignment, called upon and received from plaintiff the premiums due on said policy for about 8 years; that the amounts so paid were in excess of the amount of the face of said policy. It is further averred that insured died at St. Louis, Mo., about August 23, 1917, and that within a reasonable time thereafter, at the request of defendant, and prior to the appointment of an administrator of Kearney's estate, respondent gave proper notice and proofs of death of insured; that said defendant then and there agreed to pay plaintiff the face of said policy in a few days, after he made such proofs; that demand of payment has been made, and defendant refused to pay said plaintiff, etc. It is alleged that the policy was not filed as an exhibit, because the same had been delivered to defendant in making said proofs, and had not been returned to plaintiff; that the refusal of defendant to Day said sum mentioned in said policy, to wit, $126, is vexatious. The petition asked judgment for said sum of $126, with 10 per cent. for vexatious delay; for reasonable, attorney's fees, and costs.

First Amended Answer and Interplea of Defendant.—The above answer admits that it is a corporation organized under the `laws of New Jersey and authorized to do business in Missouri; that on July 8, 1901, it issued and delivered the policy of insurance in question for $120 to said Patrick Kearney, whereby defendant agreed to pay, on receipt of satisfactory proof of insured's death, on surrender of the policy and premium receipt books, the sum of $126 to the insured's executor or administrator, or to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured for his or her burial, or, if the insured be more than 15 years of age at the date of said policy, for any other purpose; that thereafter, said policy having been lost or destroyed, defendant, on or about the 19th day of April, 1909, issued its duplicate form policy numbered 15321502 in lieu thereof, subject to the same terms and conditions as the original policy. Said answer alleges that:Patrick Kearney died on August 23, 1917, in St. Louis, Mo., while said policy was in full force and effect for the amount aforesaid, which became due and payable under the terms and conditions of said policy; that on October 2, 1917, plaintiff furnished proofs of said Kearney's death to defendant and made claim to the proceeds of said policy, and for grounds of said claim alleged that he was the owner of said policy and premium receipt book, and that said. Policy had been assigned to him by the insured to secure an indebtedness greater than the amount of said policy. It is further alleged in said answer that on October 19, 1917, Peter Kearney made claim to the proceeds of said policy on the theory that he was the nephew of insured and had paid the expenses of his burial; that on November 16, 1917, Frank M. Slater, public administrator of the city of St. Louis, took charge of the estate of said Patrick Kearney, deceased, and made claim to the proceeds of said policy, as such administrator; that James F. Newell succeeded said Slitter as public administrator of said city, took charge of the estate of said Patrick Kearney, and is now in charge of same.

It is further alleged that said claimants have denied the allegations made by each other, and that each claimant has notified defendant not to pay said money to any other claimant. It is alleged that defendant has no information as to the truth or falsity of said conflicting claims; that it is a mere stakeholder, and is not interested in the controversy between said parties; that it has incurred no liability to either of said claimants personally, and "that it has been ready and willing to pay said policy, but cannot do so with safety to itself on account of the conflicting claims of the aforesaid claimants." Said answer and interplea then concludes by asking the court for an order making said claimants, Peter Kearney and James P. Newell, public administrator aforesaid, parties defendant herein; that defendant he ^ authorized to pay the clerk of the circuit court said $126, and that each of the claimants aforesaid be required to plead for said fund, etc.; and that, upon said order and deposit being made, defendant, by order of said court, be discharged, etc.

On November 23, 1918, plaintiff filed a demurrer to said first amended answer and interplea, alleging therein that said pleading failed to state facts sufficient to constitute an interplea, etc. On December 23d said demurrer was sustained. An exception to said ruling was saved by a term bill of exceptions. Thereafter, on February 5, 1919, said defendant filed its second amended answer, which reads as follows:

"Comes now the defendant; and files its second amended answer to plaintiff's first amended petition filed herein, and for such answer defendant admits that it is a corporation organized under the laws of the state of New Jersey and engaged in the business of life insurance in the state of Missouri under license; and defendant further admits that on or about the 8th day of July, 1901, it issued its certain policy of insurance, numbered 15321502, upon the life of one Patrick Kearney, in the sum of one hundred twenty-six dollars ($126.00), said policy being payable upon the terms and conditions in said policy set out; that on or about the 23d day of August, 1917, said Patrick Kearney, the insured, died, and thereafter plaintiff furnished proofs of the death of said Patrick Kearney to defendant, and made claim to the proceeds of said policy, and for further answer the defendant denies each and every allegation in said first amended petition contained and set forth. Wherefore, having fully answered, defendant prays to be hence dismissed, with its costs."

It appears from the record that on May 7, 1919, said James P. Newell, as public administrator aforesaid, and in charge as such of Patrick Kearney's estate, asked leave to file an answer and interplea in said cause, which was overruled by said court on account of said application having been made on the day said cause was set for trial. On May 8, 1919, said cause was tried before a jury, and the latter returned a verdict in favor of plaintiff, itemized as follows:

                  Amount due under policy ..............  $126 00
                  Interest .............................    12 90
                  Damages ..............................     6 30
                  Attorney's fees ......................   150 00
                                                          _______
                     Total .............................  $295 20
                

Judgment was entered in due form on said verdict. Defendant filed its motion for a new trial, which was overruled, and an appeal was allowed said defendant and James P. Newell, as public administrator aforesaid, to this court. The evidence, and such other matters as may be deemed important, will be referred to in the opinion.

Opinion.

1. The judgment recovered herein was for $295.20 and costs. The case has...

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