Burns v. Prudential Insurance Company of America

• Decision Date: 08 December 1922
• Citation: 247 S.W. 159,295 Mo. 680
• Parties: THOMAS E. BURNS v. PRUDENTIAL INSURANCE COMPANY OF AMERICA and JAMES P. NEWELL, Public Administrator in Charge of Estate of PATRICK KEARNEY, Appellants
• Court: Missouri Supreme Court

247 S.W. 159

295 Mo. 680

THOMAS E. BURNS v. PRUDENTIAL INSURANCE COMPANY OF AMERICA and JAMES P. NEWELL, Public Administrator in Charge of Estate of PATRICK KEARNEY, Appellants

Supreme Court of Missouri, Second Division

December 8, 1922

Appeal from St. Louis City Circuit Court. -- Hon. Granville Hogan Judge.

Transferred to St. Louis Court of Appeals.

Jones Hocker, Sullivan & Angert and Fordyce, Holliday & White for appellants; Alfred Hurrell and James H. Guest of counsel.

(1) The guaranty of due process of law and the equal protection of the laws given by the Constitutions of the United States and the State of Missouri, applies to the acts of the judicial department of the government as well as other departments and a judgment in favor of plaintiff which is not supported by appellant's petition and evidence violates these guaranties. 12 C. J. 1233; In re Peck, 167 N.Y. 391, 53 L. R. A. 888. (2) The denial to one litigant of a remedy which is available to others in the same circumstances constitutes a discrimination prohibited by the constitutional guaranty of the protection of the laws and is forbidden. 12 C. J. 1183, sec. 942, note 39; In re Flukes, 157 Mo. 125, 51 L. R. A. 176; 12 C. J. 1144, sec. 878, notes 2 and 3; Louisville Ry. Co. v. Bosworth, 230 F. 207. (3) The rulings and judgment of the trial court were at variance with the petition and evidence introduced by plaintiff, for: (a) The policy alleged in the petition and offered in evidence by plaintiff was expressly payable only to the executors or administrators of the insured, and, notwithstanding the facility of payment clause, plaintiff was not entitled to sue or recover thereon. Manning v. Prudential Ins. Co., 202 Mo.App. 124. (b) Payment of premiums by plaintiff, loans of money by him to insured, furnishing of proofs of death by him to the company, did not vest in him any interest in the policy upon which he could recover against the insured. Manning v. Prudential Ins. Co., supra. (4) Appellant's bill of interpleader, the averments of which stand admitted by the demurrer, contained all the essentials necessary to entitle it to a decree of interpleader, permitting it to pay the fund in suit into court for the benefit of whichever of the adverse claimants was entitled thereto, and thereafter to stand discharged. 4 Pomeroy's Eq. Jur. (3 Ed.) sec. 1322; Smith v. Grand Lodge, 124 Mo.App. 202; Supreme Council v. Palmer, 107 Mo.App. 157; McGinn v. Bank, 178 Mo.App. 347.

H. C. Whitehill for respondent.

(1) The right of appeal is wholly statutory. It may be exercised only by "any party to a suit aggrieved by any judgment," who "may take an appeal . . . from any final judgment in the case," so that an unnecessary party to a full determination of the controversy as made by the pleadings is not a party aggrieved within the meaning of the statute and cannot appeal. R. S. 1919, sec. 1469; Tobin v. Bell Tel. Co., 199 S.W. 952; In re Campbell's Estate, 279 Mo. 343. (2) The administrator of the estate of Patrick Kearney, the insured under the policy, was never at any time a party to the action. As he was in no wise affected by the judgment rendered in the action between the plaintiff and the insurance company, his administrator could not be aggrieved by the verdict and judgment. The most that could be said for him is that he was an interloper attempting to engraft himself upon a cause of action which was distinctly between two other parties with whom he had no privity. Tobin v. Bell Tel. Co., 199 S.W. 952; In re Campbell's Estate, 279 Mo. 343. (3) In order to sustain an interplea the same identical thing, fund or subject must be claimed by two or more persons, and if the person owing the money is under obligations to pay any one of them or has placed itself under obligation or liability to either claimant, the interplea will not lie. Novinger Bank v. Union Trust Co., 196 Mo.App. 335; U. Rys. Co. v. O'Connor, 153 Mo.App. 128; Love v. Hartford Ins. Co., 153 Mo.App. 144; Smith v. Grand Lodge, 124 Mo.App. 181; Met. Ins. Co. v. Brown, 186 S.W. 1155. (4) It has long been held a rule of law in this State that an assignment of a policy of insurance is good where the assignee is a creditor of the insured. Tripp v. Jordan, 177 Mo.App. 339; Locke v. Bowman, 168 Mo.App. 121; Wilkinson v Met. Ins. Co., 64 Mo.App. 172; Andrews v. Ins. Co., 168 Mo. 166; Jones v. Prudential Ins. Co., 173 Mo.App. 1.

RAILEY, C. White and Reeves, CC., concur.

OPINION

RAILEY, C.

On January 12, 1918, plaintiff, Thomas E. Burns, filed in the Circuit Court of the City of St. Louis a suit against the 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 fifteen 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 fifteen years of age, to-wit, over the age of forty-five years; that he (plaintiff) paid the premiums due 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 eight 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, Missouri, 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 pay said sum mentioned in said policy, to-wit, $ 126, is vexatious. The petition asked judgement for said sum of $ 126, with ten per cent for vexatious delay, for reasonable attorneys' fees, and costs.

The first amended answer and interplea of defendant 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 $ 126 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 fifteen 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, Missouri, while said policy was in full force and effect for the amount aforesaid, which becomes 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 P. Newell succeeded said Slater as public administrator of said city, took charge of the estate of said Patrick...