Bush v. Kansas City Life Ins. Co.
| Decision Date | 02 June 1919 |
| Docket Number | 19501 |
| Citation | 214 S.W. 175 |
| Parties | BUSH v. KANSAS CITY LIFE INS. CO. et al |
| Court | Missouri Supreme Court |
Motion for Rehearing Denied July 9, 1919.
Appeal from Circuit Court, Jackson County; Harris Bobinson, Judge.
Action by Samuel D. Bush against the Kansas City Life Insurance Company, which filed its application to compel various claimants to the proceeds of a policy to interplead whereupon Frances Baker Olds and others and Samuel D. Bush filed their several interpleas. From a judgment for plaintiff, Bush, Frances Baker Olds and other interpleaders appeal. Reversed and remanded, with directions.
Counsel for the parties to this action, in their respective briefs have accused each other of misstating the facts to such an extent that we have been compelled to resort to the record in order to determine what is disclosed therein. As this is an equitable proceeding in which the duty devolves upon us to pass upon the facts, we will state our own view without extensively quoting or setting out the testimony given at the trial.
This is a controversy over the sum of $ 13,881.98 paid into court by the Kansas City Life Insurance Company, a Missouri corporation, as the proceeds of a policy of insurance for $ 15,000, dated December 26, 1907, on the life of Frederick C Olds, deceased. The contestants are Samuel D. Bush interpleader, on the one side, and Frances Baker Olds Farmers' & Merchants' National Bank of Abilene, Tex., and Henry James, interpleaders, on the other side. During the period covered by this controversy, Samuel D. Bush, the respondent, was a resident of Boston, Mass., and was there engaged in the business of exporting cotton. A corporation organized under the laws of Texas, called the Bush & Witherspoon Company located at Waco, Tex., was likewise engaged in the exporting of cotton. Samuel D. Bush was the president of the Texas Company and owned $ 25,000 worth of the $ 60,000 capital stock of said company. Arthur E. Brown, of Boston, was secretary of said company, and was a partner of Samuel D. Bush in Boston. He was also the business manager for respondent. T. F. Bush was the nephew of respondent, and was the vice president of the Texas company. Frederick C. Olds was treasurer of the above company.
It appears from the testimony that in sharing the losses, on September 15, 1908, T. F. Bush was charged on the books of said company with a loss of 35 per cent.; that Frederick C. Olds was charged with a loss of 30 per cent.; that T. C. Witherspoon was charged with a loss of 10 per cent; and Samuel D. Bush & Co. charged with a loss of 25 per cent. There was no account kept on the name of S.D. Bush, but they were kept as S.D. Bush & Co. T. F. Bush resided at Waco, Tex., and had charge of the business there. He personally represented S.D. Bush in his Texas transactions.
Frederick C. Olds' connection with the above company terminated with the cotton season of 1907-08. Olds had full authority to draw money from time to time and to sign checks therefor. The evidence tends to show that at the end of the cotton season for 1907, Olds, on account of money drawn from the company, was indebted thereto to the extent of about $ 54,697.56. Olds executed to Samuel D. Bush, on September 19, 1907, a demand note, at Waco, Tex., for $ 15,000, payable to the order of said Bush at a bank in Waco, Tex., with interest at the rate of 6 per cent. per annum until paid. Olds also executed a note to T. F. Bush for $ 10,000, and a note to T. C. Witherspoon, another officer of the company, for $ 5,000. The account of Olds on the books of the company was credited with $ 22,500 from the estimated profits of the business for that year. This left a book balance against Olds of about $ 2,197.56. T. F. Bush, as shown by the evidence, was indebted to Olds in the sum of about $ 6,600. The note from Olds to T. F. Bush was indorsed to Samuel D. Bush in 1908.
Mr. A. E. Brown testified, in respect to this note, as follows:
The Witherspoon note for $ 5,000 was indorsed to S.D. Bush, but the record discloses that it was previously paid in a settlement between Olds and Witherspoon.
On account of the $ 15,000 note aforesaid from Olds to Samuel D. Bush, and in view of the indebtedness of Olds, it was agreed that insurance should be taken out on his life, in favor of Samuel D. Bush, to secure the $ 15,000 note aforesaid. In March, 1908, S.D. Bush took out a policy for $ 15,000 on the life of Frederick C. Olds, in a New England company, payable to himself, as a creditor of Olds, to secure the above note of $ 15,000. After the death of Frederick C. Olds, which occurred at Abilene, Tex., on December 21, 1913, Samuel D. Bush collected and retained the $ 15,000 due on said New England policy.
On December 11, 1907, Frederick C. Olds executed a formal written application, at Waco, Tex., addressed to the Kansas City Life Insurance Company, for a $ 15,000 policy for the benefit of S.D. Bush, a creditor, at Boston, Mass., as his financial interest might appear. At the time this application was made, it was intended to procure a policy as security for the $ 15,000 note aforesaid. The above application was accepted by the Kansas City Company and on December 26, 1907, it issued the policy in controversy herein, on the life of F. C. Olds, for $ 15,000, payable, in the event of death of Olds, to Samuel D. Bush, as his financial interest might appear. Said policy was numbered 35699. The sixth and ninth clauses of same read as follows:
At the date of the trial below, there appeared on the back of said policy the following:
On December 19, 1907, Frederick C. Olds, after making the application to the Kansas City Company on December 11, 1907, wrote Samuel D. Bush at Boston, Mass., and called his attention to several policies in the Kansas City company which he had under consideration, and said in case he took one of said policies he would make it payable to Samuel D. Bush and send him the policy. The premium on the first-named policy was $ 502.80, which was the first premium due on the policy in controversy. He asked S.D. Bush, in this letter, to let him know what his wishes were.
It is plain from the record that when the above correspondence took place Olds was only intending to take out the one policy for $ 15,000, to secure the Bush note for $ 15,000.
Samuel D. Bush testified, in respect to above matter, as follows:
The alleged conversation with Olds above mentioned was purely hearsay, as Samuel D. Bush was not in Texas in 1908. He was doubtless repeating that which Brown told him had occurred.
While there is some dispute over the facts, we are satisfied from the evidence that the Kansas City policy was delivered to Frederick C. Olds during the year 1907, and that the note of the latter had been executed for the first premium. The Kansas City Life Insurance Company, in its answer herein, alleges:
"That said insurance policy was delivered by this defendant to the said Frederick C. Olds, and has never been, and is not now, in the possession of the plaintiff herein, the said Samuel D. Bush. * * *" (Italics ours.).
In the interplea herein of Samuel D. Bush, it is averred:
"This policy of insurance so executed by Kansas City Life Insurance Company and so delivered to said Frederick C. Olds expressly stipulated that the written application for said policy of insurance was made a part of said policy or contract of insurance." (Italics ours.).
T. F Bush testified that in May, 1908, Olds told him he had a policy with the Kansas City Life Insurance Company for which he had given a note to the agent at Waco, and he wanted to know if Bush and associates would pay the premium in order that he might secure...
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