O'Donnell v. New York Life Ins. Co.

• Decision Date: 08 May 1923
• Docket Number: No. 17247.,17247.
• Citation: 251 S.W. 82
• Parties: O'DONNELL v. NEW YORK LIFE INS. CO.
• Court: Missouri Court of Appeals

251 S.W. 82

O'DONNELL v. NEW YORK LIFE INS. CO.

No. 17247.

St. Louis Court of Appeals, Missouri.

May 8, 1923.

Rehearing Denied May 2, 1923.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Mary H. O'Donnell against the New York Life Insurance Company. From judgment for defendant, plaintiff appeals. Affirmed.

S. Mayner Wallace, of St. Louis, for appellant.

Jones, Hooker, Sullivan & Angert, of St. Louis, for respondent.

BRUERE, C.

This is an action on a policy of life insurance, issued by the defendant on the life of plaintiff's husband, Myles J. O'Donnell, in which plaintiff was named as beneficiary. The judgment below was for the defendant, and the plaintiff has appealed. The petition is in the conventional form. The answer sets up a cross-bill alleging fraudulent misrepresentations in the procurement of the policy and praying for its cancellation.

The only errors assigned are: First, that division No. 14 of the circuit court of the city of St. Louis, wherein this cause was tried, was without jurisdiction thereof; second, that the court erred in trying said cause without a jury, in the absence of a waiver of jury trial.

This suit was filed in the circuit court of the city of St. Louis on May 17, 1919. On November 12, 1919, during the October term, 1919, thereof, it was assigned in division 1 of said court to division 14 of said court, in the following order:

"It is ordered that this cause be assigned to Division No. 14."

Thereafter, on November 17, 1919, during said October term of said court, plaintiff's term bill of exceptions was allowed, signed, and filed in said court, which said bill of exceptions, inter alia, reads as follows, to wit:

"Be it remembered that heretofore, to wit, on the 12th day of November, 1919, during the October, 1919, term of this court, this cause was, upon the oral application of counsel for defendant, ordered assigned and transferred from division 1 of this court to division 14, an equity division, of this court, for a hearing and trial of the cross-bill filed in said cause by said defendant, and that, to said action of the court, the plaintiff, by counsel, objected and excepted, and her (the said plaintiff's) exception thereto was and is allowed."

Thereafter, at the February term, 1920, in said division 14 of said court, said cause was tried and submitted, and the following order then made and entered:

"Now at this day come the parties hereto, by their respective attorneys, and the defendant, by leave of court, amends its answer and cross-bill herein by interlineation by inserting. * * * Thereupon the plaintiff by like leave of court withdraws her amended reply heretofore filed herein, and refiles the same as her reply to the defendant's answer and cross-bill as amended; and, this cause being called for trial, said parties submit the same to the court upon the pleadings and the evidence and proof adduced; and the court, not now being sufficiently advised in the premises, takes time to consider thereof."

When the cause came on for trial in said court the following proceedings were had, to wit:

"Mr. Wallace (counsel for plaintiff): We wish to file a formal motion for jury trial in this case, but I do not care to argue it; and I am also willing to agree in order to save time, the court's as well as the parties'—to agree to waive a jury so far as the action that we bring may be concerned, and submit the case to your honor on both the petition and the cross-bill, if that is satisfactory to the other side. Exactly the same evidence will have to be heard on the answer and cross-bill as will be required on the petition and answer, and the case has been set already several times, and for our part we are willing to waive a jury and submit the whole case to the court.

"Mr. Sullivan (counsel for defendant): Of course the position I take in the matter is that the whole action is in equity. I don't join in any waiver of jury, because I don't conceive it is proper, but I am very glad to try the whole case with counsel without any reference to any other question. I think it ought to be determined. If he waives a jury, and I don't want one, I think your honor can try it.

"The Court: In the defense that question of jury, I think, waives it anyway.

"To which ruling of the court plaintiff, by her counsel, at the time duly excepted, and still continues to except."

On April 5, 1920, during the April term, 1920, the court found the issues herein for the defendant on the plaintiff's petition and for the defendant on the defendant's cross-action. On April 23, 1920, at the same term of said court, and while the motions for new trial and in arrest were pending, the following entry of record was made herein:

"Now at this day come the parties hereto by their respective attorneys, and file herein a stipulation setting forth that at the argument of the motion for a new trial and the motion in arrest of judgment, filed by the plaintiff, the plaintiff, by counsel, waived objections, based upon the fact that her waiver of a jury trial, as announced in open court when the cause was called for trial, was not entered of record or evidenced by written stipulation filed with the clerk."

Addressing ourselves to the first assignment of error, counsel for defendant contend that this is an action at law, and that the assignment of the case to division No. 14, wherein this case was tried, was illegal, in that division No. 14 possessed no power or jurisdiction to try an action at law. That this is an action at law on the policy cannot be denied. The cross-bill herein, alleging fraudulent representations in the procurement of the policy, and praying for its cancellation, did not change the action at law into one in equity. This is because of the provisions of section 6142, R. S. 1919. Schuermann v. Union Cent. Life Ins. Co., 165 Mo. 650, 65 S. W. 723; Kern v. Legion of Honor, 167 Mo. loc. cit. 488, 67 S. W. 252.

However, there is nothing in the record before us to authorize the contention that division No. 14 of the circuit...