Griesa v. Mutual Life Ins. Co. of New York

• Decision Date: 05 April 1909
• Docket Number: 2,922.
• Citation: 169 F. 509
• Parties: GRIESA et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: U.S. Court of Appeals — Eighth Circuit

169 F. 509

GRIESA et al. v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 2,922.

United States Court of Appeals, Eighth Circuit.

April 5, 1909

George J. Barker, Samuel A. Riggs, and Charles F. Hutchings, for appellants.

John S Dean, Ferry & Doran, and Bishop & Mitchell, for appellee.

Before ADAMS, Circuit Judge, and RINER and AMIDON, District Judges.

AMIDON District Judge.

Lucius H. Perkins, in his lifetime, procured policies of insurance upon his life to be issued, aggregating more than $500,000. Among others, the Mutual Life Insurance Company, complainant below, and appellee here, issued such a policy in his favor for $100,000. In less than a year after obtaining this large amount of insurance, he fell from his house and shortly after died. The complainant brought this suit in equity in the United States Circuit Court for the District of Kansas against the executors of the last will and testament of said Perkins, and his widow and sons, who were the beneficiaries under the policy, alleging in its bill: That Perkins had taken out the insurance fraudulently with the deliberate purpose on his part to commit suicide; that he had purchased a fatal poison on the morning of his death, at a drug store in the town where he lived, gone upon the roof of his house and there taken the poison with suicidal purpose, and, losing consciousness from its effect, had fallen from the house, resulting in his death. It is further alleged in the bill that it would be impossible to ascertain whether in fact he had taken the poison unless an immediate autopsy was had, because by delay the poison would become so absorbed into the tissues of the body that its presence could not be scientifically discovered. On the other hand, if a prompt autopsy could be had, it was asserted that it would be possible to scientifically discover the presence of the poison, and thus demonstrate that Perkins had come to his death by suicide. The bill further alleged: That, promptly upon receiving notice of Perkins' death, complainant had instituted an investigation to ascertain its cause, and had thereby discovered evidence tending strongly to show that he had committed suicide in the manner above described; that it thereupon promptly applied to his widow, the defendant Clara Luella Morris Perkins, who was the owner of the lot where he was buried, and the legal custodian of his body, asking that an autopsy might be held for the purpose of ascertaining the cause of his death. The widow declined to accede to this request. Thereupon complainants applied to the coroner of the county where Perkins was buried, asking that an inquest be held; but the coroner, exercising the legal discretion with which he is vested, declined to hold an inquest. From the bill it also appears that the policy of the complainant provides, not for the payment of cash, but for the issuance of 100 bonds for $1,000 each, payable in 20 years. Perkins left a last will and testament, in which he bequeathed to each of his three sons 20 of these bonds. The remaining 40 of them are set apart as a special fund; the income therefrom to be paid to his widow, but the capital upon her death to go to his sons.

This bill was filed July 19, 1907. The only relief prayed for therein is the surrender and cancellation of the policy upon the ground that it had been obtained by fraud. On the same day on which the bill was filed, a motion was also filed in the cause, in which an order of the court was asked authorizing the complainant to exhume the body and hold an autopsy thereon.

August 5, 1907, the executors brought an action at law on the policy against the insurance company as defendant, in the same court in which the bill was pending.

August 14, 1907, the executors and the widow filed a plea in the equity suit, setting forth the pendency of the action at law, and alleging that the complainant might by answer in that action plead as a defense all the matters contained in the bill, and further also pleading that it appeared upon the face of the bill that the complainant had a plain, adequate, and complete remedy at law. On the same day the other defendants filed a demurrer in the equity cause, challenging the jurisdiction of the court and the equity of the bill.

August 19th the complainant in the equity suit, as defendant in the action at law, filed in that action a motion for the disinterment of the body and an autopsy, identical with the motion then pending in the equity suit.

After some preliminary hearings, which are not now material, the cause came on before the court on the 4th day of September, 1907, for the purpose of disposing of the matters raised by the plea and demurrer, and by the motions. The trial judge stated, without much regard for chancery practice, that he would treat the suit in equity and the action at law as 'consolidated' for the purpose of dealing with all the matters thus presented. Oral evidence was adduced by the parties, and the hearing continued from time to time until September 14, 1907, when the court entered an order in the equity suit directing the marshal of the court to exhume the body, and allow three persons named by the court to hold an autopsy thereon. This order was promptly executed, the autopsy held, and the persons making the same have filed their report, which is embodied in the record.

This left the suit in equity pending on the plea and demurrer. April 14, 1908, while this issue was still undecided, the complainant filed in the equity suit a motion for an injunction restraining the further prosecution of the action at law, assigning as a reason that:

'This court of equity having rightfully acquired jurisdiction of the parties and the subject matter of the controversy, for the purpose of granting certain necessary and indispensable equitable relief, will retain such jurisdiction to do complete justice between the parties and grant full relief.'

This motion, and the issue raised by the plea and demurrer, were heard together, and on June 25, 1908, the court entered an order overruling the plea and demurrer and restraining the further prosecution of the action at law. The present appeal is brought to review that order, and error is assigned upon both its branches, viz.: (1) The overruling of the plea and demurrer; and (2) the restraining of the action at law.

We are first invited by counsel for appellant to pass upon the power of the court and its practice in granting the order for the disinterment of the body and the holding of an autopsy thereon. This order, however, has been fully executed. It is beyond the power of this court to grant any relief in respect of it. Any discussion of the subject upon which we might enter would be in a large measure academic. We therefore abstain from expressing any opinion upon those matters; but, lest our thus passing these questions by may be misconstrued, we expressly add that such action ought not to be interpreted as even an implied approval by us either of the power exercised or the practice pursued by the trial court.

We pass then to the other matters. In dealing with them we shall be obliged to separate matters that were blended by the trial court and have been confused in the argument here. First, can the bill in equity be sustained even when combined with the discovery which was granted on the motion to exhume the body? This bill is not a bill of discovery, but a bill of relief. Such a bill, to be sure, is always also a bill of discovery. The answer for which it calls is evidence in behalf of the complainant, and, if the charges of the bill are not sufficient to elicit all the evidence which he deems his right, he may attach interrogatories to the bill, and elicit further evidence in that way; but, when a bill asks both relief and discovery,...