Howard Undertaking Co. v. Fidelity Life Ass'n

• Decision Date: 25 April 1933
• Docket Number: No. 5187.,5187.
• Citation: 59 S.W.2d 746
• Court: Missouri Court of Appeals
• Parties: HOWARD UNDERTAKING CO. v. FIDELITY LIFE ASS'N.<SMALL><SUP>*</SUP></SMALL>

59 S.W.2d 746

HOWARD UNDERTAKING CO. v. FIDELITY LIFE ASS'N.^*

No. 5187.

Springfield Court of Appeals. Missouri.

April 25, 1933.

Appeal from Circuit Court, Dunklin County; John A. McAnally, Judge.

"Not to be published in State Reports."

Action by the Howard Undertaking Company against the Fidelity Life Association. From a judgment for defendant, plaintiff appeals.

Affirmed.

James G. Coston and J. T. Coston, both of Osceola, Ark., for appellant.

Orville Zimmerman, of Kennett, for respondent.

BAILEY, Judge.

Plaintiff filed a bill in equity seeking to recover on a partial assignment of an insurance policy issued by the Mystic Workers, a fraternal benefit society of Illinois (now the Fidelity Life Association, defendant herein), upon the life of one Lola Singleton, who died in September, 1930. Defendant first filed a plea in abatement, which was thereafter withdrawn, and a demurrer to the petition was then filed setting up as sole ground of demurrer that the petition wholly failed to state facts sufficient to constitute any cause of action against the defendant. This demurrer was sustained by the trial court, and plaintiff refused to plead further, whereupon judgment was rendered for defendant. From this judgment, plaintiff has appealed.

The petition in question, after alleging the issuance of the policy with William Nimmo named as beneficiary, the change of name of the insurer, etc., proceeded as follows:

"That the said William Nimmo, on September 13, 1930, transferred and assigned said certificate or policy of insurance to the plaintiff herein, to the extent of $617.00, said assignment and transfer being in the following words and figures, to-wit:

                                     "`Manila, Arkansas
                

"`Whereas, my daughter, Lola Singleton, held policy No. 107049 with the Mystic Workers, a Fraternal Benefit Society with home office in Fulton, Illinois, and whereas the said Lola Singleton died in a St. Louis, Missouri Hospital Sept. ____, 1930, while in good standing and I, William Nimmo, Father of said Lola Singleton, being beneficiary named in said Policy hereby waive the following sum of said Policy No. 107049 in favor of the Howard Undertaking Company. This sum being for Funeral services rendered by the said Howard Undertaking Company in embalming and returning the deceased's body to Manila, Ark., for casket and other necessary expenses pertaining to same. And for the above consideration I hereby order that the sum of $617.00 be paid by the said Mystic Workers, Howard Undertaking Company.

                 "`[Signed]            William Nimmo
                 "`Subscribed and sworn to this 13 day of
                Sept. 1930
                  "`[Seal.]  L. G. Scott, Notary Public
                  "`My commission expires 3/22/34/'
                

"VI. That the plaintiff herein immediately forwarded and delivered to the defendant herein a copy of said assignment of said policy No. 107049, but notwithstanding said assignment to the plaintiff, and with full notice thereof, the defendant, Fidelity Life Association, did on January 16, 1931, go through the form of a settlement and compromise of the amount due on said policy by paying the said William Nimmo the sum of $500.00, and he surrendered said Policy No. 107049 to the defendant herein, all of which was done without the knowledge or consent of this plaintiff.

"VII. That said policy No. 107049 was issued by the said Mystic Workers and delivered to said Lola Singleton in the State or Illinois. She died in the City of East St. Louis, Illinois, and the said William Nimmo signed and delivered said assignment to the plaintiff in the Town of Manila and State of Arkansas.

"VIII. That sec. 475 of the Digest of the laws of Arkansas by Crawford and Moses is in the following words and figures, to-wit:

"`All bonds, bills, notes, agreements and contracts, in writing, for the payment of money or property, or for both money and property, shall be assignable.' C. & M. Digest, Sec. 475, p. 321.

"IX. That under said section of the law of Arkansas copied above, any written instrument, fund, cause of action or chose in action or any part thereof, is assignable and binding in equity."

The petition further pleaded a decision of the Supreme Court of Arkansas and of the District Court of the United States for the Western District of Arkansas, construing said section of the Arkansas law, and concluded with a prayer for judgment in the sum of $617.

The trial court, in its judgment rendered sustaining the demurrer, stated that "the court finds that defendant's demurrer to plaintiff's amended complaint in equity should be sustained, for the reason that said amended complaint, or petition, does not state facts sufficient to constitute a cause of action in equity; and the court further finds from the pleadings that both parties are nonresidents of the State of Missouri and that the cause of action attempted to be pleaded, if any, did not accrue in Dunklin County, Missouri, and that the Circuit Court of Dunklin County, Missouri, has no jurisdiction of the cause."

We shall first dispose of the question of jurisdiction as raised in the briefs. The demurrer filed by defendant failed to set forth as one of the grounds of demurrer that the trial court had no jurisdiction over the person of the defendant or the subject of the action, although such defect, if any, appeared upon the face of the petition, and was therefore ground for demurrer. Section 770, R. S. Mo. 1929 (Mo. St. Ann. § 770). All objections to the petition appearing on the face thereof, and not taken advantage of by demurrer, are deemed waived by defendant, excepting the objections that the court has no jurisdiction over the subject-matter of the action and that the petition does not state facts sufficient to state a cause of action. Section 774, R. S. Mo. 1929 (Mo. St. Ann. § 774); Kemper v. Gluck, 327 Mo. 733, 39 S.W.(2d) 330, loc. cit. 335. There can be no question as to the jurisdiction of the circuit court over the...