Kerr v. Prudential Ins. Co. of America

• Court: Missouri Court of Appeals
• Writing for the Court: FULBRIGHT
• Citation: Kerr v. Prudential Ins. Co. of America, 238 Mo.App. 972, 194 S.W.2d 706 (Mo. App. 1946)
• Decision Date: 17 May 1946
• Parties: Charles Kerr, Administrator of the Estate of Ora Alfred Kerr, Respondent, v. The Prudential Insurance Company of America, Defendant, Olive Mae Kerr, Fern M. Karner and Ora Dean Kerr, Cross-Claimants, Appellants

194 S.W.2d 706

238 Mo.App. 972

Charles Kerr, Administrator of the Estate of Ora Alfred Kerr, Respondent, v. The Prudential Insurance Company of America, Defendant, Olive Mae Kerr, Fern M. Karner and Ora Dean Kerr, Cross-Claimants, Appellants

Court of Appeals of Missouri, Springfield District

May 17, 1946

Appeal from the Circuit Court of Jasper County; Hon. Walter Bailey Judge.

Affirmed.

John W. Hudson and Haywood Scott for appellants.

Where the record affirmatively shows that the probate court was without jurisdiction to appoint an administrator, such appointment in judgment is void and may be assailed in a collateral proceeding. In Re Wilson Estate, 16 S.W.2d 737; State v. Anderson, 112 S.W.2d 857; Pikey v. Riles, 20 S.W.2d 550; Linder v Burns, 243 S.W. 361; Allen's Estate, 271 S.W. 755; Smith v. Black, 132 S.W. 1129; Peterson v. John Hancock Mutual Life Insurance Company, 116 F.2d 148 (8 C. C. A.); Sections 7, 8 and 9, R. S. Mo. 1939. Under Section 1887, R. S. Mo. 1939, a party is competent to testify concerning any matter arising out of a contract made between a third party and himself, or himself and a deceased associate, with a third party, providing the said third party is living. 37 Corpus Juris, p. 409; Wahl v. Cunningham et al., 6 S.W.2d 576; Section 1887, R. S. Mo. 1939; Section 5847, R. S. Mo. 1939. The incompetency, if any, of Olive Mae Kerr was waived by counsel for plaintiff by his cross-examination. It was the intention of the insurance Company and Olive Mae Kerr that she was to be the beneficiary. The company, having exercised its option and elected to consider Olive Mae Kerr beneficiary, is not estopped to pay anyone but Olive Mae Kerr. Wallace v Prudential Insurance Company of America, 157 S.W. 1028; Renfro v. Metropolitan Life Insurance Company, 129 S.W. 444; Clarkston v. Metropolitan Life Insurance Company, 176 S.W. 437; Wilbur v. Metropolitan Life Insurance Company, 64 Mo.App. 172; Wilbur v. Metropolitan Life Insurance Company, 72 Mo.App. 455; LaRaw v. Prudential Life Insurance Company, 12 F.2d 140; Life Ins. Co. of Vir. v. Newell, 137 So. 16 (Sup. Ct. of Ala.); Prudential Ins. Co. of Am. v. Reberto et al., 167 A. 139 (Sup. Ct. of R. I.); Cawthon v. Metropolitan Life Ins. Co., 93 S.W.2d 632 (Sup. Ct. of Tenn.); Shea v. United States Industrial Ins. Co., 48 N.Y.S. 548 (Sup. Ct. of N. Y.). The assignment pleas as an alternative basis for recovery by cross claimant is a valid assignment. Chapman v. McIlwraith, 78 Mo. 38; Wilbur v. Metropolitan Life Ins. Co., 64 Mo.App. 172; Fogle v. Equitable Life Ins. Co., 123 S.W.2d 595; Bowers v. Missouri Mutual Association, 62 S.W.2d 1058; 32 C. J. 1112, sec. 206; 37 C. J. 398.

Roy Coyne and Norman, Foulke & Warten for respondent.

This is a proceeding in equity and is subject to the usual rules applicable to such causes on appeal. Ellis v. Metropolitan Life Ins. Co., 3 S.W.2d 397. The record in this case affirmatively shows on its face that the probate court of Jasper County had jurisdiction to appoint Charles Kerr as administrator of the estate of his son, Ora Alfred Kerr. This judgment of the probate court, finding that it had jurisdiction, is a final judgment of the probate court, and is conclusive on all parties as to its jurisdiction. It has the same force and effect as the judgments of other courts of record and cannot be impeached collaterally by evidence de hors the record. In re Sheldon's Estate, 189 S.W.2d 235-237; State ex rel. Wilson v. Martin, 26 S.E.2d 834; State ex rel. Gregory v. Henderson, 88 S.W.2d 902. The judgment of the probate court of Jasper County was correct, and it properly found that it had jurisdiction to appoint Charles Kerr administrator of the estate of Ora Alfred Kerr, deceased. State ex rel. Smith v. Hull, 147 S.W.2d 214; Same case on certiorari, 152 S.W.2d 106; State ex rel. Pryor v. Anderson, 112 S.W.2d 857; Same case on certiorari, 123 S.W.2d 181. Under Sec. 1887, R. S. Mo. 1939, Olive Mae Kerr was not competent to testify as to transactions between herself and Ora Alfred Kerr, deceased, occurring prior to the appointment of Charles Kerr, as the administrator of his estate, since she was an adverse party to the administrator in the action where such evidence was offered. The parties are in the same position as if the husband were alive and had instituted replevin to regain possession of the policies and the wife claimed them by special contract. There was not a joint interest, but an adverse interest, as described in the statute. Sec. 1887, R. S. Mo. 1939; Davis v. Robb, 10 S.W.2d 680, 681, 682; Schwalbert v. Konert, 76 S.W.2d 445, l. c. 452; Slagle v. Callaway, 64 S.W.2d 923, l. c. 927. The incompetency of the testimony of Olive Mae Kerr was not waived, but was admitted under the express statement by the court, that he would rule on its admissibility at the close of all the evidence and the plaintiff's objections were properly saved. This was within the discretion of the court. Taylor v. Cayce, 10 S.W. 832, 97 Mo. 242. If the court holds that the testimony of Olive Mae Kerr as to transactions between herself and Ora Alfred Kerr, deceased, occurring before the appointment of his administrator, is inadmissible, appellants' Points 4 and 5 are out of the case because there is no other evidence to support them. In industrial insurance policies where the administrators or executors of the insured are the named beneficiary in the policy, which policy contains the facility clause, only the administrator or executor has the right to sue on the policy. This clause is for the benefit of the insurance company and protects it if it exercises its option to pay someone other than the named beneficiary. Those whom the insurance company might pay have no vested rights. Payment of premiums and possession of the policies do not entitle the holder to the proceeds of the policies. Manning v. Prudential Insurance Company, 213 S.W. 897; Walton v. Metropolitan Insurance Co., 232 S.W. 259; Hood v. Prudential Ins. Co., 56 S.W.2d 1066; Motley v. Metropolitan Life Insurance Co., 178 S.W.2d 792. An assignment of an insurance policy to a person having no insurable interest in the life of the assured under an agreement that the beneficiary is to pay the premiums is a void assignment as a gaming contract and against public policy. Woods v. Insurance Company, 113 S.W.2d 121; Plummer v. Metropolitan Life Insurance Co., 81 S.W.2d 453; Lewis v. Lewis, Adm'r., 27 S.W.2d 940; Gelfand v. Gelfand, 29 P.2d 271; John Heusner v. Mut. Life Ins. Co., 47 Mo.App. 336; Locke v. Bowman, 151 S.W. 468; Tripp v. Jordan, 164 S.W. 158; Allen v. Aetna Life Insurance Co., 62 S.W.2d 916. The evidence of Fern Marie Karner offered by cross-claimant in support of the alleged assignment is so contradictory on its face as to be no evidence at all. Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 645. Assignments of Error 5 and 6 are abandoned by failure to brief. This appeal should be dismissed on respondent's motion for deliberate and wilful refusal of appellant to comply with rule 104, paragraph (e) requiring appellant to furnish respondent with a typewritten copy of the transcript. Rules of the Supreme Court of Missouri adopted January 1, 1945, 1.04 (e) and 1.15 and 1.16.

Fulbright, P. J. Blair and Vandeventer, JJ., concur.

OPINION

FULBRIGHT

For convenience we will refer to the parties as they were designated in the court below.

This is an action by plaintiff, Charles Kerr, Administrator, against defendant insurance company and certain cross-claimants, who are made defendants by order of the court, upon two insurance policies heretofore issued by defendant. Judgment was for plaintiff and cross-claimants appeal.

The petition is in two counts, in conventional form and alleged that the policies carried a double indemnity clause in the event of accidental death and that the insured was accidentally killed on the 14th day of December, 1942. An answer was duly filed by defendant in the nature of a bill of interpleader, admitting the allegations in plaintiff's petition and stated that it was ready to pay the proceeds of the policies but that one Fern Marie Karner had filed proof of death and had surrendered the policies and receipt books and had made claim as daughter of deceased for the proceeds of the policies. It was further alleged that defendant had been advised that the deceased had a son and an ex-wife living at the time of his death and that they also were claiming some interest in the policies and that defendant was not advised of the rights of the respective parties to the proceeds and prayed permission to pay the money into the court; that all claimants be made parties to the suit and that the court determine who should be entitled to the proceeds of said policies. Thereupon the court ordered process to be issued and served on Fern Marie Karner, Ora Dean Kerr and Olive Mae Kerr, requiring them to answer the bill of interpleader theretofore filed by defendant insurance company.

Plaintiff Administrator, filed a reply to the answer of defendant and Olive Mae Kerr and her children, Fern Marie Karner and Ora Dean Kerr, filed answer and cross-claim to defendant's bill of interpleader, alleging that at all times therein mentioned they were residents of the State of Missouri. They denied that plaintiff was duly appointed administrator of said estate for the reason that said Probate Court failed to give the mandatory notice to the children of the deceased to appear and apply for letters of administration, as required by the Statutes. Cross-claimants further alleged that Olive Mae Kerr had caused the life of her said husband to be insured with the defendant for her sole benefit and that at the time of the procurement of said insurance Olive Mae Kerr was advised by the defendant that if ...