Locke v. Bowman

• Decision Date: 12 November 1912
• Citation: 151 S.W. 468,168 Mo.App. 121
• Parties: GEORGE W. LOCKE, Respondent, v. JOEL W. BOWMAN et al., Appellants
• Court: Missouri Court of Appeals

151 S.W. 468

168 Mo.App. 121

GEORGE W. LOCKE, Respondent, v. JOEL W. BOWMAN et al., Appellants

Court of Appeals of Missouri, St. Louis

November 12, 1912

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

AFFIRMED AND REMANDED.

STATEMENT.--In Equity. When this cause came on for hearing in the circuit court, the question was raised as to whether under the pleadings the plaintiff or the defendant had the burden of proof. The trial court decided that plaintiff must assume that burden, whereupon, the plaintiff declining to offer any evidence, the court rendered judgment dismissing his bill. Afterwards, because it considered that it had erred in ruling that plaintiff had the burden of proof, the court granted a new trial on plaintiff's motion, and the defendant has appealed.

The sole question presented on this appeal is whether the plaintiff or the defendant had the burden of proof under the pleadings.

The petition alleges in substance that the plaintiff procured from an insurance company a paid-up life insurance policy for $ 5532 on his own life, payable to Fannie G. Locke, his wife if living at his death, and if not living at his death, to the executors, administrators or assigns of plaintiff; that thereafter, on September 14, 1905, plaintiff and his said wife assigned the policy to E. M. Schwarzkopf in consideration of the latter paying $ 250 which the plaintiff owed the St. Louis Trust Company; that said assignment although on its face an absolute assignment, was, in fact executed as security to Schwarzkopf for the repayment to him of said $ 250; that Schwarzkopf died in June, 1907, and at the date of his death plaintiff was indebted to him in the sum of $ 250, advanced as aforesaid, together with interest thereon from September 14, 1905, such advance being secured by the aforesaid pledge of the policy; that, prior to the date of his death, Schwarzkopf pledged the policy with defendant Bowman as security for advances made by said Bowman to Schwarzkopf in a sum far in excess of the amount of plaintiff's indebtedness to Schwarzkopf, and thereafter, Schwarzkopf making default in the amount owing to Bowman, the latter caused the policy to be sold to satisfy Schwarzkopf's indebtedness to him and at said sale purchased the policy himself and is now in possession, claiming to be the owner thereof; that Fannie G. Locke is dead. Plaintiff further avers his readiness and willingness to pay to either defendant the said sum of $ 250 together with interest thereon and to do all things which, in equity, he should do to protect the interests of the defendants. The prayer of the petition is, that "the court adjudge and decree that the said policy is now held by the said Bowman only as security for the payment of the said sum of $ 250, with interest due thereon from September 14, 1905, and, upon payment by the said plaintiff to said Bowman of said amount, the court order and direct the said Bowman to surrender to plaintiff the said policy herein described. And plaintiff prays for such other and further judgments, orders and decrees as may be necessary to fully protect his interests and the rights and interests of the defendants."

The defendant executrix does not appear to have answered or appeared, though duly summoned. Defendant Bowman answered, admitting the transaction as alleged, except that he avers that the consideration for the assignment to Schwarzkopf, in addition to the payment by Schwarzkopf of $ 250 to the trust company, "was for premiums paid on the policy by Schwarzkopf and other valuable consideration." He denies that the assignment to Schwarzkopf was executed as a mere assignment to secure the repayment of the $ 250, and avers that it was in fact "an unconditional and an absolute sale and assignment of said policy in writing for a valuable consideration." He pleads that the assignment, being absolute on its face, plaintiff is estopped from denying that it was so in fact. He alleges that the amount of the loan for which Schwarzkopf pledged the policy to him was $ 2000, which was evidenced by a note; that the sale by defendant Bowman, at which he bought the policy in, was made in accordance with the terms of the pledge, etc., and that by said sale he became the absolute legal and beneficial owner of the property. Defendant also states facts relied upon by him as creating an estoppel, and constituting laches, sufficient to bar plaintiff from relief. Defendant further pleads that he made the loan to Schwarzkopf in good faith, relying on the assignment of the policy to Schwarzkopf as an absolute one, and without knowledge or notice of plaintiff's claim or alleged equities.

The reply was a general denial of "each and every allegation of new matter" in the answer contained.

When the case was called for trial and the pleadings were read, the trial judge asked if the reply contained the word "new." Being answered in the affirmative, he said "You better strike it out. The Supreme Court has held that the court and the other party are not bound to plow through the pleadings to find out what is new matter and what is not. Just let it be a general denial of the allegations of the answer."

Judgment affirmed and cause remanded.

Hall & Dame for appellant.

(1) Plaintiff's bill herein does not state facts sufficient to constitute a cause of action against defendant Bowman. (a) One who leaves his property in the possession of another and knowingly allows that other to hold himself out to the world as the owner, will be estopped as against creditors of such other person from claiming the property as his own. McDermot v. Barnum, 19 Mo. 204; Rieschieck v. Klingelhoefer, 91 Mo.App. 431; Klingelhoefer v. Smith, 171 Mo. 455; Riley v. Vaughn, 116 Mo. 169. (b) Courts of equity view with disfavor suits that are brought long after the transactions litigated have occurred, and long after death has sealed the lips of those familiar with the occurrences. Lenox v. Harrison, 88 Mo. 491; Burdette v. May, 100 Mo. 13; Brown v. Assurance Soc., 75 Minn. 412; Kroening v. Goehri, 112 Mo. 641. (c) A person seeking equity must first do equity. Plaintiff in his bill does not allege that he tendered defendant Bowman, before suit, the amount said Bowman advanced on said policy. McClintock v. Bank, 120 Mo. 133; Talty v. Freedman's Sav. & Tr. Co., 93 U.S. 321; Scharf, Admr. v. Fries, 90 Mo.App. 111. (2) The averments in defendant's answer are not denied by plaintiff and therefore must stand admitted. The pleading which plaintiff styles a reply does not deny the averments of defendant's answer. The language of the reply that plaintiff denies the new matter of defendant's answer is no denial since it does not point out what the allegations of new matter are. Betz v. Telephone Co., 121 Mo.App. 473; Dezell v. Casualty Co., 176 Mo. 253; Sundmacher v. Lloyd, 135 Mo.App. 517; R. S. 1909. sec. 1830; Young v. Schofield, 132 Mo. 650. (3) A policy of life insurance is assignable as any other chose in action. McFarland v. Creath, 35 Mo.App. 112; Floyd v. Ins. Co., 72 Mo.App. 459; Kelly v. Ins. Co., 148 Mo. 249; St. John v. Ins. Co., 13 N.Y. 31; Brown v. Ins. Co., 75 Minn. 412; Brockway v. Ins. Co., 9 F. 249; Ins. Co. v. Armstrong, 117 U.S. 591; A. O. U. W. v. Brown, 112 Ga. 545; Fitzpatrick v. Ins. Co., 56 Conn. 116; Chamberlain v. Butler, 61 Neb. 730; Ins. Co. v. Liersch, 122 Mich. 436; Strike v. Ins. Co., 95 Wis. 583; Bowen v. Association, 63 Conn. 460; Rittler v. Smith, 70 Md. 261; Bursinger v. Bank, 67 Wis. 75; Souder v. Home Friendly Soc., 72 Md. 511; Clogg v. McDaniel, 89 Neb. 416; Ins. Co. v. Allen, 138 Mass. 24; Dixon v. Ins. Co., 168 Mass. 48; Murphy v. Red, 64 Miss. 614; Johnson v. Van Epps, 14 Ill.App. 201; Stoelker v. Thornton, 88 Ala. 241; Olmstead v. Keyes, 85 N.Y. 598; Steinbach v. Diepenbrock, 158 N.Y. 24. (4) The party who alleges that an assignment absolute on its face is given as security for a mortgage has the burden of proving that fact. Cobb v. Day, 106 Mo. 296; Worley v. Dryden, 57 Mo. 226; Dixon v. Ins. Co., 168 Mass. 48. (5) There is not any presumption in favor of an assignor of a life insurance policy that his assignment of said policy absolute in form is for less than the full value of the policy. (6) Defendant's denial of allegation of the complaint or bill that the assignment was given as security instead of as an absolute sale, called upon plaintiff for his proofs, notwithstanding express allegations containing affirmative pleas by the defendant. Offenstein v. Gehner, 223 Mo. 318; Bolingford v. G. L. of A. etc., 42 N.Y.S. 881; Railroad Co. v. Kerr, 17 Barb. 581; Amandor Co. v. Butterfield, 51 Cal. 526; Batto v. Vandament, 67 Cal. 332; Homire v. Rodgers, 74 Ia. 306; Connolly v. Clark, 45 N.Y.S. 1042.

J. D. Johnson and Loomis C. Johnson for respondent.

(1) The defendant below (appellant here) in his separate answer admitted plaintiff's cause of action; hence the order of dismissal was properly vacated. Facts admitted by the pleadings need not be proven. McGraw v. O'Neil, 123 Mo.App. 696; McKenzie v. Railroad, 216 Mo. 1; Chouteau v. Chrisman, 204 Mo. 371. (2) Assignments of policies of life insurance, though absolute on their face and for value, are prima facie void unless the insurable interest of the assignee in the life of the insured is made to appear. Singleton v. Ins. Co., 66 Mo. 72; Haeusner v. Ins. Co., 47 Mo.App. 336; Deal v Hainly, 135 Mo.App. 516; Ins. Co. v. Rosenheim, 56 Mo.App. 33; Ins. Co. v. Richards, 99 Mo.App. 91; Warnack v. Davis, 104 U.S. 783; Whitmore v. Knights & L. of H., 100 Mo. 46. (3) (a.) Where the insurable interest of the assignee of a policy of life insurance does not appear, the burden of proof is on an assignee claiming under the policy to prove his insurable interest. Singleton v. Ins. Co., 66 Mo....