Long v. Montgomery

• Decision Date: 11 November 1929
• Docket Number: No. 16416.,16416.
• Citation: 22 S.W.2d 206
• Parties: LONG v. MONTGOMERY et al.
• Court: Missouri Court of Appeals

22 S.W.2d 206

LONG v. MONTGOMERY et al.

No. 16416.

Kansas City Court of Appeals. Missouri.

November 11, 1929.

Rehearing Denied December 2, 1929.

Appeal from Circuit Court, Carroll County; Ralph Hughes, Judge.

"Not to be officially published."

Action by Harry Long against J. E. Montgomery and another. Judgment for defendants, and plaintiff appeals. Affirmed.

John D. Taylor, of Keytesville, for appellant.

Scott J. Miller, of Chillicothe, Collet & Son, of Salisbury, Roger S. Miller, of Kansas City, Davis & Davis and Kitt & Marshall, all of Chillicothe, and S. J. & G. C. Jones, of Carrollton, for respondents.

BARNETT, C.

This is an action for money had and received, and this is the second appeal to this court. Long v. Montgomery et al., 295 S. W. 811. The amended petition alleges that the Bankers' Life Association is an insurance company organized under the laws of Iowa and transacting business in the state of Missouri as a company issuing insurance on the assessment plan; that the company executed and delivered two benefit certificates to one Issac N. Long, in each of which certificates it was provided that in the event of the death of Issac N. Long during his membership in said association the company would pay the sum of $2,000 to his beneficiary named therein, together with the sum of $92, a sum paid into the reserve fund of the association by the member as required by its by-laws. The beneficiaries named in each policy were Mary J. Long, Harry Long, and Cora A. Long, wife and children.

It was provided that in the event of the death of the beneficiary prior to the death of the member, or in case there was none named, the benefit then would be paid to the representatives of the deceased member. It was alleged that Mary J. Long, wife, and Cora A. Long, daughter, predeceased Issac N. Long; that Long died in 1923, and at that time the plaintiff, Harry Long, was the sole surviving beneficiary named and provided for under the terms of the benefit certificate; and that he thereby became entitled to all the proceeds arising from the insurance. It was alleged that the defendants were the executors of the last will and testament of Issac N. Long; that after their appointment the insurance company executed a draft for the full amount due under both policies, payable to plaintiff and to defendants as executors of the estate of Issac N. Long; that the defendants claimed that they were entitled to receive two-thirds of the proceeds of the draft, and plaintiff demanded the full amount thereof; that the draft was indorsed by both plaintiff and defendants and was cashed by the defendants, and one-third of the amount of the draft was deposited in a bank at Brookfield, Mo., on a time certificate of deposit, and thereafter the bank failed, and after the failure of the bank the certificate of deposit was delivered. It is alleged that defendants used two-thirds of the proceeds of the draft in paying debts of the estate of Issac N. Long. The prayer is for the recovery of the full amount of the draft. The answer admitted that the Bankers' Life Association was an insurance company organized under the laws of the state of Missouri, and that it executed the two certificates and provided that in the event of the death of the assured the amount of his certificates would be paid to his beneficiaries therein named, Mary J. Long, Cora A. Long, and Harry Long, wife and children of the said Issac N. Long; and that the wife and daughter predeceased the assured. It was admitted that the full amount of the two certificates had been paid and that defendants, as executors, collected two-thirds of the money so paid and used the same in paying the debts of the said Issac N. Long, deceased. The answer alleged that the benefit certificates provided that in the event of the death of the beneficiary prior to that of the member or in case none is named, the benefit was then to be payable to the legal representatives of the deceased member. There are further allegations concerning the conduct of the plaintiff and his acquiescence in the conduct of defendants which are pleaded as estoppel, but those allegations are omitted from this statement, as the view we take of the case makes it unnecessary to pass upon the question of estoppel.

A certified copy of the articles of incorporation of the Bankers' Life Association was introduced in evidence, together with proof that that company had been authorized to do business on the assessment plan in the state of Missouri. The articles of association, among other things, provides that the object of the association shall be the creation of a fund by making mutual pledges and giving valid obligations of the members to each other for their own insurance from loss by death, and the equitable distribution of that fund among the families or designated beneficiaries of deceased members. It does not appear from the articles of association nor from any other evidence that the association has ever designated the persons who may be beneficiaries. The two benefit certificates were introduced in evidence, and provided as follows: "In the event of the death of the beneficiary prior to that of the member, or in case none is named, the benefit then shall be payable to the legal representatives of the deceased member." Much of the evidence had to do with an alleged agreement between the plaintiff and the defendants concerning the manner in which the proceeds of the draft should be divided and the conduct of the plaintiff and defendants, all of which was directed to the issue tendered by the affirmative defenses set up in the answer. However, it clearly appeared that $4,092 was due from Bankers' Life Association under the two benefit certificates issued to Issac N. Long; that in each certificate it was provided that the amount due under the contract was to be paid to Mary J. Long, Cora A. Long, and Harry Long, wife and children; that both the wife and daughter predeceased the member; and that the executors of the estate of the assured retained two-thirds of the money collected from the insurance company, and there was evidence that one-third was paid out by the executors according to the directions of the plaintiff. The case was tried to the court without a jury, and no request was made that the court state in writing his conclusions of fact as provided by section 1402, Rev. St. 1919.

There was a judgment for defendants, and plaintiff appealed.

Opinion.

This is an action at law. No special finding of fact was requested, and it therefore follows that if the judgment of the trial court is sustained by any substantial evidence upon any theory the judgment must be affirmed. It has been suggested by appellant that the action was converted into an equity suit by the answer. However, an inspection of the answer discloses the fact that defendants prayed for no affirmative relief. We do not agree that the answer set up any equitable defense, but even if it did, the case would not be converted into a suit in equity. It is only when affirmative relief is prayed for that cannot be granted except by a court of equity that a lawsuit is converted into a suit in equity. Brooks v. Gaffin, 192 Mo. loc. cit. 244, 90 S. W. 808; Koehler v. Rowland, 275 Mo. loc. cit. 581, 205 S. W. 217, 9 A. L. R. 107 and authorities there cited.

On the first appeal this cause was reversed and remanded...