Mutual Life Ins. Co. of Baltimore, Md. v. Burger

• Decision Date: 07 June 1932
• Docket Number: No. 21958.,21958.
• Citation: 50 S.W.2d 765
• Parties: MUTUAL LIFE INS. CO. OF BALTIMORE, MD., v. BURGER et al.
• Court: Missouri Court of Appeals

50 S.W.2d 765

MUTUAL LIFE INS. CO. OF BALTIMORE, MD., v. BURGER et al.

No. 21958.

St. Louis Court of Appeals. Missouri.

June 7, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Bill of interpleader by the Mutual Life Insurance Company of Baltimore, Md., against Ruth Burger and Mary Barnes. From a decree sustaining the interpleader and finding in favor of defendant Burger on the question of the right to the proceeds of a certain insurance policy, defendant Barnes appeals; the cause being revived in the name of Edward Burger, administrator, on the death of Ruth Burger pending the submission of the case on appeal.

Affirmed.

John P. Griffin, of St. Louis, for appellant Mary Barnes.

Jones, Hocker, Sullivan & Gladney and W. F. Drescher, Jr., all of St. Louis, for respondent Mutual Life Ins. Co. of Baltimore, Md.

Kurt Von Reppert and George W. Barker, both of St. Louis, for respondent Edward Burger.

BENNICK, C.

This is an interpleader suit, involving the payment of the proceeds of a policy of life insurance which was issued on April 14, 1928, by plaintiff, Mutual Life Insurance Company of Baltimore, Md., upon the life of one Lindley Barnes, who died on December 17, 1929.

The policy was for the sum of $500; and it was originally made payable to Mary Barnes, the wife of the insured, and the appellant herein, though the right to change the beneficiary from time to time by application to the company as required by its regulations was specifically reserved to the insured.

In addition to the above, however, the policy contained a facility of payment clause, providing that the company, upon receipt of proofs of the insured's death, might, at its option, pay the proceeds of the policy "either to the beneficiary designated hereon, if living, or to such other living beneficiary as may be duly and finally designated and recognized by endorsement hereon, or to the executor or administrator of the insured, or to any relative by blood or connection by marriage or to any person appearing to the company to be equitably entitled thereto, by reason of having incurred expense in any way on behalf of the insured for burial or for any other purpose; and the receipt of any such payee shall be conclusive evidence that payment has been made to the person or persons entitled thereto and that all claims under this policy have been fully satisfied."

The controversy over the payment of the proceeds of the policy was between the said Mary Barnes on the one hand, and Ruth Burger, the mother of the deceased, on the other, both of whom were made defendants to the suit.

Suffice it to say that defendant Mary Barnes claimed as the beneficiary named in the policy, her contention being that there had never been a change of beneficiary; and that, inasmuch as by payment of the proceeds to her the company might have received a full and complete discharge from all liability under the policy, it was not entitled to its remedy by interpleader.

Defendant Ruth Burger claimed upon the theory that, prior to the death of the insured, and while he was living separate and apart from his wife, he had made application to the company for a change of beneficiary, designating her as such in lieu of Mary Barnes; that such application was taken charge of by the agents and representatives of the company, and that she and her son were assured that the change would be duly made as provided for by the terms of the policy; that the original policy was requested from Mary Barnes, who replied that it had been destroyed, though the fact was that she then had, and continued to retain, such policy in her possession; that consequently the change of beneficiary could not be endorsed upon the original policy, and it became necessary for the company to issue a certificate for a lost and destroyed policy; that the certificate so issued, by reason of the inadvertence, accident, or mistake of the company, failed to designate any particular beneficiary, or to show the change of beneficiary in accordance with the application of the insured; that the certificate was accepted by the insured in good faith and in reliance on the statements and assurances of the company's agents, believing it to contain the change of beneficiary; that the application of the insured for change of beneficiary was lost by the company; and that, in reliance on all the above, she (defendant Ruth Burger) continued to pay all the premiums on the policy, and at the death of the insured incurred the liability for his burial expenses in the sum of $450.

Faced with such conflicting claims, threatened with an action at law by either claimant, if payment was made to the other, and having no interest in the controversy beyond its readiness and willingness to pay the proceeds of the policy to whomsoever was lawfully entitled thereto, the company, on January 28, 1930, filed its bill of interpleader.

The issues between the parties were thereupon made up as they have heretofore appeared; and in due course the court entered its decree, sustaining the interpleader, and finding in favor of defendant Ruth Burger upon the question of the right to the proceeds of the policy. Defendant Mary Barnes thereupon filed her motion for a new trial; and, the same having been overruled, she has duly perfected her appeal to this court.

Pending the submission of the case in this court, the death of defendant Ruth Burger has been suggested, and by stipulation of counsel the cause has been revived in the name of Edward Burger, the administrator of her estate.

The policy was written through one Theodore J. Porter, an agent for the company. The insured and his wife were living with the Burgers at the time, at 5247 Helen avenue in the city of St. Louis, and they continued to make their home with the parents until the middle of May, 1928, when they moved to Overland, Mo. The separation occurred on May 28, 1928, following which the insured, who was in poor health, returned to his mother's home, and lived with her and his stepfather until the time of his death.

The principal witness for defendant Ruth Burger was the agent, Porter. He testified that he took the application from Barnes himself, and that the mother paid the first premium, as well as all subsequent premiums, on the policy. However, about August, 1928, after the separation, and after the insured had returned to his mother's home, she informed Porter that, inasmuch as the daughter-in-law was designated as the beneficiary in the policy, she did not intend to pay any further premiums on the policy, unless she herself should be named as the beneficiary therein.

It was as a result of the mother's attitude in the matter that the application for change of beneficiary was made. A month or so prior to that time, when he was endeavoring to make collection of premiums, Porter had asked Mrs. Barnes where the original policy was, and she had told him that it had been destroyed. Accordingly, when the insured requested Porter to arrange for the change of beneficiary in the policy, the latter prepared forms, which the insured signed, for the issuance of a certificate for the lost policy and for change of beneficiary; the mother, defendant Ruth Burger, being designated as such. The forms were then turned in by Porter to the company's St. Louis office, and on August 17, 1928, the certificate for lost policy was issued, and in due course delivered by Porter to the insured and his mother.

It is conceded that the certificate of lost policy thus issued did not show the change of beneficiary (and, in fact, was silent as to the designation of a beneficiary); but Porter testified that, when he delivered it, he assured the mother that the change had been made by the company. It seems that, upon receiving the certificate, sh...