New York Life Ins. Co. v. Stoner

• Decision Date: 29 November 1937
• Docket Number: No. 10885.,10885.
• Parties: NEW YORK LIFE INS. CO. v. STONER.
• Court: U.S. Court of Appeals — Eighth Circuit

92 F.2d 845 (1937)

NEW YORK LIFE INS. CO. v. STONER.

No. 10885.

Circuit Court of Appeals, Eighth Circuit.

November 29, 1937.

William H. Becker and Lee-Carl Over-street, both of Columbia, Mo. (Boyle G. Clark, of Columbia, Mo., and Louis H. Cooke, of New York City, on the brief), for appellant.

R. E. Culver, Benjamin Phillip, Basil Kaufmann, and Francis Smith, all of St. Joseph, Mo., for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from an order sustaining a motion to dismiss appellant's bill of complaint for want of equity. Appellant insurance company, by its amended bill of complaint, sought an injunction restraining appellee from prosecuting three certain actions then pending in the state courts and from instituting further actions based on four policies of disability insurance issued by appellant to the appellee. The equitable jurisdiction of the court was invoked on the ground of multiplicity of actions.

It appears from the allegations of the amended bill of complaint that appellant, plaintiff below, is an insurance corporation and that it had issued four disability insurance policies to appellee, each of which contained provisions for monthly income benefits for total and permanent disability.

We shall refer to the parties as they appeared below.

On June 29, 1931, defendant accidently sustained injuries to his ankle which totally disabled him immediately following the injury. Plaintiff made the monthly payments stipulated in the policies to defendant to September 29, 1933, but prior to that date defendant so recovered from his injury that he has not since then been totally disabled, and plaintiff refused to make further payments of income benefits. Defendant, on April 4, 1934, commenced an action in the state circuit court of Buchanan county, Mo., to recover monthly disability income benefits for the period from September 29, 1933, to March 29, 1934. The petition in that action contained four counts based respectively on one of the four policies of insurance. Trial was had, resulting in a judgment in favor of the insurance company. The judgment, however, was reversed by the Kansas City Court of Appeals (90 S.W.2d 784) on January 6, 1936, and the cause was remanded for a new trial. The insurance company then filed a petition for removal of the action to the United States District Court. On motion the cause was remanded, but, because of a change of venue granted on motion of the insurance company, the cause did not become triable at the then pending term of court. Defendant then commenced a second action in the state circuit court of Platte county, Mo., in June, 1936. This action was based upon two of the four policies of insurance and sought recovery for the period from April 29, 1934, to May 29, 1936, and was triable at the September, 1936, term of the court, commencing September 14, 1936. At the request of the defendant, plaintiff in that action, the court set the cause for trial September 17, 1936, but a change of venue was obtained by the insurance company to Davies county, where the cause was triable the third Monday in October, 1936. A third action was commenced by defendant in June, 1936, in the circuit court of Buchanan county, based upon the other two policies not involved in the Platte county action, to recover monthly disability benefits accruing between April 29, 1934, and May 29, 1936, which action was triable at the October, 1936, term.

The instant suit was commenced in the lower court September 15, 1936, and the amended bill was filed November 4, 1936. The complaint contains appropriate allegations to the effect that the defendant, in commencing the three above-noted actions at law, acted vexatiously to harass the plaintiff. It is also alleged that plaintiff "believes and therefore alleges, that the defendant Lewis K. Stoner will from time to time file numerous other actions in various counties of the State for the purpose of harassing and annoying plaintiff and causing exorbitant expense in the defense of his claim." It is further alleged that the defendant is unwilling to abide the result of the trial of the original action filed in the circuit court of Buchanan county in 1934 as controlling his right to income payments involved in the other actions filed by him, and is unwilling to abide the result of the trial of any one of the actions as binding upon him, and that he is unwilling to await the orderly determination of the right of the plaintiff to a removal of the cause originally commenced in the circuit court of Buchanan county.

The first action, commenced in Buchanan county, sought to recover $1,150; the second action in Buchanan county sought to recover $1,560, and the third action, the one in Platte county, sought to recover $1,690, all exclusive of interest and costs.

The motion to dismiss was sustained by the lower court on the ground that the plaintiff was not in a legal sense harassed by a multiplicity of actions.

The question presented below, as here, is whether, because of the multiplicity of actions brought by the defendant, plaintiff is without an adequate remedy at law.

The policy provisions regarding monthly disability payments obligate the plaintiff to pay defendant the stipulated monthly sum "upon receipt of due proof that the insured has become and is totally and presumably permanently disabled." Disability was to be considered total whenever the insured become so disabled by bodily injury or disease that he was wholly prevented from performing any work, following any occupation, or from engaging in any business for remuneration or profit. If the insured became totally disabled as defined, and the proof submitted was not conclusive as to permanence of the disability, but established that the insured, for a period of not less than three consecutive months immediately preceding receipt of proof of loss, had been totally disabled, income payments would be made. The insurance company might demand due proof of total disability before making any income payment or waiving any premium. If there were failure to furnish such proof, or if the insured performed any work, followed any occupation, or engaged in any business for remuneration or profit, no further income payments should be made.

The first action brought by the...