New York Life Ins. Co. v. Feinberg

• Decision Date: 12 April 1948
• Docket Number: 40487
• Parties: New York Life Insurance Company, a Corporation, v. Manley N. Feinberg, a minor, and Darle T. Feinberg, a minor for both of whom Florence Feinberg, 1816 Thilenius Ave., Cape Girardeau, Missouri, is the legally appointed Guardian and Curatrix, Appellants
• Court: Missouri Supreme Court

212 S.W.2d 574

357 Mo. 1044

New York Life Insurance Company, a Corporation, v. Manley N. Feinberg, a minor, and Darle T. Feinberg, a minor for both of whom Florence Feinberg, 1816 Thilenius Ave., Cape Girardeau, Missouri, is the legally appointed Guardian and Curatrix, Appellants

No. 40487

Supreme Court of Missouri

April 12, 1948

Rehearing Denied and Opinion Modified May 10, 1948. Motion to Transfer to Banc Overruled June 14, 1948.

Appeal from Cape Girardeau Circuit Court; Hon. James C McDowell, Judge.

Reversed and remanded.

Allen L. Oliver and Oliver & Oliver for appellants.

(1) The last decree of the trial court is also for the wrong party for the following reasons: The trial court never acquired jurisdiction of defendants. Though plaintiff named two minors and one guardian (three persons) in the caption of the petition, in the body of the petition and in the summons only one summons and one copy of the petition were ever served. The sheriff's return showed a non est as to each of the two minors. Upon the filing of defendants' motion to quash, the sheriff, through respondent's counsel, asked and was granted leave to file an amended return showing he had served both minors by serving a summons and a copy of the petition upon the guardian. The statute, the court rules and the cases all contemplate that a summons and copy of the petition shall be served upon each defendant, whether direct or through another. Sec. 27 (a), (b), (c), (d), Code of Civil Procedure, Laws 1943, p. 366; Sec. 3.09, Rules of the Supreme Court; Secs. 854, 867, 869, R.S. 1939; Stewart v. Stringer, 41 Mo. 400; Madison County Bank v. Suman, 79 Mo. 527, Harness v. Cravens, 126 Mo. 233, 28 S.W. 971; St. Louis v. Flynn, 31 S.W. 17, 128 Mo. 413; Feurt v. Caster, 73 S.W. 576, 174 Mo. 289. (2) Though service may be upon the guardian, there must be a copy for each infant. Weber v. Weber, 49 Mo. 45. (3) The provisions of the Missouri statutes as to form and service of process are applicable alike to infants and adults, except that there can be no acknowledgment of service under Section 882 by or on behalf of an infant. Weber v. Weber, 49 Mo. 45; Baumgartner v. Guessfeld, 38 Mo. 36; Kansas City, St. J. & C.R. Co. v. Campbell, 62 Mo. 585; Thompson v. Butler, 136 F.2d 644. (4) Defendants were entitled to a trial by jury on the issue of fact, misrepresentations, and its findings are decisive. In other words, the misrepresentation statute applies whenever it is sought to avoid a policy because of misrepresentations made in obtaining a contract. Johnson v. Central Mut. Ins. Assn., 143 S.W.2d 257, 346 Mo. 818; State ex rel. v. Blair, 178 S.W.2d 1020, 352 Mo. 584; Lipel v. General American Life Ins. Co., 192 S.W.2d 871; Security Life Ins. Co. v. Brimmer, 36 F.2d 176; State ex rel. v. Allen, 282 S.W. 46, 313 Mo. 384; 156 A.L.R. 1147; Secs. 5843, 5893, R.S. 1939. (5) Defendant minors were constitutionally entitled to trial by jury upon their counterclaim -- a common law action -- since plaintiff had an adequate remedy at law in defense of counterclaim. Amend. VII, U.S. Constitution; Sec. 22(a), Art. I, Constitution of Missouri (1945); Southeastern Life Ins. Co. v. Palmer, 113 S.E. 310. (6) Where the right to equitable relief depends upon a fact question as to which the parties have a constitutional right to jury trial, it has been held that equity cannot take jurisdiction to the deprivation of such rights. 50 C.J.S. 741, n. 38, and cases cited. (7) Equity will not entertain a suit to cancel when there is an adequate remedy at law. Phoenix Mut. Life Ins. Co. v. Bailey, 80 U.S. 616, 21 L.Ed. 501; Enlow v. New York Life Ins. Co., 293 U.S. 379, 19 L.Ed. 440; Adams v. New York Life Ins. Co., 293 U.S. 386, 79 L.Ed. 444; Aetna Life Ins. Co. v. Daniel, 42 S.W.2d 584, 382 Mo. 876. (8) Plaintiff had an adequate remedy at law. Equity takes jurisdiction only when necessary to preserve insurer's alleged defense of misrepresentations. Suit at law was pending in same court at time of motion. There is no absolute right to maintain action to cancel. Atlas Life Ins. Co. v. Southern, 306 U.S. 563, 83 L.Ed. 978, 59 S.Ct. 657; Aetna Life Ins. Co. v. Daniel, 328 Mo. 876, 42 S.W.2d 584. (9) Plaintiff's action to cancel was premature. An additional one hundred days would have had to elapse prior to expiration of the two year contestability period. Plaintiff knew of defendants' claims and should not be rewarded for its own refusal to furnish proofs of death forms, etc. to plaintiff. Mere priority of filing of actions under such circumstances should not deprive beneficiaries their right to jury trial. Aetna Life Ins. Co. v. Daniel, 328 Mo. 876, 42 S.W.2d 584; Mutual Life Ins. Co. v. Kessler, 160 Misc. 543, N.Y.S. 891. (10) Plaintiff, by answering in the Arkansas case between the same parties and upon these same policies and setting up therein its claim and plea of misrepresentation, thereby irrevocably established its right to make the defense of misrepresentation in any case between the parties on these policies. Plaintiff's remedy at law was therefore complete, and the equitable action was not maintainable. Aetna Life Ins. Co. v. Daniel, 328 Mo. 876, 42 S.W.2d 584; New York Life Ins. Co. v. Hurt, 35 F.2d 92; Powell v. Mutual Life Ins. Co. of New York, 313 Ill. 761, 144 N.E. 825. (11) The trial court also erred in refusing to grant defendants' alternative plea to suspend the equitable action pending trial of the law case provided the law action be promptly prosecuted. The sole basis for equitable jurisdiction in this cause was ancillary -- to prevent abuse of the law in depriving the insurer of an alleged defense. In such case equity should have preserved the defense by the order prayed for. Atlas Life Ins. Co. v. Southern, 306 U.S. 563, 83 L.Ed. 978, 59 S.Ct. 657; Landis v. North American Co., 299 U.S. 248, 81 L.Ed. 153, 57 S.Ct. 163; American Life Ins. Co. v. Stewart, 300 U.S. 203, 81 L.Ed. 611, 57 S.Ct. 377; Harul v. Metropolitan Life Ins. Co., 297 F. 479.

Finch & Finch, Jones, Hocker, Gladney & Grand, and Vincent L. Boisaubin for respondent; Ferdinand H. Pease of counsel.

(1) An insurance policy containing a clause that it shall be incontestable after two years from date of issue may be cancelled in equity for misrepresentation in its obtention or for breach of the condition precedent upon which it was to go into effect, provided the suit is filed within the contestable period and that no action as law has been previously filed to recover upon the policies. Aetna Life Ins. Co. v. Daniel, 328 Mo. 876, 42 S.W.2d 584; New York Life Ins. Co. v. Cobb, 219 Mo.App. 609, 282 S.W. 494; American Life Ins. Co. v. Stewart, 300 U.S. 203. (2) The court had jurisdiction of the defendants. The service was good. But one copy of the petition and summons served on a legally appointed guardian for two minor defendants is all that is necessary. Sec. 27 (b), Civil Code of Missouri 1943; Sec. 2, Civil Code of Mo. 1943; Supreme Court Rules 1.28, 3.09; Gerber v. Schuette Inv. Co., 354 Mo. 1246, 194 S.W.2d 25; 43 C.J.S., Infants, p. 318; Leach v. Maxwell, 171 Ark. 1188, 286 S.W. 1029; Johnson v. Carroll, 190 Ky. 689, 228 S.W. 412; Webb v. Webb, 190 Ky. 574, 228 S.W. 13; Cain v. Hall, 211 Ky. 817, 278 S.W. 152; Morrison v. Morrison, 25 Wash. 466, 65 P. 779. (3) Defendants, through their legally appointed guardian having affirmatively invoked the court's jurisdiction by seeking affirmative relief, cannot complain of the jurisdiction. Sec. 859, R.S. 1929; Cochran v. Thomas, 131 Mo. 258; Padgett v. Smith, 206 Mo. 303, 103 S.W. 943; Hanlin v. Meat Co., 174 Mo.App. 462, 160 S.W. 547; 3 Am. Jur., Appearances, sec. 18, p. 792; Moseley v. Victory Life Ins. Co., 226 Mo.App. 566, 45 S.W.2d 119; Winning v. Brown, 340 Mo. 178, 100 S.W.2d 303; Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308; Harwell v. Magell, 348 Mo. 365, 153 S.W.2d 362; Carson Natl. Bank v. Am. Natl. Bank, 225 Mo.App. 948, 34 S.W.2d 143; Merchants Heat & Light Co. v. Clow & Sons, 204 U.S. 286; Moreheart v. Farley, 141 Minn. 56, 182 N.W. 723; Federal Coal Co. v. Liberty Coal Co., 23 F.2d 674. (4) In a suit in equity to cancel a policy for misrepresentation the defendant beneficiary is not entitled to a trial by jury as a matter of right. The rules of equitable procedure obtain. New York Life Ins. Co. v. Cobb, 219 Mo.App. 609, 282 S.W. 494; Schuermann v. Life Ins. Co., 165 Mo. 641, 65 S.W. 723; Kern v. Legion of Honor, 167 Mo. 471, 67 S.W. 252; Snell v. Harrison, 83 Mo. 651; Winning v. Brown, 340 Mo 178, 100 S.W.2d 303; Laws 1874, p. 89; Fish v. Prudential Ins. Co. of America, 75 N.E.2d 57. (5) In a suit in equity the answers of a jury to interrogatories submitted by the court are not binding upon the court; they are merely "advisory" and may be either accepted or rejected. It is the duty of the chancellor to make such findings and enter such decree as he deems just and proper. Troll v. Spencer, 238 Mo. 81, 141 S.W. 855, Ann. Cas. 1913A 276; Northrip v. Burge, 255 Mo. 641, 164 S.W. 584; Adams v. Adams, 348 Mo. 1041, 156 S.W.2d 610; Shaw v. Butler, 78 S.W.2d 420; Burdall v. Johnson, 122 Mo.App. 119, 99 S.W. 2; James v. Oliver, 129 Mo.App. 86, 107 S.W. 1012. (6) A court of equity having first acquired jurisdiction to cancel a policy for misrepresentations in the application will protect its jurisdiction by enjoining the defendant from proceeding with a subsequent action at law to recover on the policy pending the final determination of the prior suit in equity. State ex rel. Townsend v. Mueller, 330 Mo. 641, 51 S.W.2d 8; State ex rel. Banner Loan Co. v. Landwehr, 324 Mo. 1142, 27 S.W.2d 25; State ex rel. Davis v. Ellison, 276 Mo. 642; State ex rel. N.Y. & C.R. v. Nortoni, 55 S.W.2d 272, 331 Mo. 764; Grey v. Ind. Order of Foresters, 196 S.W. 779; Equitable Life Ins. Co. v. Mann, 295...