Peoples-Home Life Ins. Co. v. Haake

Decision Date09 September 1980
Docket NumberWD 30833.,No. WD 30711,WD 30711
Citation604 S.W.2d 1
PartiesPEOPLES-HOME LIFE INS. CO., Plaintiff, v. William G. HAAKE, Respondent, and Suzanna Sermon and Jennifer Sermon, Appellants. William G. HAAKE, Respondent, v. METROPOLITAN LIFE INSURANCE CO. et al., Defendants, and Suzanna Sermon and Jennifer Sermon, Appellants.
CourtMissouri Court of Appeals

Thomas A. Sweeny, Kansas City, for appellants Suzanna & Jennifer Sermon.

Bart L. Strother of Morris & Foust, Kansas City, for respondent William G. Haake.

Insurance companies not represented in these appeals.


Motion for Rehearing and/or Transfer to Supreme Court Denied July 8, 1980.


The instant proceeding arises from separate appeals from two judgments entered by different divisions of the 16th Judicial Circuit. The first appeal was from an order of dismissal pursuant to Rule 61.01(b). The second appeal was from a summary judgment. The cases were consolidated on appeal. Both judgments are reversed, consolidated for purposes of trial and remanded to Division No. 11 of the 16th Judicial Circuit.

For clarification, the cases are separately discussed herein and are referred to as the Peoples Case and the Metropolitan Case, respectively. A singular account of the factual background suffices to address both cases.

On January 29, 1977, the body of Evelyn Haake, bearing gunshot wounds, was discovered. She was the apparent victim of a homicide. Mrs. Haake was the former wife of Raymond W. Sermon and at the time of her death, was the wife of William G. Haake. Mrs. Haake had two children born of the marriage to Raymond W. Sermon. She was survived by the former husband, her second husband and her minor children.

Investigation of the homicide was commenced by the Raytown Police Department. It is presumed by this court that this investigation remains pending, because the record fails to disclose any disposition of the criminal matter. Reference to the criminal proceedings, as will be observed, is necessary as those proceedings become the focal point of these two cases.


William G. Haake, surviving spouse of Evelyn Haake, made claim to the proceeds of a life insurance policy issued upon Evelyn Haake. The face amount of the policy was $50,000. William Haake was named as primary beneficiary and Henry Haake, Sr. was named secondary beneficiary on this policy. The Peoples-Home Life Insurance Company filed an interpleader action naming in its petition William G. Haake, Henry Haake, Sr., and Raymond W. Sermon as defendants. Raymond W. Sermon was designated party defendant in his capacity as the natural father and guardian of the two minor Sermon children. Henry Haake, Sr. defaulted by failure to file an answer.

Separate answers were filed by the remaining defendants. Defendant William G. Haake filed his answer claiming entitlement to the policy proceeds and denying any actions which would bar his recovery as named beneficiary. Defendant Sermon filed his answer alleging Evelyn Haake had been murdered, that William Haake was a suspect in the ongoing criminal investigation and that if the named beneficiaries brought about the death of the insured, then the two surviving minor children were entitled to the policy proceeds.

Following the initial pleadings, discovery by way of interrogatories ensued. It is necessary at this juncture to set forth the chronology of the discovery and the pertinent responses found therein.

(a) June 1, 1978Defendant Haake mailed opening interrogatories to defendant Sermon.
(b) July 15, 1978Defendant Haake moves for judgment by default pursuant to Rule 61.01(b) upon failure of Sermon to answer interrogatories.
(c) July 17, 1978Defendant Sermon as guardian ad litem files answers to Haake's interrogatories and alleges inability to obtain information about the murder investigation from the Raytown Police Department.
(d) July 20, 1978Defendant Haake files another motion pursuant to Rule 61.01(b) alleging the answers to interrogatories are incomplete, evasive and improperly sworn to and signed.
(e) August 28, 1978Trial court orders Sermon to make factual and definite answers to interrogatories nos. 2, 6, 8 and 9 by September 20, 1978.
(f) September 20, 1978Defendant Sermon files amended answers to interrogatories.
(g) October 3, 1978Defendant Haake moves again for dismissal and judgment pursuant to Rule 61.01(b) for failure of defendant Sermon to comply with the court order of August 28, 1978.
(h) October 25, 1978Defendant Sermon files answers to interrogatories and moves the court to accept them as full and complete.
(i) November 14, 1978Court sustains defendant Haake's motion for judgment pursuant to Rule 61.01(b).
(j) January 12, 1979Court overrules defendant Sermon's motion for oral argument and orders policy proceeds paid to defendant Haake. This judgment was deemed final and appealable. (Record shows that notice of appeal was filed with the Missouri Supreme Court on January 2, 1979)
(k) January 23, 1979—Cause transferred from Missouri Supreme Court to Missouri Court of Appeals, Western District.
(l) January 25, 1979—Cause received in Missouri Court of Appeals, Western District.

William Haake as the named beneficiary filed suit upon a second life insurance policy insuring the life of Evelyn Haake, issued by the Metropolitan Life Insurance Company. The sum claimed was $48,242. The Metropolitan Life Insurance Company filed a counterclaim in the nature of interpleader for purposes of determining whether the policy proceeds were payable to William Haake or the minor Sermon children.

On February 20, 1979, plaintiff William Haake filed a motion for summary judgment alleging the default judgment in the Peoples Case was a bar in the Metropolitan Case under the doctrine of res judicata. The trial court sustained plaintiff Haake's motion and entered judgment on March 14, 1979. Notice of appeal from that judgment was filed March 26, 1979.

Pending the appeal of both cases, Sermon and his counsel were advised of their failure to comply with Rule 84.04. This court, on repeated occasions, so advised counsel and Sermon and in each instance, granted time in which to comply with the rule. This failure led to a hearing by a special panel of this court which culminated in the removal of Raymond Sermon as guardian for the minor children, and appointment of a successor guardian. The successor guardian is also the legal counsel pursuing the appeal following the filing of an appropriate brief.

Two points of alleged error are presented and they address separately the two judgments entered heretofore. Consideration of the alleged errors is taken up in the order of their presentment and as they apply to each of the specific trial court judgments.

PEOPLES CASEThe trial court erred in sustaining respondent's motion to dismiss because the answers to respondent's interrogatories by the minor children were complete and sufficient in view of the gravamen of the case and further that the action of the trial court was capricious and arbitrary in view of the severity of the sanction imposed.

METROPOLITAN CASEThe trial court erred in granting summary judgment upon the doctrine of res judicata since the ruling in the previous case was not upon the merits and such action was manifestly unfair to the minor children as parties herein.

The issue surrounding appellants' first point of error is whether or not the trial court's action in entering judgment pursuant to Rule 61.01(b) is a matter reviewable by this court and if so, upon what premise.

Rule 61.01(b) states:

"(b) Failure to Answer Interrogatories. If a party fails to answer interrogatories or file objections thereto within the time provided by law, or if objections are filed thereto which are thereafter overruled and the interrogatories are not timely answered, the court may, upon motion and reasonable notice to other parties, make such orders in regard to the failure as are just and among others the following:
(1) An order striking pleadings or parts thereof, or dismissing the action or proceeding or any part thereof, or render a judgment by default against disobedient party.
(2) Upon the showing of reasonable excuse, the court may grant the party failing to answer the interrogatories additional time to file answers but such order shall provide that if the party fails to answer the interrogatories within the additional time allowed, the pleadings of such party shall be stricken or the action be dismissed or that a default judgment shall be rendered against the disobedient party."

There is without question the authority allowing the trial court to impose sanctions against a party for the untruthful or evasive answering of interrogatories, see Hilmar v. Hezel, 492 S.W.2d 395, 397 (Mo. App.1973); that absent an abuse of discretion the trial court has such broad power, see State ex rel. N. W. Electric Power Cooperative, Inc. v. Buckstead, 399 S.W.2d 622 (Mo.App.1966); Schmelig Construction Co., Inc. v. Missouri State Highway Commission, 543 S.W.2d 265 (Mo.App.1976). This broad power under proper circumstances extends to the entry of a default judgment, see State ex rel. Jones v. Reagan, 382 S.W.2d 426 (Mo.App.1964), J & J Window Sales, Inc. v. Mueller, 567 S.W.2d 153 (Mo.App. 1978).

Although the trial court is empowered with such broad discretion, such discretion is not removed from appellate review. This latter provision becomes particularly applicable where in those cases judgment by default is entered against a party for failure to adhere to an order for discovery, see In re Marriage of Dickey, 553 S.W.2d 538 (Mo.App.1977). Judgments by default have long been recognized as harsh and drastic actions and there is wide observance that "Judgments by default are not favored", see Lambert...

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