Philadelphia Life Ins. Co. v. Moffat

• Decision Date: 12 December 1989
• Docket Number: Nos. 55684,55827,s. 55684
• Citation: Philadelphia Life Ins. Co. v. Moffat, 783 S.W.2d 133 (Mo. App. 1989)
• Parties: PHILADELPHIA LIFE INSURANCE COMPANY, Plaintiff, v. Robert P. MOFFAT, Nicholas Moffat and Margaret O'Shaughnessy, Defendants-Appellants, and Donald Lang, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 133

783 S.W.2d 133

PHILADELPHIA LIFE INSURANCE COMPANY, Plaintiff, v.Robert P. MOFFAT, Nicholas Moffat and Margaret O'Shaughnessy, Defendants-Appellants and Donald Lang, Defendant-Respondent.

Nos. 55684, 55827.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 12, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Jan. 17, 1990.

Platke & Berkowitz, Stuart R. Berkowitz & Robert D. Beekman, St. Louis, for defendants-appellants.

Armstrong, Teasdale, Schlafly, Davis & Dicus, John F. Cowling and Ann E. Buckley, St. Louis, for defendant-respondent.

KAROHL, Judge.

This lawsuit began as an interpleader action filed by Philadelphia Life Insurance Company.Philadelphia Life issued decedent, Vita Miceli, a life insurance policy providing for payment of $50,000 to the beneficiary upon her death.The original beneficiary was her husband, Donald Lang.Just prior to her death Vita Miceli executed a change of beneficiary form which made the proceeds of the policy payable to her children by a prior marriage, Robert Moffat, Nicholas Moffat and Margaret O'Shaughnessy.[Hereafter, Moffats].After Vita Miceli's death on December 23, 1985defendant Lang and defendants Moffat each made a claim against Philadelphia Life for the proceeds of the life insurance policy.After depositing $50,000 into the registry of the court, Philadelphia Life Insurance Company was dismissed by consent of all claimants.By consent the opposing claims were tried to a jury.The only disputed factual issue decided by the jury was an element of Lang's claim, that at the time Vita Miceli changed the beneficiary she was acting under undue influence or was of unsound mind.The jury returned a verdict in favor of Donald M. Lang.

Moffats appeal on two grounds: (1) because this suit began as a proceeding in interpleader, an equitable action, the trial court was without jurisdiction to try the competing claims before a jury; and, in the alternative, (2)defendant Lang had a burden to prove undue influence or unsound mind by clear and convincing evidence, but the court submitted a burden of proof instruction patterned after MAI 3.01 which submitted only preponderance of the evidence as the burden of proof.

Both claims of error present questions of law.Accordingly, a brief statement of the facts will be sufficient.Two years before her death Vita Miceli married Donald Lang.Vita had three children from a prior marriage.She died on December 23, 1985, after battling pancreatic cancer for several months.In mid-December, 1985she requested her nephew, Leo Miceli, an insurance salesman, to assist her in changing her beneficiary on a life insurance policy.Leo testified it was Vita's wish to change the beneficiary from her husband to her children and to transfer the ownership of a second policy from herself to her husband.The second policy was never involved in the present lawsuit.On December 16, 1985Leo Miceli brought the appropriate change of beneficiary forms to his aunt at her home where she signed them.Leo also testified that she had initiated the idea of these changes while in the hospital.He spoke with her there and at her home when the change forms were executed.On both occasions Leo explained the impact of her actions to his aunt.During this time period Vita Miceli was being given fifteen milligram injections of morphine every two to four hours for the pain from her illness.

We find the court had jurisdiction to submit the competing claims of the Moffats and Lang to a jury.While it is true that in Missouri interpleader is an action in equity and therefore not triable to a jury, there are two parts to an action commenced in interpleader.An interpleader action involves two successive litigations, one between the parties seeking interpleader and the rival claimants on the issue of the propriety of interpleader, and a second between the rival claimants on their conflicting claims.General American Life Insurance Company v. Wiest, 567 S.W.2d 341, 346(Mo.App.1978).

Moffats do not claim trial court error in permitting a jury to determine the factual dispute on Lang's allegations of undue influence or unsound mind.Because they consented to a jury trial setting and jury trial they would not be heard to complain of mere error.Rather, they contend all fact issues in a case begun by interpleader must be resolved by the court because "this matter was equitable and therefore not triable by jury."In their brief, Moffats argue "the matter is jurisdictional."In support of this assertion they rely on State of Missouri ex rel. Rope v. Borron, Jr., 762 S.W.2d 427(Mo.App.1988).

State ex rel. Rope v. Borron, holds that when an equitable defense is presented to a claim triable by a jury a separate equitable trial shall first be conducted.The court found that claimants' probate claim depended upon the invalidity of a post-nuptial agreement.The validity and the extent of the claim would be proper for a jury only after the issue of equitable defense was determined, provided the court found the post-nuptial agreement invalid.The probate court had consolidated the claims and the defense and ordered a jury trial on all issues.Borron prohibited the single trial and required a predisposition of the equitable defense.The appellate court determined it had writ jurisdiction because permitting a jury trial on an equitable defense would create automatic error on appeal for either party, a jurisdictional defect.

Moffats' reliance on Borron is misplaced.It recognized the possibility of two successive trials in the same proceeding, one equitable and one legal.In the present case the equitable interpleader issues were totally disposed of before the jury trial on competing claims.The only issues for jury decision involved mental incompetence and undue influence.In Borronthe court recognized the holding in Farnsworth v. Farnsworth, 728 S.W.2d 223(Mo.App.1986).Farnsworth permitted a jury trial on these issues in a suit to set aside an inter vivos trust.Farnsworth, not Borron, is decisive where the equitable issue, in this case interpleader, was fully resolved before the jury trial.Further, Farnsworth recognized there was no authority to the contrary.There are cases where these issues were tried to a jury after interpleader issues were resolved, Citizens Bank of Warrensburg v. Ogden Equipment Co., Inc., 541 S.W.2d 58(Mo.App.1976), and after issues similar to interpleader were resolved, Wright v. Jaegeris, 427 S.W.2d 276, 279(Mo.App.1968).Appellants' first point is denied.

Appellants' second claim of error is the court should have offered a "clear and convincing" burden of proof instruction.The court offered an MAI 3.01 instruction over Moffats' objection.The Supreme Court previously provided a pattern instruction, MAI 3.04, which could have been adapted and submitted as the instruction on burden of proof.Moffats objected to the MAI 3.01 instruction but did not offer a modified MAI 3.04 instruction or any other alternative instruction.

The court gave the standard burden of proof instruction patterned after MAI 3.01.It provides In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you.The burden of causing you to believe a proposition of fact is upon the party whose claim depends upon that proposition.In determining whether or not you believe any such proposition, you must consider only the evidence and the reasonable inferences derived from the evidence.If the evidence in the...