Plummer v. Met. Life Ins. Co.

• Decision Date: 04 March 1935
• Docket Number: No. 18228.,18228.
• Citation: 81 S.W.2d 453
• Parties: CHARLES S. PLUMMER, APPELLANT, v. METROPOLITAN LIFE INSURANCE CO. ET AL., DEFENDANTS; EUGENE G. LACEY, EXECUTOR ET AL., RESPONDENTS.
• Court: Missouri Court of Appeals

81 S.W.2d 453

CHARLES S. PLUMMER, APPELLANT, v. METROPOLITAN LIFE INSURANCE CO. ET AL., DEFENDANTS; EUGENE G. LACEY, EXECUTOR ET AL., RESPONDENTS.

No. 18228.

Kansas City Court of Appeals. Missouri.

March 4, 1935.

Appeal from the Circuit Court of Jackson County. — Hon. Allen C. Southern, Judge.

AFFIRMED.

David W. Wilhite for appellant.

L. Amasa Knox and Carl R. Johnson for respondent Lacey.

James D. Pouncey for respondent Watkins.

REYNOLDS, C.

This is an action by the plaintiff as the alleged beneficiary therein upon two certain policies of insurance issued by the defendant Metropolitan Life Insurance Company (hereinafter called defendant company) upon the life of Sallie Plummer, deceased, as the insured under each.

At the time the first one was issued, the name of the insured was Sallie Squires; and she was described therein under said name. She was afterwards married to one Waldon and her name was changed to Sallie Waldon, and an endorsement to that effect was made by defendant company on said policy. About April 26, 1917, she was married to the plaintiff herein; and her name was changed to Sallie Plummer; and an endorsement to such effect was made by defendant company on said policy.

The second of said policies was issued February 19, 1906, the name of the insured at such time being Sallie Waldon; and she was described therein under such name. Afterwards, upon her marriage to the plaintiff, she caused an endorsement to be made upon such policy of the fact of her marriage to plaintiff and of the change of her name to that of Sallie Plummer.

Both of said policies are of the type or class commonly known as industrial policies; and the insurance provided in each is such as is commonly known as industrial insurance; and, by each, the defendant company engages to pay to the insured therein an endowment upon her passing the age of seventy-nine years in a fixed sum, including certain guaranteed dividends provided for in each, provided, however, "that no obligation is assumed by the company prior to the date thereof nor unless on said date the assured is alive and in sound health. In case of such prior death of the insured the company may pay the amount due under this policy to either the beneficiary named or to the executor or administrator, husband or wife, or any relative by blood of the insured, or to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured or for his or her burial, and the production of a receipt signed by either of them shall be conclusive evidence that all claims under this policy have been satisfied." It is further provided in each of said policies that, subject to the approval of the defendant company, the insured therein may, at any time during the continuance of the policy, provided the policy is not then assigned, change the beneficiary or beneficiaries by written notice to the defendant company at its home office, accompanied by the policy, such change to take effect on the endorsement of the same on the policy by the defendant company.

The first policy provides for a fixed endowment of $286.50 with guaranteed dividends to be added. The beneficiary named thereunder, when originally issued, was the estate of the insured. Afterward, on May 21, 1917, the named beneficiary, as it appears from an endorsement thereon by defendant company, was changed to Charles S. Plummer, the husband of the insured at such time and the plaintiff herein.

The fixed endowment provided in the second policy is $325 after one year and, at the end of the endowment period provided, is $450, the latter sum being made inclusive of all guaranteed dividends. The beneficiary named therein, when originally issued, was Judy Montgomery, a sister of the insured. Afterward, on May 21, 1917, the named beneficiary, as it appears from the endorsement thereon by defendant company, was changed to Charles S. Plummer, husband of the insured at such time and now plaintiff herein.

It would appear from the evidence that the insured died prior to the maturity of either of said policies and that, prior to her death, the plaintiff, her husband, had, about the year 1923 or 1924, left her and gone to the State of Texas where he accepted employment and made his home and was living at the time of her death. It appears that, after leaving her, he occasionally visited Kansas City for a day, when he would telephone her or perhaps call to see her for a short while. Occasionally, he sent her small sums of money. In the year of 1926, the insured obtained a decree of divorce in the circuit court of Jackson county at Independence, Missouri, against the plaintiff, by which she divorced him. The decree of the court recited that the court, after having heard the evidence, found that the allegations of plaintiff's petition therein were true and that she was the innocent and injured party. The petition in said cause charged him with the abandonment and desertion of insured, with having failed to live with and support her and furnish her a home, with absenting himself from her without reasonable cause for the space of one whole year and more, and with having been guilty of adultery since the marriage.

In June, 1925, the insured made her will, in which she designated defendant Eugene Lacey as the executor thereof. Upon her death, he qualified as such and took possession of the policies in suit and made due proof of the death of the insured to the defendant company under said policies and made demand for the payment of the proceeds thereof to him as such executor. The plaintiff asserted a right to the policies as the beneficiary named in each of them and demanded possession of the same in his own right as such. The executor, however, refused to surrender them to him and denied his right to them.

Thereupon, the plaintiff filed this suit against the defendants, alleging, among other things, the existence of the policies and alleging that he was the beneficiary in each and that he was unable to obtain possession of either and, for such reason, was unable to file them or copies thereof with the petition. It may be stated that the petition was in all respects sufficient to state a cause of action by plaintiff against the defendants upon the two policies. The petition appears in full in the record. It is unnecessary here to set it out.

The defendant company made answer, setting up that the executor, Eugene Lacey, was making a conflicting and an adverse claim to that of the plaintiff for the payment to him, as such executor, of the proceeds of said policies and was denying that plaintiff had any right to such proceeds. The answer further alleges that the defendant company did not have any knowledge as to which of said claimants, the plaintiff or the executor, was lawfully entitled to such proceeds or whether some other person might be entitled thereto and that it was required, in order to protect its interests arising out of the conflicting and adverse claims made, and of others that might arise, to employ attorneys and asked that the court require the plaintiff and the executor and such other persons as might assert a claim thereto to join issue as between themselves as to their respective rights and asked the court to determine which of said parties was entitled to such proceeds and to direct the defendant company as to whom it should make payment of the same and asked that, upon such payment, as directed, it be discharged from all liability under said policies and that it have judgment for its costs and for its reasonable attorneys' fees.

The executor, Eugene Lacey, filed an answer as such executor, by which he claimed to be entitled to the proceeds of the policies in suit, as such executor, for the estate of the deceased Sallie Plummer, the insured, and by which he further denied plaintiff's right to such proceeds.

Said order, as requested by defendant company in its answer, being treated as made by the court, Watkins Brothers, undertakers and embalmers, incorporated, hereinafter referred to as the interpleading undertaking corporation, filed an interplea claiming to be entitled to the proceeds of said policies and to the payment of such to it in the sum of $323, on account of funeral and burial expenses incurred by it in connection with the funeral and burial of the deceased insured.

The plaintiff filed a reply to the separate answer of the defendant company and also to the separate answer of Eugene Lacey, executor. He likewise filed a motion to strike the interplea filed on the part of the interpleading undertaking corporation. Defendant Eugene Lacey, as executor, also filed a motion to dismiss the interplea of the interpleading undertaking corporation.

There was evidence tending to show that the interpleading undertaking corporation had furnished for the burial of the insured a casket and other necessary equipment, amounting in value to $323, which had not been paid; that a claim therefor had been presented against the insured's estate and allowed in the sum of $323 by the probate court of Jackson county. In addition thereto, it appears that she was otherwise indebted, at the time of her death, on account of taxes and personal obligations, such as for her doctor's bills during her last illness and other items. The total amount of indebtedness of the deceased, together with her funeral and burial expenses (exclusive of taxes), so far as her executor had been able to ascertain at the time of the trial, was around $653.93. The appraised value of her personal estate as inventoried, exclusive of insurance policies, was $106.50. The value of her real estate had at one time been estimated around fifteen hundred dollars; but, at the time of the trial, her executor had been unable, since her death, to find any one interested in buying it, so that he was unable to make any probable estimate of its value at such time.

There was evidence further tending to...