Shannon v. Dillon

• Decision Date: 12 July 1918
• Docket Number: No. 15305.,15305.
• Parties: SHANNON et al. v. DILLON.
• Court: Missouri Court of Appeals

205 S.W. 236

SHANNON et al. v. DILLON.

No. 15305.

St. Louis Court of Appeals. Missouri.

July 12, 1918.

Appeal from St. Louis Circa it Court; Glendy B. Arnold, Judge.

"Not to be officially published."

Action by Ann F. Shannon and another against the Knights of Father Matthew, in which defendant files cross-bill in the nature of an interpleader, and in which Edmund H. Dillon was made a party defendant. Defendant Knights of Father Matthew was ordered to pay the sum of $2,000 into court, and plaintiffs and defendant Edmund H. Dillon were ordered to interplead therefor. Judgment for plaintiffs, and defendant Edmund H. Dillon appeals. Affirmed.

Ferris & Rosskopf, of St. Louis, for appellant. Rodgers & Koerner, of St. Louis, for respondents.

ALLEN, J.

On November 20, 1914, Ann F. Shannon and Ella J. Dillon, respondents here, instituted an action in the circuit court of the city of St. Louis against the Knights of Father Matthew, a fraternal order, to recover $2,000 under a certain beneficiary certificate issued by said order to the father of the respondents, Patrick H. Dillon, on February 28, 1913, in which respondents were named as beneficiaries. The Knights of Father Matthew filed thereto an answer and cross-bill in the nature of a bill of interpleader, wherein, among other things, it was averred that the said defendant in the action had, on September 1, 1914, issued another benefit certificate on the life of said Patrick Dillon, being certificate No. 14227, and which was then outstanding, wherein Ella Dillon, one of these respondents, and Edmund H. Dillon, son of Patrick Dillon, were beneficiaries, and that payment had likewise been demanded on said certificate. Thereafter Edmund H. Dillon, appellant here, was made a party defendant, and respondents and appellant filed their respective answers to the aforesaid cross-bill of the fraternal order in the nature of a bill of interpleader. Thereafter further proceedings were had, and the Knights of Father Matthew were ordered to pay the said sum of $2,000 into court, and respondents and appellant were ordered to interplead therefor. Pursuant to said order the fund was paid into court, and out of the same an attorney's fee of $100 was allowed the said fraternal order. Respondent Ella J. Dillon duly filed her interplea, claiming $1,000 as a beneficiary in both certificates, and praying that the same be allowed her out of whichever certificate should be established as being in force and effect. Respondent Ann F. Shannon, by her interplea averred that certificate No. 14040, issued on, the life of Patrick Dillon on February 28, 1913, was in full force and effect, and prayed to be awarded the sum of $1,000 as beneficiary under said certificate out of the fund in court. Appellant Edmund H. Dillon, by answer and interplea, denied that said certificate No. 14040 was in force and effect, averring that it was null and void and had been canceled and superseded by the issuance of said certificate No. 14227 of date September 1, 1914, in accordance with the affidavit and written direction of said Patrick Dillon and with the rules and laws of said fraternal order, and that said certificate No. 14227 was in full force and effect. And he prayed judgment for one-half of the fund deposited in court as beneficiary in the latter certificate. Respondent Ann F. Shannon by a reply to appellant's answer and interplea, denied all of the allegations thereof, and averred that the affidavit and written direction of Patrick Dillon, by virtue of which the said certificate No. 14040 was canceled and certificate No. 14227 issued, was signed by Patrick Dillon, if at all, at a time when he did not know the nature and character of his act, and the consequences thereof, and when he was weak, feeble, infirm, and incapable of making any affidavit or any change of beneficiaries; and that the same was the result of overpersuasion and undue influence exerted upon him by the appellant, Edmund H. Dillon; and that certificate No. 14227 was therefore null and void, and certificate No. 14040 remained in full force and effect. It was therein further alleged that appellant was estopped to assert that certificate No. 14040 was void and superseded by the alleged new certificate, for the reason that he was the "instigator, author, and sole proposed beneficiary" of the attempt which was thus made to have the old certificate canceled and a new one issued in lieu thereof, and knew that this respondent had paid and was paying dues on said certificate, but did not inform her of said attempt to make such change of beneficiary in said certificate, and that he permitted her to obligate herself for the payment of expenses of the last sickness and funeral of Patrick Dillon in the belief that certificate No. 14040 was still in force. And this respondent prayed that certificate No. 14227 be declared void and canceled, and that she be awarded one-half of the sum paid into court as a beneficiary in certificate No. 14040. It is unnecessary to further notice the pleadings. The trial, before the court sitting as a chancellor, resulted in a judgment in favor of these respondents, canceling said certificate No. 14227 of date September 1, 1914, decreeing it to be null and void, adjudging said certificate No. 14040 to be in full force and effect, and awarding respondent Ella J. Dillon $1,000 and respondent Ann F. Shannon $900 out of the fund in court. From this decree appellant Edmund H. Dillon prosecutes the appeal before us.

Patrick H. Dillon died at St. Mary's Hospital in the city of St. Louis on October 18, 1914, aged 70 or 71 years. He left surviving him a widow, Elizabeth Dillon, the appellant, Edmund H. Dillon, his son, the respondents, his daughters, and two other daughters, viz. Mrs. Alice Mooney and Mrs. Mamie Gorley.

Mrs. Shannon, her husband, Ed Shannon, and certain of her children by a former marriage, resided together, at the time of the trial below, in the city of St. Louis. Appellant, Edmund H. Dillon, has a wife and children, and maintains his own household. Respondent Ella Dillon is a deaf-mute, but it is to be inferred that she earns her own living. It appears that for many years prior to his last illness Patrick had been estranged from his wife, Elizabeth Dillon, who received her support chiefly, it seems, from her children, though it appears that she at times worked for others. For nearly 2 years prior to going to the hospital Patrick had boarded with respondent Mrs. Shannon, with whom his wife was then also living, though during a previous period he had boarded for some years with appellant.

Patrick's last illness began will a carbuncle on the back of his neck, which was followed by numerous abscesses about his body. It appears that he first consulted a physician, Dr. Raithel, at the latter's office on July 22, 1914. He was taken to the hospital on July 30th, pursuant to his physician's advice, and an operation was there performed upon him on July 31st. He remained at the hospital until his death on October 18, 1914. On August 16, 1914, while thus confined in the hospital, he made the affidavit upon which, on September 1, 1914, the Knights of Father Matthew issued its certificate No. 14227. He had previously lived in East St. Louis, where he joined the local council or lodge of the order mentioned, arid he retained his membership there until the time of his death. He had been an active member, and at one time was on the "executive board." He appears to have been somewhat eccentric, and at times had had misunderstandings with certain of his children, including respondents and appellant. When taken to the hospital it appears that he was on good terms with all of his children except appellant, "Ed," and had been so perhaps for a long time. It is said that he had not spoken to Ed for nearly 2 years prior to going to the hospital. A witness testified that Patrick so declared after Ed's first visit to his father at the hospital. According to Ed's testimony, he had spoken to his father more than once during this period, though he admits that there were periods during the last few years of his father's life when he did not see the latter during an entire year.

Respecting Patrick's mental capacity to make a change in his benefit certificate on August 16, 1914, much testimony was adduced by both contending parties. It would serve no useful purpose to here rehearse this testimony in detail.

Dr. Raithel, who treated Patrick from the time of the operation until August 25th, and after September 1st, said that while at the hospital the patient was in a septic condition, suffering from blood poisoning; that, following the operation upon his neck, he became affected with "multiple abscesses," which caused him great suffering, had a great deal of fever, his temperature ranging at times as high as 104 degrees, which brought on spells of delusion, and was very weak. Dr. Raithel said that there were times when Patrick was irrational and mentally incapacitated, but he would not say that such was his condition on August 16, 1914. He would not undertake to say what his mental condition was on any specified day. From August 25th to September let, Patrick was attended by Dr. Koenig; Dr. Raithel being "out of town" during this period. Dr. Koenig testified that while he treated Patrick the latter was suffering from general septicæmia, and was delirious at times; that his temperature ranged from 99 degrees to perhaps 103 degrees; that his pulse was very rapid, and he was very emaciated and weak. He was asked: "What was his mental condition so far as you observed?" His answer was: "Obtunded. He was not as bright as he should be, and I should consider him mentally incapacitated."

Christ Hrastick, Patrick's muse, testified that Patrick was very weak and feverish and had delusions;...