State ex rel. Booker v. Bland

• Citation: 197 S.W.2d 967,355 Mo. 786
• Decision Date: 09 December 1946
• Docket Number: 39856
• Parties: State of Missouri, at the Relation of Nancy or Nanny Booker, Relator, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

197 S.W.2d 967

355 Mo. 786

State of Missouri, at the Relation of Nancy or Nanny Booker, Relator, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals

No. 39856

Supreme Court of Missouri

December 9, 1946

Certiorari.

Civil Appeal from Action in Replevin.

Reversed and remanded and opinion of court of appeals quashed.

Homer A. Cope, Cope & Hadsell, D. C. Briggs and Walter A Raymond for appellant.

(1) The court erred in refusing to admit evidence offered by the defendant to the effect that defendant was in possession of the policies of insurance in question as security for an indebtedness from plaintiff to defendant under an agreement with plaintiff and therefore had a lien thereon which entitled her to possession of the policies. The court erred in holding that the issue of defendant's right to a lien on the policies could not be litigated in a replevin action. Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764; 54 C.J 456, sec. 83; 4 Houts Missouri Pleading and Practice, p. 552, sec. 1290; p. 563, sec. 1297; Anthony v. Carp, 90 Mo.App. 387; Hinshaw v. Thornhill, 27 S.W.2d 776. (2) The evidence offered by the defendant but excluded by the court would, if believed by the court, have established defendant's right to a lien on the insurance policies involved. The court erred, to the great prejudice of the defendant, in refusing to admit this competent, relevant and material evidence. Davis v. Morgan Foundry Co., 23 S.W.2d 231; Cornell v. Mutual Life Ins. Co., 179 Mo.App. 420, 165 S.W. 858; Dunnavant v. Mountain States Life Ins. Co., 67 S.W.2d 785.

John G. Brannon and W. Franklyn Clark for respondent.

(1) The court properly excluded evidence offered by defendant to the effect that defendant was in possession of the policies of life insurance as security for an indebtedness, for the reason that it was not within the pleaded issues of the case. Frank v. Meyers, 232 Mo.App. 681, 109 S.W.2d 54; Cantrell v. Burgess, 141 S.W.2d 200; Berry v. Adams, 71 S.W.2d 126. (2) The allegations in defendant's answer in support of a contended lien on the life insurance policies were insufficient as a matter of law to support a lien. Dunnavant v. Mountain States Life Ins. Co., 67 S.W.2d 785; Quist v. Western, etc., L. Ins. Co., 219 Mich. 406, 189 N.W. 49; Bland v. Bland, 212 Mich. 549, 180 N.W. 445; 37 C.J. 580, note 55; Allen v. Aetna Life Ins. Co., 62 S.W.2d 915; N.Y. Insurance Co. v. Wright, 229 Mo.App. 950, 88 S.W.2d 403. (3) Defendant's general denial did not raise an issue because it was combined with a special plea of confession and avoidance. Meier v. Eureka-Security Fire and Marine Ins. Co., 168 S.W.2d 127; Cowell v. Employers Indemnity Corp., 326 Mo. 1103, 34 S.W.2d 705.

Douglas, J. All concur except Gantt, J., not sitting.

OPINION

DOUGLAS

Plaintiff brought a replevin action to recover two life insurance policies from defendant, his divorced wife. The policies were on plaintiff's life and defendant was named as beneficiary.

Defendant filed an answer as follows: "Comes now the defendant in the above-entitled cause and for her answer to the petition of plaintiff in replevin heretofore filed herein, denies each and every allgation, statement, and averment in said petition made and contained.

"Defendant for further answer states that she has paid out of her own funds all the premiums on said policies of insurance described in plaintiff's said petition, except the last premium, thereby keeping said policies of insurance in force, but as to the exact amount of premiums so paid by defendant on said policies of insurance, this defendant is unable to state, and that by reason of her insurable interest in the life of plaintiff, as well as the payment of said premiums, defendant has a lien and vested interest in said policies of insurance to the extent of the premiums so paid by her.

"WHEREFORE, having fully answered, defendant prays that a lien be established and impressed against said policies of insurance in the amount of the premiums so paid by her, and that the plaintiff take nothing by his action, and that defendant be discharged, together with her costs herein incurred and expended."

At the trial defendant attempted to show by the evidence that she had loaned plaintiff money and property for his business and by agreement between them the insurance policies were procured, the defendant to pay the premiums from her own funds, and turned over to defendant as security for the loan and for the premiums paid. The trial court refused to admit this evidence because defendant had failed to plead specifically in her answer any allegations of a loan and agreement. From a judgment for plaintiff defendant appealed to the Kansas City Court of Appeals where the judgment was affirmed. 192 S.W.2d 21. Upon application to this court for certiorari we ordered the case transferred here. We now consider it as an original appeal. Art. V, Sec. 10, Const. 1945; Supreme Court Rule 2.06.

The sole issue before us is whether or not the trial court erred in excluding the evidence offered by defendant. We hold that it did.

This case was tried before the new code of civil procedure became effective on January 1, 1945. Laws 1943, p. 353; Mo. R.S.A. sec. 847.1. The decisions under the old code have established the rule, which is perhaps broader in this state than in others, that in a replevin action the defendant, under a general denial, may show anything that will defeat plaintiff's right to possession. Pugh v. Williamson, 61 Mo.App. 165; Advance Thresher Co. v. Pierce, 74 Mo.App. 676; Berry v. Adams (Mo. App.), 71 S.W.2d 126. "Under a general denial, the defendant has a right to show any fact or facts disproving or tending to disprove plaintiff's asserted claim of ownership, or title, or of his right to immediate possession." Ball v. Davis (Mo. App.), 107 S.W.2d 87. And see cases cited therein. Accordingly in this case evidence tending to show any right of defendant in the policies as a pledgee, lienholder, or otherwise supporting her own title or right to possession is admissible under her general denial because it would serve to disprove plaintiff's right to possession.

In Anthony v. Carp, 90 Mo.App. 387 it is ruled that "under the general issue, the defendant may show that the plaintiff is not entitled to the possession at the time of the institution of the action because of the...