State v. Knehans

• Decision Date: 15 September 1930
• Docket Number: No. 21411.,21411.
• Citation: 31 S.W.2d 226
• Parties: STATE ex rel. ÆTNA LIFE INS. CO. v. KNEHANS.
• Court: Missouri Court of Appeals

31 S.W.2d 226

STATE ex rel. ÆTNA LIFE INS. CO. v. KNEHANS.

No. 21411.

St. Louis Court of Appeals. Missouri.

September 15, 1930.

"Not to be officially published."

Proceeding in prohibition by the State, on the relation of the Ætna Life Insurance Company against Hon. Oscar A. Knehans, Judge of the Cape Girardeau Court of Common Pleas, to prohibit said judge from proceeding further with the trial of a certain cause.

Preliminary rule in prohibition quashed.

Ray B. Lucas, of Benton, Jones, Hocker, Sullivan & Angert, of St. Louis, and Raymond J. Lahey, of St. Louis, for relator.

M. E. Montgomery, of Benton, and Ward & Reeves, of Caruthersville, for respondent.

BENNICK, C.

This is a proceeding in prohibition whereby relator, Ætna Life Insurance Company, seeks to have respondent, as judge of the Cape Girardeau court of common pleas, prohibited from proceeding further with the trial of a certain cause in his court, upon the ground of a prior suit pending.

The salient facts may be briefly summarized as follows:

On November 20, 1921, relator issued upon the life of one Archie D. Daniel its policy of insurance, whereby it agreed, subject to the terms and conditions therein contained, to pay to the beneficiary, Julia E. Daniel, the sum of $2,500 upon the death of the insured during the continuance of the policy. On November 20, 1927, the policy lapsed for the nonpayment of a premium due thereon. Thereafter, on January 27, 1928, Daniel made written application to the company for the reinstatement of the policy, which application was granted as of the date when made, in consideration of and in reliance on the representations set forth therein.

Among the several provisions of the policy was one that it should be incontestable after one year from the date of issue, except for the nonpayment of premiums.

On August 31, 1928, the insured died, and thereafter, on January 17, 1929, relator filed a suit in equity in the circuit court of Scott county against the beneficiary, the purpose of the suit being to cancel said policy and the reinstatement thereof because of alleged misrepresentations of the insured in his application for reinstatement in regard to matters which contributed to his death.

Evidently this suit was based upon our decision in New York Life Insurance Co. v. Cobb, 219 Mo. App. 609, 282 S. W. 494, wherein we held, as a matter of first impression in our own state, that the insurer may sue to cancel a policy of insurance within the contestable period, though after the death of the insured, for fraudulent misrepresentations in securing the policy, there being no adequate remedy at law by defense to an action on the policy where the beneficiary delays or threatens to delay the commencement of the action until after the termination of the contestable period.

To the petition so filed the defendant beneficiary filed her demurrer, which was sustained by the court, upon the theory that no cause of action calling for equitable relief was stated, inasmuch as the company had failed to allege in its petition that no action on the policy had been brought, and that for such reason it was precluded from raising the issue of fraud by answer therein. Upon the sustaining of the demurrer, relator refused to plead further, whereupon its petition was dismissed, and judgment entered for defendant, from which judgment relator duly perfected its appeal to the Springfield Court of Appeals, where the case is now pending undetermined.

On May 17, 1929, four months after relator had filed its bill in equity seeking a cancellation of the policy, the beneficiary, who was defendant in the equity suit, brought an action at law upon the policy, also in the circuit court of Scott county, which action, as the result of a change of venue and the disqualification of a circuit judge, is now pending before the respondent herein.

In due course relator filed its plea in abatement or motion to stay proceedings in such law action, pending the final determination of its appeal from the judgment of the circuit court of Scott county sustaining the demurrer to the petition in the equity suit, which motion was overruled by the court, and the cause docketed for trial at its July, 1920, term. Thereupon relator applied to this court for a writ of prohibition directed to respondent, and restraining him from pursuing and taking further jurisdiction in the action instituted by the beneficiary upon the policy, and on June 24, 1930, our preliminary rule was ordered to issue as prayed.

Briefly stated, the position of relator is that, inasmuch as its equity suit to cancel the policy was maintainable, so long as brought within the contestable period, though after the death of the insured, the action at law upon the policy, brought subsequently to the suit in equity, and involving the same policy and the identical parties, should be stayed until the equity suit is determined; and consequently that respondent is exceeding and abusing his jurisdiction in proceeding with a later cause of action pending the final determination of the appeal in the prior suit involving the same parties and subject-matter.

Counsel for respondent contend to the contrary that respondent has jurisdiction of the matter complained of, and is not exceeding his jurisdiction by having the case go to trial; and finally that, if it be conceded for argument's sake that...