Stone v. Grand Lodge A. O. U. W. of Missouri

• Court: Missouri Court of Appeals
• Writing for the Court: Broaddus
• Citation: Stone v. Grand Lodge A. O. U. W. of Missouri, 92 S.W. 1143, 117 Mo. App. 295 (Mo. App. 1906)
• Decision Date: 05 February 1906
• Parties: STONE v. GRAND LODGE A. O. U. W. OF MISSOURI.

92 S.W. 1143

117 Mo. App. 295

STONE v. GRAND LODGE A. O. U. W. OF MISSOURI.

Kansas City Court of Appeals. Missouri.

February 5, 1906.

Rehearing Denied March 3, 1906.

1. JUDGMENT — REVERSAL WITHOUT REMAND — RES JUDICATA.

The simple reversal of a judgment by the Court of Appeals without remanding the cause destroys its effect as an estoppel and leaves the whole matter open for further litigation.

2. TRIAL — DIRECTION OF VERDICT.

Where in an action on a policy, insurer's sole contention was that a prior judgment in mandamus proceedings was res judicata and a bar to the suit in question, it thereby admitted plaintiff's prima facie case and defendant having failed to establish such plea in bar, plaintiff was entitled to a directed verdict.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Mary F. Stone against the Grand Lodge of the Ancient Order of United Workmen of Missouri. From a judgment for plaintiff, defendant appeals. Affirmed.

Frederick H. Bacon and Grant I. Rosenzweig, for appellant. E. W. Shannon and M. A. Fyke, for respondent.

BROADDUS, P. J.

On September 30, 1892, the defendant, a beneficiary organization, issued to one, B. D. Stone, a policy of insurance, wherein plaintiff, Mary F. Stone, was made the beneficiary. On October 7, 1903, said Stone died. This suit was commenced December 23, 1903. The petition is in the usual form on contracts of insurance of the same kind, and alleges performance by the insured with all the conditions of the contract, and that defendant had waived all formal proof of death. The answer sets up several defenses, but, as the defendant only relied on one of them, we are not required to notice the others. The defense relied on is substantially as follows: That the said D. B. Stone, by his guardian, he being insane, brought a mandamus proceeding in the circuit court of Jackson county, Mo., on March 8, 1897, to require appellant to reinstate him in defendant company; that said mandamus proceeding resulted in a judgment for a peremptory writ being awarded by said court, which judgment, on appeal, was reversed by the Court of Appeals and the proceeding dismissed. This trial resulted in a judgment for plaintiff and defendant appealed. The defendant contends that the judgment of the Kansas City Court of Appeals was res adjudicata.

The question turns upon a proper construction of section 4285, Rev. St. 1899. It is not a new question in this state. In Musser v. Harwood, 23 Mo. App. 495,...