United States Casualty Co. v. Kacer

• Decision Date: 18 June 1902
• Citation: 69 S.W. 370,169 Mo. 301
• Parties: UNITED STATES CASUALTY CO. v. KACER et al.
• Court: Missouri Supreme Court

69 S.W. 370

169 Mo. 301

UNITED STATES CASUALTY CO. v. KACER et al.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

PRESUMPTION OF SURVIVORSHIP — BURDEN OF PROOF — LIFE INSURANCE — VESTED INTEREST OF BENEFICIARY — ALTERNATIVE BENEFICIARY — APPOINTMENT OF TRUSTEE — BILL OF EXCEPTIONS.

1. Where two persons perished in a common disaster, there is no presumption that one survived the other, or that both perished at the same time, but the fact of survivorship must be proved by him whose recovery depends on its establishment.

2. The rule that where two persons, entitled to the same property in the alternative, perish in a common disaster, the property should be distributed according to the statute of descents, does not apply to alternative beneficiaries under a policy of insurance.

3. The right of substituting beneficiaries is limited to benefit certificates in fraternal beneficial associations, and the beneficiary of an ordinary life policy has a vested interest therein.

4. Where a life policy provided that it was to be paid, upon the death of the insured, to his daughter, if surviving; if not, to his legal representatives, — the daughter had a vested interest upon the issuance of the policy, liable to be defeated by the happening of a condition subsequent; and the legal representatives had a contingent interest, depending upon the divestiture of the daughter's vested interest, which they were required to prove before they were entitled to the proceeds of the policy.

5. In a proceeding in equity over the disposition of the proceeds of a policy of insurance, the court had a right to appoint a trustee to defend the rights of the legal representatives of a beneficiary, instead of an administrator ad litem of her estate, to act while the regular administrator was unable to.

6. Where the record did not show that objection was made to the appointment of a trustee in a proceeding in equity when such action was taken, or that exception thereto was saved by a term bill of exceptions, objection could not be saved in the final bill signed at a subsequent term.

Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Bill of interpleader by the United States Casualty Company against Martin V. Kacer, administrator, and Joseph H. Zumbalen, trustee. From a judgment for Zumbalen, Kacer appeals. Affirmed.

This is a bill of interpleader in equity to determine the right to $8,000, proceeds of two policies of accident insurance issued by the plaintiff upon the life of Harry C. Yocum, and by the company paid into court. The interpleaders represent, respectively, the legal representatives of Harry C. Yocum, the assured, and his daughter, Florence, the primary beneficiary under the policies. At the request of the appellant the circuit court made a special finding of fact, under section 685, Rev. St. 1899, which, although not binding upon this court in this equity case, fairly, and, for all the purposes of this case, substantially, states the facts shown upon the trial, and it is therefore adopted by this court. It is as follows: "On June 16, 1897, Harry C. Yocum, of St. Louis, a widower, made two applications, on the printed blanks furnished by the company, to the United States Casualty Company of New York, for policies of accident insurance of five thousand dollars each. These applications were made to the agent of the company in St. Louis. These applications are in the usual form, containing information as the basis for the policy. They include a printed form as follows: `(14) I desire the death benefit made payable.' Then follows a blank for the name of the beneficiary, relationship, and post-office address. This blank was filled in with the written words, `Miss Florence Yocum, daughter, Planters' House, St. Louis, Mo.' On these applications two several accident policies were issued on July 16, 1897, to Yocum, containing the usual provision for the payment of indemnity for loss of life occasioned by external, violent, and accidental means. By the terms of each policy the indemnity for loss of life was made payable to `Miss Florence Yocum, daughter, if surviving; if not, to the legal representatives of the insured'; the words `Miss Florence Yocum, daughter,' being written; the remaining words of the clause being in print, and part of the printed form of the policy. These policies were for one year, and at the expiration of the year were renewed, without change of terms, for another year. The first clause in each policy begins as follows: `In consideration of the agreements and warranties in the application for this policy, which application is made a part of this contract of insurance,' etc. Florence Yocum was the only child of Harry C. Yocum; was between eighteen and twenty years old; was living with and dependent upon him. Yocum was fifty-one years old. On December 30, 1898, Yocum, with his said daughter and two young lady friends, left New Orleans on the naphtha yacht Paul Jones, to make a trip over the Gulf of Mexico to Belleair, a point on the Florida coast. The yacht was about fifteen feet wide by fifty feet long. It was propelled by an explosive engine, with naphtha for fuel. The crew consisted of a pilot, an engineer, and two hands. The yacht failed to arrive at its destination. Search was instituted by the father of one of the girls in the party, and at length on the shore of an island in the Gulf fragments of the yacht were found, also a portion of the hull. The naphtha tank was also found intact, and containing naphtha. The body of Miss Taggart, one of the party, was found in April, 1899, on a small island, dressed, with the exception of shoes. The body of the pilot was also found on another island, about thirty miles distant, about the same time. No other bodies were found. I find from the evidence that the yacht Paul Jones was wrecked, and that all on board, including both Harry C. Yocum and his daughter, perished. There is no testimony to show how the disaster occurred, — whether by storm or collision. I cannot find as a fact that Harry C. Yocum survived his daughter, or that she survived him; nor can I find that they both died at the same moment, or that they died from the same immediate cause. These facts of manner and time of death are not capable of being judicially ascertained. On the foregoing facts, I find, as a matter of law, that the representatives of Florence Yocum are entitled to the proceeds of the policies. Franklin Ferris, Judge." In addition to such finding of facts and conclusion of law, the learned trial judge rendered an able, clear, and comprehensive opinion, which counsel have reprinted in full in the briefs, and which has been of much service to this court in the examination and adjudication of this case. The trial judge held (1) that the application and policy must be construed together and harmonized, if possible, and that there is no inconsistency between them in respect to who should be the beneficiary or beneficiaries thereof (that is, that the printed provision of the policy, providing that, if Florence did not survive her father, the policy should be payable to his legal representatives, was additional to, and not inconsistent with, the provision of the application that the loss should be payable to Florence); and (2) "that even in case where the contract of insurance is to pay the beneficiary named, `if surviving,' such beneficiary takes a vested interest, subject to be devested if he fails to survive, and that, until it is proved that he failed to survive, his legal representatives have a prima facie right to the proceeds of the policy." From this decision the representative of the assured appealed.

Wm. F Woerner, for appellant. W. S. Anthony, Wm. H. Clopton, Joseph H. Zumbalen, and Jos. S. Lauril, for respondent.

MARSHALL, J. (after stating the facts).

It is due to counsel for the respective parties hereto to say that their briefs are full, forceful, and exhaustive of the subject, and leave no light unturned upon the controversy, and that, with the opinion of the trial judge, they have materially lightened the labors of the court in this rather unusual and very interesting case. The view herein taken renders it unnecessary to decide all the questions presented. The first inquiry in such a case as this necessarily is, what interest does the beneficiary take in an ordinary life policy? And there is no difference as to an accident policy. The appellant differentiates between the policy and the fund to arise out of the policy, and says the beneficiary has a vested interest in the policy, but not a consummated, complete right to the fund; or, otherwise stated, the beneficiary has a vested interest in the policy, but only a conditional interest in the fund. On the other hand, the respondent contends that a beneficiary has a vested interest in the policy and the money to become due under it, which cannot be devested by the assured or the company, or both, without the consent of the beneficiary, and in case the beneficiary dies before the assured that vested interest passes to the legal representatives of the beneficiary, as a chose in action. The subcontentions of the respective parties are that the appellant contends that if the policy is payable to a primary beneficiary "if surviving," and, if not, to an alternative beneficiary, the term "if surviving" is a condition precedent to the right of the primary beneficiary or his legal representatives to recover, and hence the burden of proof is upon him or them to prove that he survived the assured. On the other hand, the respondent contends that the term "if surviving" is a condition subsequent, and that the primary beneficiary, or his legal representatives, must recover unless it be proved that the primary beneficiary did not survive the assured, and hence the burden of proof is upon the alternative beneficiary to show that the primary beneficiary did not survive the assured. And incidentally the parties hereto have...