Weaver v. Disabled Am. Veterans, 34790

• Decision Date: 09 January 1973
• Docket Number: No. 34790,34790
• Citation: 490 S.W.2d 341
• Parties: Helen M. WEAVER, and other Individuals similarly situated as a class, Plaintiffs-Appellants, v. DISABLED AMERICAN VETERANS, and Colonial Penn Life Insurance Company, Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 341

490 S.W.2d 341

Helen M. WEAVER, and other Individuals similarly situated as a class, Plaintiffs-Appellants, v. DISABLED AMERICAN VETERANS, and Colonial Penn Life Insurance Company, Defendants-Respondents.

No. 34790.

Missouri Court of Appeals, St. Louis District, Division One.

Jan. 9, 1973.

Hullverson, Hullverson, Frank & Toft, Leonard A. Batterson, Jr., Stephan J. Glynias, St. Louis, for plaintiffs-appellants.

Keefe, Schlafly, Griesedieck & Ferrell, Bryan, Cave, McPheeters & McRoberts, George S. Hecker, Armstrong, Teasdale, Kramer & Vaughan, Walter R. Clark, St. Louis, for defendants-respondents.

McMILLIAN, Judge.

This is an appeal by plaintiff Helen M. Weaver from an order of the Circuit Court of the City of St. Louis sustaining the separate motions of defendants Colonial Penn Life Insurance Company, hereinafter referred to as 'Colonial Penn,' and Disabled American Veterans, hereinafter referred to as 'DAV,' to dismiss and strike the class action allegations from plaintiff's petition. The trial court's order was on the ground that any judgment or decree entered in the proceeding would not be binding on any member of the class except those members who appeared and became parties.

Originally, the appeal was filed in the Missouri Supreme Court on the theory that the trial court's action in ruling and the rules of that court constituted a denial of due process. However, the Supreme Court upon consideration of the separate motion of each defendant to transfer, found that it lacked jurisdiction of this appeal, and transferred the cause here for further proceeding. In addition to the motions to transfer, defendants filed a motion to dismiss plaintiff's appeal on the grounds that the order entered by the trial court was not a final judgment for purposes of appeal within the meaning of Civil Rule 81.06, V.A.M.R., and § 512.020, RSMo 1969, V.A.M.S.

After oral arguments by the respective attorneys of the parties, we ordered the defendants' motion to dismiss the appeal to be taken with the case.

The question for decision is whether plaintiff's appeal should be dismissed on the ground that the order of the trial court was not a final order for purposes of appeal? We hold the order to be interlocutory and thus sustain defendants' motion to dismiss the appeal.

Briefly, plaintiff was the beneficiary of a life insurance certificate issued by Colonial Penn to her husband, Harold C. Weaver, under a Master Group Term Life Insurance Policy issued to DAV. Upon the death of her husband, plaintiff made a demand upon Colonial Penn for payment. When Colonial Penn refused payment, plaintiff filed a suit against Colonial Penn and DAV in two Counts. In Count I plaintiff sought to bring a class action against Colonial Penn individually, and on behalf of others similarly situated who were beneficiaries under the group life insurance policy. From the averments and the prayer, plaintiff's theory appears to be found upon the breach of the insurance contract.

In Count II plaintiff sought a judgment against DAV alone in tort. This Count also proceeded on the basis of a class action. Essentially plaintiff claimed that Colonial Penn had wrongfully terminated the group policy; that Colonial Penn and DAV engaged in litigation concerning its termination; that in settlement of such litigation DAV approved the termination of the group policy thus interfering with plaintiff's right under the certificate of insurance and the group policy, in violation of DAV's duty to use due care in attending to the master policy and certificates issued thereunder.

In this posture of the case, the trial court for the reason heretofore given dismissed and struck all class action averments in both Counts I and II. Section 512.020, RSMo 1969, V.A.M.S., provides that an appeal may be taken only from a final judgment; and our Supreme Court in Pizzo v. Pizzo, Mo., En Banc, 295 S.W.2d 377, ruled, '* * * a judgment to be final and appealable must dispose of all parties and all issues in the case and leave nothing for...