Opinion
No. 29969.
April 18, 1932.
1. INTERPLEADER.
Defendant admitting liability to plaintiff had no right to interplead one claiming more than it paid into court (Code 1930, section 564).
2. PLEADING.
Judgment for plaintiff against defendant declining to plead further after discharge of claimant interpleaded on its affidavit admitting averments of declaration held proper.
APPEAL from circuit court of Pearl River county. HON. J.Q. LANGSTON, Judge.
J.M. Morse, of Poplarville, for appellant.
The insurance company had the right to have an issue made up to show that when the policy which was taken out by Mr. R.J. Williams, deceased, on April 20, 1917, who was exercising the option of converting a term policy, which was taken out in 1907, into another and different kind and character of policy.
If the insured reserved the right to change the beneficiary in the original application for the policy, then the insured had the right to assign the policy at will.
Insurance Company v. Moody, 122 Miss. 99, 84 So. 185.
The application is part of the contract where the policy so provides.
Third Decennial Digest, Vol. 16, Key No. 715; Second Dec. Digest, Vol. 13, Key 715; 14 R.C.L., Insurance, chapter 108; 32 C.J., p. 1160, sec. 273; L.R.A. and A.L.R. Digest, Insurance, 164; 1 Couch on Insurance, p. 260 et seq.
It is sufficient that the power be reserved in the application and not in the policy.
Moody v. Lamar Life, 84 So. 185, 122 Miss. 99.
The contract will be construed according to the intent of the parties.
37 C.J., p. 410, sec. 89; Thompson v. Thompson, 57 So. 291, 100 Miss. 869.
This appellant is entitled to file a plea setting up the fact that when the policy issued in April, 1917, was issued, that R.J. Williams, at that time, signed an application in which he reserved the right to change the beneficiary and this issue should be tried by the court, and when this issue is determined, then if the facts are proven as set out by the pleading that such application was in truth signed by R.J. Williams, and did contain the power clause, then this appellant is entitled to interplead the money which will be identical and the same amount of money which Mrs. Trinity Williams is claiming and this appellant should not be precluded from raising this issue simply because wife number one, to-wit, Mrs. May Williams, arbitrarily raises her figures and claims more than wife number two, to-wit, Mrs. Trinity Williams.
As interpleader in the circuit court is permitted and is a substitution for interpleader in equity and is governed by the same rulings as stated by this court in the former appearance of this case in this court, the court should have permitted an issue to be made up between this appellant and wife one, Mrs. May Williams, before it rendered a final judgment against this appellant for the full amount of liability.
Hathorn Williams, of Poplarville, for appellee.
When the answers deny the facts upon which the bill depends as a bill of interpleader, complainant is put to his proof before the case is ready for a decree as to whether defendants should be required to interplead. Consequently, if defendants put in answers denying the allegations of the bill or set up new matter in bar of the proceeding, complainant must file a replication, whereby the rules of pleading a reply is necessary and the issues raised must be tried, in order to determine the preliminary question of complainant's right to file the bill.
33 C.J., p. 459, par. 47.
It is of the essence of an interpleader suit that the plaintiff should be entirely indifferent between the conflicting claims, asserting no interest in himself in the fund in dispute. When, therefore, the plaintiff denies his liability for part of the claim of one of the contestants he cannot have a bill of interpleader. A plaintiff cannot be said to be disinterested where his liability may be different in amount to the parties on whom he calls to interplead. He is not disinterested if he is a necessary party to a controversy touching the amount of the fund that should be brought into court, the fund not being sufficient to satisfy the claims of all the defendants.
15 R.C.L., p. 226, par. 8.
One seeking the advantages of a bill of interpleader must show not only that he stands indifferent between the claimants and that he is without interest in the controversy to be waged between them, but that he is in the position of a mere innocent stakeholder or depository, and that no act on his part has caused the embarrassment of conflicting claims and the peril of double vexation. When he stands to either of the parties in the relation of a wrongdoer he cannot have relief by bill of interpleader.
15 R.C.L., p. 227, par. 9.
Parkers Shivers, of Poplarville, for appellee.
Where complainant has created evidence of liability to one or both parties for full amount of respective claims, he cannot step out by interpleader and leave the parties to work out difficulties.
Finn v. Missouri State Life Insurance Co., 132 So. 632.
One seeking the advantage of bill of interpleader must show not only that he stands indifferent between the claimants and that he is without interest in the controversy to be waged between them, but that he is in the position of a mere innocent stakeholder or depository, and that no act on his part has caused the embarrassment of claims, and the peril of double vexation. When he stands to either of the parties in the relation of wrongdoer he cannot have relief by bill of interpleader.
15 R.C.L., p. 227, sec. 9.
After the interpleader had been dismissed on the objections of Mrs. May L. Williams, Mrs. Trinity Tourne Williams, tendered to the appellant the right to file further pleadings, and it declined to plead further to the declaration, filed by Mrs. Trinity Tourne Williams, and it having declined to plead to this declaration, of course, the judgment entered in favor of Mrs. Williams was proper, and she was entitled to judgment for the amount sued for by her.
This is the second appearance of this cause in this court. The opinion on the first appeal, which is reported in 160 Miss. 408, 133 So. 649, 652, sets forth at length and in detail the pleadings and proceedings in the court below prior to the first appeal, and we will make no further statement of those proceedings. It was there held that the order of the court below discharging the insurance company from liability to either of the parties asserting a claim against it was prematurely entered, and that the court erred in overruling the motion of Mrs. Mae L. Williams, the interpleaded claimant, to set aside the judgment so discharging the defendant insurance company.
Upon the remand of the cause the appellant filed no traverse, replication, or answer to the sworn answer of the interpleaded claimant, wherein she set forth in detail the basis of her claim against the appellant for a larger amount than that claimed by the original plaintiff, and the court entered an order discharging her for the reason that under the facts set forth in her answer she was improperly interpleaded. Thereupon the defendant insurance company declined to plead further to the suit of the original plaintiff, but stood upon its admission of liability to her, and the court entered a judgment in her favor for the amount sued for with proper interest, and ordered that the money paid into court by the insurance company be returned to it. From these orders the defendant insurance company prosecuted this appeal.
In the opinion on the former appeal of this cause the court approved the view expressed in McAlister Bros. Co. v. Sanders, 107 Miss. 283, 65 So. 249, that the statute, section 564, Code of 1930, was a substitute for interpleader in equity and was governed by the same rules, and that one having a right to interplead a claimant of a fund due by him "must be a disinterested stakeholder not interested in the further contest of the liabilities or the rights of the parties." It was also there held that, where the party summoned into court to maintain or relinquish his claim to a fund paid into court under an affidavit for interpleader makes a claim for a greater amount against the defendant than the original plaintiff made, and it flows out of the same contract or transaction, the defendant is not a disinterested stakeholder.
The answer of the claimant interpleaded herein sets forth a claim for a greater amount than that claimed by the original plaintiff, and this answer sets forth with particularity the basis of her claim, which, as said in the former opinion, if established, would entitle her to recover four thousand dollars instead of the smaller sum paid into court. From the averments of this answer, which are in no way controverted, it is made apparent that the appellant is not a disinterested stakeholder of an amount due by it which is not in dispute by either the original or intervening claimant; it therefore had no right to interplead the appellee, Mrs. Mae Williams, and require her to assert or maintain her claim in the suit then pending between it and Mrs. Trinity Williams, and the order of the court dismissing the affidavit of interpleader and discharging Mrs. Mae Williams was correct.
In its affidavit for interpleader the appellant admitted the truthfulness of the averments of the original declaration as to the terms and provisions of the policy of insurance sued on, and also admitted the averments of this declaration as to the acts of the insured in changing the beneficiaries and his right so to do under the terms and provisions of the policy. Upon the further hearing of the cause in the court below the appellant expressly declined to plead further, and on this state of pleadings the court correctly entered in a judgment in favor of the appellee, Mrs. Trinity Tourne Williams, for the amount sued for with legal interest. Therefore, the judgment of the court below will be in all respects affirmed.
Affirmed.