Smith v. Head

• Decision Date: 22 December 1885
• Citation: 75 Ga. 755
• Parties: SMITH, administrator, v. HEAD.
• Court: Georgia Supreme Court

75 Ga. 755

SMITH, administrator, v. HEAD.

Supreme Court of Georgia.

December 22, 1885

October Term, 1885.

1. Where counsel agreed to try a case before the presiding judge, " who may direct the jury what verdict to find as between complainant and defendant, all questions being left to his decision upon the following agreed statement of facts," and no right of exception was reserved, was not this a submission of the case to the arbitration of the judge, and could exception be taken to his decision? Quere?

2. Where a husband made a policy of life insurance payable to his wife at his death, it became her property, and if she transferred it to a creditor of her husband to secure his debt, such transfer was void; and if, after his death without any other consideration, she ratified such transfer it would still be void, and the ratification would not render it valid.

3. Section 2820 of the Code, which enacts that " the assured may direct the money to be paid to his personal representatives, or to his widow, or to his children, or to his assignee; and upon such direction, given and assented to by the insurer, no other person can defeat the same; but the assignment is good without such assent," controls this case. The assured directed the money paid to his wife; he made no change, and no other person can do so.

( a. ) This principle is codified from 13 Ga. 355, and the obiter dicta in that decision do not modify it.

Arbitration. Practice in Supreme Court. Insurance. Husband and Wife. Before Judge SIMMONS. Bartow Superior Court. January Term 1885.

Reported in the decision.

JOHN W AKIN, for plaintiff in error.

J. A. BAKER, for defendant.

JACKSON Chief Justice.

This is a contest between Mrs. Head and Smith, administrator of Gregg, over the money arising from a life policy of the husband of Mrs. Head on his death. The case was tried on the following agreement of facts:

" We hereby agree to try the above stated case before the Hon. J. C. Fain, judge of Bartow superior court, or T. J. Simmons, judge presiding, who may direct the jury what verdict to find as between complainant and defendant, Smith, administrator, all questions being left to his decision, upon the following agreed statement of facts:

The transfer upon and of the policy of insurance in question, to-wit, policy No. 20,546, issued by Æ tna Life Insurance Company, of Hartford, Connecticut, upon the life of John D. Head, payable to his wife, Lucy E. Head, was made by said Lucy E. Head to said Theodore E. Smith, as administrator, etc., without any consideration passing to her from the said Smith, administrator, or his intestate, or any one for him. It, the said transfer, was made to secure a debt due by John D. Head, the insured, to said Smith, as said administrator, etc. And at the time said policy was issued, said John D. Head was insolvent, and he paid the premiums thereon with his money. Said John D. Head was, when said policy was issued, and ever since then till his death, the husband of said Lucy E. Head. Said policy to be in evidence also."

1. There is no reservation of the right to except to the direction given by Judge Simmons to the jury, but the agreement is that he " may direct the jury what verdict to find as between complainant and defendant, Smith, administrator, all questions being left to his decision upon the following agreed statement of facts," etc. The agreement is an absolute submission of the whole matter to him or Judge Fain for arbitration between the parties- the jury being a mere machine-a ministerial body to make a verdict just as the arbitrator determines. Can such an arbitration be brought here? It is doubtful, to say the least; but as we reach the same conclusion on the merits, we consider the case.

2. A married woman's property cannot be assigned by her or...