Alba v. Provident Savings Life Assur. Society of New York

• Decision Date: 18 March 1907
• Docket Number: 15,899
• Citation: 118 La. 1021,43 So. 663
• Court: Louisiana Supreme Court
• Parties: ALBA v. PROVIDENT SAVINGS LIFE ASSUR. SOCIETY OF NEW YORK

43 So. 663

118 La. 1021

ALBA v. PROVIDENT SAVINGS LIFE ASSUR. SOCIETY OF NEW YORK

No. 15,899

Supreme Court of Louisiana

March 18, 1907

Rehearing Denied April 29, 1907.

Appeal from Civil District Court, Parish of Orleans; Walter Byers Sommerville, Judge.

Action by Louis R. Alba against the Provident Savings Life Assurance Society of New York. Judgment for defendant and intervener and plaintiff appeals. Reversed, and judgment rendered.

Dinkelspiel Hart & Davey, for appellant.

Farrar Jonas & Kruttschnitt, for appellee defendant.

William Stirling Parkerson and Bernard Bruenn, for appellee intervener.

OPINION

MONROE, J.

Statement of the Case.

In April, 1902, Eustace J. Shearman presented a petition to the civil district court for the parish of Orleans, alleging the death, in March of that year, of Alphonse J. Bachmin, and further alleging that the decedent had left a minor child, issue of his marriage with Ulrika Marie Magner; that he had left an estate, within the jurisdiction of the court, which required administration; and praying that an inventory be made, and, after due proceedings, for letters of administration. This application was opposed by Mrs. Ulrika Marie (Magner) Bachmin, as widow and natural tutrix, on the grounds that the succession owed no debts, and that, in any event, she was entitled to the administration, and, the opposition having been maintained, the opponent qualified as tutrix, and Chas. B. Maguire was appointed undertutor of the minor.

In July following, Shearman, brother-in-law, and George G. Magner, brother, of Mrs. Bachmin, presented affidavits to the court representing that the decedent had left a policy of life insurance for $ 3,000 (issued by the company herein made defendant), which belonged to his estate; that Louis R. Alba was asserting a claim to the proceeds, though, as affiants believed, he was not entitled to the full amount thereof; that Mrs. Bachmin, though aware of the facts, had omitted to include said policy in the inventory, as an asset of the succession; and that the undertutor, Maguire, had declined to take any steps to prevent the collection of said proceeds by Alba. And affiants prayed that a curator ad hoc be appointed and authorized to bring suit for the removal of said tutrix and undertutor.

George H. Magner was, accordingly, so appointed and authorized, and on July 25, 1902, brought suit for the purpose mentioned, to which suit both defendants excepted. Maguire then resigned, and Shearman was appointed undertutor in his stead; but no further steps were taken in the proceeding for the removal of the tutrix, which is still pending, on the exception filed by her. In the meanwhile, the present suit had been instituted by Louis R. Alba, who alleges that he is the assignee, for value, of the policy mentioned, and prays that the defendant company be condemned to pay him the amount called for by it, and Magner and Shearman (as nearest of kin and undertutor, respectively, of the minor) had intervened, alleging, in substance, that the assignment set up by plaintiff was in the nature of a pledge to secure a loan of a smaller amount than $ 3,000, and that if it were otherwise, then that the transaction was a speculation upon the probable death of the assured, which is reprobated by law; reiterating the allegations contained in their affidavits and in the suit brought by Magner, as to the nonaction of the tutrix and former undertutor; and praying that the proceeds of said policy be decreed to belong to the succession of Bachmin. Plaintiff excepted to this intervention, on the grounds that interveners were without right or capacity to appear and stand in judgment, and that the intervention disclosed no cause of action, and defendant answered, depositing in court $ 2,914.72, as the amount due under the policy, after which plaintiff's exception to the intervention of Magner and Shearman was maintained. The widow and tutrix then appeared, by answer and intervention, contesting the right of defendant to make any deductions from the amount called for by the policy, admitting that, though originally payable to her, said policy "was subsequently changed as to the beneficiary, so that her deceased husband * * * was himself made the beneficiary," and praying that the proceeds be awarded to his estate "subject to any legal claims thereon." This was followed by another intervention by Shearman, undertutor, repeating his previous allegations, and further alleging conspiracy between plaintiff and the tutrix and conflict of interest between the latter and the minor, and praying judgment as before, to which plaintiff interposed the exceptions of res judicata and want of capacity, which exceptions having been maintained, the intervener appealed, and the judgment appealed from was reversed by this court, and the case remanded for further proceedings. Mrs. Bachmin, individually, had, in the meanwhile, filed another intervention, asserting title to the whole fund, as the original beneficiary named in the policy, and praying for judgment accordingly, which intervention having been dismissed, on exception filed by plaintiff, she abandoned the controversy, and the case was tried on its merits as between plaintiff and the undertutor; the amount deposited by the defendant company having been accepted by both as the correct amount due.

The facts, as we find them from the record, are as follows: In the fall of 1901, the assured (Bachmin), having previously pledged the policy in question to secure a debt of $ 100, with interest, and being without means either to pay the debt, or to pay the quarterly premium which fell due in September, or, in fact, for any other purpose, applied to the agent of the defendant for a loan, on the policy, which was refused. He then mentioned the matter to Mr. Millaudon, who had been his fellow employe in a mercantile house, and who, being asked: "What did he tell you?" -- replies and testifies as follows, to wit:

"That he had his policy pledged to somebody, whom I don't know, and that he didn't have any money. I told him: 'Why don't you sell it?' He said: 'I don't know anybody that would buy it.' And he told me, if he knew anybody that would buy it, that he would sell it. I spoke to Mr. Alba about it, and Mr. Alba went to see him. Q. After that, what did Bachmin tell you? A. The very day that Mr. Alba seen Bachmin I seen Bachmin in the evening, and he told me he had sold the policy to Mr. Alba."

The formal, written assignment of the policy, approved by the defendant company, and containing no suggestion of a pledge, is further corroborated by the testimony of Mrs. Peltz, a relative of Bachmin's, with whom he was boarding, to the effect that he told her that he was expecting a gentleman to call on him about a policy of insurance that he wished to dispose of; that the gentleman (who was Mr. Alba) called, and was evidently a stranger to Bachmin; that, after he had gone, Bachmin told the witness "that everything was all right; that he had disposed of his policy; that Mr. Alba had saved him." And being asked, "why," had replied, "Simply because the policy was to expire very soon, and I couldn't redeem it," or something to that effect. By the testimony of Mrs. Millaudon, to the effect that Bachmin told her that he had sold his policy to Alba; by the testimony of Braun, the agent of the defendant company (and quite a prominent witness for defendant), to the effect that Bachmin asked him for a loan on the policy, telling him that it would be a good investment, as he had not long to live, but that he (Braun) refused to make the loan, that Alba then came to him and made some inquiry as to how long a man exhibiting certain symptoms of Bright's disease would be likely to live; which testimony then proceeds as follows:

"[By the witness.] I stated to him that, if I was him, I wouldn't have anything to do with it. Q. [By counsel for intervener.] Why did you tell him that, Mr. Braun? A. Well, I had no particular reason for it. Q. But why was...