Antrim v. The International Life Insurance Company

• Decision Date: 06 April 1929
• Docket Number: 28,618
• Citation: 128 Kan. 65,275 P. 1084
• Parties: PHOEBE ANTRIM, Appellee, v. THE INTERNATIONAL LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

275 P. 1084

128 Kan. 65

PHOEBE ANTRIM, Appellee, v. THE INTERNATIONAL LIFE INSURANCE COMPANY, Appellant

No. 28,618

Supreme Court of Kansas

April 6, 1929

Decided January, 1929.

Appeal from Shawnee district court, division No. 3;OTIS E. HUNGATE judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1.LIFE INSURANCE -- Joint Policies -- What Constitutes.Where husband and wife make separate applications to the same company at the same time for the same amount of life insurance and each names the other as the beneficiary, and the company issues one policy naming both of them as insured and the survivor of them as beneficiary, and the policy contains many provisions as to the rights and privileges of the insured, among which is the change of beneficiary, it is not a joint policy but one on the life of each, depending upon different contingencies, and each is an express party to the contract.

2.SAME--Vested Right of Beneficiary.Where an insured in a life insurance policy has by the terms of the policy an absolute right to change the beneficiary upon request, the original beneficiary, as such, has at no time prior to the death of the insured a vested interest in such policy.

3.SAME--Right to Make Loan--Consent of Beneficiary.If a life insurance policy of the kind described in the first paragraph of this syllabus contains a provision granting the right to the insured to make a loan on the policy and assign it as security, either husband or wife can make a valid loan agreement and assignment of the policy without the consent or approval of the other.

4.AGENCY--Husband and Wife--Imputed Knowledge.Where the wife designates her husband as the one to whom notices shall be sent and intrusts him with the keeping of the policy and the handling of the business in connection with the policy in which they are both the insured, and the survivor of them is designated as the beneficiary, she has made him her agent in relation to the business matters of the insurance to the extent that his knowledge of such affairs becomes her knowledge thereof.

5.ESTOPPEL -- Inconsistent Acts.A litigant is estopped and precluded from maintaining an attitude, with reference to a transaction involved, wholly inconsistent with his or her previous acts and business connection with such transaction.

John S. Dean, John S. Dean, Jr., both of Topeka, Charles G. Revelle and Emil E. Brill, both of St. Louis, Mo., for the appellant.

J. M. Stark, of Topeka, for the appellee.

OPINION

HUTCHISON, J.:

This is an appeal by the defendant life insurance company from a judgment against it and in favor of the plaintiff, who is the widow of the deceased, under a policy insuring the lives of both husband and wife for the benefit of the survivor of them.The defense was that the policy had been canceled and forfeited for failure to pay premiums after due and legal notice thereof was given, and that the automatic extension of the policy had been exhausted before the death of the insured because of the making of a loan on the policy.The reply alleged under oath that the signature of the plaintiff to the loan certificate, assignment and agreement was a forgery; that she never authorized the making of the loan or assignment of the policy, never consented thereto, received any benefit therefrom, nor knew of it prior to the death of deceased.

Appellant alleges error in the failure of the court to sustain its demurrer to the evidence of the plaintiff and also in the failure to give the jury a peremptory instruction to find in favor of defendant company.

The reply having been verified, we will for the purposes of the demurrer have to place the burden of proof as to the execution of the loan papers by the plaintiff upon the defendant, which is equivalent to an admission that they were not signed by her nor by her authority.Appellant contends that the demurrer to the evidence should have been sustained irrespective of her signature to the loan papers.The record of the order of the introduction of the evidence is not entirely clear and definite, and for that reason we cannot conclude there was error in the overruling of the demurrer to the evidence.

The theory upon which the court overruled the demurrer and later instructed the jury was that the action was upon a joint policy of insurance.Separate applications were made for the insurance and the husband and wife each named the other as beneficiary.The company apparently used the general form of policy, but inserted both names together, designating them as insured and the survivor of them as the beneficiary, using the following language:

". . . Hereby promises to pay one thousand dollars upon receipt of due proofs of the death of Charles H. Antrim or Phoebe Antrim(husband and wife) the insured, to the survivor hereof (Charles H. or Phoebe Antrim) or to such other beneficiaries as may have been duly designated by the insured."

The following is the provision in the policy as to change of beneficiary:

"The insured may change any designated beneficiary at any time during the continuance of this policy, provided it is not then assigned, by filing with the company a written request accompanied by this policy, such change to take effect upon the indorsement of the same on the policy by the company, whereupon all interest of the former beneficiary shall cease.If no beneficiary shall survive the insured, the policy shall be payable to the insured's executors, administrators or assigns."

The following is part of the provision as to the right to secure a loan on the policy:

"The insured is entitled to cash loans on the sole security of this policy at any time after the payment of three full years' premiums. . . .A proper loan agreement [and assignment] of the policy must be executed by the insured."

Is this a joint policy?In some of the correspondence it is so designated by the officers of the company, but that will not make it such if it is not such.Are both parties insured?Yes, in one way, depending upon a contingency.It was never intended but for one of them to be insured and for the other to be the beneficiary.All parts of the policy should be made effective, and if so and it is joint, how is the privilege of changing beneficiaries to be exercised?Must both parties agree upon another beneficiary?They have acted separately in their applications in the matter of choice of each other.Why can they not under this privilege continue to exercise the privilege separately?It is ultimately only for one such beneficiary.Upon the death of the husband the whole matter is terminated and the choice of beneficiary for the insurance on plaintiff's life is of no more concern.

"Where a policy is on the lives of two persons, the proceeds being payable to the survivor, each of the two persons is an express party to the contract, and, by the terms of the policy, each may be bound by the conduct of the other and obligated to perform the whole undertaking, but they are not joint tenants, as their respective expectancies depend on different contingencies and cannot vest at the same time."(37 C. J. 410.)

"The general rule that insured...