Bowser v. Bowser

• Decision Date: 04 October 1949
• Docket Number: 33416.
• Citation: 211 P.2d 517,202 Okla. 97,1949 OK 200
• Parties: BOWSER et al. v. BOWSER et al.
• Court: Oklahoma Supreme Court

211 P.2d 517

202 Okla. 97, 1949 OK 200

BOWSER et al. v. BOWSER et al.

No. 33416.

Supreme Court of Oklahoma

October 4, 1949

Rosa Lee Bowser, individually and as guardian of the persons and estates of Elma Etta Bowser and another, minors, sued the Metropolitan Life Insurance Company and Helen M. Bowser individually and as guardian of Leland F. Bowser, a minor, to recover on a policy issued on the life of Elmer E. Bowser deceased, by defendant insurance company, which filed an answer in the nature of a bill of interpleader.

From a judgment of the District Court of Muskogee County, E. A Summers, J., for plaintiffs after trial to the court without a jury, defendants Bowser appealed.

The Supreme Court, Johnson, J., affirmed the judgment, holding that the evidence sustained the finding that insured did all he reasonably could to change the beneficiaries of the policy so as to entitle plaintiffs to the proceeds thereof.

Syllabus by the Court.

1. A provision in life insurance policy that change of beneficiary must be evidence by application accompanied by policy and by endorsement on policy is for the protection of the insurer.

2. Where insured had signed and filed with insurer an application for change of beneficiary, but application was not accompanied by policy, insurer's deposit of fund in court and demand that claimants litigate their claims thereto constituted waiver of strict compliance by insured with provision as to surrender of policy on change of beneficiary.

3. Where insured intended to transfer benefits of life insurance policy from old to new beneficiary, and that intent is plainly manifested by acts as complete as circumstances would permit, that transfer was not evidenced in strict accordance with provisions of policy designed solely for insurer's protection does not preclude court of equity from giving effect to insured's intent where contest is solely between old and new beneficiary.

4. Where insured signed and filed with insurer an application for change of beneficiary of life policy, but was prevented from surrendering policy because his divorced wife, the original beneficiary, had possession thereof, the change of beneficiary was good in equity, since insured had done everything that he reasonably could to make change complete.

5. Findings of trial court where jury is waived are entitled to same weight and consideration that would be given to jury, and Supreme Court will not reverse for insufficiency of evidence if there is any evidence including any reasonable inference tending to support finding.

J. B. Underwood, Tulsa, for plaintiffs in error.

Chauncey D. Twine, Muskogee, for defendants in error.

JOHNSON Justice.

This action was instituted by plaintiff filing her amended petition individually and as guardian for her two minor children, wherein she was claiming for herself and said children as substituted beneficiaries, and the original beneficiaries and the insurance company were defendants, but the insurance company later filed an affidavit and an answer to the nature of bill of interpleader. The company as insurer deposited with the court clerk to the credit of the cause of action the amount due under the policy of life insurance issued upon the life of Elmer E. Bowser. The bill called upon the old and new beneficiaries to interplead their respective claims to the deposited sum. Whereupon, Helen M. Bowser, individually, and as guardian for Leland F. Bowser, a minor, filed an answer and interplea, denying any change of beneficiaries or any attempted change of beneficiaries and asking that the proceeds go to the original designated beneficiaries.

The facts are substantially as follows: The insured, Elmer E. Bowser, died on the first day of July, 1945 while the policy in question was still in effect. The defendants were Helen M. Bowser, divorced wife of Elmer E. Bowser, and Leland F. Bowser, the adopted minor son of Elmer E. Bowser and Helen M. Bowser. The record discloses that she was divorced from the insured on September 23, 1943 in an action by Elmer E. Bowser in the District Court of Muskogee County, Oklahoma. The policy of insurance was dated on the 27th day of February, 1935. The beneficiaries named therein were Helen M. Bowser, wife of the insured, and Leland F. Bowser, insured's son. The right to change the beneficiaries was reserved to the insured. The policy provided that such change of beneficiaries could be made by the insured 'by filing written notice thereof at the Home Office of the Company accompanied by the policy for suitable endorsement thereon. Such change to take effect when endorsed on the policy, but not before.'

After the insured and his wife were divorced and insured had married Rosa Lee Bowser, and two children were born, namely: Elma Etta Bowser and Elmer E. Bowser, Jr., and under date of June 15, 1945, pursuant to the terms of the policy, the insured executed and delivered to insurer his written designation and change of beneficiaries, wherein he designated Rosa Lee Bowser, wife, Elma Etta Bowser, daughter, Elmer E. Bowser, Jr. and Leland Bowser, sons, each an undivided one-fourth interest in said policy, but that the change was never endorsed upon said policy because the policy was never forwarded by the insured to the home office of the insurer for endorsement before the death of the insured.

The decisive question in this case may be stated as follows: Where a policy of life insurance, reserving to the insured the right to change the beneficiary, but without consent to the change, provides that that such change will become effective only when a provision to that effect is endorsed on or attached to the policy by the company, and where the original beneficiary prevents compliance with this provision by wrongfully retaining possession of the policy in spite of efforts by the insured to secure it, does the failure of the insured, in connection with a formal request for a change of beneficiary, to submit the policy to the company for its endorsement prevent the change from becoming effective?

It was alleged by the plaintiff that the reason that the policy did not accompany the application or was not sent in to the company for a change of the beneficiaries, the insured's former wife refused to deliver the same to the insured and that being in her...