Bussinger v. Bank of Watertown

• Court: United States State Supreme Court of Wisconsin
• Writing for the Court: TAYLOR
• Citation: 67 Wis. 75,30 N.W. 290
• Decision Date: 03 November 1886
• Parties: BUSSINGER v. BANK OF WATERTOWN.

67 Wis. 75
30 N.W. 290

BUSSINGER
v.
BANK OF WATERTOWN.

Supreme Court of Wisconsin.

November 3, 1886.

Appeal from circuit court, Jefferson county.

Action against Watertown Bank to recover the value of two life insurance policies. Judgment of nonsuit for respondent. Plaintiff appeals. The facts are stated in the opinion.

[30 N.W. 291]

George W. Bird, for appellant, Bussinger.

Harlow Pease, for respondent, Bank of Watertown.

TAYLOR, J.

The appellant brought this action to recover of the respondent the value of two life insurance policies, for $1,000 each, on the life of the appellant. One policy was a 10-year policy, and all the premiums thereon were fully paid at the time of the alleged assignment thereof by the plaintiff to the respondent. The other was what is called an endowment policy, payable at the expiration of 15 years from the date thereof, to-wit, February 7, 1886. All the premiums on the policy had been fully paid up to the date of said alleged assignment, viz., October 13, 1883. The respondent held the possession of these policies at the time of the commencement of this action by virtue of an assignment of each of said policies, made by the plaintiff to the bank, bearing date October 13, 1883. The only premium paid on either of the policies by the respondent was the last premium on the endowment policy, payable February 7, 1886, $66.02. Both policies were assigned by the appellant to the bank on the thirteenth of October, 1883, by written assignments executed by the appellant under seal. The assignments were made for the purpose of securing the payment to the bank of several notes held by said bank against the father of the appellant, and such assignments were made at the request of his father for the purpose above stated. The notes for which the bank claims to hold such policies were unpaid at the time the action was commenced. The policies were duly demanded of the bank before the commencement of the action, and the bank refused to deliver them to the appellant.

The grounds upon which the appellant claims the right to the possession of the policies or their value are the following: First, he alleges that when he made the assignment he was, by reason of drunkenness, wholly incapable of making an assignment; and, second, that the assignments are void in law because they were made to a party having no insurable interest in the life of the plaintiff.

The allegations of the complaint upon which it is claimed that the plaintiff should not be bound by his assignment, on account of the condition of his mind at the time the same was made, are as follows: “That, at the time the defendant so obtained the plaintiff's signature to said paper or papers, the plaintiff's mind was so crazed, confused, and debilitated, and he was in such a state and condition of mind, to defendant's knowledge, that he was unable to, and could not and did not, understand or comprehend the transaction at all, or what he was doing, and that he was unable to, and did not and could

[30 N.W. 292]

not, understand or comprehend or know what the said paper or papers were, or that he was making or signing any kind of transfer or assignment of said policies, or either of them, to the defendant, or to any other person, for any purpose whatever; that at the time last aforesaid the plaintiff's mind was so much diseased, debilitated, and crazed by and from the effects of intoxicating liquors, then and theretofore taken and drank by him, that he was, to defendant's knowledge, unable to, and could not and did not, at all comprehend or understand what he was then doing, or the transaction then had, or that he was making or signing any kind of transfer or assignment of said policies, or either of them, to the defendant, or to any one else, for any purpose whatsoever.”

Upon the trial, after hearing the evidence offered by the plaintiff, the learned circuit judge, on motion of the defendant, ordered that the plaintiff be nonsuited, to which order the plaintiff duly excepted, and from the judgment entered upon such nonsuit the plaintiff appeals to this court.

Upon an examination of the evidence given on the part of the plaintiff, as to the condition of his mind at the time he executed the assignments, we are clearly of the opinion that such evidence tended to prove the allegations of his complaint upon the question of his capacity to execute such assignments at the time the same were made. The evidence tended to show that, by reason of his intoxication, he was incapable of comprehending what he was doing at the time he executed said assignments, and was therefore within the well-established rule of law that a drunkard, when in a complete state of intoxication, so as not to know what he is doing, has no capacity to contract. 1 Benj. Sales, (Amer. Ed. Corbin,) 42; Gore v. Gibson, 13 Mees. & W. 623; Cooke v. Clayworth, 18 Ves. Jr. 12; Story, Cont. (4th Ed.) §§ 44, 45, and cases cited in notes; Belcher v. Belcher, 10 Yerg. 121;French v. French, 8 Ohio, 214;Jenners v. Howard, 6 Blackf. 240;Mitchell v. Kingman, 5 Pick. 431;Webster v. Woodford, 3 Day, 90;Seaver v. Phelps, 11 Pick. 304;Rice v. Peet, 15 Johns. 503.

It is not very seriously contended by the learned counsel for the respondent that the evidence of the plaintiff's incapacity, by reason of drunkenness, to make the assignments at the time they were made, was not sufficient to carry the case to the jury on that question; but it is contended that the subsequent acts of the plaintiff in relation to the matter estopped him from now alleging his drunkenness in avoidance of the assignments. The only fact shown in the plaintiff's evidence which is inconsistent with his claim that he was so drunk at the time as not to know what he was doing, is a subsequent written communication to the insurance...