Canterbury v. Nw. Mut. Life Ins. Co.
| Decision Date | 06 April 1905 |
| Citation | 124 Wis. 169,102 N.W. 1096 |
| Parties | CANTERBURY v. NORTHWESTERN MUT. LIFE INS. CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, La Crosse County; John J. Fruit, Judge.
Action by Catherine A. Canterbury against the Northwestern Mutual Life Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
It appears that the plaintiff's husband, James B. Canterbury, died February 14, 1901. This action is brought by the widow upon three policies of insurance, each constituting the basis of a separate cause of action. The first cause of action is based upon policy No. 79,941, dated December 5, 1874, for $2,000; the second is based upon policy No. 88,933, dated June 16, 1876, for $2,000; and the third is based upon policy No. 97,243, dated September 24, 1878, for $3,000; and each cause of action alleges, in effect, that the deceased procured from the defendant the policy of insurance upon his life “for the benefit of Catherine A. Canterbury, his wife,” in the amount stated therein, for the term of his natural life, and whereby the defendant promised and agreed “to pay the said sum assured, at its office, to the said beneficiary or her executors, administrators or assigns, in sixty days after due notice and proof of death of the said person whose life” was thereby assured; that the defendant waived proofs of death and each and every condition precedent to the bringing of this action by denying that the plaintiff had at the time of her husband's death, or has since had, any insurable interest whatsoever under and by virtue of said policy, and by refusing to pay the amount of the policy, or any part thereof, for the reason of an alleged assignment of the same previous to the death of James B. Canterbury; and claims that there is due on each of such policies the amount therein stated, with interest from April 15, 1901, and prays judgment for $7,000, with interest from April 15, 1901.
The amended answer to the first cause of action, based upon policy No. 79,941, consists of admissions and denials, and then, under the seventh subdivision, consists of: (1) Counter allegations to the effect that July 31, 1896, said James B. Canterbury and said Catherine A. Canterbury, for a valuable consideration to them duly paid, duly sold, assigned, transferred, and set over unto the National Bank of La Crosse all their right, title, and interest in and to said policy No. 79,941, and delivered said policy to said bank; that such assignment was in writing, and in duplicate, and such duplicate was, on or about said date, sent to the home office of this defendant, and has ever since been and is now in its possession; that said assignment continued in full force and effect down to and at the time said policy was paid by this defendant, as hereinafter set forth; and that at the time said assignment of said policy was so made said James B. Canterbury was indebted to said bank in an amount in excess of the aggregate of said policy No. 79,941, and another policy issued by this defendant, No. 9,256, for $1,000, upon the life of said James B. Canterbury, payable to his executors, administrators, or assigns, and also duly assigned to said bank, and that such indebtedness continued down to and at the time of the death of said James B. Canterbury and at the time of the payment of said policy as hereinafter set forth, and that at all such times said bank had an insurable interest in the life of said James B. Canterbury in excess of the aggregate of said policies. (2) That February 26, 1901, said bank furnished to this defendant due notice and due proofs of the death of said James B. Canterbury, and that therein and thereby said bank expressly claimed, as assignee of such policy, the entire proceeds thereof; and that said bank, at or about said date, also furnished to this defendant due proof of the aforesaid insurable interest of said bank in the life of said James B. Canterbury. (3) That March 16, 1901 (no other claim having been made by any one to said policy No. 79,941, or to the proceeds thereof), this defendant duly paid to said bank, as such assignee, under the proofs so furnished by it as aforesaid, the sum of $2,000 in full of all claims on said policy, and received from said bank its receipt in full therefor, together with the surrender and delivery of said policy to this defendant. (4) That said Catherine A. Canterbury never had any child or children. (5) That the plaintiff ought not to question said assignment, or the payment so made by this defendant to said bank, because said plaintiff at all times aforesaid had full knowledge of all the facts aforesaid, including the assignment of said policy, the indebtedness of said James B. Canterbury at that time, and that said policies remained in the possession of said bank, and shortly after the payment of said money to said bank that said bank had furnished to this defendant proofs of death and of its insurable interest, and that this defendant had paid to said bank said sum of $2,000, and accepted from it the surrender and delivery of said policy; and because said plaintiff never at any time prior to January 27, 1904, made any question or objection thereto, or in any way in respect thereof, but by her silence acquiesced therein and consented thereto; and that prior to January 27, 1904, said plaintiff never in any way or at any time questioned said assignment of said policy, or the claim of said bank, or the payment by this defendant to said bank, as hereinbefore set forth, and prior to said date never made any demand upon this defendant in any way relating to said policy, or gave to this defendant any notice of any claim whatever by her in respect thereof.
The amended answer to the second cause of action, based upon policy No. 88,933, consists of admissions and denials, and under the seventh subdivision thereof consist of (1) counter allegations to the effect that October 1, 1892, said James B. Canterbury and said Catherine A. Canterbury, for a valuable consideration to them duly paid, duly sold, assigned, transferred, and set over unto the State Bank of La Crosse all their right, title, and interest in and to said policy No. 88,933, and delivered the said policy to said bank; that such assignment was in writing and in duplicate, and such duplicate was, on or about said date, sent to the home office of this defendant, and has ever since been and is now in its possession; and that said assignment continued in full force and effect down to and at the time said policy was paid by this defendant as hereinafter set forth; and that at the time said assignment of said policy was so made as aforesaid said James B. Canterbury was indebted to said bank in an amount in excess of the aggregate of said policy No. 88,933, and another policy issued by this company, No. 97,243, for $3,000, upon the life of said James B. Canterbury, and also duly assigned to said bank; and that such indebtedness continued down to and at the time of the death of said James B. Canterbury and at the time of the payment of said policy as hereinafter set forth; and that at all such times said bank had an insurable interest in the life of said James B. Canterbury in excess of the aggregate of said policies. The balance of such counter allegations 2, 3, 5, and 6, in answer to that cause of action, are substantially the same as 2, 3, 4, and 5 in answer to the first cause of action with this addition: (4) That said State Bank of La Crosse, at or about the time of said assignment of said policy to it, and at various times thereafter, in order to protect and to continue said policy in force, was obliged to and did promptly pay certain of the premiums upon said policy as the same became due, according to the terms thereof, but the defendant is unable to state when and in what amounts said premiums were so paid by said bank, except as aforesaid.
The amended answer to the third cause of action, based upon policy No. 97,243, consists of admissions and denials, and under the seventh subdivision thereof consists of (1) counter allegations to the effect that October 1, 1892, said James B. Canterbury and said Catherine A. Canterbury, for a valuable consideration to them duly paid, duly sold, assigned, transferred, and set over unto the State Bank of La Crosse all their right, title, and interest in and to said policy, and delivered the said policy to said bank; that such assignment was in writing and in duplicate, and such duplicate was, on or about said date, sent to the home office of this defendant, and has ever since been and is now in its possession; and that said assignment continued in full force and effect down to and at the time said policy was paid by this defendant as hereinafter set forth; and that at the time said assignment of said policy was so made as aforesaid said James H. Canterbury was indebted to said bank in an amount in excess of the aggregate of said policy No. 97,243, and another policy issued by this company, No. 88,933, for $2,000, upon the life of said James B. Canterbury, and also duly assigned to said bank; and that such indebtedness continued down to and at the time of the death of said James B. Canterbury, and at the time of the payment of said policy as hereinafter set forth; and that at all such times said bank had an insurable interest in the life of said James B. Canterbury in excess of the aggregate of said policies. The balance of such counter allegations, 2, 3, 5, and 6, in answer to that cause of action, are substantially the same as 2, 3, 4, and 5 in answer to the first cause of action, above mentioned, with this addition: (4) That said State Bank of La Crosse, at or about the time of such assignment of said policy to it, and at various times thereafter, in order to protect and continue said policy in force, was obliged to and did promptly pay certain of the premiums upon said policy as the same became due,...
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