Cornell v. Mutual Life Ins. Co.

• Decision Date: 07 April 1914
• Citation: 179 Mo. App. 420,165 S.W. 858
• Parties: CORNELL v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Missouri Court of Appeals

165 S.W. 858

179 Mo. App. 420

CORNELL v. MUTUAL LIFE INS. CO. OF NEW YORK.

Springfield Court of Appeals. Missouri.

April 7, 1914.

1. APPEAL AND ERROR (§ 979)—NEW TRIAL (§ 72)—DISCRETION OF TRIAL COURT— WEIGHT OF EVIDENCE.

The granting of a new trial, on the ground that the verdict is against the weight of the evidence, rests largely in the trial court's discretion, which should be interfered with only when abused.

2. NEW TRIAL (§ 72)—GROUNDS—INSUFFICIENCY.

To sustain the verdict on a motion for a new trial on the ground that the verdict is against the weight of the evidence, the evidence must not be contrary to the physical facts or so improbable as to be incredible, and must be substantial and have some probative force when taken in connection with all of the circumstances, but all reasonable inferences from facts proven must be considered as evidence.

3. NEW TRIAL (§ 72)—GROUNDS—INSUFFICIENCY OF EVIDENCE.

The fact that in weighing the evidence on motion for new trial the court concludes that the evidence supporting the verdict is so light as to amount to no evidence at all, were there no contradictory evidence, would not prevent it from also finding that, in any event, the opposing evidence outweighs it so as to authorize setting aside the verdict on the ground that it is not supported by the weight of the evidence.

4. NEW TRIAL (§ 72)—GROUNDS—INSUFFICIENCY OF EVIDENCE.

Where, in an action on a life policy claimed by defendant to have been assigned by insured, the instructions required the jury to find, in order to find for defendant, that assured assigned the policy before his cash surrender right matured, and that after such right matured he authorized the assignee to so surrender it, the trial court could grant a new trial on the ground that the verdict for plaintiff was against the weight of the evidence, upon finding that the

weight of the evidence was strongly against plaintiff as to one of the facts submitted, though it also found that there was no evidence at all for plaintiff on the other issue submitted; the grounds not being inconsistent.

5. INSURANCE (§ 205)—LIFE INSURANCE—ASSIGNMENT.

While, in the absence of a provision to the contrary in a life policy, the beneficiary has a vested right therein which cannot be impaired by assignments by insured, without the beneficiary's consent, the policy may be assigned without the beneficiary's consent if it provides for assignment or change of beneficiary.

6. INSURANCE (§ 219)—LIFE INSURANCE—ASSIGNMENT OF POLICY.

After a life policy was assigned or pledged pursuant to a provision therein, authorizing its assignment, the assignee or pledgee could, without subsequent ratification or authorization, foreclose the pledge and enforce the assignment.

7. INSURANCE (§ 203)—RIGHTS ASSIGNABLE —CONTINGENT INTERESTS.

A contingent interest, such as an assured's right to the cash surrender value of a life insurance policy after 20 years from its execution, could be assigned before such 20 years had expired.

8. INSURANCE (§ 208)—LIFE INSURANCE—ASSIGNMENT OF POLICY.

An assignment of assured's right to the cash surrender value of a life policy after the expiration of 20 years from its execution need not be in writing, but could be made by the mere deposit of the policy as collateral security, and its retention by the pledgee, with the pledgor's consent, as security for an existing debt, until the right assigned had matured, when the pledgee could surrender the policy and apply the proceeds to his debt.

9. INSURANCE (§ 665)—LIFE INSURANCE—ACTION—SUFFICIENCY OF EVIDENCE—ASSIGNMENT OF POLICY.

In an action on a life policy, which the company claimed was assigned by assured, evidence held not to sustain a finding that assured did not sign a written assignment of his interest in the cash surrender value of the policy.

10. INSURANCE (§ 203)—LIFE INSURANCE— ASSIGNMENT.

Where, in an action on a life policy, it appeared that assured had, pursuant to a provision therein, assigned his interest in the cash surrender value of the policy, and that the policy was surrendered when it matured and its full cash value paid to the assignee, it is immaterial, with respect to the rights of the company and the original beneficiary, whether the rights under the assignment were legal or equitable; the transaction having been completed.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Addie Cornell against the Mutual Life Insurance Company of New York. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiff appeals. Affirmed.

R. A. Mooneyham, of Carthage, for appellant. McReynolds & Halliburton, of Carthage, and New & Krauthoff and P. E. Reeder, all of Kansas City, for respondent.

STURGIS, J.

This is a suit by the widow of C. A. Cornell to collect the amount of a policy of insurance on his life. The policy was issued August 2, 1889, and provides that it becomes a paid-up policy after payment of premiums for 20 years. The issuance of the policy, the payment of all the premiums, the death of the assured, and that plaintiff is his widow and named in the policy as beneficiary are all admitted. Among the provisions of the policy are these: "Surrender. This policy may be surrendered to the company at the end of the said first period of twenty years, and the full reserve computed by the American Table of Mortality and four per cent. interest, and the surplus as defined above, will be paid therefor in cash. * * * The interest of the beneficiary in this policy is subject to the right of the insured to surrender this policy for its cash value at the expiration of 20 years from its date." This last clause was not in the regular printed form, but was inserted in the policy as a special provision. The defense of the company is that the policy was assigned and pledged by the assured and beneficiary in July, 1904 (prior to the time the right of the assured to surrender same accrued), to a bank at Golden City, Mo., to secure an indebtedness of the assured to such bank, and that said bank, as the lawful holder of same, surrendered the policy to defendant for its cash value, paid to said bank on September 10, 1910, which was after the lapse of such 20-year period. The plaintiff by reply denied both the fact and validity of this assignment.

The evidence shows that C. A. Cornell, the assured, became indebted to this bank prior to July, 1904, and had deposited the policy with the bank as collateral security, but without any written assignment of same. Defendant's evidence shows that at this time the bank desired a formal assignment of same in writing as security for this indebtedness, and that a letter, prepared by the bank and signed by the assured, was forwarded to defendant, requesting a blank form of assignment; that defendant furnished this blank form, and thereafter the same was delivered to the bank, properly filled out, and purporting to be signed by the assured and beneficiary, plaintiff herein; that the note evidencing the indebtedness of the assured to the bank was renewed from time to time, until, in September, 1910, the bank informed the assured that the note must be paid, and, unless otherwise provided for, it would be compelled to surrender or cash in the policy at its cash value; that the assured, not being able to pay otherwise, assented to its doing so; that the policy was so surrendered for its cash value, which was applied on, but was not sufficient to discharge, the debt of the assured to the bank. The plaintiff testified, with some corroboration, that she had never signed or assented to the written assignment of the policy to the bank. That became a question for the jury, and was found in plaintiff's favor. The plaintiff admitted, however, that she knew the bank was holding the policy, and says that when she last knew of it the bank had it. The plaintiff also claims that there is sufficient evidence to warrant the jury in finding that the insured, C. A. Cornell, did not execute the written assignment to the bank, claiming that both signatures thereto were forged.

At the close of the evidence, which related mostly to the genuineness of the signatures to the written assignment, the court refused to direct a verdict for the defendant, but in effect instructed the jury to find for plaintiff, unless the jury found: "(1) That the plaintiff made an assignment of said policy to the Golden City Banking Company, or consented to such assignment of said policy; or (2) that the said Charles A. Cornell did, before the expiration of the 20-year period, assign said policy to the Golden City Banking Company, and that after the expiration of the said 20-year period, and before his death, he authorized said bank to surrender said policy to the defendant company and take the cash surrender value thereof, and, unless you so believe and find, your verdict must be for the plaintiff." The court further instructed the jury that the burden of proof was on defendant to establish these defenses, or one of them. The court, however, refused to instruct the jury for defendant on the converse of these defenses, to wit, that if the jury found that C. A. Cornell, prior to the expiration of the 20-year period, assigned the policy to the bank as security of his indebtedness, then the bank, after such period, had a right to surrender same for its cash value, without reference to the element of his authorizing the bank to do so after such 20-year period; also, that if the assured, C. A. Cornell, pledged the policy to the bank for his indebtedness before the 20-year period, then his authorizing the bank to surrender same for its cash value after such period would be a defense. The jury found for the plaintiff. The court thereupon sustained defendant's motion for a new trial, assigning as reasons therefor: "That the verdict of the jury is against the greater weight of evidence, and for the further reason that the court erred in refusing the...