Cornell v. Mutual Life Insurance Co.
| Decision Date | 23 April 1914 |
| Citation | 165 S.W. 858,179 Mo.App. 420 |
| Parties | ADDIE CORNELL, Appellant, v. MUTUAL LIFE INSURANCE COMPANY, OF NEW YORK, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number One.--Hon Joseph D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
R. A Mooneyham for appellant.
(1) When an issue of fact is controverted, and oral testimony must be relied on to show the fact, the jury has the right to find against the testimony although it is uncontradicted. First State Bank v. Hommon, 124 Mo.App. 177; Hunter v. Wethington, 205 Mo. 284. In old line insurance the issuance of a policy immediately confers a vested right upon and raises an irrevocable trust in favor of the party named as beneficiary, a right which no act of the insured can impair without the beneficiary's consent. Blomb v. N.Y. Life Ins. Co., 197 Mo. 513; Casualty Co. v. Kaser, 169 Mo. 313; 3 Am. & Eng. Ency. of Law (2 Ed.) p. 980; Packard v. Conn. Mut. Life Ins. Co., 9 Mo.App. 469. Even though the policy expressly confers upon the insured the option of surrendering it after a certain period, still this could not be done as against the rights of the wife and children. Timayeris v Union Mutual Life Ins. Co., 21 F. 223; Putnam v. N.Y. Life Ins. Co., 42 La. 739; Pilcher v. N.Y. Life Ins. Co., 33 La. 322; Ricker v. Charter Oak Life Ins Co., 27 Minn. 183; Whitehead v. N.Y. Life Ins. Co., 102 N.Y. 143; Central Bank v. Humes, 128 N. S. 195. The beneficiary can recover on a life insurance policy notwithstanding the insured obtained loans on the policy from the insurer and then surrendered it to the insurer and obtained from it the cash surrender value thereof. Mutual Benefit Life Ins. Co. v. Willoughby, 54 So. 834; Smith v. Mutual Benefit Life Ins. Co., 173 Mo. 329.
McReynolds & Halliburton, New & Krauthoff and P. E. Reeder for respondent.
(1) Appellant did not make out a prima-facie case at the trial below. Garr-Scott & Co. v. Nelson, 166 Mo.App. 51; Nichols v. Thoadman, 112 Mo.App. 299; Jasper v. Bank, 130 Mo.App. 635; Camlin v. Schinlanberger, 64 Mo.App. 548; Nichols v. Larkin, 39 Mo. 264. All of the evidence in this case disclosed conclusively that appellant had no right of action whatsoever on the policy in question at the time suit was instituted, and that the contingent interest acquired by her in the policy when it was issued was cut off when the Golden City Banking Company surrendered the policy for its cash value in September, 1910. Webb v. Insurance Co., 134 Mo.App. 576, 579; Leeker v. Insurance Co., 154 Mo.App. 440. Eagle v. Life Insurance Co,. 91 N.E. 814; Fenn v. Insurance Co., 48 La. Ann., 541; Levy v. Van Hagen, 69 Ala. 17; Mutual Life Ins. Co. v. Twyman, 92 S.W. 335; Pierce v. Insurance Co., 138 Mass. 160. It is the general rule that where a special reservation is made in the policy providing that an insured has the right, subject to the consent of the insurer, to change the beneficiary, that the beneficiary's rights are contingent upon this reservation in favor of the insured. Hopkins v. Insurance Co., 99 F. 199; Lamb v. Insurance Co., 106 F. 637; Denver Insurance Co. v. Crane, 73 P. 875. The trial court properly set aside the verdict because it was against the weight of the evidence, and his action was right also because he should have instructed the jury for the respondent because under the facts in this case only one reasonable inference could be drawn therefrom, consequently the decision became a question of law for the court, and the court should have peremptorily instructed the jury for respondent. Powell v. Missouri Pacific, 76 Mo. 84; Furber v. K. C. Bolt & Nut Co., 185 Mo. 301; Jackson v. Hardin, 83 Mo. 175; Kropp v. Brewing Co. , 138 Mo.App. 49; McCreery v. Railroad Co., 221 Mo. 18; Link v. Hathaway, 143 Mo.App. 509.
--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 twenty years. The insuance 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: 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, Missouri, 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 twenty 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 twenty 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 defendant's instruction numbered one, directing a verdict for the defendant." I. The action of the trial court in granting a new trial because the verdict is against the weight of the evidence rests largely in the discretion of that court and should only be interfered with when it is clear that discretion has been abused. [Terpenning v. Nicholls, 140 Mo.App. 505, 519, 120 S.W. 688; Van Hoose v. Machinery Co., 169 Mo.App. 54, 154 S.W. 165.] It is suggested, however, that, as the trial court granted the new trial for failure to sustain a demurrer to the evidence, this is equivalent to ruling that there is no evidence to sustain the verdict and that the court could not...
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