Damron v. Penn Mut. Life Ins. Co.

• Decision Date: 08 January 1885
• Docket Number: 11,945
• Citation: 99 Ind. 478
• Parties: Damron v. The Penn Mutual Life Insurance Company et al
• Court: Indiana Supreme Court

99 Ind. 478

Damron v. The Penn Mutual Life Insurance Company et al

No. 11,945

Supreme Court of Indiana

January 8, 1885

From the Gibson Circuit Court.

A. P Hovey and G. V. Menzies, for appellant.

A Gilchrist, C. A. DeBruler, W. P. Edson, E. M. Spencer and H C. Pitcher, for appellees.

OPINION

Bicknell C. C.

This suit was commenced in March, 1884, in the Posey Circuit Court, and was taken by change of venue to the Vanderburgh Circuit Court, and thence to the Gibson Circuit Court, where a judgment was rendered for the appellees, from which this appeal was taken.

The appellant, the widow of Uriah G. Damron, brought the suit against the said insurance company upon its policy of insurance on the life of her said husband for $ 2,500, executed on January 30th, 1876, and payable to the appellant. The appellees, Cook, Dieterlie, Noel and Pitcher, were made defendants, as claiming some interest in the policy under an assignment. The complaint alleged that said assignment was void, because of the plaintiff's coverture, and prayed for judgment on the policy.

The insurance company paid into court the amount due on the policy, to await the result of the litigation between the plaintiff and the other defendants, and was thereupon discharged from further liability. The issues joined were submitted to the court for trial, and the court made a special finding of the facts, and stated conclusions of law thereon in favor of the appellees, to which conclusions the appellant excepted.

The appellant has assigned several errors, but in her brief has discussed only the alleged errors in the conclusions of law, and has presented for consideration the following questions only:

1. Was the assignment of the policy by Mrs. Damron valid?

2. Is the statute of limitations of six years a bar to the accounts.

The court found substantially that the policy of insurance on the life of the said Uriah G. Damron for $ 2,500, payable within sixty days after notice and proof of his death, to his wife, the appellant, her executors, administrators or assigns, was executed by the said insurance company on April 30th, 1873, and that the annual premium payable thereon was $ 126.25; that when the policy was executed said Damron and wife were residents of Evansville, Indiana, and said insurance company was a corporation of Pennsylvania doing business in Indiana; that said Uriah Damron afterwards became indebted to Henry A. Cook $ 1,015.60, and to John Dieterlie $ 154.30, and to William Noel $ 164, and to Henry C. Pitcher $ 400, and that afterwards, on February 9th, 1877, said Damron and wife being then residents of Illinois, and Henry A. Cook a resident of Indiana, and said Damron being still indebted as aforesaid, and said Cook being his surety in the further sum of $ 200, and interest at 10 per cent. since August 12, 1876, said Damron and wife endorsed upon said policy of insurance the following assignment thereof to said Henry A. Cook:

"McLeansboro, Illinois, February 9th, 1877.

"Policy No. 14,791. For value received we hereby assign, transfer and set over all our right, title and interest whatsoever of, in and to policy No. 14,791, on the life of Uriah G. Damron in the Penn Mutual Life Insurance Company of Philadelphia, to which this assignment is attached, unto Henry A. Cook, Esq., of Evansville, Ind., in trust: First. To pay himself and John E. Dieterlie, and William J. L. Noel and Henry C. Pitcher, of Mount Vernon, Indiana, on account of U. G. Damron, any indebtedness to them, or either of them, existing when the policy becomes a claim; Secondly. To pay the remainder, if any, to Mrs. Cecilia E. Damron, wife of the insured, her executors, administrators or assigns, with full power to said trustee to surrender said policy to the said company, if said company consents thereto, for paid-up insurance, and without any liability on the part of said company to see to the proper discharge of the trust, or of any part thereof. Witness our hands and seals the day and year above written.

(Signed) "Uriah G. Damron.

"Cecilia E. Damron.

"Witnesses present: Frank Ritchey, Geo. Phillips.

"Approved and recorded 16th day of March, 1877, without guarantee on the part of the company as to the sufficiency or validity of the transfer. Ent'd B. 2, page 240.

"James Weir Mason, Actuary."

And on said day Cecilia, with the consent of her husband, delivered said policy to the said Henry A. Cook; that at the time of said assignment the said Uriah was without means to pay his debts or the premiums on the policy; that said Cook agreed, as the consideration for said assignment, to and with the said plaintiff and the said Uriah, that he Cook would pay or cause to be paid all premiums upon said policy as they became due, and would not, in any way, press the said Uriah in his lifetime for the collection of said debts, or for the collection of any sum he might be compelled to pay for the said Uriah as his surety, but would give time on all such debts until the death of said Uriah, and upon his death would look solely to the proceeds of said policy for the payment of any sum that might be due him on account thereof, when said policy became a claim against the company. Said Cook also agreed to and with the plaintiff and said Uriah, that after paying himself, John Dieterlie, William Noel and Henry C. Pitcher, the indebtedness that might be due them, or either of them, when said policy became a claim, on account of said Uriah, he would pay the excess, if any, collected by him on said policy to the said Cecilia E. Damron; that after the execution of said assignment said Cook, in April, 1877, paid as surety for said Uriah the sum of $ 217.50, and never pressed him in his lifetime for the payment of any of the foregoing indebtedness; that said Cook also paid as premiums on said policy the sum of $ 653.65, of which $ 29.68 were repaid him by said Pitcher, and $ 10.42 were repaid him by said Dieterlie; that no part of any of the indebtedness aforesaid of said Uriah has ever been paid to said Cook, Dieterlie or Pitcher, but that said Noel's claim should be credited with $ 100, on account of a gold watch and chain received by him from said Uriah in 1876; that at the date of said assignment there was a statute of the State of Illinois as follows: "A married woman may own in her own right real and personal property obtained by descent, gift or purchase, and mortgage, sell and convey the same to the same extent and in the same manner that the husband can property belonging to him."

At the time of said assignment, it was also the law of Illinois that a life insurance policy on the life of a husband, payable upon his death to his wife, is her sole and separate property, and she may sell and assign it or pledge it as security for her husband's debts, and an assignment by her for that purpose will be binding upon her, and she can not repudiate it after the death of her husband.

After said assignment said Uriah removed to Mount Vernon, Indiana and became a resident there, and died there on May 28th, 1883. Due proof was made of his death; the full amount due from said insurance company on said policy and paid into court was $ 2,429.33. There is due said Henry Cook, on account of premiums paid, $ 766.15, including interest at six per cent. There is due on account of the premiums paid by Henry C. Pitcher, including interest $ 41.08. There is due the said John Dieterlie for premiums paid and interest, $ 14.47. There is due the said Henry A. Cook on the indebtedness aforesaid other than for premiums paid, $ 1,962.60, of which $ 558.95 was due on open account on January 1st, 1877, for goods sold in 1876. There is due said John Dieterlie on open account, $ 70.35, and the indebtedness to him, not including the premiums paid by him, is $ 178.56. The indebtedness to the said William Noel is $ 93.44. There is due to the said Henry C. Pitcher, not including the premiums paid by him, $ 400, and he, before the death of said Uriah, executed a written assignment of all his interest in said policy to the plaintiff, Cecilia E....