Doering v. Buechler
| Decision Date | 31 January 1945 |
| Docket Number | No. 12921.,12921. |
| Citation | 146 F.2d 784 |
| Parties | DOERING v. BUECHLER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Marshall S. Snyder, of Minneapolis, Minn. (Neil Hughes, of Minneapolis, Minn., on the brief), for appellant.
Frank J. Collins, of Minneapolis, Minn. (Ben R. Toensing, of Minneapolis, Minn., on the brief), for appellee.
Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.
The Bankers Life Company, of Des Moines, Iowa, on October 25, 1930, issued to Raymond E. Doering, of Minneapolis, Minnesota, a $2,000 policy of life insurance payable to his wife, Marie C. Doering, as beneficiary. By the terms of the policy, the right to change the beneficiary was reserved to the insured. The policy provided that the insured might designate a new beneficiary "by filing written notice thereof at the Home Office of the Company accompanied by the Policy for suitable indorsement thereon"; and that "Such change shall take effect when indorsed on the Policy by the Company and not before." In March, 1941, the insured, who was seriously ill with cancer and was estranged from his wife, filed at the Home Office of the Company two written notices, in each of which he directed the Company to change the beneficiary to his sister, Emily C. Buechler. The notices were not accompanied by the policy, and the change of beneficiary was not indorsed thereon. The insured died January 13, 1942. The Company brought this action in interpleader against the wife and sister of the insured (who were respectively citizens of Minnesota and North Dakota) as adverse claimants. 28 U.S.C.A. § 41(26). Each of them asserted a claim to the proceeds of the policy, which were deposited in court by the Company. The District Court determined that the insured's attempted change of beneficiary was effective, and entered judgment for the sister. Bankers Life Co. v. Doering, D.C., 54 F.Supp. 302. The wife of the insured has appealed. She asserts that, under the evidence and the applicable substantive law, which is that of Minnesota, she was entitled to judgment.
The District Court in its opinion has fully stated the facts. It is unnecessary to restate them in detail. Either of the notices of change of beneficiary filed by the insured with the Company would unquestionably have been sufficient to effectuate the desired change of beneficiary had it been accompanied by the policy and had the change been indorsed upon the policy. The Company acknowledged the receipt of the written notices, but directed the insured's attention to the necessity of sending in the policy for indorsement of the change of beneficiary in order that the change might become effective.
On April 1, 1941, the insured sent the following communication to the Company:
On April 28, 1941, the Company received from the appellant a letter dated April 26, 1941, reading as follows:
The insured did not have the policy in his possession in March, 1941, nor at any time thereafter. It was in the possession and control of the appellant; but, according to her testimony upon the trial, it was available to the insured and she would have delivered it to him had he demanded it. She testified that the policy, until about April 26, 1941, was in a metal box in Room 661 of the Curtis Hotel in Minneapolis, which room was then occupied by her, and which had, until about February 22, 1941, been occupied by her and the insured; that the insured had a key to the room and had access to the box; that she took the policy from the box about April 26, 1941, and deposited it in the safe at the hotel; that the insured did not demand that the appellant deliver the policy to him for the purpose of changing the beneficiary; that about March 15, 1941, he did ask her for the policy, stating that he wanted to make a loan upon it; that she then informed him that it was in the metal box in Room 661. The appellant also testified that when she wrote the letter of April 26, 1941, to the Company, it was her intention to keep the policy for the purpose of preventing a change of beneficiary. There was evidence that on February 24, 1941, two days after the insured had left the Curtis Hotel to go to the hospital, the appellant opened the safety deposit box held jointly by the insured and the appellant in the Northwestern National Bank. She testified that the policy was never in that box.
The District Court made findings of fact, including the following:
The appellant contends that there is an insufficient evidentiary basis for each of these findings.
The appellant also contends that the insured's letter of April 1, 1941, to the Company, charging her with having taken the policy from the vault of the Northwestern National Bank, should not have been received in evidence, and that the court erred in admitting it.
It is not reversible error for a trial court to receive incompetent evidence in a case tried without a jury. "This Court will not reverse a trial court in a nonjury case for having admitted incompetent evidence, whether objected to or not, unless all of the competent evidence is insufficient to support the judgment appealed from or unless it affirmatively appears from the record that the incompetent evidence complained of was relied upon by the trial court and induced the court to make an essential finding which would not otherwise have been made." Thompson v. Carley, 8 Cir., 140 F.2d 656, 660.
The District Court did not regard the insured's letter of April 1, 1941, as proof of all of its recitals, but admitted it as tending to show that the insured did not have the policy in his possession and did not know where it was. We have no doubt that all written communications between the insured and the Company relative to the attempted change of beneficiary were admissible for the purpose of showing the insured's intent, the extent of his efforts to effect the change, and his asserted reasons for failing to send in the policy to the Company for indorsement. Compare Self v. New York Life Ins. Co., 8 Cir., 56 F.2d 364, 366.
The basis for the appellant's contention that the District Court erred in finding that the insured did not send the policy to the Company for indorsement because she had possession of it, is that her uncontradicted testimony showed that the policy was available to the insured. The appellant was an interested party and her credibility and the weight of her evidence were for the trial court to determine. The fact that testimony is not expressly contradicted does not compel the trier of the facts to accept it as true. See Elzig v. Gudwangen, 8 Cir., 91 F.2d 434,...
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