Dunlevy v. New York Life Ins. Co.

• Decision Date: 10 March 1913
• Docket Number: 15,041.
• Citation: 204 F. 670
• Parties: DUNLEVY v. NEW YORK LIFE INS. CO. et al.
• Court: U.S. District Court — Northern District of California

204 F. 670

DUNLEVY v. NEW YORK LIFE INS. CO. et al.

No. 15,041.

United States District Court, N.D. California.

March 10, 1913

Frank W. Taft, Clarence Coonan, and Nat Schmulowitz, all of San Francisco, Cal., for plaintiff.

Page McCutchen, Knight & Olney, of San Francisco, Cal., for defendant New York Life Ins. Co.

VAN FLEET, District Judge.

Plaintiff brings this action to recover $2,479.70, the cash surrender value accrued under the tontine provisions of a policy of life insurance issued by the defendant insurance company on the life of its codefendant, Joseph W. Gould, the father of plaintiff; the policy being alleged to have been assigned by Gould to plaintiff.

The defenses of the insurance company are: (1) That there was no valid or perfected assignment of the policy to the plaintiff and (2) that plaintiff is concluded by a judgment recovered against the company by its codefendant, Gould, on the same demand in the court of common pleas of the state of Pennsylvania, under which judgment the amount involved has been fully paid to the latter. The answer of the defendant Gould, while silent as to the judgment, sets up that the assignment counted on never became perfected, for reasons that will be hereafter noticed.

1. As to the validity of the alleged assignment. The policy was issued to Gould, then a resident of Pittsburgh, Pa., in 1889. In 1893, while his daughter, the plaintiff, was a child of 13 years, living with him and under his protection and maintenance, he went to the office of the local agent of the company and executed an assignment of the policy to her absolute and unconditional in form, purporting to transfer to her 'all dividend, benefit, and advantage to be had or derived therefrom. ' The assignment was executed in duplicate with all the formality required by the company, and acknowledged before a notary. As required by the rules of the company, both copies were sent to its home office in New York, to be viseed by the company before becoming effective whereupon one copy was retained by the company and the other returned to Gould, who kept it, with the policy, in his possession and thereafter continued to pay the premiums until the expiration of the tontine period and the payment to him of the amount due thereon, as hereinafter stated, when it was surrendered to the company.

It is claimed that these facts fail to disclose a valid transfer of the policy, for want of any delivery of the assignment and the policy to the plaintiff. If by this is meant that an actual physical delivery of the documents was essential to complete the transaction, the claim is untenable. In the first place, the formal execution and sending of the assignment to the insurance company, although in obedience to the requirement of its rules, is presumptively for the benefit of the assignee, and as between the latter and the assignor, in the absence of anything to evince a contrary purpose, will be regarded as a sufficient delivery. McDonough v. AEtna Life Ins. Co., 38 Misc.Rep. 625, 78 N.Y.Supp. 217; Hurlbut v. Hurlbut, 49 Hun, 189, 1 N.Y.Supp. 854.

But, in the next place, no actual delivery was required under the circumstances disclosed in this case, because the assignee was incapable of receiving it. She was a minor, under the care and protection of the assignor, her father, and the latter was therefore the natural custodian of her property and effects, as he was of her person. Under these circumstances, no actual physical delivery was called for to perfect the title of the assignee. Burges v. New York Life Ins. Co. (Tex. Civ. App.) 53 S.W. 602.

It is urged that the fact that Gould continued to pay the premiums on the policy is evidence that he did not regard the assignment as complete. This is without force. In making the assignment to his daughter, a minor, and so far as appears without estate, Gould knew that if the premiums were not paid by him they would not be paid at all, and the presumption will not be indulged that he entered upon the transaction with the purpose of doing a thing which would result in a forfeiture of all right under the policy for want of payment of the premiums. The presumption will be preferred that in continuing to pay them it was his purpose to pay them for the benefit of his daughter.

The further claim that the assignment was a conditional one, and never became effective, is based upon the testimony of Gould that he had no intention to make an absolute assignment to his daughter; that he told the agent of the company, when he went to the office to execute it, that he wished to make it conditional upon his dying before the policy was paid desiring to reserve to himself the right to collect anything to be paid on the policy at its maturity, should he be...