Ely v. Hartford Life Ins. Co.

• Decision Date: 01 May 1908
• Citation: 110 S.W. 265,128 Ky. 799
• Parties: ELY v. HARTFORD LIFE INS. CO.
• Court: Kentucky Court of Appeals

110 S.W. 265

128 Ky. 799

ELY v. HARTFORD LIFE INS. CO.

Court of Appeals of Kentucky.

May 1, 1908

Appeal from Circuit Court, Fayette County;

"To be officially reported."

Action by Naomi Ely against the Hartford Life Insurance Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Hobbs &amp Farmer, for appellant.

E. L Hutchinson, J. R. Morton, and Edw. P. Bradstreet, for appellees.

SETTLE J.

This action was instituted by appellant in the court below to recover of the appellee Hartford Life Insurance Company $2,000 alleged to be due appellant as the named beneficiary in a policy of insurance for that amount, issued upon the life of her husband, Joseph Ely, some years previous to his death, which occurred in Fayette county in September, 1898. The Union Savings Bank & Trust Company, assignee of the Specialty Carriage Company, and the Specialty Carriage Company, both incorporated under the laws of Ohio and having their chief offices and places of business respectively in the city of Cincinnati, that state, were also made parties defendant to the action, but the action was later and on appellant's motion dismissed as to these defendants and thereafter prosecuted against the appellee, Hartford Life Insurance Company, alone. The answer of the latter admitted the issual to Joseph Ely, deceased, of the policy for the benefit of appellant, but averred that the former several years before his death became indebted to the Specialty Carriage Company in a considerable sum, for which he executed to that company a writing acknowledging and promising to pay it and to secure its payment, together with his wife, the appellant, Naomi Ely, by a proper writing pledged and assigned to it, the policy in question, and that the policy and written assignment were thereupon delivered to the Specialty Carriage Company, and that thereafter appellee upon the presentment to it of the written assignment consented thereto by proper statement upon the policy and by making the customary entry upon its records. The answer further averred that at the death of Joseph Ely the Specialty Carriage Company still held the policy under the assignment as collateral security for his indebtedness to it, which then amounted to $2,053.57; that soon after the death of Joseph Ely the Specialty Carriage Company made an assignment of its property to the Union Savings Bank & Trust Company for the benefit of its creditors by which it came into possession of the policy in question, and as such assignee it made out and forwarded to appellee proof of the death of Joseph Ely, and shortly thereafter brought suit against it in the superior court of Hamilton county, Ohio, to recover the amount of insurance due under the policy; that appellee filed an answer in that action which admitted its indebtedness upon the policy and willingness to pay it to whomsoever the court might adjudge, but asked that it be not required to pay until appellant could be brought before the court and be permitted to show what interest, if any, she had in the policy. The answer was made a cross-petition against appellant, who was therein and by an order of interpleader entered by the court made a party defendant to the action and cross-action, and called upon to answer and assert whatever claim she might have to the proceeds of the policy in controversy. It further appears from the averments of the answer filed in the action in the Fayette circuit court that copies of the petition answer, and cross-petition and order of interpleader entered by the superior court of Hamilton county, Ohio, making appellant a party to that action, were, together with a summons issued from that court, duly served upon her in Fayette county, Ky. by a person appointed by the Ohio court to perform that duty, and that after the expiration of the time allowed her by the order of interpleader to appear in the Ohio court to assert claim to the proceeds of the policy, but before that court rendered judgment directing that the proceeds of the policy be paid the assignee of the Specialty Carriage Company in satisfaction of the indebtedness of Joseph Ely's estate to it, as a matter of precaution other copies of the same pleadings, order of interpleader, and an additional summons were served upon appellant by another appointee of that court. In addition to the foregoing facts the answer pleaded in apt terms the jurisdiction of the Ohio court of the parties to and subject-matter of the action in that court; also the conformity to the provisions of the Ohio Code of the steps taken to make appellant a party to the action and afford her an opportunity to assert in that court whatever claim she might have to the proceeds of the policy, and finally that the judgment of the Ohio court was and is conclusive of the rights of the parties and a bar to the action brought by appellant in the Fayette circuit court. The averments of the answer were traversed by reply, but later an amended reply was filed in which the jurisdiction of the Ohio court and the validity of its judgment was denied, and it was alleged that appellant was induced to place her signature to the writing assigning the policy on her husband's life to the Specialty Carriage Company by the importunities and threats of her husband and the misconduct of the carriage company, and the act, being the result of duress, did not divest her of her interest in the policy or right to its proceeds. The affirmative matter of the original and amended reply was controverted by rejoinder. Upon the issues thus formed and the proof taken by the parties the court rendered judgment dismissing the action at appellant's cost, and she, being dissatisfied with the judgment, has appealed.

We think the judgment was proper. Appellant's contention that her signature to the writing by which the policy was assigned to the Specialty Carriage Company was the result of duress is not fairly sustained by the evidence. Her version of that transaction is that the policy had been delivered to her by her husband after it was issued, and was kept by her in a drawer, from which he took it and sent it to the carriage company, which retained it several months and then sent it to her husband, with the request that he and his wife execute the assignment and return the policy; that she was induced to execute the assignment by the threats of the carriage company, to whom her husband was indebted, that he would be prosecuted for embezzlement if she did not join him in the assignment, and by the husband's threats that he would kill himself if she did not sign the paper. She did not claim that any officer or agent of the Specialty Carriage Company was present when the...