Gayden v. Kirk, 37266

• Decision Date: 31 December 1949
• Docket Number: No. 37266,37266
• Citation: 43 So.2d 568,207 Miss. 861
• Parties: , 19 A.L.R.2d 1 GAYDEN v. KIRK.
• Court: Mississippi Supreme Court

Page 568

43 So.2d 568

207 Miss. 861, 19 A.L.R.2d 1

GAYDEN v. KIRK.

No. 37266.

Supreme Court of Mississippi, in Banc.

Dec. 31, 1949.

Campbell & Campbell, Yazoo City, for appellant.

Bridgforth & Love, Yazoo City, B. B. Allen, Indianola, for appellee.

McGEHEE, Chief Justice.

The plaintiff, Maysie Jewel Gayden, brought this suit in the county court against the Pacific Mutual Life Insurance Company of Los Angeles, California, to recover the proceeds of an insurance policy on the life of Cyrus Walter Kirk, who died August 2, 1946, wherein she had been named as secondary beneficiary to receive the proceeds of such policy in the event the first beneficiary named therein, Mrs. Ida Kirk, wife of the insured, should not be living at the death of the insured. Mrs. Ida Kirk died on November 10, 1943, and the plaintiff had been named as secondary beneficiary during the earlier part of that year.

The defendant insurance company, proceeding under Section 1508, Code of 1942, before plea filed, interposed its affidavit to the effect that a third party, the appellee, Mrs. Willard S. Kirk, was claiming the proceeds of the policy, and asked that she be summoned to appear and maintain or relinquish her claim against the defendant. Upon application of the insurance company, the trial court allowed it to pay the money into court and be released from making any further defense to the action. This was accordingly done, and the claimant, Mrs. Willard S. Kirk, was substituted as the defendant on her claim that she had been named the beneficiary subsequent to the original disignation of the said Maysie Jewel Gayden as a beneficiary therein.

The policy of insurance provided in substance that in order to obtain a change in any beneficiary named therein, it would be necessary that such change be endorsed on the face of the policy unless the insured should make an affidavit showing that the original policy had been lost or stolen. This provision was waived insofar as the insurance company was concerned when it paid the money into court, under the circumstances hereinbefore stated under a pleading which fully complied with the foregoing statute, since such provision for the endorsement of the change of beneficiary on the policy was made for the benefit of the insurance company. Faulkner v. Faulkner, 192 Miss. 358, 5 So.2d 421; Hall v. Allen, 75 Miss. 175, 22 So. 4, 65 Am.St.Rep. 601; and White v. White, 111 Miss. 219, 71 So. 322.

Therefore, the remaining questions are: First, whether or not the insured had the right to subsequently change the beneficiary from the appellant to the appellee; and Second, whether or not the effect made by the insured to effectuate such a change was sufficient to entitle the appellee to claim the proceeds of insurance as the subsequently named beneficiary.

On the first proposition, the trial judge decided on conflicting evidence that the insured had not made an oral assignment and transfer of the policy to the appellant in the sense of parting with all title therein and future control thereof. The appellant and her husband moved to the home of the insured under an agreement to take care of him and his invalid wife in consideration of the insured giving her an automobile and eighty acres of land and taking care of all expenses. They remained at the home of the insured for slightly more than a year, and then moved away on account of a disagreement between them and the insured. About ninety days prior to that time, the appellant claims that the insured delivered to her the insurance policy in question as her own. He had some time prior thereto had her named as the secondary...