Hoskins v. Hoskins

• Decision Date: 07 June 1929
• Citation: 20 S.W.2d 1029,231 Ky. 5
• Parties: HOSKINS v. HOSKINS.
• Court: Kentucky Court of Appeals

20 S.W.2d 1029

231 Ky. 5

HOSKINS v. HOSKINS.

Court of Appeals of Kentucky

June 7, 1929

As Modified, on Denial of Rehearing, November 8, 1929.

Appeal from Circuit Court, Perry County.

Action by Edith Cornett Hoskins against Sallie Ann Hoskins and the Pacific Mutual Life Insurance Company, which paid the amount for which it admitted liability to a trustee. From a judgment for plaintiff, defendant Sallie Ann Hoskins appeals. Affirmed.

Thomas and Rees, JJ., dissenting.

Faulkner & Faulkner, of Hazard, for appellant.

W. A Stanfill, of Hazard, for appellee.

DRURY C.

William Hoskins died on March 26, 1927. His life was insured in the Pacific Mutual Life Insurance Company which is what is termed an ordinary, legal reserve or old line company. The amount of this insurance is $3,529.38 which the company paid into court, and this is a contest between his mother and his widow, relative thereto. The widow was successful, and the mother has appealed.

This insurance contract was made on July 7, 1921, and the mother was named as the beneficiary. This policy contained a provision for changing beneficiaries which we shall copy later. Some time after taking this policy, William Hoskins married Edith Cornett Hoskins, whom we shall refer to as the widow. On March 18, 1927, William Hoskins accidentally received serious burns from contact with an electric wire.

We think it well at this point to state just what happened in the trial court, just what was done which we are asked to undo.

This policy, with its accumulations, amounted to $4,029.38. The company denied liability for any sum in excess of $3,529.38 and refused to pay any one.

Edith Cornett Hoskins sued for the whole amount, and made the company and Sallie Ann Hoskins defendants. Sallie Ann Hoskins answered, and claimed the whole of the policy. The company for its answer admitted liability for $3,529.38 and contested the remaining $500. By agreement it was allowed to pay this $3,529.38 to a trustee, upon whom the parties agreed. The issues were made, and this evidence heard before a jury.

L. A. Judy testified: "I live in Hazard, Ky. am the agent of the Pacific Mutual Life Insurance Company, and have known William Hoskins since 1921, and on July 7th of that year I wrote for him the policy No. 431509 sued on, and the premiums have all been paid. In this policy Sallie Ann Hoskins is made the beneficiary. After he married he spoke to me about making his wife the beneficiary, and I told him to bring in the policy and I would attend to it, but he never did so. At another time said he did not want to change it, as he had taken more insurance. On some six or eight other occasions we talked about the changing of this policy, but I could do nothing without the policy and he never brought me the policy. [Witness does not fix, and was not asked, the dates of these conversations.] On March 18, 1927, after I heard of his injury, acting on my own accord, I took a printed blank, provided by the company for changing beneficiary, to the hospital, gave it to W. P. Mahew, to ask Hoskins to sign it, and we would send it to the company with the policy for the change. The paper marked 'Exhibit A' is this paper. This was the only policy Hoskins had in my company. Mahew returned this paper to me the next day. I had him sign it as a witness, and I kept it until after the death of Hoskins, which occurred on March 26, then sent it to the company along with the proofs of death on May 4, 1927."

W. P. Mahew testified: "I have known William Hoskins for several years; was well acquainted with him, and accompanied him to the hospital in Hazard after he was injured, and remained with him. Mr. Judy brought there and gave to me a blank request for change of beneficiary. I read it over, then took it into the room where Hoskins was, and explained it to Hoskins, and in his presence I filled in the words 'Edith Cornett Hoskins wife,' filled in the date, 'Hazard, Ky. March 18th, 1927,' and told him to sign it if he wanted to make his wife his beneficiary. Those in the room were Edith Hoskins, W. H. Jefferson, and Dr. ------. Hoskins had not had an anæsthetic; he was burned bad, but did not seem to be suffering bad. Hoskins examined the paper carefully, understood what it was, signed it in my presence, and gave it back to me. I returned the paper to Mr. Judy and then signed as a witness to the signature of Hoskins. 'Exhibit A' is this paper."

This was all the evidence on the question of change of beneficiary. The court instructed the jury to find for the insurance company upon the $500 it was contesting, and that was done.

The court then instructed the jury to find for the plaintiff, Edith Cornett Hoskins, if it should find and believe from the evidence that before his death, William Hoskins signed and delivered to W. P. Mahew the paper changing the beneficiary in the policy, and, unless it did so believe, to find for Sallie Ann Hoskins, and that nine or more agreeing could find a verdict.

The unanimous verdict was: "We the jury agree and find for the plaintiff, Edith Cornett Hoskins. Matt Horn, Foreman." Judgment for plaintiff followed, and this is what we are asked to undo.

Sallie Ann Hoskins did not object to the form of these instructions, but she insists she should have had a peremptory instruction to find for her, and the remainder of this opinion is our answer to this contention.

It is argued that the name of the new beneficiary, Edith Cornett Hoskins, was not in this request for change of beneficiary when William Hoskins signed it, but in the face of this evidence and the verdict of this jury foundation for that argument is rather hard to find.

There is no suggestion in either pleading or proof of fraud, want of capacity, or undue influence.

Counsel for the mother say a great deal about lack of evidence that Hoskins directed this paper to be sent to the company, but he knew he and Judy had discussed the matter of making this change; he knew the paper had been sent to him through Mahew by some one; his natural presumption was it was sent by Judy, and that Mahew would return it to Judy, and Judy would sent it to the company.

The proof shows Hoskins was superintendent of the Solar Coal Company, which would indicate he was a man above the average in intelligence. We cannot presume he proposed to do an idle thing when he signed this paper. Mahew told him to sign it, if he wanted to make his wife his beneficiary. He signed it, thus showing that was his purpose; then gave it back to Mahew, thus making Mahew his agent to carry out that purpose by delivering the paper to the proper parties. On May 4, 1927, Judy sent this application for change of beneficiary to the district office of his company at Ashland, Ky. and that office forwarded it to the home office of the company at Los Angeles, Cal., where it was received on May 11. The policy was not sent to the district office or to the home office. Some one in the Ashland office of this insurance company has at some time since the death of Hoskins inserted in this application for change of beneficiary the number of the policy, which was 431509, and has inserted the figures "7/7/21" to show the date of it. The only purpose in inserting this number and date is to identify the contract in which Hoskins desired to change the beneficiary, and as it is shown that this was the only contract he had with this company, it would have made no difference if this date and number had never been filled, and the question before us is: Was what was done sufficient to effectuate the change of beneficiary? The efforts of parties holding contracts of insurance on their lives to change the beneficiaries named has been a very fruitful source of litigation, as will appear to the reader from some of the cases cited in this opinion and as appears to us from the numerous cases cited in brief and other cases which we have examined in our study of this question.

Aside from sending the policy to the company, Hoskins did everything that was required of him to effectuate this change. He signed the printed request which the company had provided, after Mayhew had filled in the name of Edith Cornett Hoskins, the new beneficiary, and the request has been sent to the company. This policy was then in the possession of his mother, who resided at Annalee in Clay county. At the time Hoskins signed this request for a change of beneficiary, he was in the hospital at Hazard. The record shows that it is over 40 miles from Hazard to Annalee. This is a mountainous road and the trip can only be made on horseback. This is some explanation of why the policy was not sent with the request for change of beneficiary. Before the request for change of beneficiary reached the Pacific Mutual Life Insurance Company, Hoskins had died, and the company had received notice of his death; hence when this request for change of beneficiary reached the insurance company, it did nothing. Counsel for the mother have been unusually diligent in the preparation of their brief in her behalf. They have cited a vast number of cases, principally cases, however from other jurisdictions, and place their chief reliance upon the case of Freund v. Freund, 218 Ill. 189, 75 N.E. 925, 109 Am. St. Rep. 283. It is generally held that where a right to change the beneficiary has been reserved to the insured in the policy or is authorized by statute, which is a part of the contract, the beneficiary named in the policy has a mere expectancy and no vested right or interest during the lifetime of the insured. This is the established rule in this state. See Twyman v. Twyman, 201 Ky. 102, 255 S.W. 1031, and cases there cited. It is also the general rule. See 37 C.J. 579, § 345. Where policies authorize the change of beneficiary, they...