Humphrey v. Mutual Life Ins. Co. of New York

• Decision Date: 16 August 1915
• Docket Number: 12539.
• Parties: HUMPHREY v. MUTUAL LIFE INS. CO. OF NEW YORK et al.
• Court: Washington Supreme Court

151 P. 100

86 Wash. 672

HUMPHREY v. MUTUAL LIFE INS. CO. OF NEW YORK et al.

No. 12539.

Supreme Court of Washington

August 16, 1915

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam Judge.

Action by Omar J. Humphrey against the Mutual Life Insurance Company of New York and Ida May Zeile. Judgment for defendant Zeile and plaintiff appeals. Modified and affirmed.

Brightman Halverstadt & Tennant, of Seattle, for appellant.

Marion A. Butler and Geo. S. Cole, both of Seattle, for respondent.

MOUNT, J.

This action was brought to secure a decree adjudging that the defendant Ida May Zeile had no right to or interest in a policy of insurance issued by the Mutual Life Insurance Company of New York upon the life of the plaintiff. Upon a trial of the case the court made findings of fact and entered a judgment to the effect that the defendant Ida May Zeile was entitled to the policy, and to the cash surrender value thereof. The plaintiff has appealed from that decree.

The facts are as follows: In December, 1897, the defendant insurance company issued its policy of insurance on the life of the appellant for the sum of $10,000, being policy No 873279. This policy was payable to the executors, administrators, or assigns of the appellant. In November, 1901, the appellant and Ida May Zeile were married. On November 20, 1902, the appellant executed a written assignment of the policy to his wife, as follows:

'For one dollar to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer and set over to Ida May Humphrey (my wife), if living, and if not to my estate, whose P. O. address is San Francisco, Cal., all my right, title and interest in this policy, No. 873279, issued by the Mutual Life Insurance Company of New York, and for the consideration above expressed, I do also for myself, my executors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above-named assignee, her executors, administrators and assigns, and their title to the said policy will forever warrant and defend.

'Dated at San Francisco, this 20th day of Nov. 1902.

Omar J. Humphrey.

'In the presence of H. K. H. Mitchell.'

This assignment was made in duplicate. One copy was attached to the policy, and the other copy was forwarded to the insurance company, and was received and filed by that company as a transfer of the insurance. The appellant informed his wife of this assignment. The policy, together with the assignment, was placed in a safety deposit vault box of the California Title & Trust Company, in the city of San Francisco. The appellant directed the title and trust company to allow his wife to enter the safety deposit vault box whenever she might desire. Afterwards, the appellant and the respondent, being then husband and wife, rented a safety deposit vault box in the Mercantile Trust Company, to which box they each had a key and free access thereto. The policy of insurance was placed in this box. Thereafter the appellant and the respondent lived together as husband and wife until about February, 1905. Some time prior to this date the appellant had come to Seattle, Wash. His wife remained in San Francisco. Thereafter the appellant's wife brought an action for a divorce in the superior court for King county. While the divorce case was pending, the appellant went to San Francisco and took the insurance policy from the safety deposit box, and has retained possession thereof ever since. In November, 1905, the respondent was granted a divorce from the appellant. It appears that their property affairs had been settled prior to the entry of the decree, and the appellant had paid to his wife $5,000 in money. At the time of the settlement no mention was made of the insurance policy. In the decree of divorce no mention was made of the insurance policy. About a year later requests were made by the appellant to his wife to reassign the policy of insurance to him. This she refused to do. Whereupon the appellant defaulted in his premiums, and the policy, according to its terms, was by the company converted into a paid-up policy for the sum of $4,500, with a cash surrender value on the 13th day of November, 1913, of $1,977. Afterwards this action was brought. The insurance company appeared in the action and entered into a stipulation with the parties to the effect that it would abide by the decree of the court and recognize the contract in favor of the party adjudged entitled thereto. After the cause was at issue, it was regularly set down for trial, but the record does not show at whose instance. The date of the trial was fixed for the 29th day of May, 1914.

The appellant and his counsel knew the date fixed for the trial. Afterwards the appellant went to Alaska without informing his counsel that he was going away. A few days prior to the date fixed for the trial, his counsel moved the court for a continuance until the 3d day of June, upon the ground that the appellant had gone to Alaska and would not return before that date. It appears from the statement of counsel that the respondent had come from San Francisco, Cal., to attend the trial, and was in Seattle for that purpose. The trial court denied the motion for a continuance. The case proceeded to trial without the presence of the appellant.

The appellant makes two contentions upon this appeal: First, that the court erred in not granting a continuance; and, second, in finding that the respondent was the owner of the insurance policy in question.

It is argued upon the first contention that the court abused its discretion in not granting the continuance. This court has...