Irwin v. Travelers' Ins. Co.
| Decision Date | 16 January 1897 |
| Citation | 39 S.W. 1097 |
| Parties | IRWIN v. TRAVELERS' INS. CO. et al.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Kaufman county; J. E. Dillard, Judge.
Action by Eva Irwin against the Travelers' Insurance Company and J. W. Irwin. There was judgment on a verdict for defendants directed by the trial judge, and plaintiff appeals. Affirmed.
Wm. H. Allen, for appellant. Warren & Warren, for appellees.
The facts made to appear upon the trial of the case are, in substance, these: (1) Wilbert Irwin, Jr., while unmarried, applied for and obtained a policy in the Travelers' Insurance Company, which provided an indemnity, payable to himself, in case he was injured by accident, and insuring his life against death by accident in the sum of $5,000. The application directed that the policy should be written payable, in case of death, to J. W. Irwin, the sister of the applicant. The policy was written in accordance with the application, and obligated the insurance company, in case of death by accident, to pay $5,000 to the sister, J. W. Irwin. J. W. Irwin was the sister of the insured, and a minor at the time the policy was procured, and at the time of the trial of this case. The policy was delivered by the assured to one Tartt, to be by him held as trustee. (2) After the issuance of the policy, Wilbert Irwin, Jr., married the plaintiff in this suit, and was subsequently killed in a railroad accident. After his death, suit was brought upon the policy by the guardian of the sister in the state of Wisconsin. The insurance company caused Mrs. Eva Irwin to be made a party defendant, and she was served with notice of the fact in Texas, where she then and now resides. This suit is brought by Mrs. Eva Irwin against the insurance company and J. W. Irwin, the beneficiary named in the policy, and she seeks to recover the title and possession of the policy, and to restrain the insurance company from paying the insurance to J. W. Irwin. (3) The policy contains this provision: "A copy of any assignment shall be given within thirty days to the company, which shall not be responsible for its validity." There is no provision in the policy, or the application for the policy, which reserves to the assured the right to change the beneficiary named therein, unless the above clause should be construed to have that effect. The trial below resulted in favor of the defendants, for whom the court directed the jury to find. The clause in the policy quoted is clearly not a reservation to the assured of the right to change the beneficiary. It relates to an assignment of the policy, and must be considered as referring to an assignment by the owner of the beneficial interest, namely, the beneficiary therein named.
The question presented for our decision arises upon the exclusion of evidence offered by the plaintiff. The evidence tendered and rejected was to the effect that Wilbert Irwin, Jr., after his marriage, directed the insurance company to change the beneficiary in the policy from his sister, J. W. Irwin, to his wife, Mrs. Eva Irwin, and notified the trustee, Tartt, that he desired the policy held for the benefit of his wife. And, further, that the policy was obtained from the trustee by ...
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