Missouri State Life Ins. Co. v. Robertson Banking Co.

• Decision Date: 16 April 1931
• Docket Number: 2 Div. 983.
• Citation: 223 Ala. 13,134 So. 25
• Parties: MISSOURI STATE LIFE INS. CO. v. ROBERTSON BANKING CO.
• Court: Alabama Supreme Court

134 So. 25

223 Ala. 13

MISSOURI STATE LIFE INS. CO. v. ROBERTSON BANKING CO.

2 Div. 983.

Supreme Court of Alabama

April 16, 1931

Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.

Action on a policy of life insurance by the Robertson Banking Company against the Missouri State Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

See also, 134 So. 800.

Insurer's allegation in general terms denying ownership by assignee of life insurance policy held not proved by showing that assignee's interest was merely that of pledgee of policy as collateral security for loan.

The amended complaint reads as follows:

"The plaintiff claims of the defendant two thousand dollars, due on a policy number 9007 whereby the Great Western Life Insurance Company on, to-wit, January 16, 1908, insured the life of Allen Martin Collins who died on, to-wit, April 22 1930, of which the defendant has had notice; plaintiff avers that on, to-wit, December 7, 1912, the International Life Insurance Company of St. Louis, Missouri, for a valuable consideration assumed and agreed to carry out the provisions of said policy and perform the obligations therein contained, as defined and provided in said policy thereafter, before the death of said Allen Martin Collins, defendant for a valuable consideration assumed said policy and agreed to carry out the provisions thereof and perform the obligations therein contained, as defined and provided in and by said policy; that Hattie Allen Collins was originally named as beneficiary in said policy so issued by said Great Western Life Insurance Company on, to-wit, January 16, 1908, but thereafter and on, to-wit, November 18, 1919, the beneficiary under said policy was changed to 'executors, administrators or assigns (estate)' of the insured.

"Plaintiff further avers that on, to-wit, March 4, 1922, the said Allen Martin Collins did, in writing, and for value received, assign, transfer and set over upon plaintiff (the plaintiff being then his creditor) said policy of insurance No. 9007 and all sum or sums of money, interest, benefit and advantage whatsoever, then due or thereafter to arise, or to be had or made by virtue thereof, to have and to hold the same unto said assignee, the plaintiff; that on the date of making of such said assignment and transfer of said policy, the said Allen Martin Collins was justly indebted to plaintiff in the sum of, to-wit, $13,160.33, and he continuously was and remained indebted to the plaintiff at all times thereafter down to and including the filing of this suit and at the time of filing of this suit is due and owing the plaintiff, the assignee of said policy, the sum of, to-wit, $5,107.80 as a balance on said indebtedness; which last sum of money is past due and unpaid; and that said above described policy is the property of the plaintiff."

Demurrer to the complaint contained the following grounds:

"1st. Because no executor or administrator of Allen M. Collins, deceased, is made a party plaintiff in said suit.

"2nd. Because the complaint shows on its face that defendant is not entitled to give a good and valid receipt for any money due on the policy.

"3rd. Because the complaint fails to show that plaintiff had any insurable interest in the life of Collins.

"4th. It plainly appears from the complaint that the executor or administrator of Collins is the proper party plaintiff.

"5th. It plainly appears from the complaint that plaintiff should have brought the suit in the name of the executor or administrator of Collins for the use of The Robertson Banking Company.

"6th. It plainly appears from the complaint that Robertson Banking Company, plaintiff, is not a beneficiary under said policy, or the assignee of the beneficiary thereunder.

"7th. It plainly appears from the allegations of the amended complaint that plaintiff, Robertson Banking Company, is not the owner of said policy of insurance, but is only the pledgee thereof and as such is not authorized to sue on said policy in its own name but should have brought suit thereon in the name of the executor or administrator of Allen Martin Collins for the use of Robertson Banking Company."

The substance of special plea 4 is as follows:

"The defendant denies that the plaintiff is the owner of the policy sued on and on information and belief avers and shows to the court that the plaintiff's interest in said policy is solely that of the pledgee of said policy prior to the death of Allen Martin Collins, the insured, and that at the time of the death of said Allen Martin Collins it only held said policy as collateral security for a debt owing to plaintiff and that since the death of said Allen Martin Collins the title to said policy has never by sale, transfer or otherwise passed to plaintiff."

The following indorsement appeared upon the back of the policy in suit:

"In accordance with the written request of the insured dated November 18, 1919, now on file in this office, the beneficiary under this policy is changed to 'executors, administrators or assigns (estate)' of the insured. (Signed) International Life Insurance Company, W. F. Grantges, Secretary."

Pertinent provisions of the policy are as follows:

"Change of Beneficiary. Provided this contract is not assigned, the insured may at any time and from time to time during its continuance, change the beneficiary to take effect only when such change and the written consent of the company thereto are endorsed upon the contract or attached thereto at the home office of the company, whereupon all rights of the former beneficiary shall cease.

If there be no beneficiary living at the death of the insured, the proceeds of this contract shall be paid to the executors, administrators or assigns of the insured."

"(4) No assignment hereof shall be binding upon the company unless made by an instrument in writing endorsed upon this contract or attached hereto nor unless a duplicate shall be furnished to the company forthwith upon its execution. The company shall not be held responsible for the validity of any such assignment. Any claim made under an assignment shall be subject to proof of interest and extent thereof.

Plaintiff introduced a note executed by A. M. Collins (assured in the policy) and payable to plaintiff. The note recites that "There has been deposited and pledged as collateral security for the payment of this note or any other liability or liabilities of the undersigned to the owner thereof, whether the same be now existing, or hereafter to become due, the following property, to wit: Policy No. 9007 in the Great Western Life Insurance Co., for $2000.00 and full power and authority is hereby granted to sell, assign or deliver the whole or any part thereof or any substitute therefor or any addition thereto at public or private sale at the option of the owner or holder of this note, his, their or its assigns, on the non-performance of this promise or non-payment of any of the liabilities above named, at any time or times thereafter without advertisement or notice which is hereby expressly waived, and at such sale the owner or holder of this note may purchase the whole or any part of said securities discharged from any right of redemption or liabilities for conversion," etc....