Morgan v. EJ EVANS COMPANY

• Decision Date: 05 June 1959
• Docket Number: No. 17472.,17472.
• Citation: 266 F.2d 423
• Parties: John Gordon MORGAN, Appellant, v. E. J. EVANS COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

266 F.2d 423 (1959)

John Gordon MORGAN, Appellant, v. E. J. EVANS COMPANY, Appellee.

No. 17472.

United States Court of Appeals Fifth Circuit.

April 20, 1959.

Rehearing Denied June 5, 1959.

R. Bruce Jones, Jones, Adams, Paine & Foster, West Palm Beach, Fla., for appellant.

T. J. Blackwell, Robert Asti, Melvin T. Boyd, Blackwell, Walker & Gray, Miami, Fla., for appellee.

Before RIVES and TUTTLE, Circuit Judges, and SIMPSON, District Judge.

TUTTLE, Circuit Judge.

In 1937 John Gordon Morgan was a stockholder, officer and director of the E. J. Evans Company. On January 7th of that year, on an application signed by him, a policy of endowment and life insurance was issued on Morgan's life. All premiums were paid by the Evans Company. The beneficiary provisions were as follows:

"— The E. J. Evans Company, Incorporated, Van Wert, Ohio — (herein called the Beneficiary).

"Upon receipt of due proof of the death of the Insured before the maturity of this Policy as an endowment * * *." (Emphasis added.)

Endowment provisions were as follows:

"Beginning upon the 7th day of January, 1957, if the Insured be then living, and all premiums have been duly paid, the Company will pay to the Insured, without the consent of the beneficiary named herein, whether the beneficiary designation be revocable or irrevocable, the sum of One Hundred Dollars per month and subsequent payments on the 7th day of each month thereafter until One Hundred such monthly payments certain have been made, and as long thereafter as the Insured may live." (Emphasis added.)

A rider attached to the policy contained the following language:

"The beneficiary named in the above numbered policy is The E. J. Evans Company, Van Wert, Ohio, a corporation; and the net proceeds of said policy shall be paid to said beneficiary by The Ohio State Life Insurance Company, if and when the said policy shall become a claim through the death of the said Insured.

"The said policy was purchased with the intent that the net proceeds thereof might be used by said The E. J. Evans Company toward the purchase of the shares of the stock of said The E. J. Evans Company owned by said John Gordon Morgan, the above named Insured, at the time of his death, and it is the desire of the undersigned, and of each of them, that the net proceeds of said policy be used by said The E. J. Evans Company toward the purchase of the shares of the stock of said The E. J. Evans Company owned by said John Gordon Morgan at the time of his death; however, it is expressly directed and agreed by the undersigned, and by each of them, that said The Ohio State Life Insurance Company shall not be authorized nor under any obligation to see to the use of said net proceeds or of any part thereof by said The E. J. Evans Company toward the purchase of such stock or otherwise, and that said The Ohio State Life Insurance Company shall be completely and finally absolved, relieved and discharged of and from all liability of any and every kind under or arising out of said policy or in respect of the net proceeds thereof by and immediately upon payment of the net proceeds thereof to said The E. J. Evans Company.

"This Agreement is and shall be binding upon each of the undersigned and upon their respective heirs, executors, administrators and assigns.

"Executed in duplicate this 11th day of January, 1939, at Van Wert, Ohio."

This document was signed by Morgan, the insured, and by Karl W. Todd, an officer of the Evans Company, the named beneficiary.

Morgan severed his connection with the Evans Company in 1944, at which time he sold his stock to the company for $75,000. He also signed an agreement upon receipt of an additional sum of $1,156 that this sum was "in full settlement of all debts, demands, claims of whatsoever kind or nature the said Morgan may have or claim to have against said company and the officers and shareholders thereof."

The insurance policy showed up on the desk of the company's lawyer shortly after the separation of the parties. On the envelope containing it were the words in Morgan's hand: "Kerns Wright Office." Wright was the company lawyer. Also these words in Todd's hand: "2/1/52 — Cash before January 1957 — if Gordon Morgan is still alive."

It was not established where the policy had been prior to 1944, although Morgan testified that he had not had personal possession of it.

In 1955 the company sought to surrender the policy for its cash value, but the insurance company refused to cash it without written consent of the insured, Morgan. Morgan declined to give his consent, and this action was commenced by Evans to require it. The Court held that the cash proceeds of the policy belonged to the company as named beneficiary, and ordered that Morgan "execute such documents and papers as may be necessary to effect the formal assignment to plaintiff of his rights and interest under" the policy.

It is from this judgment that this appeal was taken.

The trial court's judgment was based on two separate legal conclusions. The first was: "The insurance policy in question in this case was acquired at the expense of and for the benefit of the plaintiff. The policy was an asset of the plaintiff corporation. As such any rights or privileges the defendant had under the terms of the policy were held in trust by him for the plaintiff."

The second basis assigned by the court for its ruling was that Morgan had, by putting the policy on Wright's desk, "assigned whatever interest that he possessed in the policy at the time he...