Novosel v. Sun Life Assurance Company of Canada

• Decision Date: 03 March 1936
• Docket Number: 1926
• Citation: 49 Wyo. 422,55 P.2d 302
• Parties: NOVOSEL ET AL. v. SUN LIFE ASSURANCE COMPANY OF CANADA ET AL
• Court: Wyoming Supreme Court

55 P.2d 302

49 Wyo. 422

NOVOSEL ET AL. v. SUN LIFE ASSURANCE COMPANY OF CANADA ET AL

No. 1926

Supreme Court of Wyoming

March 3, 1936

Rehearing denied May 5, 1936, Reported at: 49 Wyo. 422 at 443.

APPEAL from the District Court, Sweetwater County, H. R. CHRISTMAS Judge.

Action by Ludvig Novosel and another against the Sun Life Assurance Company of Canada, wherein the defendant interpleaded alleging that Mary Kantor Novosel also made claim to proceeds of life policy involved. From a judgment for plaintiffs, the interpleaded defendant appeals. Rehearing denied. See 57 P.2d 110.

Reversed, with direction.

For the appellant there was a brief and the cause was argued orally by Edwin V. Magagna of Rock Springs, Wyoming.

Appellant contends that the premium on the policy as shown by the evidence was paid by Ludvig Novosel, Jr. and not by his father, Ludvig Novosel, Sr. Even if it were proven that the father had paid the premium, it would not prevent insured from changing the beneficiary. Wentworth v. Equitable Life Assurance, 238 P. 653; New Era Association v. Kiuat, 158 N.W. 119; Jorey v. Supreme Council, American Legion of Honor, (Calif.) 38 P. 524. The evidence does not show any agreement for the payment of the premium. The request for a change of beneficiary was made by the insured while a minor and was not binding. 31 C. J. 1087. Insurance contracts made by minors are voidable but not void. Simpson v. Prudential Insurance Company of America, (Mass.) 63 L. R. A. 741; Monaghan v. Fire Insurance Company, (Mich.) 18 N.W. 797. Insured intermarried with the appellant with the consent of his father, and therefore he was emancipated and would have full control over his property. 31 C. J. 1009. Delaware v. Petronsky, 25 F. 554. Ludvig Novosel, Jr. reserved the right to change the beneficiary when the policy was issued. Sec 57-236, R. S. 1931; 14 R. C. L. 1388; 37 C. J. 579; Waring v. Wilcox, (Cal.) 96 P. 910; Carpenter v. Knapp, (Iowa) 38 L. R. A. 128; Mutual Life Ins. Company of New York v. Lowther, (Colo.) 126 P. 882; United Artisans v. Cronise, (Ore.) 172 P. 109. The main case relied up by appellees is Freund v. Freund, (Ill.) 75 N.E. 925, but that case was distinguished in Wentworth v. Equitable Life Assurance, 238 P. 652. Moreover the intention of the insured is made plain by the evidence, that when he left for Mayo's Clinic in a serious physical condition, he left one of the policies with his father and mother, payable to them to take care of his indebtedness and that was paid. As to the other policy, he requested the insurer to change the beneficiary, naming his wife as the new beneficiary in order that she might not be left penniless in case of his death. The judgment of the lower court should be reversed.

For the respondents, there was a brief and oral argument by T. S. Taliaferro, Jr. of Rock Springs.

A parent has an insurable interest in his infant child. 37 C. J. 393. Respondents owned the policy and had paid the premium thereon. Knowles v. Knowles, (Mass.) 91 N.E. 213; Mitchell v. Union Life Company, (Me.) 71 Am. Dec. 529; Hancock Company v. Lawder, (R. I.) 48 A. 384. The case of Wentworth v. Equitable Life Assurance cited by appellant differs on the facts. And the same may be said of the cases of New Era Assn. v. Kuiat and Jory v. American Legion of Honor. The evidence established the real intention of the insured. 13 C. J. 771. The right to insure one's life is a separate matter from the right of the insured to change the beneficiary. 37 C. J. 141, 142; Townsend v. Fidelity & Casualty Company of New York, 144 N.W. 576. Change of beneficiary must be in accordance with the terms of the policy. N.Y. Life Ins. Company v. Murtagh, (La.) 69 So. 165; Freund v. Freund, (Ill.) 75 N.E. 925; Douglas v. Equitable Life, (La.) 90 So. 834; Arnold v. Life Company, 60 S.E. 470; Solomon v. Maroney, (N. J.) 73 A. 842; Life Insurance Company v. Berwald, (Texas) 76 S.W. 442. It is not shown by the evidence that the marriage of the insured was with the consent of his father. His marriage did not emancipate him from the disabilities of infancy. 31 C. J. 38. The attempt to change the beneficiary was not completed in accordance with the terms of the policy. The insurer was without the right to change the beneficiary. The authorities cited by appellant to the contrary are not in point. The approval of the insurer was necessary. Townsend v. Fidelty Company, (Ia.) 144 N.W. 576; Hopkins v. Northwestern Assurance Company, 99 F. 202; Sangunitto v. Goldey, 84 N.Y.S. 989; Gratten v. Insurance Company, (N. Y.) 15 Hun. 74; Wilburn v. Wilburn, 83 Ind. 55. The verbal assignability of a life insurance policy is no other than the inherent right of an owner to dispose of his property. 37 C. J. 425; Bowers v. Parker, 58 N.H. 565; Loomis v. Eagle Life Company, 6 Grey 396. Appellant's claim is not supported by equitable principles. Jory v. Supreme Council, (Cal.) 38 P. 526.

BLUME, Justice. KIMBALL, CH. J., and RINER, J., concur.

OPINION

BLUME, Justice.

On September 9, 1929, Ludvig Novosel, Jr., deceased, then sixteen years of age, applied to the Sun Life Assurance Company, herein called the insurance company, for a policy of insurance on his life, in the sum of $ 3,000, making Ludvig Novosel and Annie Novosel, his parents, the beneficiaries of the policy. On October 30, 1929, a policy, as applied for, was issued by the insurance company, numbered 1,154,308. The premiums were due on November 3rd of each year. In the application, the insured reserved the right to change the beneficiaries, and the policy contains the following clause 12:

"This policy is issued with the express understanding that, provided he has not assigned it or any interest therein, the assured may, without the consent of the beneficiary, (a) change the beneficiary or beneficiaries from time to time during the continuance of this policy by filing with the Company a written request in such form as the Company may require, accompanied by this policy, such change to take effect only upon the endorsement of the same on the policy by the Company; (b) Surrender, assign or pledge the policy and receive, exercise and enjoy every benefit, right and privilege conferred upon the assured by the terms of this policy."

Somewhat later in November another policy, an exact duplicate of the first, but numbered 1,174,381, with premiums due on November 20 of each year, was issued to the deceased by the same insurance company. On January 15, 1934, apparently with the consent of the parents, the insured was married to Mary Kantor. On March 30 of that year, he made out the proper papers for a change of beneficiaries on the policy first above mentioned, designating his wife as such beneficiary, and sent them, together with the policy, to the insurance company, which received them prior to the death of the insured. An application for a loan, the amount of which does not appear, was also made. The insurance company failed, neglected, or refused to make the loan or to enter upon its record the change of beneficiary, seemingly on account of the fact that at that time the insured was not quite of age. In April, 1934, the insured went to Rochester, Minnesota, to be examined by Mayo Brothers. He died April 21, 1934, then 20 years, 11 months and 10 days of age. After his death, the parents of the insured, plaintiffs herein, were paid the sum of $ 3,000 on the second policy herein mentioned, that policy being in their possession. The first of the above mentioned policies was then in the possession of the insurance company. Plaintiffs also claimed the proceeds of that, and brought this action against the insurance company to recover it. The insured's wife also claimed such proceeds. The insurance company interpleaded, alleged that Mary Kantor Novosel also made claim to the proceeds, deposited the money, and were by the court discharged from all further obligations. Mary Kantor Novosel, hereinafter sometimes referred to as the intervener, through her duly appointed guardian, was thereupon brought into court, and she, through her guardian, made claim to the proceeds of the policy, relying on the fact that she was the last designated beneficiary of the policy as hereinbefore mentioned. The court awarded the proceeds of the policy to the plaintiffs, and from a judgment to that effect, the guardian, on behalf of his ward, has appealed.

1. Counsel for plaintiffs, respondents here, claim, among other things, that the policy of insurance in question was the property of the plaintiffs from the beginning, inasmuch as the father took it out on the life of the insured for the benefit of himself and his wife, and that he, the father paid all the premiums thereon. It is, of course, true that a parent may take out a policy of life insurance on the life of his minor son, and if he pays the premiums thereon he has been held to be entitled to the proceeds thereof. John Hancock Mutual Life Ins. Co. v. Lawder, 22 R.I. 416, 48 A. 383; 37 C. J. 403. A good illustration of a policy of that character is described in the case of Sheets v. Sheets, (Colo. App.) 4 Colo. App. 450, 36 P. 310. But the physical facts in this case show that the contention of counsel is erroneous. The record discloses that the application for the policy was made by the insured. He signed it; filled in all the blanks in his own hand-writing and answered all the questions; he stated therein that he, the insured, would pay all the premiums; that he would not assign the policy; that he reserved the right to change the beneficiary. The policy was issued accordingly and contained the right of such change, itself showing that all the rights the parents had therein was a right of expectancy and nothing more. 37 C. J. 579. We are unable to see how, in face of these...