Oleska v. Kotur
| Decision Date | 30 April 1943 |
| Docket Number | 17070. |
| Citation | 48 N.E.2d 88,113 Ind.App. 428 |
| Parties | OLESKA v. KOTUR. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted]
Stiles & Reynolds, of Gary, for appellant.
Hodges Ridgely & Davis, of Gary, for appellee.
This is a contest between the parties hereto over the proceeds of a policy of insurance on the life of one Kata Vukovich issued by the Western and Southern Life Insurance Company of Cincinnati, Ohio, in the sum of $500 with a provision for additional indemnity in the event of accidental death. The policy was made payable to the executors or administrators of the insured's estate unless paid under the "facility of payment" clause as set out therein. Kata Vukovich met accidental death on November 22, 1939, whereupon the appellee claimed the proceeds of said insurance policy as the assignee thereof. In the meantime John Oleska, the appellant herein was duly appointed administrator of the estate of Kata Vukovich and demanded of the insurer that such proceeds be paid to him as such administrator and beneficiary named in the policy. On February 19, 1940, the appellee filed suit on her alleged claim and named the appellant and said Western and Southern Life Insurance Company as defendants thereto The insurance company, by way of interpleader, admitted full liability upon its policy and paid the proceeds thereof to the clerk of the Lake Superior Court for the use and benefit of such claimant as said court should ultimately determine to be entitled thereto. Upon this interpleader the insurance company was discharged and issues were joined between the appellant and appellee, each claiming to be the owner of said insurance money. A trial was had to the court which found the facts specially, stated conclusions of law thereon favorable to the appellee and, over appellant's motion for a new trial, entered judgment accordingly. The errors relied upon for reversal and assigned to this court for review are: (1) The trial court erred in each of its conclusions of law on the facts found; and (2) the trial court erred in overruling appellant's motion for a new trial.
The complaint upon which the cause was tried was in three paragraphs. To the first paragraph thereof the appellant filed answer in twelve paragraphs and to the second and third paragraphs of said complaint the appellant addressed separate answers in eight paragraphs each. The appellant also filed a cross-complaint seeking to be declared the owner of the money in controversy, which the appellee answered in two paragraphs. Appropriate replies were filed by the respective parties to all paragraphs of answer to both the complaint and cross-complaint. There being no questions raised as to the sufficiency of any of these pleadings, a resume of their contents and purposes will meet the requirements of this appeal. There is very little difference between the first and third paragraphs of the complaint. Both proceed upon the theory that an assignment of the insurance policy in controversy from Kata Vukovich to the appellee resulted from their words and acts in relation thereto. The first paragraph pleads a purported written assignment which is omitted in the third paragraph. The second paragraph of complaint asks the reformation of an imperfect written instrument in such manner that it may constitute an assignment of all property rights in said insurance policy from the insured to the appellee. In answer the appellant first denies the execution of the alleged assignment, either in writing or by words and conduct, and second, attacks the validity thereof because (a) it is in violation of the terms of the policy, (b) the appellee had no insurable interest in the life of the insured, (c) it lacks consideration, (d) it constitutes a wager on the life of the insured, and (e) the insured lacked mental capacity to make a valid contract. By his cross-complaint the appellant seeks recovery of the proceeds of the policy on the theory that he is the beneficiary thereof and that the insurer, having failed to elect to pay the same to anyone else under the "facility of payment" clause, said proceeds must be paid to him. This cross-complaint is met by a general denial and a special answer pleading the alleged assignment upon which the appellee counts in her complaint.
The following, in substance, are the facts as found specially by the trial court: Prior to September 17, 1934, Kata Vukovich applied to the Western and Southern Life Insurance Company of Cincinnati, Ohio, for a policy of insurance on her life in the sum of $500. Such policy was issued on said 17th day of September, 1934, and shortly thereafter delivered to the said Kata Vukovich whereby her life was insured in the sum of $500, with certain additional sums for accidental death, in consideration of a weekly premium of thirty-five cents. The administrator of the insured's estate is designated as the beneficiary thereof except that "The Company may make payment or allow any benefit provided for in this policy to any relative by blood or connection by marriage of the Insured, or to any person appearing to the Company to be equitably entitled thereto." Said policy further provided that "any assignment or pledge of any benefits hereunder shall be void and of no effect." The said Kata Vukovich maintained said policy in force until September or October, 1934, when she assigned and delivered the same to the appellee who thereupon informed the manager of the insurance company's Gary office, through which said policy had been issued, of such assignment and conferred with him as to the effect thereof with special reference to whether she would receive the proceeds of the insurance if she continued paying the premiums thereon. She was told by said manager that if she did so until Kata Vukovich died and then had the policy in her possession she would be paid the proceeds thereof. Relying upon such representations by the company's local manager and without any intention of thereby wagering upon the life of Kata Vukovich, the appellee paid all premiums thereafter due on said policy until the insured died in November, 1939, at which time she had said policy in her possession and in good faith claimed to be the owner thereof. At all times after she assigned her said life insurance to the appellee and until she died, the said Kata Vukovich knew the appellee was paying the premiums thereon under the belief of ownership and permitted her to do so without protest or dispute. Upon the death of Kata Vukovich $799.40 became due on said policy and the insurer made no specific election under the "facility of payment" clause but paid the same to the Clerk of the Lake Superior Court for the use and benefit of those to whom said court should determine it belonged. At the time said policy of life insurance was issued to her and at the time she assigned it to the appellee the said Kata Vukovich was of sound mind.
Upon these facts the trial court concluded in substance that (1) the law is with the appellee, (2) the assignment of the policy is valid and transferred all property rights therein to the appellee, (3) the statement of the insurer's local manager to the effect that if the appellee paid all future premiums when due and had the policy in her possession upon the death of the insured the proceeds thereof would be paid to her, constituted an election under the "facility of payment" clause, and (4) the knowledge of the insured that the appellee was paying the premiums on said policy, which she permitted without protest or dispute of ownership over a period of years, now estops her administrator from claiming any interest therein.
The appellant contends that the assignment upon which the appellee rests her case, and which the trial court concluded was valid, is shown by the facts, as found by the court, to be void as a matter of law. He says this is true because (1) the said assignment is contrary to an express provision in the policy itself, (2) the appellee had no insurable interest in the life of the insured, (3) there was no consideration for such purported assignment, and (4) it constituted a mere wagering contract and therefore is void as against public policy.
As heretofore stated, one of the facts found by the court is that the insurance policy involved in this controversy contained the following clause: "any assignment or pledge of any benefits hereunder shall be void and of no effect." This provision the appellant contends renders the assignment upon which the appellee recovered below absolutely void. In support thereof we are referred to the cases of the Prudential Ins. Co. v. Ritchey, 1919 188 Ind. 157, 119 N.E. 369, 484; Stewart v. Gwynn, 1908, 41 Ind.App. 320, 82 N.E. 1000, 83 N.E. 753; and American Ins. Co. of Chicago v. Gallagher, 1875, 50 Ind. 209. In the first of the above cases, Ritchey, as the assignee of an insurance policy, brought suit to recover its proceeds against the insurer. The policy involved contained a provision that an assignment thereof voided the entire contract of insurance and in construing that clause the court said "Under the provisions of the policy referred to the company had a right to treat the policy as void and to refuse payment on that ground unless facts existed which estopped it from asserting that right or which amounted to a waiver of such right by the company." This falls short of a holding that an assignment in the face of a contractual provision to the contrary is absolutely void, but rather indicates to us that such an assignment is voidable at the option of the insurer unless his conduct estops or waives the exercise thereof. In Stewart v. Gwynn, supra, there was no assignment involved. The action was in replevin by the beneficiary named in the policy to recover...
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