Oliff F. Harrison's Admr. v. Northwestern Mutual Life Insurance Co.
| Citation | 66 A. 787,80 Vt. 148 |
| Parties | OLIFF F. HARRISON'S ADMR. v. NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY |
| Decision Date | 11 May 1907 |
| Court | Vermont Supreme Court |
May Term, 1907.
ASSUMPSIT on a policy of life insurance. Plea, the general issue with notice. Trial by jury at the March Term, 1906 Rutland County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. This case has been once before in the Supreme Court, see 78 Vt. 473.
Judgment affirmed.
Lawrence & Lawrence for the defendant.
Present ROWELL, C. J., TYLER, MUNSON, and WATSON, JJ.
This case has been here before. 78 Vt. 473. It is assumpsit on a policy of insurance issued by the defendant on the life of the intestate, payable to his executors, administrators, or assigns.
The defendant pleaded the general issue, and gave notice therewith according to the statute that it would rely in defence upon an assignment in writing of the policy by the intestate to one Mary Agnes Gleason for a valuable consideration.
The defendant does not question its liability on the policy, but defends for its own protection, as the suit is not brought at the request nor for the benefit of the assignee, but against her will and interest, and for the benefit of the assignor's estate.
The assignment is not under seal, but purports to be "for a valuable consideration," the receipt of which the assignor thereby acknowledges. The defendant introduced the assignment in defence, and rested without offering any evidence of its consideration other than what the assignment itself affords.
The plaintiff, claiming that the assignment was void because of the turpitude of its consideration, offered to show in rebuttal that for some time prior to the taking out of the policy, and for a long time thereafter, and to within a year or six months of the death of the intestate, who was all that time a married man, illicit relations existed between him and the assignee, and that during all that time she was his mistress, and that the assignment to her was made in consideration of her promise and agreement to continue that relation. The defendant objected that the plaintiff could not impeach the assignment by thus debasing the character of the intestate; but the objection was overruled, and the testimony admitted, and the only question made is, whether that was error. We think it was not, for the plaintiff could make out his case, and did make it out, without relying upon or even disclosing the assignment, and therefore he could impeach it by showing the turpitude of its consideration. Monahan v. Monahan, 77 Vt. 133, 59 A. 169.
But the defendant says that the plaintiff had to rely upon and prove the turpitude of the consideration in order to defeat the assignment, as it contains evidence on its face of a valuable consideration, and therefore made a primary case for the defendant, which cast the burden of proof upon the plaintiff and so his case, as a whole, does not come within the rule stated. But it is a mistake to suppose that the burden of proof was thus cast upon the plaintiff, for he was under no duty to prove anything on this issue. His sole function was to repel and defeat the defendant's attempt to validate the assignment, which it had set up as a defence, and the burden of establishing which rested upon it throughout, and the question was to...
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