Pomeroy v. Rocky Mountain Ins. & Sav. Inst.

• Decision Date: 19 October 1886
• Citation: 9 Colo. 295,12 P. 153
• Parties: POMEROY v. ROCKY MOUNTAIN INS. & SAV. INST.
• Court: Colorado Supreme Court

12 P. 153

9 Colo. 295

POMEROY v. ROCKY MOUNTAIN INS. & SAV. INST.

Supreme Court of Colorado

October 19, 1886

Error to district court, Arapahoe county.

On rehearing. For original opinion, see 7 P. 295.

The plaintiff, by Benedict & Phelps, his attorneys, complains of the defendant, and avers:

That the Rocky Mountain Insurance & Savings Institution is a corporation, existing under and by virtue of the laws of the state of Colorado, and was such corporation on and prior to the twentieth day of April, 1878; that on said day said corporation, being authorized by law to do a life insurance business in said state, and to write policies or certificates for that purpose, and issue the same, did, by B. F. Johnson its president, and W. L. McCauley, its assistant secretary they being duly authorized, issue under its corporate seal, a certificate, commonly called a 'Policy of Insurance,' called by said corporation a 'Certificate of Membership,' setting forth that the said corporation, in consideration of $16 in hand paid, and of the semi-annual payment of $2.50, to be paid on or before the twentieth day of October and April, at noon, of each and every year during the continuance of the said certificate, and also in consideration of the payment of the amount assessed within 30 days next after each and every notice of the death of a member of the life insurance department of said company should be sent, did thereby constitute Lintner J. Barton (who was the husband of the defendant Elizabeth Barton) a member of said company; and by the said certificate the said corporation did agree, in the event of the death of said member, well and truly to pay at its office, in Denver, the amount of assessments which might be collected to pay the death claim of the said member whose life was thereby insured, not to exceed the sum of $2,500, payable to his wife, Elizabeth M. Barton, for her use, benefit, etc., within three months after satisfactory proof of the death of said member, during the continuance of the said certificate; which agreement aforesaid was and is subject to certain conditions of forfeiture, among which are these: That if payment of the semi-annual premiums of $2.50 required to be made on the twentieth days of October and April of each year, as above stated, should not be made according to the terms of the said policy or certificate, or if payment should not be made of assessments due on the death of a member of the life insurance department of said corporation as required by said policy, or if the member insured as aforesaid should become so far intemperate as to impair his health, or induce delirium tremens, then, and in any such case, the certificate should be void. And the said policy contained also this further provision: That, in case the sum should be assigned, the assignment should be made on the back of the same, in conformity with the rules of the company, and a copy of the said assignment be delivered at the office of the company, in Denver, immediately after its being made, and due proof of the interest of the assignee be produced with the proof of the claim, in case of death.

And the plaintiff avers, on information and belief, that at the time of the issuing of said certificate or policy the said Lintner J. Barton in fact paid the sum of $16, and the said policy was delivered to him; that afterwards, and on or about the twenty-second day of October, 1878, the said Lintner J Barton was in default as to his payments and dues on said policy or certificate, and the same became forfeited, or was declared by said company to have become so; and he, the said Lintner J. Barton, was also indebted to the plaintiff at that time in a large amount of money, that is, the sum of $599.15 for which he had given his note dated September 2, 1878, with interest at the rate of 2 per cent. per month until paid, and at the same time, to secure the same, had delivered to said plaintiff the aforesaid policy, which indebtedness the said defendant Elizabeth Barton had promised to pay to the plaintiff.

And the plaintiff avers that said Lintner J. Barton, on the twenty-second day of October, 1878, was also without means of paying what might be required to revive and keep in force the said policy or certificate; and the plaintiff further avers that in this condition said Lintner J. Barton applied to the plaintiff for assistance in the premises, and for further advances, and offered to indorse the said policy to plaintiff, to secure him in so doing; that thereupon the plaintiff and said Lintner J. Barton applied at the office of said corporation, and to the said Johnson, who was the president and general manager of said corporation, with full power to write insurance, and to represent the said corporation, and then and there stated to said Johnson that in consideration of the indebtedness aforesaid, and advances to be made as aforesaid, and money to be paid by the plaintiff to revive the said policy, if the same could be done, the said policy was to be assigned to the plaintiff; that thereupon said Johnson, acting as aforesaid, directed said Lintner J. Barton to make upon the back of said policy an assignment of the same, as follows:

'DENVER, October 22, 1878.

'For value received, I hereby assign and transfer to Morris Pomeroy all of my right, title, and interest in and to the within policy of insurance, as security for money borrowed.

'ELIZABETH M. BARTON, by Her Husband.

'L. J. BARTON, for Himself.'

--Which assignment the said L. J. Barton made as aforesaid, for the sole purpose aforesaid, in consideration of which assignment, and the securing thereby of the past indebtedness aforesaid, the plaintiff paid the dues and assessments required to revive and keep in force said policy, amounting to the sum of about $20, and received the said policy of insurance aforesaid, and has since retained the same, the said Johnson assuring the plaintiff that said assignment was proper, and sufficient to transfer the said policy to the plaintiff, and that, although said policy has become forfeited, yet the same had been revived for the purpose aforesaid, and stood as security for the plaintiff as aforesaid; that from thence afterwards, until the death of said Lintner J. Barton, the plaintiff made the payments, from time to time, required to keep said policy in force, amounting to the sum of about $6.75; that the defendant Elizabeth M. Barton, as the plaintiff is informed and believes, never had the possession of the said policy, never paid anything to procure the same, or to keep the same alive, and did not know of its existence till after the death of said Lintner J. Barton, or, if she did, she treated the same as the property of said Lintner, and assented to his using it as his; that in equity the same belonged to the said Lintner J. Barton until after the transfer of the same to the plaintiff, and now in equity belongs to the plaintiff, to the extent of the indebtedness from said Lintner J. Barton to the plaintiff at the time of his death, including advances made, as aforesaid, with interest at the rate of 2 per cent. per month, as per agreement between said Lintner J. Barton and the plaintiff.

And plaintiff further avers that on or about the eighth day of March, 1879, said Lintner J. Barton died intestate and insolvent, leaving the defendant Elizabeth M. Barton, his widow, surviving him; that thereafter, and on or about the eighth day of May, 1879, proofs of said death, and of the plaintiff's interest in said policy, were made by the plaintiff, and accepted by said corporation; that the amount of such interest--that is, of the indebtedness from said deceased to the plaintiff--at that time amounted to the sum of about $555.30, all of which, with interest since that date, is due and unpaid.

And the plaintiff further avers that the said corporation [interlineation by plaintiff, as amended, as follows] 'has been, since the death of said Lintner, requested by the plaintiff, as well as by the said Elizabeth M. Barton, to make the assessment upon its members required by its rules and regulations, for the death claim due by reason of the death of the said Lintner J. Barton, and to pay over the said assessment, both of which said company refused to do; and has been also since said death' frequently requested to pay the amount due, according to the terms of said policy, but refused to pay the said sum of $2,500, or any part thereof or any part of any assessment aforesaid; alleging, as a ground of such refusal, and as...