Prudential Ins. Co. of America v. Tomes

• Decision Date: 12 June 1942
• Docket Number: No. 109.,109.
• Citation: 45 F. Supp. 353
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. TOMES et al.
• Court: U.S. District Court — District of Nebraska

45 F. Supp. 353

PRUDENTIAL INS. CO. OF AMERICA v. TOMES et al.

No. 109.

District Court, D. Nebraska, Lincoln Division.

June 12, 1942.

Raymond G. Young and Laurens Williams, both of Omaha, Neb., for plaintiff.

Joseph L. Pallat, of Wahoo, Neb., and John J. Hess of Council Bluffs, Iowa, for defendant Ernest B. Tomes.

Fred J. Cassidy, of Lincoln, Neb., for defendant, Mildred E. Tomes.

DELEHANT, District Judge.

Resorting to the privilege allowed to it under U.S.C.A. Tit. 28, § 41(26), the plaintiff has deposited in the registry of this court the sum of $1,064.38, payable under the policy of insurance to which reference is hereinafter made, and has filed its complaint praying for injunctive relief against the prosecution by the defendant, Ernest B. Tomes, of a suit already instituted by him upon the policy in the District Court of Pottawattamie County, Iowa, and against the institution or prosecution of any other suit or suits upon the policy by the defendants or any of them; its discharge from further liability upon the policy; interpleader between the defendants touching their respective claims to the fund, and for costs, including an attorney's fee. The jurisdictional facts manifestly exist. A preliminary injunction as prayed was allowed on August 23, 1941, and is still in force.

Ernest B. Tomes has filed an appropriate pleading in which he claims the right to receive the entire fund in the registry. Mildred E. Tomes, both individually and as administratrix, has likewise filed a pleading claiming the fund in her representative capacity only.

The plaintiff, upon the application of Ernest B. Tomes, the father of Ernie Tomes (who is otherwise designated as Ernest Tomes), on July 28, 1930, issued a policy of "industrial life insurance" on the life of Ernie Tomes, then ten years of age, and promised thereby to pay the sum of five hundred dollars in the event of the assured's death and upon due proof of death, "to the executors or administrators of the assured unless payment be made under the provisions of the paragraph below headed "facility of payment". The paragraph headed "Facility of Payment" follows: "It is understood and agreed that the said company may make any payment or grant any non-forfeiture provision provided for in this policy to any relative by blood or connection by marriage of the insured, or to any person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his or her burial, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment or grant of such provision to any or either of them shall be conclusive evidence that such payment or provision has been made or granted to the person or persons entitled hereto and that all claims under this policy have been fully satisfied." The policy also contained a provision for an accidental death benefit equal to the face amount of the policy.

All premiums paid upon the policy were paid by Ernest B. Tomes. And after the death of the assured, Ernest B. Tomes also paid his funeral expenses in the sum of $385, for which he has presented a claim against the estate of the assured.

The assured met accidental death on August 22, 1939, while the policy was in force; whereby the sum of $1,064.38 became due from the insurer for the face of the policy, double indemnity benefit, mortuary dividend and paid up additions.

The assured was eighteen years old at the time of his death, was unmarried, and left surviving him his estranged and divorced parents, the defendants, Ernest B. Tomes and Mildred E. Tomes. He resided in Lancaster County, Nebraska, and in the County Court of that county Mildred E. Tomes was appointed administratrix of his estate in 1940, and is presently the personal representative of his estate.

On September 11, 1939, an "Industrial Death Claim" on a blank form provided by the insurer and signed and verified by both parents of the assured was lodged with the insurer, wherein the parents made proof of the accidental death of the assured and claim for the proceeds of the policy under the "Facility of Payment" provision. In due course, the insurer approved the claim for payment and on October 9, 1939, issued a check for $1,064.38, payable to Ernest B. Tomes and Mildred E. Tomes, and delivered the check to Ernest B. Tomes. The check was promptly cleared through banking channels and paid by the drawee bank. However, it was never endorsed by or with the authority of Mildred E. Tomes. Ernest B. Tomes endorsed it in his own behalf and, without authority, signed on its reverse side the name of Mildred E. Tomes, with his own name written beneath her name.

Mildred E. Tomes, upon her discovery of the action of Ernest B. Tomes in the endorsement of the check, having received and accepted no part of the proceeds of the insurance policy, drew the irregularity to the insurer's attention and shortly thereafter, under pressure from her and probably also from the insurer, Ernest B. Tomes repaid the amount of the check to the insurer, through appropriate banking channels.

Both parents, and also the personal representative of the estate of the assured, demanding the proceeds of the policy, the insurer as plaintiff instituted this action for its own protection.

Regardless of the extent of their claims presently made, the parents upon their abortive payment disagreed about the division of the insurance benefits. Ernest B. Tomes assumed to make the division on his own motion and his letter of transmittal and check to Mildred E. Tomes may be construed as an effort to pay to her the sum of $214.38, upon the representation that it was the "proceeds from a five hundred dollar life policy operating on an extended policy, plus accrued dividends after paying $350.00 to Patterson & Knott Funeral Directors, of David City, Nebraska", thus concealing from her the payment by the insurer, in consequence of the accidental character of the death, of the additional sum of $500, which he retained for himself, without comment respecting it. Her acquisition of information respecting the amount actually paid by the insurer prompted her rejection of the tendered check and led to the restoration to the insurer of the entire fund. The physical appearance of the claim she signed, the different colors of the ink in which the several portions of it are written, lead quite conclusively to the inference that all reference to the double indemnity benefits was added after her signature. For instance in the "claimant's certificate" the amount claimed is indicated as $500, which is also the amount inserted in identical ink in...