Prudential Ins. Co. of America v. Orr's Adm'r

• Decision Date: 23 March 1917
• Citation: 174 Ky. 831,192 S.W. 825
• Parties: PRUDENTIAL INS. CO. OF AMERICA v. ORR'S ADM'R.
• Court: Kentucky Court of Appeals

192 S.W. 825

174 Ky. 831

PRUDENTIAL INS. CO. OF AMERICA v. ORR'S ADM'R.

Court of Appeals of Kentucky.

March 23, 1917

Appeal from Circuit Court, McCracken County.

Action by one Rudolph, as administrator of William Orr, deceased against the Prudential Insurance Company of America.Judgment for plaintiff, and defendant appeals.Affirmed.

James C. Cheek, of Paducah, for appellant.

Eaton &amp Boyd, of Paducah, for appellee.

MILLER J.

By its policy dated June 3, 1904, the appellant insured the life of William Orr in the sum of $1,000, naming his wife, Nellie A Orr, as the beneficiary.On March 8, 1915, Nellie A. Orr obtained a divorce from her husband, and, on January 1, 1916he died.The policy contained a clause which permitted the insured to change the beneficiary; but he never exercised that right.At the time of his death, William Orr owed the company $59.45 for borrowed money, leaving a balance of $940.55 due upon the policy.The appellee, Rudolph, was appointed administrator of William Orr's estate, and brought this action against the company on May 19, 1916, to recover the amount called for by the policy.By its answer the company set up its debt of $59.45, above referred to; the further fact that Nellie A. Orr had paid three full premiums amounting to $94.08; and, that it had, on January 3, 1916, paid to Nellie A. Orr the balance of $940.55 due upon the policy.The company also set forth section 425 of the Civil Code of Practice, and section 2121 of the Kentucky Statutes, which provide that upon a final judgment of divorce from the bonds of matrimony, the parties shall be restored to such property undisposed of at the commencement of the action, as either obtained from or through the other before or during marriage in consideration thereof; that the divorce judgment in this instance did not so provide; that, having paid the full amount due upon the policy to Nellie A. Orr, it would, in case it should be required to pay the amount of the policy to the plaintiff, be deprived of its property without due process of law, and of the equal protection of the law, and in violation of the fourteenth Amendment to the federal Constitution; and, that it would also impair the obligation of its contract, in violation of the tenth section of article 1 of the federal Constitution.The reply traversed the answer; and, among other things, it alleged affirmatively that after the divorce, and before the death of William Orr, Nellie A. Orr had remarried; that her name was now Nellie A. Cole; that the company was notified not to pay her the proceeds of said policy before it did so; and that said money was paid to her over the protest of the plaintiff, and after the administrator had made demand upon the defendant for the amount due by the policy.These facts are admitted by the company's failure to controvert them.Briefly stated, appellant's defense is: (1) That the sections of the Civil Code and the statutes above referred to, which restore to the divorced parties, respectively, any and all property which the other party had received by reason of the marriage, are unconstitutional, as applied to life insurance policies wherein the divorced wife is named as the beneficiary; and (2) that if they be constitutional, the statutes do not apply in this case because the divorce judgment did not contain a provision for the restoration of property.A jury was waived, and, upon a trial by the court, there was a judgment for the plaintiff for $846.47, the balance due on the policy after deducting $94.08, which had been paid by Mrs. Cole, as premiums.

The appellant made no request of the circuit court for separate findings of law and facts, and consequently no exception was or could have been taken to the decision of the trial court upon the questions of law involved in the trial.Furthermore, there was no motion or grounds for a new trial.Under this state of the record appellee insists that this court can only determine whether the pleadings support the judgment.Section 332 of the Civil Code of Practice provides as follows:

"Upon trials of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law."

The suggestion that this statute does not apply because the case was tried upon an agreed statement of facts is not well made, since the agreement goes only to what the witnesses would testify, not that it was true.

This court had repeatedly held that the statutory provisions requiring a restoration of property in cases of divorce cover life insurance policies such as we have here, and that the statutes apply, although no order of restoration was embraced in the divorce judgment, since the right of restoration is given by law, and may be enforced in any subsequent proceeding.(1)Sea, Adm'r, v. Conrad,155 Ky 51, 159 S.W. 622, 7 L. R. A. (N. S.) 1074, Ann. Cas. 1915C, 318;Schauberger v. Morel's Adm'r,168 Ky. 368, 182 S.W. 198;Eversole v. Eversole's Adm'x,169 Ky. 234, 183 S.W. 494;(2)Williams v. Gooch, 3 Metc. 487;Bennett v. Bennett,95 Ky. 548, 26 S.W. 392, 16 Ky. Law Rep. 72;Johnson v. Johnson,96 Ky. 391, 29 S.W. 322, 16 Ky. Law Rep. 660;Smith v. Smith,56 S.W. 968, 22 Ky....