Robbins v. Hennessey
| Decision Date | 05 June 1912 |
| Docket Number | 12827 |
| Citation | 86 Ohio St. 181,99 N.E. 319 |
| Parties | Robbins v. Hennessey Et Al. |
| Court | Ohio Supreme Court |
Laws governing insurance - Section 289, Revised Statutes - Constitutional exercise of power of General Assembly - Part of contract of insurance - Assignment of contract providing for burial expenses - Violative of statute, and void, when.
1. Section 289, Revised Statutes, as amended April 9, 1908, is a constitutional exercise of the right of the General Assembly of Ohio to control the business of insurance, and the provisions of this section become a part of the contract of insurance and equally binding on all parties to the contract.
2. An assignment of a contract of insurance issued by a company corporation or association engaged in the business of providing for the payment of funeral, burial, or other expenses of deceased members, or certificate holders therein or engaged in the business of providing any other kind of insurance, to any designated undertaker, or undertaking concern, or to any particular tradesman, or business man, is in violation of the provisions of said section and void.
The original action was brought by William Hennessey to recover on a policy of insurance issued by the defendant in error The Ohio Burial Insurance Company, on the 9th day of March 1909, to William Hennessey on the life of his wife, Mary Hennessey. The petition avers the corporate character of the insurance company, the issuing of the policy, the payment of weekly premiums thereon from the date of its issuance until the death of the wife, which occurred April 27, 1909, about one month and a half after the policy was issued, notice of her death to the company, and a prayer for judgment for $100. The policy provided for the payment of $34.00 if she died within six months after the issuing of the policy, and $68.00 if she died after six months from the date of the policy. The wife having died within the six months judgment was given for $34.00. The Ohio Burial Insurance Company filed an affidavit averring that E. S. Robbins, who is now the plaintiff in error in this suit, made a claim to the subject of the action, and asking that it be permitted to pay said sum of $34 into court; that E. S. Robbins be made a party plaintiff and that the plaintiff and Robbins litigate their respective right to the fund. Such order was made, and Robbins accordingly filed an answer and cross-petition. The issue in this case arises on the cross-petition. The cross-petition admits the issuing of the policy to William Hennessey upon the life of Mary Hennessey, his wife. It averred that at the time the policy was issued, William Hennessey was a member of The Miami County Benefit Association, and by virtue of such membership was entitled to receive from said association upon the death of Mary Hennessey certain funeral and funeral outfit and furnishings for the use and benefit of Mary Hennessey; that William Hennessey was about to withdraw from said benefit association at the time of the issuing of this policy by the defendant company; that he entered into a contract with Robbins that in consideration of the assignment to him by William Hennessey of the policy in The Ohio Burial Insurance Company, and of the moneys to be paid thereunder at the death of Mary Hennessey, Robbins would furnish to and for the use of Mary Hennessey the benefits of funeral and funeral outfit and furnishings to which William Hennessey was entitled as a member of The Miami County Benefit Association; that William Hennessey did then and there execute and deliver to Robbins an assignment of the policy issued to him by The Ohio Burial Insurance Company, the contract in that behalf being as follows:
The cross-petition further averred that William Hennessey performed all the conditions on his part to be performed; that Mary Hennessey died as stated in the petition; that proofs were properly made and accepted by the company; that upon the death of Mary Hennessey, the cross-petitioner, E. S. Robbins, tendered and offered to William Hennessey to furnish to him for the use and benefit of Mary Hennessey all the benefits that William Hennessey was entitled to receive as a member of The Miami County Benefit Association and the funeral and funeral outfit and furnishings that William Hennessey was entitled to receive for Mary Hennessey, then deceased, but that William Hennessey, without lawful reason or excuse therefor, refused and declined to accept from this defendant the benefits aforesaid, or the funeral or funeral outfit and furnishings for Mary Hennessey; that the cross-petitioner was ready, anxious and willing, and is now ready, anxious and willing to furnish to William Hennessey and does in open court tender to Wm. Hennessey the benefits and funeral and funeral outfit and furnishings for Mary Hennessey, deceased.
To this cross-petition William Hennessey filed a general demurrer, which was sustained by the common pleas court of Miami county, and plaintiff in error not desiring to plead further judgment was entered awarding the money in dispute to William Hennessey. A motion for new trial was overruled, error prosecuted in the circuit court of Miami county, which court affirmed the judgment of the common pleas, and this proceeding in error is prosecuted in this court to reverse the judgment of the common pleas court and the judgment of the circuit court affirming the same.
Messrs. Dempsey & Nieberding; Mr. Jacob A. Davy and Mr. Alonzo G. Duerr, for plaintiff in error.
The inhibitory provisions of Section 289, as so amended, do not operate upon either the insured or the beneficiary in a policy. The section operates only upon the insurer.
If the section, as amended, did, even expressly, forbid such assignment or transfer as is contended for, it would be unconstitutional and void, as infringing the constitutional rights, not only of the person insured, and of the beneficiary, but also of the undertaker, or designated tradesman, to whom the policy had been assigned.
Section 1, Article I, Constitution of 1851, guarantees to every citizen of Ohio the right to acquire, possess and protect property.
The right to contract and the right to labor are property, and, in this view, the right to carry on any kind of business, or engage in any occupation, is property. 1 Lewis on Eminent Domain, Sec. 245.
It will not be assumed that these outside undertakers, or any of them, would give the deceased a more decent burial than the assignee of the policy, or that the employment of said assignee would result in any inconvenience to the family. For this reason this statute cannot be sustained as an exercise of the police power. The statute is sought to be supported on a false basis. Ex parte Drexel, 147 Cal. 763; State v. Ramseyer, 73 N. H., 31; Palmer v. Tingle, 55 Ohio St. 423; In re Preston, 63 Ohio St. 428; State v. Robins, 71 Ohio St. 273; Miller v. Crawford, 70 Ohio St. 207; Niagara Fire Ins. Co. v. Cornell, 110 F. 816.
The assignment of the policy by the insured, or beneficiary, even if consented to by the insurance company, does not constitute a promise by the company to pay, or a contract to pay, the assignee.
Nor is a payment by the insurance company under an assignment, such a payment as contravenes said Section 269, as amended. Bispham's Equity, Sec. 165; 2 Am. & Eng. Ency. Law (2 ed.), 1095, 1098; Sullivan v. Visconti, 68 N. J. L., 543; Parkhurst v. Dickerson, 21 Pick., 307; Dubois v. Doubleday, 9 Wend., 318; Jessel v. Insurance Co., 3 Hill, 88; McKinney v. Alvis, 14 Ill. 33.
What insurable interest must Robbins have to warrant an assignment to him, outside of Section 289?
So far as the facts disclose, we submit that Robbins may take this assignment without having any insurable interest whatever, and cite Eckel v. Renner, 41 Ohio St. 232; Ryan v. Rothweiler, 50 Ohio St. 595; Clark, Admr., v. Allen, 11 R. I., 439.
But the contract between Hennessey and Robbins in relation to furnishing funeral and supplies and outfit, for Mrs. Hennessey, created an insurable interest in Robbins, as between him and Hennessey. Coshocton Glass Co. v. N.W. Mutl. Life Ins. Co., 13 C. C., N. S., 240.
A life policy, valid in its inception, may be assigned to one having no insurable interest in the life insured, if the assignment is bona fide, and not a mere device to evade the law, or cover a gambling transaction.
Mutuality of obligation is undoubtedly necessary to every contract where the promises are executory on both sides; but to show mutuality the obligation may be implied as well as express. Although on its face and by its express terms the contract is obligatory on one party only, yet if the intention of the parties, and the consideration on which the obligation is assumed, is that there shall be a...
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