Salomon v. Equitable Life Assur. Soc. of United States

• Decision Date: 08 March 1943
• Docket Number: 36807.
• Citation: 13 So.2d 329,202 La. 1001
• Court: Louisiana Supreme Court
• Parties: SALOMON v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

13 So.2d 329

202 La. 1001

SALOMON v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

No. 36807.

Supreme Court of Louisiana

March 8, 1943

Rehearing denied April 12, 1943.

Benjamin Y. Wolf, of New Orleans, for plaintiff-appellant.

Rosen, Kammer, Wolff, Hopkins & Burke, of New Orleans, for defendant-appellee.

Monroe & Lemann, Terriberry, Young, Rault & Carroll, and Spencer, Phelps, Dunbar & Marks, all of New Orleans amici curiae.

PONDER Justice.

Leonard E Salomon brought suit against the Equitable Life Assurance Society of the United States seeking to have a certain life insurance policy held in full force and effect and to restrain the defendant from declaring the policy lapsed. A temporary restraining order was issued by the lower court which the defendant moved to have dissolved on the ground that no cause of injunctive relief was disclosed. The defendant also interposed exceptions of no right and no cause of action to the plaintiff's demand. The lower court gave judgment maintaining the exceptions and the motion to dissolve and dismissed the plaintiff's suit. The plaintiff has appealed.

The life insurance policy involved in this suit is attached and made part of the plaintiff's petition. It was issued by the defendant company on December 26, 1911, insuring the life of Leonard E. Salomon in the amount of $10,000. The beneficiary designated in the policy was the mother of the insured, Alice W. Salomon, now deceased.

The plaintiff alleges in his petition that he is the owner of this policy which has been in force for thirty years; that all of the premiums on the policy have been promptly paid except the last premium which was due on December 18, 1941; that he was notified there was a dividend of $69.30 due him; that the annual premium on the policy was $197.40; that the dividend of $69.30 represents more than one-third of the premium due on the policy and, under the terms of the policy, would have extended the policy for four months, that is, from December 18, 1941 beyond April 18, 1942; that under the provisions of the policy, the dividend could be paid in cash or applied to the payment of any premium or premiums; that the insured had the right under the provisions of the policy to elect one of the options under the policy within three months by mailing written notice to the insurer; that plaintiff directed the insurer on January 26, 1942 to apply the dividend to the payment of the premium as evidenced by receipt issued by the insurer; that the insurer is threatening to lapse the policy despite the fact that the dividend was sufficient to continue the policy in effect for several months; that the policy had not lapsed because of the application of the dividend to the payment of the premium; that it is the duty of the insurance company to apply the dividend to the payment of the premium as far as it will go; that on January 26, 1942, the plaintiff paid the insurer the sum of $240.60, including the dividend, which is now being held by the insurer; that if the policy is lapsed, he will suffer irreparable injury; that the plaintiff has no remedy at law to prevent the insurer from declaring the policy lapsed; and that it is necessary for a writ of injunction to issue to restrain the insurer from declaring the policy lapsed.

The plaintiff asked for a temporary restraining order and for a permanent injunction, after trial on the merits, restraining the insurer from declaring the policy lapsed. He also asked for a judgment declaring the policy in full force and effect.

On trial of the rule to dismiss the restraining order, the defendant insurance company filed in the record a written assignment, dated May 31, 1917, signed by the plaintiff, insured, and his mother, Alice W. Salomon, the beneficiary, wherein they assigned the policy to the plaintiff's mother, the beneficiary, and the plaintiff's brother, Walbert W. Salomon.

We see no reason to disturb the lower court's holding with respect to the temporary restraining order. The plaintiff could suffer no irreparable injury if the defendant were to attempt to lapse the policy for the reason that the court would have ample authority, in event the plaintiff was successful in his suit, to decree the policy in full force and effect.

The defendant contends that the plaintiff, having assigned the policy to his mother and brother, has no actionable interest in the policy.

It appears from the testimony in the record that the plaintiff's mother, the beneficiary named in the policy, died some time after the assignment was made, and that the plaintiff was duly appointed the executor of her succession. The succession proceedings of the plaintiff's deceased mother were filed in evidence and show that the plaintiff, in addition to being the executor of his mother's estate, is one of her heirs. He is also the named insured in the policy. Under these circumstances, the plaintiff certainly would have an interest in keeping the policy alive.

Moreover, in the case of Elgutter v. Mutual Reserve Fund Life Association 52 La.Ann. 1733, 28 So. 289, wherein one Herman, Aronsohn assigned a policy issued on his life to one Sol Elgutter, an action was...