Security Mut. Life Ins. Co. v. Brunson

• Decision Date: 30 November 1936
• Docket Number: 32429
• Citation: 176 Miss. 893,170 So. 824
• Court: Mississippi Supreme Court
• Parties: SECURITY MUT. LIFE INS. Co. v. BRUNSON

170 So. 824

176 Miss. 893

SECURITY MUT. LIFE INS. Co. v. BRUNSON

No. 32429

Supreme Court of Mississippi

November 30, 1936

Division A

1 INSURANCE.

In suit for cash surrender value of life policy, heirs and estate of deceased brother of insured who had paid premiums on policy and obtained loans thereon without consent of insured held not "necessary parties," where insured sought no relief from heirs and estate.

2 PARTIES.

Interest of a party to a suit must be considered as to quality and nature, and new parties will not be brought into suit at instance of defendant, for his convenience, or in order that he may file cross-bill against such parties.

3. APPEAL AND ERROR.

In suit for cash surrender value of life policy, whether insured, who delivered policy to his brother, executed absolute unconditional gift of policy to brother, who caused himself to be made beneficiary and paid premiums on policy, held for chancellor.

4 GIFTS.

Delivery of chose in action is prima facie evidence of a gift thereof.

5. INSURANCE.

Where insured's brother to whom insured delivered life policy caused himself to be made beneficiary, paid premiums on policy, and received loans on policy without authority from insured, insured who, soon after death of his brother, made inquiry of insurer and demanded payment of cash surrender value, held not estopped from asserting claim against insurer.

6. WITNESSES.

In suit for cash surrender value of life policy which had been delivered to insured's deceased brother who, without authority from insured, had obtained loans on policy, insured held not incompetent witness because of fact his deceased brother's estate might be affected prejudicially by outcome of suit.

7. WITNESSES.

To exclude a party as a witness to prove his claim, the claim must be against the estate of deceased person in suit in which party proposes to testify.

HON. L. A. SMITH, SR., Chancellor.

APPEAL from the chancery court of Genada county, HON. L. A. SMITH, SR., Chancellor.

Suit by W. E Brunson against the Security Mutual Life Insurance Company. From an adverse decree, the defendant appeals. Affirmed.

Affirmed.

H. Talbot Odom, of Greenwood, for appellant.

The estate of Sam Brunson was a necessary and proper defendant, and the overruling of appellant's plea of nonjoinder was prejudicial to the rights of the appellant.

6 Couch on Insurance, sec. 1458z, pages 5264, 5265; Griffith's Chancery Practice, sections 102, 107, 108 and 382; Coulson v. Harris, 43 Miss. 728; McPike v. Wells, 54 Miss. 136; Elmendorf v. Taylor, 10 Wheat. (U. S.) 152, 168 (6 L.Ed. 289); Lemmon w. Dunn, 61 Miss. 210; Hooks v. Burns, 168 Miss. 723, 152 So. 469.

Appellee had divested himself of all titles to the insurance policy. We take the position that the insurance policy was an absolute gift from the insured to Sam Brunson. Every essential necessary to a completed gift inter vivos is present.

McClellan v. McCauley, 158 Miss. 456, 130 So. 145; 28 C. J. 626, sec. 15; McDonald v. McDonald, 110 So. 291; Cockrell v. Cockrell, 79 Miss. 569, 31 So. 203; First National Bank v. Liberty Trust Co., 134 A. 210, 47 A. L. R. 731.

The possession of the policy by Sam Brunson was prima facie evidence of his ownership.

Couch on Insurance, 1458o, page 5231.

From the authorities cited and the manner in which both Sam Brunson and the appellee treated the policy over a period of years, there can be no question but that Sam Brunson was both the legal and equitable owner. Certainly the appellee is estopped from asserting any claim therein after such a lapse of time.

37 C. J. 438, sec. 153; 21 C. J. 1060.

Appellee was incompetent as a witness under section 1529 of the Mississippi Code of 1930.

Whitehead v. Kirk, 104 Miss. 776, 62 So. 432, 61 So. 737; Garner v. Townes, 134 Miss. 791, 100 So. 20.

The decree is opposed to the overwhelming weight of the evidence.

Griffith Chancery Practice, sec. 674; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93.

S. C. Mims, Jr., of Grenada, for appellee.

As to the first point, that is the nonjoinder of the Brunson estate, the appellant did not in its plea set up such facts as would entitle it to the relief in this regard. And the record discloses that it failed to sustain the allegations it made in its plea. As to its allegation that it would be prejudiced in its effort to establish its defense to the effect that the policy in question had been given to Sam J. Brunson unless the estate was made a party to this suit, we find that Ben Chambley, the administrator of the Brunson estate, and stepson of Brunson, was introduced as a witness for the appellant and proved to be a friendly witness, and the presumption is that any proof that would have been available if the estate had been made a party defendant in this suit was available to the. appellant.

As to the rights and interest of the. Brunson estate, we find that the proof in this record disclosed to. the satisfaction of the Chancellor that such estate had no interest in the insurance, policy, and was therefore not a necessary party.

Lemmon v. Dunn, 61 Miss. 210.

As to the second point, that is the allegation in the answer and defense of the, appellant, that the appellee had divested himself of all title to. the insurance policy, the same raised a question of fact. And as the same constituted an affirmative defense the burden was upon the appellant to establish the same. This it did not do to the satisfaction of the Chancellor. The Chancellor heard and saw the witnesses testify and found this issue against the appellant. The appellant, however, takes the position that the Chancellor in his finding and determination of the. facts in this record was manifestly wrong and should be reversed for the reason that he did not give due weight to. the presumption that men are honest and that Sam J. Brunson would not have perpetrated a fraud. It seems that learned counsel for appellant takes the position that it is all right for the Chancellor to ignore the presumption that the appellee is an honest man but that it is a reversible error to assume that Sam J. Brunson was dishonest and perpetrated a fraud on the appellant. Furthermore, counsel loses sight of the fact and rule of evidence that presumptions must yield to facts.

The courts have held, both state and federal, that the protection received by beneficiary under life insurance policy was sufficient consideration for the payment of premiums on the part of the beneficiary. In the instant case Sam J. Brunson received the protection under a two thousand dollar policy in return for paying the premiums due thereunder. Regardless of this feature of the case, it was no concern of the appellant, as without question this record reflects that the dividends paid and loans made by the appellant was intended by the appellant to be made to the appellee, and it cannot insist that any act or conduct on the part of the appellee misled it in any regard.

As to the third point, competency of appellee as a witness, we are of the opinion that the case of Love v. Stone, 56 Miss. 449, is controlling.

I may be in error, but my understanding is that the decree entered in this cause cannot in any way affect the Brunson estate, nor could the decree nor any of the proceedings be used as evidence in a suit by the appellant against the Brunson estate.

OPINION

McGowen J.

The appellee, W. E. Brunson, filed his bill in the chancery court of Grenada county against the appellant, Security Mutual Life Insurance Company, alleging, in substance, that the insurer had executed a policy of insurance on appellee's life on the 23d of September, 1911, for the face amount of two thousand dollars, the premiums thereon being fifty-six dollars and fifty-nine cents to be paid each year for twenty years, whereupon appellee was entitled to certain settlements, among others, a cash surrender value of approximately one thousand dollars. The bill further alleged that all the premiums on the policy had been paid for the twenty-year period; that Sam J. Brunson was named beneficiary therein; that appellee was entitled to approximately one thousand dollars as the cash surrender value; that appellee did not have the policy; and that the insurer should be required to produce it in court and make discovery as to the actual value of the same. The prayer of the bill was for the recovery of the cash surrender value of the policy, according to the contract.

Appellant filed a motion suggesting a nonjoinder of parties, alleging that the estate of Sam J. Brunson was a proper party defendant; that Sam J. Brunson had died since the policy became paid up, and that there was an administration of his estate; that in the lifetime of Sam J. Brunson the appellee had made an absolute, unconditional gift of the policy to him; that Sam J. Brunson paid the premiums thereon for fifteen years; and that during his lifetime he, as claimed by W. E. Brunson, without the knowledge and consent of the complainant, obtained from the insurance company at various times loans on said policy, amounting in the aggregate to the cash surrender value thereof

The court below overruled the motion to require the appellee to make the estate, or the heirs, of Sam J. Brunson parties to the bill; whereupon the insurance company filed its answer in which it admitted the execution of the policy, that the premiums had been paid for twenty years, the death of Sam J. Brunson; and averred the absolute, unconditional gift of the policy by the insured to Sam J. Brunson in his lifetime, and the making of the loans thereon with the knowledge and consent of the insured. As part of the answer, the motion for nonjoinder was renewed as a plea. The court, having heard the evidence, entered a decree in favor...