Strike v. Wis. Odd Fellows Mut. Life Ins. Co.

• Decision Date: 07 April 1897
• Parties: STRIKE v. WISCONSIN ODD FELLOWS MUT. LIFE INS. CO. ET AL.
• Court: Wisconsin Supreme Court

95 Wis. 583

70 N.W. 819

STRIKE

v.WISCONSIN ODD FELLOWS MUT. LIFE INS. CO. ET AL.

Supreme Court of Wisconsin.

April 7, 1897.

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by William B. Strike against the Wisconsin Odd Fellows Mutual Life Insurance Company on a certificate of membership in such company. Pending the action. Sampson Cory and Ann Cory were made parties defendant. From a judgment for plaintiff, defendants appeal. Affirmed.

The defendant is a mutual life insurance company, organized by chapter 1 of the Laws of 1887. On June 23, 1892, it issued to one Francis J. Cory a certificate of membership, whereby it agreed to pay $1,000 to his parents, Sampson Cory and Ann Cory, within 90 days after proofs of his death should be received by its secretary. The membership fee and all assessments were paid by Francis J. Cory, except one assessment of $1.20, which was paid by Sampson Cory. The circumstances and reason of this payment by Sampson Cory are unexplained. In February, 1893, Francis assigned his certificate of membership to the plaintiff, and duly executed and filed with the secretary of the company a written instrument directing the sum named in the certificate to be paid to the plaintiff, and requesting the company to “send all assessment notices” to the plaintiff. Notices of all subsequent assessments were sent by the company to the plaintiff, and he paid them to the company. The plaintiff paid Francis $50 for the assignment, and subsequently paid the company, for assessments, upwards of $50 more. The plaintiff was in no way related to Francis. On May 12, 1895, Francis died. At the time of his death the certificate of membershipin the defendant company was in full force, and no assessment was unpaid. Proofs of the death were duly made, and delivered to the defendant's secretary. The company admitted its liability for the loss, but did not pay it, because it was claimed by both the plaintiff and the defendants Sampson and Ann Cory. At the request of the defendant company, and by stipulation of the parties, Sampson Cory and Ann Cory were made parties defendant. They claimed the money on the ground that the assignment of the certificate of membership to the plaintiff was unauthorized and void, for the reason that the plaintiff had no insurable interest in the life of Francis. There was no controversy about the facts. The trial was by the court, without a jury. There was judgment for the plaintiff for the whole amount of the certificate, from which all the defendants appeal.

L. H. Mead and C. E. Estabrook, for appellants.

L. B. Caswell, for respondent.

NEWMAN, J. (after stating the facts).

The only question is whether the plaintiff, having no insurable interest in the life of Francis Cory, could take title to the insurance money by the assignment of Francis. The beneficiaries named in the certificate had an insurable interest in the life assured. So there was a valid contract of insurance. The assessments were paid by Francis. Only one, for some unexplained reason, was paid by one of the beneficiaries. Francis was the owner of the insurance. Being the owner, he had the right, as against the beneficiaries, to assign the insurance. Foster v. Gile, 50 Wis. 603, 7 N. W. 555, and 8 N. W. 217;Estate of Breitung, 78 Wis. 33, 46 N. W. 891, and 47 N. W. 17. There was no restriction on the right of assignment in defendant's charter. The right of the member to assign his insurance was express, and without restriction. It was (chapter 1, § 14, Laws 1887): “Any member may file, with the secretary of the company, a written or printed instrument, duly signed in the presence of two witnesses, directing the said amount to be paid to a person named therein, other than the beneficiary named in his or her certificate, in which case the said amount shall be paid, within the time aforesaid, to the person named in such instrument.” The same section contains another provision, which authorizes an assignment of the certificate, or any interest therein, by a similar instrument, for the purpose of securing a debt or money advanced to a person other than the beneficiary named in the certificate. This is entirely independent of the general provision cited, and does not control or qualify it. Certainly the charter gives ample authority, if indeed it were needed, for an assignment of the insurance. It does not, in terms, even require the consent of either the beneficiary named in the certificate, or of the company. Nor is the right of assignment, in terms, restricted to such persons as have an insurable interest in...