Tremblay v. Ætna Life Ins. Co.

• Citation: 97 Me. 547,55 A. 509
• Parties: TREMBLAY v. ÆTNA LIFE INS. CO.
• Decision Date: 26 June 1903
• Court: Supreme Judicial Court of Maine (US)

55 A. 509

97 Me. 547

TREMBLAY

v. ÆTNA LIFE INS. CO.

Supreme Judicial Court of Maine.

June 26, 1903.

(Official.)

Report from Supreme Judicial Court, Androscoggin County.

Action by Patrick F. Tremblay against the Ætna Life Insurance Company on a policy of life Insurance. Case reported, and judgment for plaintiff.

Plaintiff claimed under an assignment executed both by the assured and his wife, who was the beneficiary named in the policy.

One J. B. Cloutier, claiming the fund under color of a prior assignment executed in fact by the husband alone, had brought suit in the superior court of the province and district of Quebec, and recovered judgment for the insurance money, which had been previously deposited with the provincial treasurer in accordance with the Revised Statutes of the province of Quebec. This judgment the insurance company interposed as a defense to this action of debt commenced in this court below in Androscoggin county.

Argued before WISWELL, C. J., and STROUT, SAVAGE, POWERS, PEABODY, and SPEAR, JJ.

H. W. Oakes, J. A. Pulsifer, and F. E, Ludden, for plaintiff.

R. W. Crockett, for defendant.

SPEAR, J. This is an action of debt to recover the amount alleged to be due upon a life insurance policy. On August 13, 1885, the Etna Life Insurance Company of Hartford, Conn., issued a policy through its Canadian branch on the life of Jean O. Tremblay, of the province of Quebec, in the sum of $2,000, payable at his death to his wife, Arthemise D. Tremblay, or, in event of her death before his, to his executors, administrators, or assigns. On November 24, 1891, this policy was assigned by Jean O. Tremblay, without the joinder of his wife, to J. B. Cloutier, of Quebec, as collateral security. On January 14, 1901, Jean O. Tremblay and Arthemise D. Tremblay executed two other assignments of the same policy to their son, Patrick F. Tremblay, of Lewiston, Me., the plaintiff in this case. A duplicate of but one of these assignments was forwarded to the company. This assignment was made upon the company's blank form, and is as follows:

"For value received, we hereby transfer, assign and turn over unto Patrick F. Tremblay, attorney at law and notary public of Lewiston, Maine, as collateral, all our right, title and interest in policy of life insurance 149,296, issued by the Etna Life Insurance Company of Hartford, Connecticut, and all benefit and advantage to be derived therefrom to the extent of such interest as he may have when said policy becomes a claim, subject to J. B. Cloutier's claim.

"Dated at Quebec this 14th day of January, 1901."

This assignment was duly executed and forwarded to the company, and its receipt acknowledged in a letter, as follows: "Ætna Life Insurance Company. "Hartford, Conn., January 19, 1901. "P. F. Tremblay, Esq., 256 Lisbon St., Lewiston, Me.

"Dear Sir: We have your favor of the 16th Inst, enclosing an assignment of policy No. 149.296 on the life of Jean O. Tremblay, executed by said insured and Arth. D. Tremblay, in favor of yourself, under date of January 14, 1901, subject to the claim of J. B. Cloutier, which we place on file for such attention as it may deserve when such policy becomes a claim.

Yours truly, J. L. English."

The assignment was executed by both the assured and the only beneficiary, and consequently divested both of them of, and vested the assignee with, the entire legal interest in the policy, the exception to Cloutier being an equitable interest only, to which allusion will be made later.

J. O. Tremblay died January 21, 1901. At his death there was due on the policy $1,959.49. Proofs of death were filed, accompanied by the affidavits of both J. B. Cloutier and P. F. Tremblay as assignees, and of Arthemise D. Tremblay as beneficiary. P. F. Tremblay, in his affidavit, claims "all but what is excepted by assignment between $500 and $1,000." Arthemise D. Tremblay, in her affidavit, states that the policy was assigned to Cloutier as above stated, and that the assignment is still in force; and also that a further assignment was made to her son January 14, 1901. Cloutier, in his affidavit, claimed the full amount due upon the policy. This dispute having arisen between the claimants, the company, in accordance with the Revised Statutes of the Province of Quebec, deposited the money due in the office of the provincial treasurer, which exonerated the company from the payment of costs in any litigation which might arise upon the policy. All the claimants were properly notified of the deposit. On April 22, 1901, J. B. Cloutier commenced proceedings, to secure the money thus deposited, in the Superior Court at Quebec, against the heirs of J. O. Tremblay, defendants, and Dame Arthemise Dumais et al., mise en cause. The defendants and the Ætna. Life Insurance Company, Arthemise Dumais Tremblay, widow, and Patrick F. Tremblay, these latter two of Lewiston, Me., U. S. A., mise en cause, the said Patrick P. Tremblay, furthermore, one of the defendants aforesaid, mise en cause, were condemned to appear at court on a day certain, and service upon all these parties was made by publication. On the 8th day of June, no appearance having been made by any of the defendants or by Arthemise Dumais Tremblay or Patrick F. Tremblay, the court upon an ex parte hearing rendered Judgment for the plaintiff, which was that it "maintains the present action, consequently adjudges and condemns the defendants to pay to the plaintiff the sum of $2,118.39, with interest from the 23d day of April last, and costs." It does not appear that any steps were taken to have administration upon the estate of Jean O. Tremblay and no administrator was mentioned in this suit, as the judgment shows. The plaintiff, notwithstanding the judgment rendered by the court at Quebec, has brought an action against the Ætna Life Insurance Company in the Supreme Judicial Court for Androscoggin county, as assignee of the policy. To this action, the defendant interposes the following defenses:

(1) The suit is brought in the name of the assignee, the assignment not having been assented to by the insurance company.

(2) The assignment is of a part of an entire sum.

(3) The matter is res judicata, and the plaintiff is bound by the record in the Canadian suit.

(4) The evidence shows that the claim of J. B. Cloutier exceeds the amount due under the policy.

The plaintiff in reply controverts all of the above defenses, and, in addition, asserts that, even if the Canadian judgment was in other respects valid, the claim of J. B. Cloutier, as presented in the Canadian suit, upon which the judgment was issued, was to a large extent clearly a fraudulent one.

The first matter of defense interposed is to the right of the plaintiff to maintain his action, on the ground that, being assignee of the policy, and the assent of the company being required to make the assignment valid, the plaintiff had not, at the date of his action, secured such assent. Such objection cannot prevail. The letter of the company, acknowledging the receipt of the assignment, was a sufficient indication of their assent. The assignment was upon a printed blank prepared and furnished by the company. The assignors, by their assignment, conveyed to the assignee "to the extent of such interest as they may have when said policy becomes a claim." The acknowledgment of the receipt of the assignment was "for such attention as it may deserve when said policy becomes a claim." The language of acknowledgment is as broad as the language of the assignment. The assignment became a claim upon the death of Jean O. Tremblay. What did the company mean when they wrote the assignee that they had placed the assignment on file? That it was an act of dissent? What, when they said that, upon its becoming a claim, they would give it such attention as it deserved? That it was invalid, and hence entitled to no attention? Did they intend to convey to the plaintiff the idea that his assignment, after they had written him this letter, was invalid? If they did, they were very unfortunate in their form of expression, for it must necessarily have operated as a complete deception upon his mind. If it was their intention to decline to accept the assignment, they could easily have made their purpose clear. It cannot be possible that they so intended. It would be a contradiction of terms to hold that they did. On the other hand, construing the phraseology of their letter "according to the common meaning of the language," and no violence will be done in evolving the conclusion that placing the assignment on file, and agreeing, when the occasion arose, to give it due consideration, operated as an express acceptance. Nothing seems to be wanting to clothe their conduct with the idea of consent. We think the language used by the defendant company in acknowledging the receipt of the assignment was not only sufficient in its terms, but intended by the company to convey their consent to the assignment. But consent is held to effectuate a new contract with the assignee.

Grant v. Eliot and Kittery Mutual Fire Insurance Company, 75 Me. 196, is a case in which the widow of the owner succeeded to the title of the premises insured under his will. Later she conveyed all her right, title, and interest in the premises to Mark A. Libby, and on the same day, by written assignment, made over to said Libby the policy of insurance issued to Hiram R. Roberts, her husband, in his lifetime, and the directors of the company indorsed their consent to the assignments. Still later, Mark A. Libby conveyed the premises to the plaintiff, and en the same day assigned the same policy to him, and the directors of the defendant company indorsed thereon their consent to this second assignment. The court (page 204, 75 Me.) say: "The defendants were paid for insuring a given sum to Hiram R. Roberts for a fixed term, arid their contract was to pay to his assigns. By consenting to the assignment made by his executrix and...