Wentworth v. Equitable Life Assur. Soc.

• Decision Date: 15 July 1925
• Docket Number: 4260
• Citation: 238 P. 648,65 Utah 581
• Court: Utah Supreme Court
• Parties: WENTWORTH v. EQUITABLE LIFE ASSUR. SOC. et al

238 P. 648

65 Utah 581

WENTWORTH v. EQUITABLE LIFE ASSUR. SOC. et al

No. 4260

Supreme Court of Utah

July 15, 1925

Appeal from District Court, Third District, Summit County; Ephraim Hanson, Judge.

Action by Glenn C. Wentworth against the Equitable Life Assurance Society, in which Mrs. Tuggle was impleaded as a party and the original defendant dismissed from the action. From a judgment in favor of impleaded defendant, plaintiff appeals.

REVERSED AND REMANDED, with directions.

Shirley P. Jones, of Salt Lake City, for appellant.

W. T Gunter, of Salt Lake City, and J. E. Johnson, of Park City for respondent.

FRICK J. GIDEON, C. J., and THURMAN, CHERRY, and STRAUP, JJ., concur.

OPINION

FRICK, J.

This is an appeal from a judgment of the district court of Summit county. The undisputed facts, briefly stated, are that one Charles Edwin Wentworth, hereinafter called the insured, on the 26th day of January, 1915, made application for life insurance to The Equitable Life Assurance Society of the United States, a New York corporation, hereinafter called the insurer, in the sum of $ 1,000; that said application was made to the general agent of said insurer located in Salt Lake City, Utah, who, in addition to being designated the general agent or agency manager, was also designated by the insurer as the person upon whom process against it might be served pursuant to the statute of this state; that said application contained the following statement: "Make policy payable to Mrs. Chloe Tuggle, financee, with the right of revocation"; that a policy was duly issued to the insured, who paid the first quarterly premium thereon; that, after the policy was received by the insured, he delivered the same to Mrs. Tuggle, at whose home he was boarding; that Mrs. Tuggle, without any agreement between her and the insured, paid the subsequent premiums falling due on the policy; that on the 21st day of December, 1918, the insured executed the following application to change the beneficiary's name in the policy, to wit:

"I, Charles Edwin Wentworth, the insured named in policy No. 1948403, issued by the Equitable Life Assurance Society of the United States, on February 16, 1915, for the sum of $ 1,000, hereby request said Equitable Life Assurance Society to change the name of the beneficiary from Chloe Tuggle, as at present written in said policy, to Glen C. Wentworth, my son. Dated this the 21st day of December, A. D. 1918."

The foregoing application was duly acknowledged before a notary public. On the same day that the foregoing application was executed the insured executed another application to change the beneficiary named in the policy on one of the insurer's blanks, which reads as follows:

"The Equitable Life Assurance Society of the United States-- Gentlemen: I hereby represent, for the purpose of inducing the said society to make the following change, that there is no existing assignment of my policy No. 1948403.

"I now elect, in accordance with the terms of the said policy, to designate as a new beneficiary, without the right of revocation reserved, and request the said society to make such designation effective by an appropriate indorsement upon the said policy.

"(Name) Glen C. Wentworth.

"(Insert relationship to insured) My son.

"(Address) Park City, Utah.

"Return policy to (Name) Glen C. Wentworth.

"(Address) Park City, Utah.

* * * *

"Dated at Park City, Utah, Dec. 21, 1918.

"(Sign here in ink) Charles Edwin Wentworth.

"Signed in the presence of: (Signature of witness who need not be a notary) Jennie D. Ware."

The first application to change the beneficiary was personally delivered to the general agent aforesaid of the insurer at Salt Lake City on the 23d day of December, 1918, and the second one was mailed at Park City, directed to said agent, on the 21st day of December, 1918; that said applications for change of beneficiary were by said agent forwarded to New York City on December 26, 1918, and were received by the insurer on December 30 or 31, 1918, and on the 31st the insurer indorsed on the policy the substituted beneficiary named in the applications aforesaid; that said insured died on the evening of December 27, 1918, at which time said policy was in full force; that said policy was obtained from Mrs. Tuggle by Mr. L. B. Wight, an attorney at law, upon the request of the insured on the day the change of beneficiary was made, and the same was, by Mrs. Tuggle, taken from the trunk of the insured where it was kept among other papers belonging to him; that after the death of the insured both Mrs. Tuggle, as the original beneficiary, and the plaintiff in this action, the son of the insured, as the substitute beneficiary, claimed the proceeds of the policy; that the insurer made a check payable to the order of both of them, which, however, neither one was willing to accept; that thereafter plaintiff instituted this action against the insurer, who paid the money into court, and asked that Mrs. Tuggle be impleaded; that Mrs. Tuggle was accordingly made a party to the action, and the insurer, having paid the money into court, asked to be dismissed from the action, which was done, and the action proceeded as between the two claimants, to wit, the plaintiff as the substituted beneficiary and Mrs. Tuggle as the original beneficiary named in the policy. The policy provided that the insurer "hereby insures the life of Charles Edwin Wentworth and agrees to pay at its home office in the city of New York one thousand dollars to his fiancee, Chloe Tuggle, beneficiary, with the right on the part of the insured to change beneficiary," etc. The policy also contained this provision:

"Beneficiary. If the right to change the beneficiary has been reserved, and there is no written assignment on file with the Society, the insured may from time to time during its continuance, change the beneficiary or beneficiaries by a written request, upon the Society's blank, filed at its home office, but such change shall take effect only upon the endorsement of the same hereon by the Society."

We have a statute (Comp. Laws Utah 1917, § 1170) which reads as follows:

"Any insurance contract shall be deemed to be made in the state of Utah if made through an authorized agent of such insurance company within this state, irrespective of where the insurance contract may be written."

The foregoing section was in force when the insurance contract here in question was made. We refer to this for the reason that counsel for Mrs. Tuggle seem to rely on some of the decisions to which reference will hereinafter be made which are based on the New York statute which regulates the manner in which changes of beneficiaries shall become effective. In view that we are dealing with a Utah contract, therefore, we need only consider the terms of the contract of insurance as they appear from the application for insurance and the policy issued pursuant thereto. The restrictions, if any, that may be contained in the New York statute can be given no extraterritorial effect, and we must therefore construe the provisions of the contract of insurance in accordance with the law in force in this jurisdiction. The question that we must determine, therefore, is, Which one has the superior right to the proceeds of the policy, Mrs. Tuggle, the original beneficiary named in the policy, or plaintiff, the substituted beneficiary?

The plaintiff, in substance, contends that, inasmuch as the insured, his father, had the absolute right to make a change of beneficiary, and had fully complied with all of the conditions required of him in the insurance contract to effectuate such a change, as a matter of both law and equity we must consider that to have been done which ought to have been done. In other words, that, although the change of beneficiary was not actually indorsed on the policy before the death of the insured, in view of the fact that the insured had complied with all of the requirements to effectuate a change, and had complied with those requirements at a time when the indorsement could have been made on the policy during the lifetime of the insured, and that such indorsement was in fact made, although after his death, as a matter of law the change of beneficiary was duly made. He further insists that, inasmuch as the indorsement on the policy was merely a ministerial act, and that it was entirely for the benefit of the insurer, and that the change of beneficiary was actually effected without such indorsement, Mrs. Tuggle cannot avail herself of the insurer's failure in not making the indorsement before the death of the insured occurred. Upon the other hand, Mrs. Tuggle insists that, inasmuch as the change of beneficiary did not become effective until it was indorsed on the policy, no change was effectuated in this case, and, further, that her rights became vested on the death of the insured, and that the insurer could not waive any act which would affect her rights.

Both sides have cited numerous authorities in support of their respective contentions. We shall first consider plaintiff's contentions and the authorities cited by him.

Among the cases cited by plaintiff are the following Manning v. A. O. U. W., 86 Ky. 136, 5 S.W. 385, 9 Am. St. Rep. 270; Waring v. Wilcox, 8 Cal.App. 317, 96 P. 910; McEwen v. New York Life Ins. Co., 23 Cal.App. 694, 139 P. 242; Splawn v. Chew, 60 Tex. 532; Brown v. Grand Lodge A. O. U. W., 80 Iowa 287, 45 N.W. 884, 20 Am. St. Rep. 420; Fisk v. Equitable Aid Union (Pa.) 11 A. 84; Jory v. Supreme Council, etc., 105 Cal. 20, 38 P. 524, 26 L.R.A. 733, 45 Am. St. Rep. 17; Supreme Conclave Royal Adelphia v. Cappella (C. C.) 41 F. 1; Luhrs v. Luhrs, 123 N.Y. 367, 25 N.E. 388, 9 L.R.A. 534, 20 Am. St. Rep. 754; Pennsylvania R. Co....