Burr v. Mutual Life Ins.

187 P. 850, 96 Or. 14, 1920 Ore. LEXIS 140

Opinions

JOHNS, J.

The policy in question specifically recites that, in consideration of $140.50 “duly paid by James, Harriett and John E. Josephs, children of said 'Peter A. Josephs,” the company insured the life of the said Peter A. Josephs in the sum of $400. Thus it is stipulated and agreed that the consideration of the policy was paid by the plaintiff and her brothers. By its terms the policy was fully paid up and the amount named was to be turned over to James, Harriett and John E. Josephs on the death of their father, Peter A. Josephs. There is no provision by which the $400 or any part of it should be paid at any time to anyone else.

1. The affidavit which the father executed as to the death of his children was false; yet, based upon that declaration and relying thereon, the defendant paid to the father $183, on receipt of which he delivered the policy to the company. That proceeding was null and void. The named children were then and are now living. Under such a state of facts the payment to the father would not and could not operate to surrender or cancel the policy. The beneficiaries never knew the actual facts until the plaintiff received the defendant’s answer to her circular letter of September 23, 1915. On receipt of that communication from the plaintiff, the defendant promptly advised her of all of the facts. There is no testimony tending to show that the defendant ever refused her any information, sought to mislead her or to conceal any fact which would necessitate a bill of discovery or founded upon which a suit could be sustained.

By the express terms of the policy the company promised and agreed “to pay the amount of the said1 insurance at their office in the City of New York, to the assured, their executors, administrators or assigns, in sixty days after due notice and proof of the death of the said person whose life is hereby insured.” This was a direct obligation on the part of the defendant, for a valuable consideration, to pay the $400 to the children of Peter A. Josephs upon his death. To obtain the payment of this amount the beneficiaries had a complete and adequate remedy at law; and in any action therefor the payment to the father would not constitute a defense. That whole transaction was void. The policy was not surrendered and could not be canceled thereby, and the company could not thus acquire title to it.

2. In the instant case the defendant filed a demurrer upon the ground that the complaint did not state facts sufficient to. constitute a cause of suit, and it has relied upon that demurrer in the Circuit Court and in the brief and argument in this court. As the plaintiff had a complete and adequate remedy at law, a court of equity does not have jurisdiction of this cause, and the demurrer should have been sustained. The decree is reversed and the complaint is dismissed without prejudice. Reversed and Dismissed.

McBride, C. J., and Bennett, J., concur.