Coshocton Glass Co. v. Northwestern Mutual Life Ins.

21 Ohio C.C. Dec. 675

• Court: Ohio Circuit Courts
• Decided: May 15, 1910
• Status: Published

Opinion

VOQRHEES, J.

This cause and case No. 189, heard on error at this term, in many respects are similar as to the facts, yet the issues as made up by the pleadings are quite different. Mary M. Gainor in her amended answer and cross petition alleges that the plaintiff, the Glass Company, had no insurable interest in the life of Mr. Gainor, her husband, at the time the insurance policy sued on in this ease was issued; but that the alleged assignment of the policy on November 16, 1906, to plaintiff company was procured through the false statements and representations made to her by Hyppolyt and Charles A. Liewer and the plaintiff, said the Coshocton Glass Company. The plaintiff by reply denies these charges of fraud and false representation. There is a failure of proof of these averments of fraud or false representations contained in the amended answer and cross petition of Mary M. Gainor. By her testimony it is conclusively shown that no representations of any kind were made to her by either of the Liewers or any one acting for them or for the plaintiff company.

The questions of law in this ease are substantially the same as those in the error case No. 189 of the Coshocton Glass Co. v. Northwestern Mutual Life Insurance Co. and the executors of Thomas J. Gainor, deceased, decided at this term; and it will not be necessary to repeat what was said by the court in its decision on the questions of law that are common in these two cases. Proceeding to consider the •questions not raised or involved in case No. 189, and which are pertinent to the issues of law and fact in this case, the additional questions presented are—

1. What interest, if any, did the defendant, Mary M. Gainor, acquire or have in policy number 592,236, sued on in this case?

2. Did the defendant, Mary M. Gainor, assign her interest in said policy to the plaintiff company? If so, what is the effect of the assignment?

3. Is an insurable interest in the life of the insured in favor o£ the assignee of a valid life policy necessary to enable the assignee to recover the amount of the policy upon the death of the insured ?

The evidence shows that policy number 592,236 was issued by the Insurance Company at the request of the agent McConnell, at a time when Mr. Gainor was getting insurance for the benefit of his wife, Mary M. Gainor, and shortly before he took out policy number 595,229 ■.on his own life for the benefit of the plaintiff, the Coshocton Glass ■Company. McConnell testifies he asked his company to send him two -$5,000 policies instead of one, believing that he could get Mr. Gainor to take out $10,000 of insurance for the benefit of his wife.

When the two policies were received by McConnell, the agent, he •offered them to Mr. Gainor, who declined to accept the second policy, ■and the policy was returned to the home office of the company and was never delivered to or accepted by Mr. Gainor. At the time Mr. Gainor was getting the insurance for the benefit of his wife, he — Gainor— Sober and YanHorn were considering a proposition to take out insurance on their lives respectively, each in the sum of $10,000 for the benefit of the plaintiff company. Mr. Gainor conducted the negotiations for the contemplated policies and in connection therewith asked the agent McConnell if they could not use the said policy which had not been delivered to him, Gainor, being p'aid policy number 592,236, which had Mary M. Gainor’s name therein as beneficiary, by assigning ■it to the Glass Company, plaintiff herein. Mr. McConnell advised him that could be done, and thereupon, on Gainor’s application, two policies, namely, number 592,236, the one sued on in this action, and number 595,029, the policy mentioned in error case No. 189 in this court, were delivered to the plaintiff company, with the understanding that policy number 592,236 was to be assigned to the said plaintiff company. Those facts appear in the testimony of Mr. McConnell and are not disputed.

Upon the delivery of these policies to the plaintiff company, it paid the initial or first premiums on both. This is a circumstance tending to corroborate the testimony of Mr. McConnell in his statement that policy number 592,236 was to be issued in favor of the plaintiff' company. These two policies together with the policies taken on the lives of Sober and VanHorn were placed in the safe of the plaintiff' company, and there remained until Mr. Gainor sold his interest in the company, when they were taken out for the purpose of assigning and transferring them to the Liewer brothers as collateral security for a. loan they had made to the plaintiff company; an assignment was made, Mr. Gainor and his wife, Mary M. Gainor, both joining in the assignment. It was then, about November, 1906, discovered that this policy, number 592,236 had not been transferred to the company but contained the name of Mary M. Gainor as beneficiary. Thereupon, on November 16, 1906, for a good and, valuable consideration said Thomas-J. Gainor and Mary M. Gainor executed and delivered to the Coshocton Glass Company the instrument in writing which was offered and received in evidence in this ease; being plaintiff’s exhibit No. 1 as shown in the transcript of the evidence given in the trial of this case.

As we have found from the testimony, there was no delivery of this policy number 592,236, to Thomas J. Gainor, or to the defendant, Mary M. Gainor, and neither he nor she had any interest therein at the time of the death of Thomas J. Gainor. At the time of his death, both the legal and equitable title to said policy was in the ülaintiff, the Coshocton Glass Company.

We find from the testimony it was the intention of the Insurance Company to deliver this policy to the plaintiff company, and of the plaintiff company to accept the same. Therefore, we hold that a delivery of the policy under such circumstances operates as an assignment without the formality of a written contract. Crittenden v. Insurance Co., 41 Mich. 442 [2 N. W. Rep. 657]; Travelers’ Ins. Co. v. Grant, 54 N. J. Eq. 208 [33 Atl. Rep. 1060]; Lord v. Insurance Co., 95 Tex. 216 [66 S. W. Rep. 290; 56 L. R. A. 596; 93 Am. St. Rep. 827],

The contention of the-defendant, Mary M. Gainor, that the plaintiff company had no insurable interest in the life of the assured, Thomas J. Gainor, when the policy was issued, and therefore this policy is void is not a correct statement of the law; and the decided weight of the modern adjudicated cases in this country show to the •contrary. Many of the cases which hold that an assignment without interest is void, will, upon examination, be found to rest on the fact that the transaction in question was merely colorable and an attempt to •obtain speculative insurance. Eckel v. Renner, 41 Ohio St. 232. As we find policy number 592, 236, sued on in this case, was a policy issued in good faith in the lifetime of Thomas J. Gainor; he and said Mary M. Gainor for a good and valuable consideration, on November 16, 1906, sold, assigned and transferred absolutely said policy to the said the Coshocton Glass Company, and at the time of the death of said Thomas J. Gainor neither he nor said Mary M. Gainor had any interest, legal or equitable, in said policy. And further, at the time of said Thomas J. Gainor’s death, said plaintiff company was, and still is, the absolute owner of said policy and the proceeds thereof,, and entitled to recover the same.

It is, therefore, ordered, adjudged and decreed that said plaintiff recover the amount of said policy and interest as prayed for in said petition; and it is further ordered that the costs of this action be paid out of said proceeds arising on said policy; and the alleged claims of said Mary M. Gainor to said policy or its proceeds, are adjudged to be invalid, null and void.

Motion for a new trial is overruled; exceptions; twenty days for finding of fact and statutory time for bill of exceptions.

Taggart and Donahue, JJ., concur.