Smith v. Retail Merchants' Fire Insurance Co.

South Dakota Supreme Court

Smith v. Retail Merchants' Fire Insurance Co.

158 N.W. 780, 37 S.D. 395, 1916 S.D. LEXIS 72

CourtSouth Dakota Supreme Court

DecidedJuly 10, 1916

DocketFile No. 3942

StatusPublished

This text of 158 N.W. 780 (Smith v. Retail Merchants' Fire Insurance Co.) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Retail Merchants' Fire Insurance Co., 158 N.W. 780, 37 S.D. 395, 1916 S.D. LEXIS 72 (S.D. 1916).

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Opinion

McCO'Y, J.

[1, 2] This is the second time this case has been before this court. The former opinion will be found in 29 S. D. 332, 137 N. W. 47, 42 L. R. A. (N. S.) 173. That decision became the law of this case. There is nothing now before the court,, so far as' shown by the record, that was not before the court then. In the former decision it was said:

“It is not every transfer or incumbrance by a person within four months of the time when such person 'becomes an adjudicated bankrupt that is void. There are no .facts alleged in either the complaint of plaintiff or intervener that would render the said assignment to Walker void under the bankruptcy laws.”

The same situation still exists. This is the only proposition left open for future inquiry by the former decision. There is. nothing in the stipulated facts on this appeal tending to show that defendant, at the time it consented to the assignment of the policy to Walker, knew or had any knowledge that Walker was acting in any other capacity than for himself. The policy having been assigned to Walker, that created' a new contract of insurance 'between Walker and the insurance company defendant. This policy of insurance could not pass to the trustee as a part of the bankrupt’s estate, the legal interest therein, if any, being in Walker, in the absence of a showing that the assignment of the [397]*397policy to Walker- was void' under the bankruptcy law.

The judgment appealed from is affirmed.

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McCO'Y, J.

[1, 2] This is the second time this case has been before this court. The former opinion will be found in 29 S. D. 332, 137 N. W. 47, 42 L. R. A. (N. S.) 173. That decision became the law of this case. There is nothing now before the court,, so far as' shown by the record, that was not before the court then. In the former decision it was said:

“It is not every transfer or incumbrance by a person within four months of the time when such person 'becomes an adjudicated bankrupt that is void. There are no .facts alleged in either the complaint of plaintiff or intervener that would render the said assignment to Walker void under the bankruptcy laws.”

The same situation still exists. This is the only proposition left open for future inquiry by the former decision. There is. nothing in the stipulated facts on this appeal tending to show that defendant, at the time it consented to the assignment of the policy to Walker, knew or had any knowledge that Walker was acting in any other capacity than for himself. The policy having been assigned to Walker, that created' a new contract of insurance 'between Walker and the insurance company defendant. This policy of insurance could not pass to the trustee as a part of the bankrupt’s estate, the legal interest therein, if any, being in Walker, in the absence of a showing that the assignment of the [397]*397policy to Walker- was void' under the bankruptcy law.

The judgment appealed from is affirmed.

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Bluebook (online)

158 N.W. 780, 37 S.D. 395, 1916 S.D. LEXIS 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-retail-merchants-fire-insurance-co-sd-1916.

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