Archibald v. Mutual Life Insurance, 38 Wis. 542

38 Wis. 542 | Wis. | 1875

Lyon, J.

That it is competent for the owner of a life policy to assign the same so that the assignee may maintain an action thereon in his own name, is the settled law of tliis state, and it is quite immaterial that a married woman is beneficially interested in the policy. There is nothing in our law which prohibits a married woman from making such an assignment. A life policy is on the same footing in these respects as other dioses in action which are assignable in equity; on which actions can be maintained by the assignees in their own names. McArthur v. Green Bay & Miss. Canal Co., 34 Wis.. 139, 152. For the general doctrine above stated, see Clark v. Durand, 12 Wis., 233; Kerman v. Howard, 23 id., 108. Also May on Insurance, § 391; and Bliss on Life Insurance, §§ 830 and following. In the latter treatise a large number of cases are cited and commented upon.

In this case the assured g,nd his wife (the plaintiff) owned the whole interest in the policy, and joined in the alleged assignment thereof which was offered in evidence. The instrument is therefore valid. Does it transfer to the assignees therein named the claim against the defendant by virtue of the policy, so that ‘the action therefor must be brought in their names ?

On its face the instrument is a conditional assignment and transfer to Hauser and Colman of the whole policy and the whole of the proceeds thereof. Hence the cases cited on behalf of the plaintiff to the effect that the assignee of part of a chose in action or part of the proceeds thereof cannot maintain an action for his interest, have no application to this case. In Fraker v. Reeve, 36 Wis., 85, it was held that an instrument similar to the one before us, assigning certain promissory notes as security for a debt, partook of the nature oí a chattel mortgage, and vested in the assignees the title to the notes — such title being conditional before default, but absolute at law after default. Fraker v. Reeve rules the present case; and if the fact is that the condition of the assignment remains unperformed — if the assignees have paid money on the indorsements and liabilities mentioned therein, which has not been repaid to them, — they, and they alone, can maintain an action on the policy. Hence the assignment, and the testimony which was offered tending to show that such condition had not been performed, was competent and material testimony in the case, and its rejection by the circuit court was error.

It is not important that the answer avers an assignment of the policy to Hauser alone, while the instrument produced is an assignment thereof to Hauser and Colman. Ho one could possibly have been misled or prejudiced by the variance. Especially is the variance unimportant in view of the fact, proved on the trial, that Hauser is the sole owner of the assignment. The complaint might have been amended at any time, or the variance disregarded.

In his application for the insurance, Mr. Archibald represented, among other things, that his kidneys were in a healthy state and free from any tendency to disease. On behalf of the defendant the court was asked to instruct the jury, that “ if the assured was ailing of any disease of the kidneys at the time of the application, and concealed it from the examining surgeon or from the company, it avoids the policy.” We are inclined to think that there was some testimony tending to prove that the assured was then suffering from a disease of the kidneys and knew the fact. If so, the instruction should have been given.

Other points were discussed in the arguments, but it is not deemed necessary to consider them. The judgment must be reversed, and the cause remanded for a new trial.

By the Court. — It is so ordered.