103 Wis. 562 | Wis. | 1899
It appears from tbe record that July 20, 1894, William W. Bromley, tbe then husband of tbe plaintiff, obtained a policy of insurance on bis life, payable to the plaintiff, issued by tbe Provident Savings Life Assurance Society of New York, for $5,000; that December 2, 1896, William W. Bromley obtained another policy of insurance on bis life, payable to tbe plaintiff, issued by tbe Northwestern Mutual Life Insurance Company, for $2,000; that March 11, 1897, William W. Bromley died; that thereupon tbe plaintiff, as tbe beneficiary named in’ each of such policies, brought a suit on each of such policies to collect the moneys due thereon from tbe respective companies issuing tbe same; that each of such insurance companies answered the complaint against it to tbe effect that tbe defendants herein claimed tbe proceeds of such policies, and asked that
The two actions were thereupon, by stipulation and order, consolidated and tried together, and at the close of the trial the court found as matters of fact, in addition to the facts stated and undisputed, to the effect that for more than three years prior to his death William W. Bromley was in the employment of the defendants at Milwaukee as their agent, and as such agent moneys earned in the course of the transportation business of the defendants came to his hands from time to time, which it was his duty promptly to account for and transmit to the Zanawha Dispatch, the joint agency of the other defendants; that during the time Bromley kept an account in his individual name with the National Exchange Bank, and deposited to the credit of such account from time to time all moneys earned in the course of the transportation business of the defendants which came to his hands as such agent, together with his private funds, and commingled the same; that May 2, 1896, there was a balance of $612.41 to his credit therein; that subsequently to May 2,1896, and up to the time of his death, there came to his hands from time to time moneys of the defendants amounting in the aggregate to $61,182.42, all of which were by Bromley deposited to his credit in said bank; that during the same time he also deposited to his credit in said bank moneys of his own amounting to $24,096.11; that between May 2, 1896, and the time of his death he did account for and transmit to the defendants in the aggregate $53,797.54 by his several checks drawn upon said bank; that Bromley specially applied the money so accounted for and transmitted by him to the defendants on account of contracts of transportation made by him as such agent prior to January 29, 1897, and the Kcma/wha Dispatch, as agent of the other defendants, did so apply the same; that during the same time he drew out for his personal use, by his several checks drawn upon
• And as conclusions of law the court found, in effect, thatneither of the defendants had any right, title, or interest in and to either of such life insurance policies, or any of the proceeds thereof; that the plaintiff is entitled to both policies, and the proceeds thereof, and the moneys paid thereon by the insurance companies into court pursuant to the order of interpleader made herein; that the plaintiff is entitled to have and recover of and from the interpleaded defendants the costs of this action,— and ordered judgment to be entered herein accordingly. From the judgment so entered the-defendants bring this appeal.
The defendants disclaim any right to any portion of the proceeds of the $5,000 policy, except that they contend that the two premiums paid thereon, of $41.70 each, were so paid by Mr. Bromley with moneys belonging to them, and hence that they have the right to recover back the amount of those payments. They also contend that they are entitled to the policy of $2,000; and the proceeds thereof, on the ground that the $99.64 — being the only premium ever paid thereon — • was so paid with money belonging to the defendants. If it were clearly established by the evidence that suqh were the facts, then we should have no difficulty in holding with the defendants. Holmes v. Gilman, 138 N. Y. 369. But the court found that it was not established by the. evidence that any of the premiums were paid out of moneys belonging to the defendants. It appears that during the last year of Mr. Bromley’s life he had been in the habit of holding all moneys collected by him for the defendants a couple of months, and hence generally .had on hand considerable money belonging
Assuming that Mr. Bromley, received and deposited the-moneys of the defendants and the plaintiff, in a fiduciary capacity, and that in drawing moneys from the bank on checks for his own private use he is presumed to have drawn out his own moneys in preference to any of such trust funds; yet it does not follow that, in paying such premiums on such insurance by checks for the benefit of his wife, he is presumed to have drawn the moneys belonging to the defendants, instead of the moneys belonging to his wife. On the contrary, and as the law presumes innocence instead of wrong, we would naturally suppose that he would pay such premiums from his wife’s moneys, instead of moneys belonging to the defendants; in other words, all checks drawn for the benefit of the defendants would naturally be supposed to have been drawn on funds belonging to the defendants, and all checks drawn for the benefit of the plaintiff would naturally be supposed to have been drawn on funds belonging to the plaintiff. Of course, this is on the supposition-that Mr-. Bromley had on deposit the funds of both parties. The court finds that Mr. Bromley received and deposited to his credit in the bank from the plaintiff’s separate estate $700 in 1894, $400 in 1895, and in addition he received from her to pay premiums on life insurance $100 in the latter
By the Court.— The judgment of the superior court of Milwaukee county is affirmed.