48 S.E.2d 165 | W. Va. | 1948
In this proceeding, a notice of motion for judgment, instituted in the Circuit Court of Logan County, the plaintiff, Judy Bell Gill, seeks to recover $500.00 from the defendant, *467
The Provident Life and Accident Insurance Company. She claims this sum as the named beneficiary in a group policy of insurance issued by that company upon the life of William Gill, as an employee of Boone County Coal Corporation. Pursuant to the provisions of the statute, Code, 1931,
The material facts, which were stipulated in writing by the parties, are not disputed.
William Gill was insured under a policy dated June 1, 1934, issued by the defendant, The Provident Life and Accident Insurance Company, to Boone County Coal Corporation upon its employees. He was an employee of that company at the time of his death on January 9, 1947, and had been given a certificate, effective September 1, 1935, as evidence of his insurance. The certificate, which had been delivered to and was in the possession of the plaintiff, Judy Bell Gill, named her as beneficiary.
The particular provisions in the policy and in the certificate, relating to change of beneficiary, are identical in substance. The provision dealing with that subject in the certificate is in these words:
"CHANGE OF BENEFICIARY — The Employee may, if of legal age, at any time and from time *468 to time during the continuance of his insurance, change any designated beneficiary by filing a written request at the Home Office of the Company, such change to take effect only when endorsed by the Company on this Certificate during the lifetime of the Employee."
On January 3, 1947, a few days before his death, the insured, William Gill, through his employer, Boone County Coal Corporation, made written application to the insurer upon the form provided by it to have the beneficiary changed to Anna Rose. The application was duly received by the insurance company and on January 10, 1947, it communicated with the employer by letter which contained this statement: "We are unable to effect the change of beneficiary until you send us the proper certificate bearing the number shown above, with effective date of 9-1-35". Gill died January 9, 1947, and the certificate, which named Judy Bell Gill as beneficiary and which at the time was in her possession, was never sent to the company or indorsed by it as required by its terms.
Judy Bell Gill claimed to be the beneficiary under the policy and filed proof of the death of the insured. Anna Rose presented a like claim. Neither claimant was the wife of William Gill.
The defendant, the insurance company, did not deny liability. It paid the insurance benefits into court, and asked the court to determine which of the two claimants, Judy Bell Gill or Anna Rose, as beneficiary, was entitled to the payment of the money.
The legal question involved is whether there was a sufficient compliance with the requirement of the policy by the insured in his lifetime to effect a change of beneficiary from Judy Bell Gill to Anna Rose.
As a rule insurance policies contain a clause which permits the insured, upon written notice to the insurer at its home office, to change the beneficiary under the policy and provides that the change shall become effective when it is indorsed upon the policy by the insurer. The clause *469 now under consideration is a typical clause of that kind. The decided cases give recognition to the principle that the right to change the beneficiary in an insurance policy depends upon the terms of the contract between the insured and the insurer and that the method of accomplishing the change is that provided by the contract.
Some courts hold that a change of beneficiary is not effective unless there is strict compliance with the requirements of the provision. The basis for this view is that the indorsement of the change by the insurer calls for the exercise of judgment and discretion and is not a mere ministerial act and that the rights of the beneficiary designated in the policy can not be terminated without the indorsement. 29 Am. Jur., Insurance, Section 1319;Freund v. Freund,
By the decided weight of authority, however, a change of beneficiary under a provision which requires the indorsement of the change by the insurer can be accomplished without strict compliance with that requirement. The courts which adopt that view hold generally that a substantial compliance with the conditions relating to a change of beneficiary is sufficient. Under the holdings of those courts the indorsement of a change of beneficiary by the insurer is regarded as a purely ministerial act which the insurer can not refuse to perform, the requirement of an indorsement on the policy may be waived by the insurer, and the failure of the insurer to indorse the *470
policy will not prevent a change of beneficiary if the insured has done everything reasonably within his power to accomplish the change. Vance, Handbook of the Law of Insurance, page 404;Doering v. Buechler,
A provision which requires indorsement of a change of beneficiary is for the benefit and the protection of the insurer and may be waived by the insurer by filing a bill of interpleader, by paying the proceeds of the insurance into court, by indicating that it stands indifferent with respect to the demands of contesting claimants, or by otherwise expressing its assent to a change of beneficiary which has not been completed by an indorsement in strict conformity to the terms of the policy. Doering v. Buechler,
In the suit in equity of Union Mutual Life Insurance Company
v. Lindamood,
"It is undoubtedly the general rule that the mode prescribed in a life insurance policy for changing the beneficiary must be at least substantially followed. To this general rule, however, exceptions are recognized in the following cases: (1) Where the insurer has waived compliance with the prescribed regulations, or estopped itself to assert non-compliance therewith. (2) Where it is beyond the power of the insured to comply literally with the regulations. (3) Where the insured has done all that he is required to do and only formal ministerial acts on the part of the insurer remain to be done in order to complete the change, equity will treat it as having been made. 'Equity will aid an attempted, but incomplete, change of beneficiaries; * * * when the insured in good faith has attempted to comply with the prescribed mode of change. Equity will, in such case, consider that done which ought to have been done, and will not require impossibilities.' Cooley's Briefs on Insurance, p. 6455. 'If, however, the insured has done substantially all that is required of him to effect a change of beneficiary, and all that remains to be done are the ministerial acts of the officers of the association (insurer), the change will take effect, though the formal details were not completed before the death of the insured.' "
Here the insured did substantially all that was required of him. He notified the insurer at its home office in writing that he wanted a change of beneficiary and it was *473
informed fully of the intention of the insured on that point. The named beneficiary, the plaintiff, had possession of the certificate at the time and her possession gives rise to the inference that she would have refused to comply with any ordinary effort of the insured to obtain it from her. 29 Am.Jur., Insurance, Section 1317; Doering v. Buechler,
In the interpleader suit of New York Life Insurance Company
v. Christie,
The facts of this case bring it within the exceptions to the general rule as mentioned in the Lindamood case, and that decision and that of the Christie case apply to and are controlling in this case. Though the equitable principles involved in the Lindamood case were recognized and given effect in a suit in equity, there appears to be no good reason to deny their application in this action at law in which the defendant, not wishing to defend the claim of the plaintiff, has paid the money in controversy into court and, under the interpleader statute, has required the claimants to interplead each other and to litigate their claims in the same proceeding. A court in this proceeding at law can recognize and apply the governing principles of equity and order the payment of the funds in its custody by the procedure of interpleader as effectively as it may take such action in an equitable suit of interpleader, and in so doing it will avoid the additional. delay and the increased expense of resorting to a suit of that character to settle the questions presented in this case. See McDonald v.McDonald,
The judgment of the Circuit Court of Logan County, being free from prejudicial error, is affirmed.
Affirmed.