111 Neb. 616 | Neb. | 1924
The plaintiff, Marie Goodrich, brought this action against the Equitable Life Assurance Society upon a certificate or policy of insurance issued by the defendant upon the life of Rollo M. Goodrich, in which, it is alleged in the petition, the plaintiff was the beneficiary. At the conclusion
The petition alleged in substance that on or about January 1, 1917, the Union Pacific Railroad Company entered ■into a contract with the defendant Whereby certain life, accident and health insurance was provided for a group of .employees of the railroad company, without any expense ■to the employees; that Rollo M. Goodrich, an employee of -the railroad company, was eligible for insurance under the .contract between the railroad company and the defendant; -that he made out an employee’s statement, setting forth his -name, age, class of employment, and designating Marie •Goodrich, his wife, as the person to be named in his beneficiary certificate; that the employee’s statement was sent ■by the railroad company to the defendant, and in due course ,of time a certificate was issued to Goodrich, providing, among other things, that, in the event of his death while -the certificate was in force, a sum equal to one year’s wages ■would be paid to Marie Goodrich, the beneficiary; that •Goodrich died October 20, 1918, while under the protection ,of the policy; that due proof of death was made; that the .certificate had been surrendered to the defendant, and for •that reason the plaintiff was unable to set out a copy of the .certificate; that there was due and unpaid on the certificate <$1,068, with interest, for which sum, together with an attorney’s fee, plaintiff prayed judgment.
The answer is in the nature of a confession and avoidance.. By way of avoidance, it is alleged in substance that, under the terms of the contract and certificate, the insured 'had the right to change the beneficiary; that on October 12, 1918, the insured signed a notice for a change of beneficiary on a blank form provided by the defendant for that purpose, in which he requested the name of the beneficiary to
The reply denied' the matter of defense alleged in the answer, and specially denied that the defendant had given its consent to a change in the beneficiary during the lifetime of the insured. The reply also pleaded that the contract was made in New York; that under the New York statutes a change could be made in the beneficiary with the consent of the corporation or association issuing the policy. This part of the reply may be dismissed from consideration, because no proof was offered in support thereof.
Under this state of the pleadings, it was incumbent upon the defendant to show that the insured had the right to change the beneficiary, or that the right existed as a matter of law, and also that the change had actually been made.
A brief reference to the facts at this time will disclose how the controversy arose. In the summer of 1918 Goodrich and his wife, the plaintiff, became estranged, culminating in a divorce action instituted by Goodrich. His wife filed a cross-petition,' in which she also prayed for a divorce. This action was pending and undetermined at the time of the death of Goodrich, which occurred on October 20, 1918. On October 12, 1918, Goodrich procured a blank form for change of beneficiaries in certificates, from the railroad company, which he filled out. When introduced in evidence, the notice was as follows:
“Group Insurance. Notice of Change of Beneficiary.
“The Equitable Life Assurance Society of the United States is hereby requested to make the following change in the society’s records of our employees’ group policy. Individual certificate No. U. P. 8002, beneficiary to be*619 changed from wife, Marie Goodrich, to Maggie A. Goodrich (Relationship to Insured), mother.
“Dated Oct. 12, 1918.
“Approved, J. P. Carey, Supt. (Employer) Union Pacific Railroad.
“(Signature of Insured) Rollo M. Goodrich.”
The company recognized Maggie A. Goodrich as the rightful beneficiary, and paid to her the full amount of the policy.
We come now to consider the question whether the record is sufficient to show that the insured had the right to change the beneficiary named in the policy, and, if so, did he make the change? Usually in cases of this character the right of the insured to change the beneficiary depends upon the language of the contract. In the early history of life insurance, as disclosed by the decisions of the courts, the policies contained no provision reserving to the insured the right to change the beneficiary, and in construing such contracts it was almost universally held that the beneficiary had a vested interest in the policy, and that a change of beneficiary could not be effected by the insured without the consent of the original beneficiary. The more modern policies of life insurance, however, contain provisions reserving to the insured the right to change the beneficiary, but frequently requiring the consent of the company. The statutes of many of the states give to the insured the right to change the beneficiary with the consent of the company. In the case before us, for some reason not apparent, the policy in suit was not introduced in evidence by either of the parties, so that we are not advised as to its provisions relating to a change of beneficiary, except as the inference may arise from testimony introduced, and the provisions of our statute in relation thereto. The admissions - in the answer were probably sufficient to relieve the plaintiff of the necessity of offering the policy as a part of her case. Since the policy is not before us, we think that our statute with regard to the right to change the beneficiary must be read into the policy as a part of the contract. Section
“Any person holding a policy in any such company may, without the consent of the beneficiary, unless the appointment of such beneficiary be irrevocable, * * * or with the consent of the company, he may change his beneficiary.”
It sufficiently appears that the payments to be made under the policy were to be paid in quarterly instalments, so that the statute above quoted is applicable to the present policy. By plain terms the statute gives the right to the insured to change the beneficiary with the consent of the company. That the appointment of the beneficiary was not irrevocable, we think sufficiently appears in the record. It is shown that the employees of the railroad company were frequently making changes in the beneficiaries in their certificates, which were attended to by the railroad company. The blank form furnished by the insurance company for the purpose of making the change of beneficiary clearly indicates that the insurance company regarded the right to be reserved in the insured. The blank form recites,. “with the right reserved by the insured to change the beneficiary.” There is no dispute but that the insured signed the request for a change of beneficiary in his policy. Under the statute above quoted, it was not necessary that the insured should secure the consent of the first named beneficiary. The latter had no vested interest in the policy which would prevent a change of beneficiary.
Was the change made with the consent of the company? As above pointed out, the request for a change of beneficiary was signed by the insured on October 12, 1918. This notice came into the possession of the railroad company. How or when the railroad company received it is not disclosed. It is clear, however, that the proper officers of the railroad company had the notice in their possession, because the change of beneficiary was approved by the proper officer of the railroad company. The clerk who wrote the name “J. P. Carey” on the notice testifies that he had no
In most of the cases where the question now being considered is discussed, the decision turns upon the precise wording of the contract. In some of these cases where the insured has not an unconditional right to change the beneficiary, and the. language used seems to require that some exercise of judgment on the part of the company is essential to the change of beneficiary, it is held that, notwithstanding the insured may have done all that is required of him, but dies before the insurer’s consent is given, the change of beneficiary is not effected. The question in each particular case, therefore, is ordinarily whether the acts required on the part of the company are essential parts of the contract, or mere ministerial and formal details. A few cases in which the question above indicated is discussed, are: Adams v. Police & Firemen’s. Ins. Ass’n, 103 Neb. 552; Supreme Conclave, Royal Adelphia v. Capella, 41 Fed. 1; John Hancock Mutual Life Ins. Co. v. White, 20 R. I. 457; State Mutual Life Assurance Co. v. Bessett, 41 R. I. 54, L. R. A. 1918-C, 961; Thomas v. Locomotive Engineers’ Mutual Life & Accident Ins. Ass’n, 191 Ia. 1152; Wooten v. Order of Odd Fellows, 176 N. Car. 52; Daly v. Daly, 138 Md. 155; Mutual Life Ins. Co. v. Lowther, 22 Colo. App. 622; Quist v. Western & Southern Life Ins. Co., 219 Mich. 406; Reid v. Durboraw, 272 Fed. 99.
From a consideration of the entire record, it seems clear to us that it was the intention of Goodrich to change the beneficiary in his policy. To accomplish that purpose he did everything that he could do that the policy and the custom of transacting the business required of an insured to change the beneficiary. His wish should not be defeated through the fault of the company’s agents to properly
We think there should be a new trial of the case. The judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.