86 Wash. 672 | Wash. | 1915
This action was brought to secure a decree adjudging that the defendant Ida May Zeile had no right to, or interest in, a policy of insurance issued by the Mutual Life Insurance Company of New York upon the life of the plaintiff. Upon a trial of the case, the court made findings of fact and entered a judgment to the effect that the defendant Ida May Zeile was entitled to the policy, and to the cash surrender value thereof. The plaintiff has appealed from that decree.
The facts are as follows: In December, 1897, the defendant insurance company issued its policy of insurance on the life of the appellant for the sum of $10,000, being policy No. 873,279. This policy was payable to the executors, administrators, or assigns of the appellant. In November, 1901, the appellant and Ida May Zeile were married. On November 20, 1902, the appellant executed a written assignment of the policy to his wife, as follows:
“For one dollar to me in hand paid, and for other valuable considerations (the receipt of which is hereby acknowledged), I hereby assign, transfer and set over to Ida May Humphrey (my wife), if living, and if not to my estate, whose P. O. Address is San Francisco, Cala., all my right, title and interest in this policy, No. 873,279, issued by The Mutual Life Insurance Company of New York, and for the consideration above expressed, I do also for myself, my executors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, her executors, administrators and assigns, and their title to the said policy will forever warrant and defend.
“Dated at San Francisco, this 20th day of Nov., 1902.
“In the presence of Omar J. Humphrey.
“H. K. H. Mitchell.”
This assignment' was made in duplicate. One copy was attached to the policy, and the' other copy was forwarded to the insurance company, and was received and filed by that company as a transfer of the insurance. The appellant informed his wife of this assignment. The policy, together
The appellant and his counsel knew the date fixed for the trial. Afterwards the appellant went to Alaska without informing his counsel that he was going away. A few days prior to the date fixed for the trial, his counsel moved the court for a continuance until the 3d day of June, upon the ground that the appellant had gone to Alaska and would not return before that date. It appears from the statement of counsel that the respondent had come from San Francisco, California, to attend the trial, and was in Seattle for that purpose. The trial court denied the motion for a continuance. The case proceeded to trial without the presence of the appellant.
The appellant makes two contentions upon this appeal: First, that the court erred in not granting a continuance, and second, in finding that the respondent was the owner of the insurance policy in question.
It is argued upon the first contention that the court abused its discretion in not granting the continuance. This court has uniformly held that the granting of a continuance is a matter resting within the sound discretion of the trial court, and the refusal to grant a continuance will not be reviewed except for an abuse of that discretion. Nye v. Manley, 69 Wash. 631, 125 Pac. 1009. As we have seen above, the action was begun by the appellant. He knew the date when the case was to be tried. With knowledge of this fact, he absented himself from this state and went to Alaska. Upon the showing made for a continuance, there is nothing to indicate the necessity for his going to Alaska, or when he would return, or that he was not negligent in being away at the time the case was to be tried. The respondent had come from San Francisco to Seattle to be present at the trial. Under these circumstances, we think it was not an abuse of discretion for the trial court to refuse the continuance.
The appellant further argues that the insurable interest of the respondent, if she had such an interest, expired upon the date of the decree of divorce. Mr. Cooley -in his briefs on the law of insurance, vol. 1, p. 311, says:
“The rule, stated in general terms, may then be said to be that if the policy is valid at its inception, because based on an adequate insurable interest, the existence of such an in*677 terest at the maturity of the policy is unnecessary. While it has not been approved by all American courts, it has been indorsed by a large majority of them.”
And in the same volume, at page 312, he says:
“The leading case, however, is Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457, 24 L. Ed. 251, where the policy was issued on the joint lives of husband and wife, payable to the survivor on the death of either. It was contended that there had been an entire termination of the insurable interest of the wife by reason of a divorce, and that she could not recover on the death of the husband. The court, however, while admitting that if, at the inception of the policy, there had been a mere colorable or temporary interest, the termination of such an interest would bar a recovery, applies the general rule that a policy valid at its inception is not terminated by a cessation of interest, in the absence of a provision to that effect in the policy itself, and held that the right of the wife was not terminated by the divorce.”
And in vol. 4, at page 3736:
“A married woman named as beneficiary in an ordinary life insurance policy on the life of her husband is entitled to the proceeds, notwithstanding that she has obtained a divorce before insured’s death.”
We are satisfied that this is the correct rule, and that the respondent, at the time- the policy was assigned to her, had an insurable interest, and that such insurable interest continues.
The appellant also argues that, by the terms of the assignment, the respondent is not entitled to surrender the policy and receive the cash surrender value. It was conceded by counsel at the argument in this court that this position is correct under the wording of the assignment, and that the decree may be modified to that extent.
For the reasons stated, the judgment decreeing the respondent to be the beneficiary according to the assignment, is affirmed; but the decree of the lower court is modified so that the respondent shall not, without the appellant’s consent,
Moréis, C. J., Main, Holcomb, and Fullerton, JJ., concur.