148 Mo. App. 249 | Mo. Ct. App. | 1910
This is an action on a policy of insurance upon the life of one William Brophy, the principal, $500, payable, unless otherwise paid under conditions in the policy, unto the executors, administrators or assigns of William Brophy. The conditions referred to are in what is called the “facility clause.” It is a policy issued by what is called industrial insurance companies and contains the “facility of payment” clause referred to above, which is to the effect that the company may make any payment provided for in the policy, to any relative by blood or connection by marriage of the insured, or to any other person appearing to the company to be equitably entitled to the same by reason of haying incurred expenses in any way on behalf of the insured for his or her burial or for any other purposes, and the introduction by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them to be conclusive evidence that such benefits have been paid to the person or persons entitled thereto and that all claims under the policy have been fully satisfied. This “facility clause” is the second article of the conditions, and the policy in suit is No. 15,550,408. The suit in the case was brought by the administrator of Mary F. Kelly, deceased, and it is stated in the petition that after the issue of the policy to Brophy, he had paid the premiums as they fell due and that it was in force when he died October 12, 1908; that “during the lifetime of said William Brophy and for value received, he assigned, transferred and delivered said policy to Mary F. Kelly, of
The answer, after a general denial, sets up the issue of the policy and its terms as before stated; that is to say, that it was payable “to the executors, administrators or assigns of the person named as the insured in the said policy.” That Brophy died on the 12th of October at St. Louis; that on the 20th of November, the public administrator, Harry Troll, took charge of the estate of Brophy, under an order of the probate court of the city, and as administrator made a demand upon the defendant company for the proceeds of the policy which the company paid to said Troll. For another defense, it is averred that Mary' F. Kelly, plaintiff’s intestate, had no insurable interest in the life of William Brophy by relationship or otherwise and that if any assignment of the policy was made by Brophy to Mary F. Kelly, it
“To The Prudential Insurance Company of America.
“Home Office, Newark, N. J.
“September 18, 1901.
“I, the undersigned, the person making application for, and insured under Policy No. 15,550,408 in the above named company, hereby request and authorize the said company, in event of my death prior to the death of the person next hereinafter named, to pay the benefit specified in said policy to Mary Kelly, my (state relationship, if any) friend, and the receipt signed by said person, or other sufficient proof of such payment, shall operate in the same manner as the receipt or proof of payment described in said policy.
“It is mutually agreed and understood, however, that nothing herein is to vary in any manner any of the provisions, agreements or conditions contained in said policy and the application therefor, especially the first proviso in case the policy is numbered between No. 59,691 and No. 816,845, inclusive, or article second in case the policy is numbered higher than No. 816,845; and that said company may, at its option, pay said benefit according to the said proviso, or article second, anything herein to the contrary notwithstanding.
His
“(Signature), William X Brophy. .
Mark
“Witness, S. W. Pollard.
“Some person beside Agent must sign as witness if subscriber make a mark.
Beyond this paper no proof of assignment was introduced and the only testimony abont the assignment being “for value” wras the testimony of a witness to the effect that she had heard a conversation between Brophy and Mrs. Kelly in which the former had said that Mrs. Kelly should get this money, this $500, and that that would pay her what he owed her. This testimony was objected to when offered, on the ground that the conversation between Mrs. Kelly and Mr. Brophy was noi binding upon the defendant and that it was a conversation which occurred after the assignment had been made. There is no evidence in the case tending to show that the policy or receipt books had been obtained by the defendant from Mrs. Kelly, beyond the recital of that as a fact in a letter which the attorneys for plaintiff wrote to the defendant. It was in evidence that the defendant had paid the money to Mr. Troll, as public administrator in charge of the estate of Brophy, and it is also in evidence that Mr. Troll had paid the funeral expenses of Brophy. The evidence also tends to show that he did not pay these funeral expenses until after he had received the $500 from the defendant. How much he paid on that account is not apparent, nor is there any testimony in the case as to any indebtedness from Brophy to Mrs. Kelly at the time of his death or as to its amount, beyond that before recited.
Having reference to the “facility clause” of the policy, we think that the defendant is protected by that in making the payment to the public administrator as the administrator of the estate of Brophy. It is difficult to construe the paper claimed to be an assignment into an assignment for value as alleged in the petition. It provides that “in the event of my (Brophy’s)' death prior to the death of the person next hereinafter named, to pay the benefit specified in said policy to Mary Kelly,
The proposition contended for by counsel for respondent that a party cannot assign an insurance policy to one who is not a relative is untenable. It has been decided that he may assign to any one standing in the position of creditor or dependent; that is, to one who has an insurable interest in his life. The difference between the act of a party taking out insurance on his own life for the benefit of another and the act of the party insured, after he has taken out the policy, assigning it to another, is marked in the law of this State and of the United States. [Warnock v. Davis, 104 U. S. 775.] The verdict and judgment are reversed.