Blackburn v. Merchants Life Insurance

NOURSE, J.

Plaintiff sued upon a policy of life insurance issued by the defendant upon the life of John A. Blackburn, who was the husband of the plaintiff at the time the policy was issued. Defendant had judgment, from which the plaintiff has appealed on a typewritten record.

The policy, which was issued August 2, 1916, at Burlington, Iowa, while the parties were living together as husband and wife in the state of Kansas, named the wife as beneficiary. Subsequent to their divorce in 1921, the insured attempted to change the beneficiary to his estate, and thereafter accepted the privileges of the policy and received the sum of $186 on June 30, 1922, which was the cash surrender value at the time. Prior to this adjustment, and for more than a year preceding it, correspondence was had between the company and the insured, who was living in Texas, and between the company and the plaintiff herein, who resided

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in California, in which the insured demanded a change of the beneficiary, and the plaintiff sought information as to the right of the insured to make this change and also as to her rights to collect the cash value of the policy. The company informed the plaintiff that the insured might change the beneficiary whenever he desired and that he alone could borrow on the security and collect the surrender value.

The cause was tried before the court sitting without a jury. The trial court found that the plaintiff was never at any time the owner of the policy; that it was duly canceled in June, 1922, when the insured was paid the full cash surrender value; that plaintiff knew, in 1921, that the insured claimed the right to change the beneficiary and to cancel the policy and that he had requested the company to make these changes; that the insured died in September, 1924; and that plaintiff was estopped by her laches from claiming any right under the policy.

On this appeal the appellant attacks the finding that she was not the donee of the policy. The argument is that as the appellant testified that shortly after the policy was issued the insured handed it to her with the words: “This is yours,” and as she put the policy in a tin box in which she kept her personal belongings and had it ever since, and as this testimony was not directly controverted, the trial court should have found that an irrevocable gift had been made. The question whether a gift was made was a mixed question of law and fact the determination of which depended not only upon evidence of the delivery of the policy but upon the presence of all the elements necessary to make a valid gift. Thus it was the duty of the trial court to ascertain the intention of the insured from all the facts and circumstances of the case.