In the opinion it is said: "Aside from sending the policy to the company, Hoskins (the insured) did everything that was required of him to effectuate this change. He signed the printed request which the company had provided, filled in the name of the new beneficiary, and the request has been sent to the company." If the facts made in that statement were borne out by the record, I would be the last one to dissent from the opinion of the majority of the court. From the statement of facts contained in the opinion as based upon the inserted testimony of the witness to the material facts, only one fact embodied in the statement taken from the opinion may be considered as absolutely established; and which is, that the insured did sign the blank request for a change of beneficiary in his policy that had been prepared by the company issuing it. I make that statement because, although Mayhew says that he inserted the name of the proposed new beneficiary in the written request signed by the insured, yet he does not state that such act on his part was done before the request was signed, nor does he state that it was done at the request of the insured but only on his own accord as per directions given him by Judy, and who, as we shall later see, was then denuded of all authority touching the policy except, perhaps, such as the insured might vest in him as special agent. However, I do not regard that discrepancy material, and do not base this dissent upon it but upon the matters hereinafter stated.
Within the last 30 or 40 years this court has written opinions involving many questions affecting the right of an insured to change the original beneficiary named in a life insurance policy on his own life. Perhaps an accurate list of such cases from that time to date are: Provident Savings Life Assur. Soc. v. Dees, 120 Ky. 285, 86 S.W. 522, 27 Ky. Law Rep. 670; Daugherty v. Daugherty, 152 Ky. 732, 154 S.W. 9; O'Bryan v. England, 173 Ky. 12, 189 S.W. 1126; Twyman v. Twyman,201 Ky. 102, 255 S.W. 1031; Hopkins, v. Hopkins, 92 Ky. 324,17 S.W. 864, 13 Ky. Law Rep. 707; Landrum v. Landrum, 186 Ky. 775,218 S.W. 274; Howe v. Fidelity Trust Co., 89 S.W. 521, 28 Ky. Law Rep. 485; Manning v. Ancient Order of United Workmen,86 Ky. 136, 5 S.W. 385, 9 Ky. Law Rep. 428, 9 Am. St. Rep. 270; Irons v. U.S. Life Ins. Co., 128 Ky. 640, 108 S.W. 904, 33 Ky. Law Rep. 46, 129 Am. St. Rep. 318; Watson v. Watson, *Page 18 183 Ky. 516, 209 S.W. 524, 3 A.L.R. 1575; Embry's Adm'r v. Harris, 107 Ky. 61, 52 S.W. 958, 21 Ky. Law Rep. 714; Cooper v. West, 173 Ky. 289, 190 S.W. 1085; Harden v. Harden, 191 Ky. 331, 230 S.W. 307, 17 A.L.R. 576; Thompson v. Thompson,190 Ky. 3, 226 S.W. 350; Griffin's Adm'r v. Equitable Assur. Soc.,119 Ky. 856, 84 S.W. 1164, 27 Ky. Law Rep. 313; Mut. Life Ins. Co. v. Twyman, 122 Ky. 513, 92 S.W. 335, 97 S.W. 391, 28 Ky. Law Rep. 1153, 30 Ky. Law Rep. 90, 121 Am. St. Rep. 471; Crice v. Ill. Life Ins. Co., 122 Ky. 572, 92 S.W. 560, 29 Ky. Law Rep. 91, 121 Am. St. Rep. 489; Sturges v. Sturges, 126 Ky. 80,102 S.W. 884, 31 Ky. Law Rep. 537, 12 L.R.A. (N.S.) 1014; Wooten v. Hardy, 221 Ky. 338, 298 S.W. 963; Met. Life Ins. Co. v. Brown, 222 Ky. 211, 300 S.W. 599; Prudential Life Ins. Co. v. Fusco's Adm'r, 145 Ky. 378, 140 S.W. 566; Western Life Indemnity Co. v. Rupp, 147 Ky. 489, 144 S.W. 743; Id.,235 U.S. 261, 35 S. Ct. 37, 59 L. Ed. 220; Sovereign Camp, W. O. W., v. Havas, 217 Ky. 846, 290 S.W. 690; Weisert v. Muehl, 81 Ky. 339; Vaughan's Adm'r v. Modern Brotherhood of America, 149 Ky. 587, 149 S.W. 937. From a reading of them, and also text authorities upon the subject, it will be seen that without an express right to make the change, either in the policy or in the by-laws or charter rights of the beneficial insurance company issuing the policy, no change of beneficiary could be made without the consent of the latter. But, under provisions contained in the policy or laws of the society issuing the policy, the right to change the beneficiary is reserved and the mode and method by which it may be done is pointed out. In construing such provisions this court in the cases cited, as well as other courts, holds that a substantial compliance with the provided method will be sufficient, and this court has gone much farther than any other one in prescribing what is a "substantial compliance" for that purpose; but in a number of the cases where the question was presented this court in applying its extreme liberal interpretation of what is a "substantial compliance" said that when the insured has done everything that the terms of the conferred privilege requires of him, then the change of beneficiary will be effected, and especially so as between the old and the new beneficiary.
Two of the above cases, the Manning and the Vaughan ones, are typical and fair illustrations of that line of our opinions. In each of them the insured had *Page 19 taken steps to communicate to the insurer his specific directions for a change of beneficiary. In the Manning case he directed his written request to a subordinate lodge with directions for it to forward it to the proper officer or officers for approval. In the Vaughan case he delivered his duly executed request to the secretary of the local lodge of which he was a member and to which he paid his dues with like directions which later were obeyed. In some of the cases he neglected to pay the charge provided for by the terms of the extended privilege, but this court in taking its extreme position held, in effect, that inasmuch as he had taken steps to communicate his direction to the company that issued the policy, he had substantially complied with the requirements entitling him to make the change, and the same can truthfully be said with reference to every case both domestic and foreign relied on by counsel or cited in the opinion in support of the conclusions reached by the majority of the court. In every one of those cases the insured desiring a change of beneficiary in his policy delivered, or attempted to deliver, the request for such change to the company or some agent authorized to receive it for the company.
In this case the insured obtained the policy in contest in 1921 with his mother as the beneficiary named therein. He immediately delivered it to her, and it was in her possession at the time of his death and at the time of the institution of this action. When he paid a premium he sent the receipt to her, and for a number of years thereafter he remained unmarried. Shortly after his marriage he mentioned to Judy, the soliciting agent who effected the insurance, that he was thinking of changing the beneficiary from his mother to that of his wife, but it was never done, and the insured took no steps towards effecting the change; although he was directed by Judy as to how it should be done. Later he procured another policy, much larger than the one involved here, in which he made his wife the beneficiary, and, so far as this record discloses, he never thereafter mentioned the subject of changing the beneficiary in the one here involved from his mother to his wife, and for the manifest reason, no doubt, that his second policy made provision for his wife. He seems to have been a dutiful son and warmly attached to his mother, whom he fully realized was poor and needy, and I feel authorized to presume that after he procured the second policy for the benefit of his wife *Page 20 his benevolent desires were satisfied, because he had then made provisions to the extent of his ability for both his dependent mother and his wife. Notwithstanding nothing had been said about the change in beneficiary after procuring the second policy for the benefit of the wife, Judy, on the day the insured was fatally injured, delivered an unfilled request for a change in the first policy to the witness Mayhew, who seems to have been nursing the deceased in the hospital to which he was carried, and who presented it to the insured while he was in bed and in his severe and fatally injured condition.
Mayhew had no connection whatever with the insurance company, and he admits in his testimony that he did not read the written paper to the insured when he presented it to him, but he does say that he "explained it to him." Just how, and the extent of the explanation, or what was embodied in it, the record is silent. Having thus procured the signature of the insured thereto, Mayhew later in the day delivered it to Judywithout the insured giving him any directions concerning it. It is shown by both the head officers of the company, and by Judy himself, that the latter was only a soliciting agent to procure the policy, and that when it was issued and delivered his authority with reference thereto ceased. So that, at the time the alleged request (mere signing of the unfilled paper) for a change in beneficiary was made in this case, Judy represented no one interested in the transaction and sustained no other relation to it than that of a complete stranger. But, if the insured had directed either him or Mayhew to forward that direction to the insurance company for its approval, it might be said that the transaction would then be sufficient to come within the purview of the liberal rule that we have adopted on the subject. But he made no such request, for the reason, perhaps, that under the conditions as described by Mayhew he was utterly indifferent to the subject, growing out of his severe injuries and his weakened physical and mental condition as a result thereof.
At any rate, Judy, the individual whose authority touching the policy had long since ceased and who was not even present or conversed with the insured at the time, kept the request so signed in his possession until after the insured died, when he wrote and inclosed it to his superior officer at Ashland and received in reply a reprimand for retaining it, together with an expression of a doubt if enough had been done to effect the change. *Page 21 But, notwithstanding that, the superior officer forwarded the direction to the headquarters of the company at Los Angeles, Cal., and it declined to pay either beneficiary, but did pay the money into court after this litigation arose between appellant and appellee. It should also be remembered that the insured at the time he signed the blank direction gave none to any one touching the procuring of the policy, nor did he attempt to deliver it actually or constructively to his wife as the new beneficiary, or to any one for her. The precise situation then, as viewed and measured by well-known legal principles, was that the insured before his death signed an incomplete request for a change of beneficiary in the policy without taking any steps to communicate it to the company, or to any one with instructions that he make such communication to the company or some authorized agent. It was therefore the same in legal effect as if he had put the paper, as executed by him, in his pocket and said nothing to any one concerning it, or the same as if he had signed such request and delivered it to a stranger having no present connection with the policy and without making any request of such stranger to deliver it to the company and neither of which I contend is sufficient compliance with our most liberal rule requiring a substantial performance of the terms of the provided method of effecting a change of beneficiary.
My interpretation of our opinions is, that in order to effect a "substantial compliance" there, at the least, must be given or attempted to be given to the insurance companynotice of the intention of the insured to change the beneficiary, and which implies a communication of such intention to the company by the insured himself or by some one authorized to make or deliver it for him and pursuant to his request. In other words, my position is, that there is no such thing in either logic or law as an effectual uncommunicated notice or direction. In order to effect a direction to do a particular thing, two elements must concur, i. e., the formulation of an intention or desire of the director to so direct, and a communication thereof to the directee or other party to the transaction to be affected, and it was so held by us, in substance, in the case of Harden v. Harden, 191 Ky. 331,230 S.W. 307, 17 A.L.R. 576.
In that case the benefit certificate was made payable to the wife of the insured. On the day before his death, and while the wife, his mother, father, and brother were *Page 22 sitting around his bed, he said to all of them that he wanted his mother to have half of the proceeds of his policy, and to which his wife, who was the sole beneficiary, then and there agreed. The policy was not present and no effort to alter or change it or its possession in any manner was made or directed to be made. In reciting the facts and in stating what actions or steps had not been taken by the insured, and from which we determined that there was no legal change in the beneficiary, the opinion said: "As has been stated, the policy was then in Louisville, and there was no direction or suggestion that any one should see to the assignment or change in beneficiary in accordance with his expressed wish; there was no suggestion that any one should write to the company looking to such action. In fact, no affirmative action looking to the carrying out of this expressed wish was taken by him, or requested by him to be taken by another. It was equivalent only to an expression of what it was his desire to do and getting from his wife an expression of her acquiescence in carrying out that desire, but there was no step of any kind or character taken, either by delivering the actual or symbolical possession of the certificate to his mother or to any one for her, nor was there any conduct by the insured, or anybody else, looking to the carrying out of his wish."
In differentiating the fact therein from those in the case of Lockett v. Lockett, 80 S.W. 1152, 26 Ky. Law Rep. 300 (and the only one from this court, as [interpret our opinions, that in any wise approaches a support for the opinion of the court herein) we said: "The facts of this case fail to bring it within the rule laid down in the case of Lockett v. Lockett, 80 S.W. 1152 (26 Ky. Law Rep. 300). In that case a bachelor had prior to his marriage procured a policy in which his father was designated as beneficiary; thereafter he married, and after his marriage declared to his wife, in the presence of others, that the insurance was for her benefit and protection and actually delivered the policy to her, and she had the possession of it at the time of his death. In this case the insured had possession of the policy, although it was not in his actual custody at the time of the conversation, but he neither delivered it to his mother nor offered to do so, nor directed any one else to get it and hold it for her benefit, and nothing occurred which in the remotest sense was suggestive of a delivery, either actual or symbolical, of the policy, and the evidence, in our opinion, fails to *Page 23 present a state of case which worked a change in the beneficiary. Hale v. Hale, 189 Ky. 171 (224 S.W. 1078); 12 Rawle C. L. pp. 934-936."
Briefly, my position is that, the "substantial compliance" rule which we have adopted in such cases does not go to the extent of dispensing with the communicating of the insured's request for a change of beneficiary to the company, or to some officer having authority to represent the company in accepting it; or designation of someone to make such communication with some sort of request to him that he do so. Therefore, regardless of what may be the true rule to be deduced from our somewhat conflicting opinions on the subject, and accepting for the purposes of this case the most liberal one that could be so deduced, yet the facts of this case would not bring it within that rule.
I therefore most respectfully dissent, and I am authorized to say that Judge REES joins me herein.