Blackman v. Praetorians

CRAMER, Justice.

I cannot agree with the reasoning of Chief Justice BOND or the dissenting opinion by Associate Justice YOUNG, but only to the affirmance of the case made on original submission. The liability of The Prae-torians on the policy in question on the life of Dora Gottlieb, deceased, is admitted by The Praetorians who have tendered the proceeds due on the policy into the registry of the court.

Eunice Blackman, the beneficiary named in the policy,' and the heirs of Sam T. Kaufman who claimed under an assignment of all interest therein, each claimed the proceeds of the policy. On the date of the assignment The Praetorians had special forms, “ * * * One in the nature of change of beneficiary and the other an assignment.” J. F. Mills, auditor for The Praetorians, testified, material here, that a duplicate policy had been issued at the request of, and delivered to, Dora Gottlieb, now deceased, on November 7, 1943. He further testified, without objection:

“Q. Now, what is the purpose of the issuance of the fonm for change of beneficiary, as denominated by the company? * * * A. For changing the beneficiary. The purpose of that form is for changing the beneficiary.
“Q. What is the purpose of the issuance of the assignment form by the insurer to its insured? A. Well, in other words, we keep on file a copy of that form, which is in a sense nothing more than collateral for a debt, I would say.
“Q. Are these forms just referred to, that is, the form for change of beneficiary and the form for an assignment, separate and distinct from each other? A. They are.
“Q. Is that the manner that they have been held by the company? A. That is right.
“Q. Is that the manner in which these forms are issued by the company? A. Yes.
“Q. Are these forms interchangeable? A. No.
“Q. Does the constitution and by-laws of the company prescribe the manner and form to effect a change of beneficiary? A. Yes, it does.”

The form of the assignment here, omitting formal parts, was as follows :

“For and in consideration of the sum of One Dollar to me in hand paid, and for other valuable consideration, the receipt whereof is hereby acknowledged, I hereby sell, assign, transfer, set over and convey to Sam T. Kaufman whose post office address is 301 Fidelity Bldg., Dallas, Texas, all my right, title and interest in and to Policy No. 222749, issued on the life of Dora Gottlieb by The Praetorians, of Dallas, Texas, and all moneys due or to become due and payable under the same, together with full and complete authority to exercise any and all options, benefits and rights as provided in said policy, and all benefits accrued or to accrue under and by virtue of the terms, covenants or conditions thereof, inclusive of the absolute right to surrender said policy and to receive and collect the cash surrender value thereof, without notice to or consent of the assignors, or either of them, and at the sole option and/or election of the as-signee ; and for the same consideration I do also, for my heirs, executors and administrators, guarantee the validity and sufficiency of the foregoing assignment to the above named assignee, his heirs, executors, administrators, successors or assigns; and his title to said policy will forever warrant and defend. The assignee is authorized to receive, collect and receipt for any money or thing of value due or to become due un*995der said policy, or as provided thereby, as fully and completely as the assignors, or either of them, might or could do if this assignment had not been made, hereby releasing The Praetorians of and from all responsibility with reference to the application thereof and of and from all other and further liability by reason of the payment so made.”

The form was signed and acknowledged by Dora Gottlieb before S. D. Henley, a notary public. Witness Mills further testified the premiums were paid by Mrs. Gott-lieb and as far as he knew Sam T. Kaufman nor anyone for him or his estate ever paid any of the premiums on the policy. He did not believe Mrs. Gottlieb could read. She had said she could not read. He did not know whether or not she could write.

Eunice Blackman paid the last premium paid on the policy in September 1949. It was not until after Mrs. Gottlieb’s death that The Praetorians notified Eunice Black-man the assignment in question was in their file.

The record further shows that two duplicate policies were issued,-—the first on July 2, 1937. The second duplicate policy was accompanied by a letter dated October 7, 1943, to Mrs. Gottlieb, omitting formal parts, as follows:

“In accordance with your request, we are enclosing duplicate policy No. 222749. Our records show this policy was assigned to Mr. Sam T. Kaufman on March 10, 1941, at which time the copy of the assignment was attached to your policy. We do not have copy of this assignment to attach to your duplicate. We only have one copy and this copy must be retained for your file.”

Under such record it is the writer’s opinion the original opinion was in error where it recited that the assignment effected a change of beneficiary. The rights of the Kaufman heirs, if any, are under the assignment and not as beneficiaries.

The material question as to the rights of the parties here should be determined upon their relative rights; Eunice Blackman’s based on her claim as the designated beneficiary, and the Kaufman heirs based on their claim as heirs of assignee Sam Kaufman, deceased, under the assignment.

Where, as here, the beneficiary’s rights were in the policy itself, conditioned upon the insured’s right to change the beneficiary at will, such beneficiary had no vested right in the policy and would acquire none until the death of the insured, and only then if her rights were not defeated by the assignment in question.

An assignment to a creditor is of course limited, whether so recited therein or not, to the amount of the debt.

The assignment here, however, is an absolute assignment of the entire policy without qualification; and without evidence to qualify its force, that is, to show it to be in fact security for a debt or a debtor-creditor relationship, or some other than an unqualified assignment, it is entitled to face value as an absolute assignment on the death of the assignor, and on the death of the assignee prior to the death of the assignor, the proceeds would go to the heirs of the assignee. While we find no adjudicated Texas case as authority, we adopt as the reasons, and as authority for our holding, the .text in 46 C.J.S., Insurance, § 1169, p. SO, as follows:

“Where a policy is assigned absolutely, and not merely as security for a debt, to a person possessing an insurable interest, he is entitled to the entire proceeds. On the other hand, while an assignment absolute in form, although in fact only for security, will entitle the assignee to receive the entire proceeds from the company, the assignee will have an ultimate right to the proceeds only to the extent of his claim, that is, the amount of the indebtedness due him and his expenses, if any, in keeping up the policy, and will be accountable for the balance to the persons entitled thereto. Except where the assignment otherwise provides, where an assignee acquires a vested interest in the policy his right to the proceeds, in the event of his death before the death of insured, will pass to his heirs.”

There are two cases cited under such text, to wit: Alday v. Reliance Life Ins. Co., 61 Ga.App. 95, 5 S.E.2d 707; and Bankers *996Life Company v. Perkins, 284 Ill.App. 122, 1 N.E.2d 712. See, also, Baldwin v. Wheat, 170 Ga. 449, 153 S.E. 194.

The record on the former appeal of this cause shows that the case was reversed and remanded, so that the appellant could show, if she could, a creditor-debtor relationship. The present record is silent as to such a relationship, and we of course, on such a record, cannot do otherwise than assume no such relationship existed.

It is therefore the writer’s opinion that the assignment must be given full effect. The trial court, based on the assignment, reached a correct result and properly rendered judgment for appellees. I therefore concur in the order of affirmance, 'but not in the reasoning of Judge Bond in his opinion.

Motion for rehearing is

Overruled.

DIXON, C. J., concurs in this opinion.

YOUNG, J., dissents.