Warnock v. Davis
104 U.S. 775

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U.S. Supreme Court

Warnock v. Davis, 104 U.S. 775 (1881)

Warnock v. Davis

104 U.S. 775

Syllabus

1. A person who has procured a policy of insurance on his life cannot assign it to parties who have no insurable interest in his life. Cammack v. Lewis, 15 Wall. 643, cited and approved.

2. The plaintiff's intestate, on procuring an insurance upon his life, entered into an agreement with a firm whereby the latter was to pay all fees and assessments payable to the underwriters on the policy and to receive nine-tenths of the amount due thereon at his death. Pursuant to the agreement, he executed an assignment of the policy (infra, p. 104 U. S. 777), and the firm paid the fees and assessments. On his death, the firm collected from the underwriters nine-tenths of the amount due on the policy, and his administrator sued the firm therefor. The parties to the agreement did not thereby design to perpetrate a fraud upon anyone. Held that the plaintiff was entitled to recover from the firm the moneys so collected with interest thereon, less the sums advanced by the firm.

Warnock, the plaintiff, is the administrator of the estate of Henry L. Crosser, deceased, and a resident of Kentucky. Davis and the other defendants are partners, under the name of the Scioto Trust Association, of Portsmouth, Ohio, and reside in that state. On the 27th of February, 1872, Crosser applied to the Protection Life Insurance Company of Chicago, a corporation created under the laws of Illinois, for a policy on his life to the amount of $5,000, and on the same day entered into the following agreement with the Scioto Trust Association:

"This agreement, by and between Henry L. Crosser, of the first part, 27 years old, tanner by occupation, residing at Town of Springville, County of Greenup, State of Kentucky, and the Scioto Trust Association, of Portsmouth, Ohio, of the second part, witnesses: said party of the first part having this day made application to the Protection Life Insurance Company, of Chicago, Illinois, for policy on his life, limited to the amount of $5,000.00, hereby agrees to and with the Scioto Trust Association that nine-tenths of the amount due and payable on said policy at the time of the death of the party of the first part shall be the absolute property of, and be paid by, said Protection Life Insurance Company to said Scioto Trust Association, and shall be said party of the first part be assigned and

Page 104 U. S. 776

transferred to said Scioto Trust Association, and the remaining one-tenth part thereof shall be subject to whatever disposition said party of the first part shall make thereof in his said transfer and assignment of said policy; that the policy to be issued on said application shall be delivered to and forever held by said Scioto Trust Association, said party of the first part hereby waiving and releasing and transferring and assigning to said Scioto Trust Association all his right, title, and interest whatever in and to said policy, and the moneys due and payable thereon at the time of his death, save and except the one-tenth part of such moneys being subject to his disposition as aforesaid; also to keep the Scioto Trust Association constantly informed concerning his residence, post office address, and removals; and further that said party of the first part shall pay to the said Scioto Trust Association a fee of $6.00 in hand on the execution and delivery of this agreement, and annual dues of $2.50, to be paid on the first of July of every year hereafter, and that in default of such payments the amounts due by him for fees or dues shall be a lien on and be deducted from his said one-tenth part."

"In consideration whereof the said Scioto Trust Association, of the second part, agrees to and with said party of the first part to keep up and maintain said life insurance at their exclusive expense, to pay all dues, fees, and assessments due and payable on said policy, and to keep said party of the first part harmless from the payment of such fees, dues, and assessments, and to procure the payment of one-tenth part of the moneys due and payable on said policy after the death of said party of the first part, when obtained from and paid by said Protection Life Insurance Company, to the party or parties entitled thereto, according to the disposition made thereof by said party of the first part in his said transfer and assignment of said policy, subject to the aforesaid lien and deduction."

"It is hereby expressly understood and agreed by and between the parties hereto that said Scioto Trust Association do not in any manner obligate themselves to said party of the first part for the performance by said Protection Life Insurance Company of its promises or obligations contained in the policy issued on the application of said party of the first part and herein referred to."

"Witness our hands, this 27th day of February, A. D. 1872."

"HENRY L. CROSSER."

"THE SCIOTO TRUST ASSOCIATION"

"By A. MCFARLAND, President"

"GEORGE DAVIS, Treasurer"

Page 104 U. S. 777

The policy, bearing even date with the agreement, was issued to Crosser, and on the following day he executed to the association the following assignment:

"In consideration of the terms and stipulations of a certain agreement concluded by and between the undersigned and the Scioto Trust Association, of Portsmouth, Ohio, and for value received, I hereby waive and release, transfer and assign to said Scioto Trust Association all my right, title, and interest in and to the within life insurance policy No. 3247, issued to me by the Protection Life Insurance Company, of Chicago, Illinois, and all sum or sums of money due, owing, and recoverable by virtue of said policy, save and except the one-tenth part of the same, which tenth part, after deducting therefore the amount, if any, which I may owe to said Scioto Trust Association for fees or dues, shall be paid to Kate Crosser, or, in case of her death, to such person or persons as the law may direct. And I hereby constitute, without power of revocation on my part, the said Scioto Trust Association my attorney, with full power in their own name to collect and receipt for the whole amount due and payable on said policy at the time of my death, to keep and retain that portion thereof which is the absolute and exclusive property of said Scioto Trust Association, to-wit, nine-tenths thereof, and to pay the balance, one-tenth part thereof, when thus obtained and received from the said Protection Life Insurance Company, to the party or parties entitled thereto, after first deducting therefrom, as above directed and stipulated, the amount, if any, due from me at the time of my death to said Scioto Trust Association for fees and dues."

"Witness my hand and seal, this 28th day of February, A.D. 1872."

"HENRY L CROSSER [SEAL]"

Crosser died on the 11th of September, 1873, and on the 16th of May, 1874, the association collected from the company the amount of the policy, namely, $5,000; one-tenth of which, $500, less certain sums due under the agreement, was paid to the widow of the deceased.

The present action is brought to recover the balance, which with interest exceeds $5,000. The defendants admit the collection of the money from the insurance company, but, to defeat the action, rely upon the agreement mentioned, and the assignment of the policy stipulated in it. The agreement and

Page 104 U. S. 778

assignment are specifically mentioned in the second and third of the three defenses set up in their answer. The first defense consists in a general allegation that Crosser assigned, in good faith and for a valuable consideration, nine-tenths of the policy to the defendants; that a power of attorney was at the time executed to them to collect the remaining one-tenth and pay the same over to his widow; and that after the collection of the amount they had paid the one-tenth to her and taken her receipt for it.

The case was tried by the court without the intervention of a jury. On the trial, the plaintiff gave in evidence the deposition of the receiver of the insurance company, who produced from the papers in his custody the policy of insurance, the agreement and assignment mentioned, the proofs presented to the company of the death of the insured, and the receipt by the association of the insurance money. There was no other testimony offered. The court thereupon found for the defendants, to which finding the plaintiff excepted. Judgment being entered thereon in their favor, the case is brought to this Court for review.

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