Lockhart v. Pilot Life Insurance

Clarkson, J. The defendant, Pilot Insurance Co., introduced no evidence, but admitted that it owed the amount of the policy either to plaintiff or the intervener. It made no appeal to this Court. The policy of insurance was not introduced in evidence by any of the litigants. Plaintiff’s main contentions are: “That he was entitled to an instruction that upon the whole evidence he should recover: (a) Having *11 proved by admission of tbe defendant tbat tbe policy was issued; (b) tbat the plaintiff was tbe beneficiary; (c) tbat tbe insured was dead and tbe policy was in full force and effect; (d) tbat tbis established a vested right in tbe plaintiff as beneficiary and there being no proof tbat the insured, much less tbe defendant company, bad reserved any right to change tbe beneficiary and such attempt, if any was made, was void; (e) tbat tbe only evidence tbe interpleader offered was not admitted against tbe plaintiff and so announced by tbe court.” Tbe intervener contends: “Tbe main question in tbis case is tbat of identity of beneficiary at tbe time of insured’s death. Tbe plaintiff proved tbat 'at the time of the issuance of the policy’ be was beneficiary, and stopped bis proof there.” We think tbe only question involved in tbe appeal — -who was entitled to tbe $300.00 on tbe death of plaintiff’s wife, Millie Lockhart? Tbe defendant Insurance Company admitted tbe policy, when issued, was payable on tbe death of Millie Lockhart, to plaintiff. So far as plaintiff’s rights are concerned there was no evidence introduced to show tbat tbe company bad any provision in tbe policy to change tbe beneficiary. Tbe mere fact tbat tbe Insurance Company alleges “tbat prior to tbe death of tbe said Millie Lockhart tbe beneficiary in said policy was duly changed or attempted to be changed to Florence Hailey,” etc., cannot affect tbe plaintiff’s vested right without proof. There is no allegation or proof in tbe record by tbe Insurance Company or tbe intervener, to show tbat tbe Insurance Company bad a right, under tbe provisions of tbe policy, to change tbe beneficiary from plaintiff in favor of tbe intervener, Florence Hailey. In Wooten v. Order of Odd Fellows, 176 N. C., at p. 56, it is held: “Tbe general rule is tbat tbe right to a policy of insurance, at least to one of tbe ordinary character, and to tbe money which may become due under it, vests immediately, upon its being issued, in tbe person who is named in it as beneficiary, and tbat tbis interest, being vested, cannot be transferred by tbe insured to any other person (Central National Bank v. Hume, 128 U. S., 195) without bis consent. Tbis does not bold true, however, when tbe contract of insurance provides for a change of tbe beneficiary by tbe insured, or such a right arises in some other way, for in such a case tbe right of tbe beneficiary vests conditionally only, and is subject to be defeated by tbe terms of tbe very contract, or instrument, which created it, and is destroyed by tbe execution of tbe reserved power. These principles, we take it, are well settled by tbe highest authority and great weight of judicial opinion,” citing numerous cases. It is well settled by a long line of decisions tbat tbe burden is on tbe intervener and he or she is entitled to but one issue: “Does tbe fund belong to her?” Maynard v. Ins. Co., 132 N. C., p. 711. *12 In Hill v. Patillo, 187 N. C., at p. 532, it is held: “In such a proceeding the intervener is not called on or required, and indeed he is not permitted to question the validity of plaintiff’s claim against defendant, nor to file any answer thereto which denies or tends to deny its validity. On the contrary, the intervener has himself become the actor' in the suit and on authority is restricted to the issue whether his claim of right and title is superior to that of the original plaintiff. Mitchell v. Talley, 182 N. C., 683; Maynard v. Ins. Co., 132 N. C., 711; Cotton Mills v. Weil, 129 N. C., 452.” Sitterson v. Speller, 190 N. C., p. 192. The fact that the court below put the burden on plaintiff and he made no exception, is immaterial under the facts in this case. The laboring oar was on the intervener to show title to the insurance money. From the evidence, plaintiff had vested interest in the fund and the burden was on the intervener to show, by competent evidence, that it was divested and she was entitled to it. This was not done and the charge of the court below cannot be sustained. In Lanier v. Insurance Company, 142 N. C., at p. 18, it is held: “Under the terms of the policy sued on, plaintiff had such an interest as entitled her to recover upon the death of the insured if the premiums had been paid and the policy was otherwise in force, unless the defendant company could show it had been lawfully surrendered by her consent, or that the insured had duly and legally exercised the power reserved in the clause quoted, entitled ‘change of beneficiary.’ . . . To successfully resist a recovery upon such ground the burden of proof is on defendant to show a strict compliance by the insured with the provisions of such clause in the policy before the rights of the plaintiff could be divested without her consent.” In its answer the insurance, company is practically a stakeholder, admitting it owed either the plaintiff or the intervener. The burden was on the intervener. For the reasons given there must be a New trial.