Cauble v. Mutual Benefit Life Insurance

Broyles, C. J. C. V. Cauble filed garnishment proceedings against the Mutual Benefit Life Insurance Company, seeking to obtain money which Cauble claimed was due by the company to Mrs. Emma E. Allyn, the beneficiary of an insurance policy issued by the company. The garnishee filed an answer denying that it was indebted in any sum to Mrs. Allyn, or that it had in its possession or control any money or property of hers. The plaintiff traversed the answer. This issue was tried, under an agreed statement of facts, by the judge without the intervention of a jury, and a judgment overruling the traverse and sustaining the answer was rendered. Thereafter the plaintiff’s motion for new trial was overruled, and exceptions were taken to that judgment. It appears from the agreed statement of facts that at the time of Mr. Allyn’s death he and his wife were living in the city of Eecife, Pernambuco, Brazil; that Allyn hád a policy of life insurance issued by the garnishee, in which his wife was named as the beneficiary; that the amount due to her on the. policy was $877.04; that proofs of death were duly submitted to the insur [361] anee company, with direction that the proceeds of the policy be mailed by check to the beneficiary at her home in Brazil; that the death proofs and the foregoing instructions were received at the home office of the company on January 13, 1932; that on January 14, 1932, the company issued its check for the amount due, payable to the order of the beneficiary, and the check was mailed to her on the same day to her Brazil address; that the check left New York City by steamer on January 15, 1932, and arrived at Brazil January 28, 1932, and was received by Mrs. Allyn at some time between January 28, and February 4, 1932; that she sold the check to the Pernambuco, Brazil, branch of the National City Bank of New York on February 4, 1932, and indorsed it as follows : “Pay to the order of the National City Bank of New York. Emma R. Allyn;” that the check was stamped with the name of the National City Bank and with the initials “B.P.,” which, under the agreed statement of facts, meant “bills purchased;” that this stamp was used to distinguish bills piorchased by the bank from bills handled for collection; that the check was mailed on February 11, 1932, to the home office of the National City Bank of New York, with instruction to collect the amount due thereon and credit it to the account of the branch bank in Brazil; that Mrs. Allyn had a current account with the branch bank, and that she deposited the proceeds of the sale of the check to that account; that on March 7, 1932, the check was paid to the holder by the bank on which it was drawn; and the summons of garnishment was served on February 29, 1932. It clearly appears from the foregoing statement that the National City Bank did not, as the agent of Mrs. Allyn, hold the check for the purpose of collection, but that it bought the check in good faith and for value before it was overdue. We have found no decision, and counsel for the plaintiff has cited none, which holds that a garnishee would be liable after it had issued a check covering an indebtedness due to the payee, where the summons of garnishment was served after the issuance of the check and its delivery to the payee, and subsequently to its negotiation in due course and for value to a third party. The cases cited in behalf of the plaintiff are easily differentiated by their facts from this case. The judge did not err in overruling the traverse of the garnishee’s answer, or in refusing to grant a new trial. As the [362] foregoing ruling controls the case, the questions raised in the cross-bill of exceptions will not be considered. Judgment affirmed on the main bill of exceptions; cross-bill dismissed. MacIntyre and Guerry, JJ., concur.