Hill v. Groesbeck

Chief Justice Campbell delivered the opinion of the court. There are several considerations which move us to reverse the judgment, and others that require us to go further and direct a judgment.for defendant. — 165 — 1. Plaintiffs have no rights except under the alleged appointment by Thomas G. .Anderson, and if, for any reason that is invalid, they are not entitled to recover. In Love v. Clune, 24 Colo. 237, Mr. Justice Goddard in speaking for the court, said: “Upon examination of the numerous cases cited, wherein the general doctrine is announed that the beneficiaries acquire no vested interest in policies issued by mutual benefit associations until the death of the insured, and may be changed at any time the latter may elect, we find that such change was expressly authorized by the policy under consideration; or by the laws of the association issuing it;, and among those passing directly upon the question before us, we think the greater number and better reasoned cases favor the rule that in the absence of any provision upon the subject, the beneficiary named cannot be displaced without his or her consent. And that there, is no inherent difference between mutual benefit associations and ordinary life insurance companies in regard to the right to change the beneficiary.” The policy itself contained no provision for a change of beneficiary. The plaintiffs introduced in evidence, without objection from defendant, a bylaw which permits a member to change a beneficiary designated in his policy contract, without the latter’s consent. There is no evidence as to the time when this by-law was passed, or that it was in force at the time of the attempted change. In the absence of any such provision in force at the time the attempted change was made, it could not divest her right without her consent. Plaintiffs say that the specific objection now urged was not made by the defendant at the trial, hence she cannot take advantage of it now. — 166 — This is a misapprehension of the right of a party litigant. Defendant made no objection to the introduction of the by-law, but she did not thereby admit that it was sufficient proof of a right to make the change contended for. Merely because a party does not object to the introduction of evidence does not preclude him from questioning its weight or sufficiency when admitted to establish a fact in issue. No authority has been shown for displacing defendant as a beneficiary without her consent. 3. There is a more substantial ground, at least a more satisfactory reason, for setting aside this judgment. In two separate defenses the defendant alleged that she had a vested interest in the policy by virtue of an ante-nuptial agreement and a gift inter vivos. The plaintiff says that these defenses are incqnsistant, and that proof of one disproves the other. This does not necessarily follow. Yet under the code, inconsistant defenses are allowed. It often happens that a party has a good cause of action or a defense, but is uncertain as to whether the proof will establish it in one form or another, and so, either in separate causes of action in his complaint, or in different defenses of the answer, he sets forth in varying forms, the facts constituting the same. So here the defendant relied upon the same facts to establish the separate defenses, and the proof of one did not negative the other. 3. It is futher said that the parol ante-nuptial contract, if it was entered into, is within the statute of frauds. This is wholly untenable. In the first place plaintiffs are not in a position to make such contention; but if they were, the contract was made, if it was a contract, or if there was a gift, it was likewise completely executed, long before their supposed — 167 — rights attached. The authorities are all one way upon this proposition, and it is too plain to heed any citation in support of it. Plaintiffs gave no consideration for what rights they tried to secure by the attempted change in beneficiaries, and they claim merely as donees. 4. Let us now inquire if the ante-nuptial contract, or the gift, was established. The only evidence produced upon these issues of fact was that of the defendant, the plaintiffs offering none at all. Not only is its great weight in her favor, but there is nothing whatever contradictory of it, so that the evidence is all one way. The question therefore, is whether the uncontradicted evidence establishes either of these defenses. By several competent, apparently disinterested, and unimpeached witnesses it clearly appears that before the marriage of the defendant and Thomas G. Anderson he promised her, as one of the considerations of marriage, to make her the beneficiary in an insurance policy in which a former wife Mary J. Anderson, then deceased, was the payee. After his marriage with the defendent, in pursuance of the previous promise, he surrendered to the association the original certificate with the request that the name of his then wife (the defendent here) should be substituted as the sole beneficiary, and after the policy was issued he delivered it to her. She continued to hold possession of it until ordered by the trial court to bring it .into court, and paid assessments thereon in the sum of about $200. This evidence is abundantly sufficient to establish either, or both, of the defenses. It is true that plaintiffs in argument contend that in her cross-examination defendant admitted that she married Anderson for a home for herself and — 168 — children, and that was the sole consideration, and in testifying as to what occurred between her and her husband before the marriage concerning the policy, she said there was no contract about it. And the record so shows. But the entire record and what the witness almost immediately thereafter said in explanation of such statement must also be taken into account. And it clearly appears that there were several considerations inducing her to enter into the marriage relation, of which the executed promise to make her payee in this policy was unquestionably one. The ante-nuptial contract having, as we regard it, been clearly proven, the defendent, under'our former decison, now the law of the case had a vested interest in the policy, which it was beyond the power of the association or the insured, or both, to divest without her consent, and this consent she never gave. This necessarily disposes of the case, and it does not become necessary to inquire whether plaintiffs were guilty of the fraud charged. There have been already three trials of this action. The judgment was for the defendant at the first, which the trial court set aside; and at the close of the second trial the court indicated that a like judgment would be rendered if the plaintiffs did not amend their complaint. When the amended complaint, framed as the court suggested, was filed, without taking any further testimony judgment was rendered for the plaintiffs, which was set aside by this court upon the former appeal. The evidence at the last trial was not materially different from what it was upon the two former ones; the only difference, if any, being that on the last trial the defendant’s case was the strongest. We conceive it to be our duty not to remand the cause for a new trial, but to direct a judgment for the — 169 — defendant. The evidence so preponderates in her favor upon the vital issues in the case that it would be doing an injustice further to prolong the litigation. We are satisfied that the plaintiffs would not be able to maintain their action,—at léast, they have not been able to do so at either one of the three trials which they have had. Other reasons might be assigned for our conclusion, but the ones given are sufficient. The judgment of the district court is, therefore, set aside, and the cause remanded with instructions to the district court to render judgment in favor of the defendant for the entire fund of $4000 heretofore by the association paid into, and now remainining in, the registry of the court, and for costs. Reversed and Catóse Remanded for the Entry of fudgment.