Deal v. Hainley

135 Mo. App. 507 | Mo. Ct. App. | 1909

GOODE, J.

(after stating the facts).

1. Defendant was an incompetent witness because he was a party to whatever understanding he had with the deceased Coleman about the insurance contract. Confessedly there was some arrangement between them, and the cause of action in issue and on trial turned on whether it was such a one as would allow defendant to retain all the money collected on the policy or only what deceased owed him plus the premiums he had paid. Defendant’s testimony falls within the letter and spirit of testimony excluded by section 4652 of the statute (R. S. 1899). [Kersey v. O’Day, 173 Mo. 560.] The facts testified by defendant may be gleaned from other witnesses; some of them were, and it is best to consider the merits of the case, taking account of all the evidence before us.

2. Defendant had no insurable interest in the life of his half-uncle, and could only procure insurance on said life as a creditor and in an amount large enough to cover his debt and the expense of maintaining the policy. [Singleton v. Railroad, 66 Mo. 63; Ryan v. Insurance Co., 117 Mo. App. 568; Corson’s Appeal, 113 Pa. St. 438.] Possibly insurance could have been taken to cover prospective obligations, but that question is out of the case. If a person is willing to take the risk of placing insurance on his own life for a beneficiary who has no interest in its preservation, he may do so; and hence Coleman himself might insure his life in such sum as he chose for the benefit of his nephew, or even without reference- to the relationship, if he did so in good, faith to promote the nephew’s welfare, and not in a collusive manner which would be equivalent to the latter procuring the insurance. [Locher v. Kuech-enmiester, 120 Mo. App. 701, 720, and cases cited; Cooke, Life Insurance, sec. 60, p. 94.] The instruction given by the court left no opportunity for the finding in defendant’s favor; and, indeed, did not submit the question of whether the insurance was taken by Coleman in good faith for defendant’s benefit, not only as a creditor to the extent of his demand, but for the full amount of the policy and simply out of a desire to benefit defendant. Therefore the charge was more favorable to plaintiff than it should have been on the evidence. Though defendant’s nephew could not insure his uncle’s life, the relationship and the intimacy and favors which grew out of it, are items to consider in dealing with the question of whether the uncle procured the policy and wholly for defendant’s sake; for those circumstances enhance the probability that he did. If Coleman took the insurance on the inducement of defendant, who Avas the active and moving party in the transaction, the policy was speculative. [Waineright v. Bland, 2 Moody & R. 481; Schilling v. Insurance Co., 2 Hurlst. & N. 41; Bromley v. Insurance Co. (Ky.), 5 L. R. A. (n. s.) 747; Cammack v. Lewis, 82 U. S. 643.] In that event defendant is entitled to keep no more of the proceeds of the policy than the amount of his claim against Coleman’s estate. [Brockway v. Insurance Co., 9 Fed. 249; Coon v. Swan, 80 Vt. 7; Fairchild v. Life Assn., 51 Vt. 612, 624, et seq.; Tate v. Bldg. Assn., 97 Va. 74; Metropolitan, etc., Co. v. O’Brien, 92 Mich. 94; Exchange Bank v. Loh. (Ga.), 44 L. R. A. 372; Union, etc., League v. Watson (Ga.), 46 L. R. A. 424.] If Coleman procured the insurance, but on an understanding with defendant that the latter’s interest in it should be only as security for what the former owed, then defendant may retain no more of the proceeds than enough to make him whole. [Strode v. Meyer Bros. Drug Co., 101 Mo. App. 627; Am. Life Assn. v. Robertshaw, 26 Pa. St. 189.] The principal point for decision is whether, on all the facts, the court should have declared the rights of the parties as being concluded by one or more of those propositions of law, or there were issues for the triers of the facts. In our judgment a legal conclusion cannot he pronounced one way or the other on the questions of whether defendant was the real and Coleman only the formal procurer of the insurance, or, if the latter was the real procurer, how far he intended defendant to benefit by the policy. Eeasons existed ivhy Coleman might wish to help defendant beyond securing the debt the former owed the latter, but the testimony had a tendency to prove defendant instigated deceased to take the insurance. For one thing, it is not clear defendant agreed to pay the premiums, and it rather seems he agreed only to come to the help of Coleman if the latter was unable to pay them when due. Deceased gave, a note for the first premiums, which note defendant signed as surety. Thesamemethod was followed in respect of the premiums on the policy taken by Coleman for the benefit of his wife. We find a conflict of remark and perhaps of decision, on the point of whether an agreement by a beneficiary who has no pecuniary interest in the life of the insured, to pay premiums, suffices to stamp the contract as a wager, or is only a fact pointing to that conclusion. This question does not quite come up for decision on the present record, which presents defendant as apparently a surety for the payment of premiums. The result of the case turns on what was, in truth, the arrangement between defendant and Coleman; that is, on whether defendant used Coleman to obtain the insurance, or Coleman procured it of his own volition and for the exclusive benefit of defendant, or for his benefit by way of indemnity. In the second contingency only would defendant have the right to keep the entire proceeds. In Langdon v. Insurance Co., 14 Fed. 272, 279, the court said the payment of premiums by a beneficiary was not- conclusive proof the policy was taken out by him; citing to the point Triston v. Hardey, 14 Beavan 232, and Armstrong v. Insurance Co., 13 Reporter, 711. See, too, Aetna Life Ins. Co. v. France, 94 U. S. 561; and for a citation of cases pro and con, tbe note to Heinlein v. Insurance Co., 25 L. R. A. 627, 629. The Langdon case is, for the purpose in hand, identical with the facts in this one, and the question of whether thd insured or the beneficiary had procured the policy was held to be one of fact for the jury, as it Avas in Brockway v. Insurance Co., Waineright v. Bland, Shilling, Admx. v. Insurance Co. and Fairchild v. Life Assn., supra. To the same effect is Cooke on Life Insurance, section 60, page 96.

The present cause stands on a different footing from such cases as Warnock v. Davis, 104 U. S. 775, and Richards v. Insurance Co., 99 Mo. App. 88; not only because the facts of said cases pointed to the yiew that the intention of the insured persons was simply to indemnify their creditors, but because though the law permits a contract of insurance to be made by a person on his own life for the benefit of another who has no pecuniary interest in his life, yet by a distinction hard to maintain on principle, many courts, including those-of this State, hold the assignment of a policy to one haying no interest in the life of the insured, is invalid, and if made to a creditor, valid only to the amount of his advances. [Cooke, Life Insurance, sec. 73, p. 119 et seq.]

No point has been mooted about the remedy of the plaintiff. It would seem an accounting is called for and that an equitable petition would be proper; but likely an action for money had and received Avould lie. We omit those questions because counsel did not brief them.

The judgment is reversed and the cause remanded.

All concur.