*1 further premiums. would not be pay she required the record. not sustained our this contention opinion, in error think, Honor was stated, that his therefore, We the jury. the issue of waiver to submitting is, therefore, this Court judg- judgment lower same is be, hereby, reversed, ment of the defend- case remanded for entry and the judgment Rule under ant 27. Mr. Stab- ChiEE Brease Messrs. Justice Justices and Bonham concur.
rEr HACK METZ ET AL. E.,
(176 314) *2 Messrs. Haynsworth & Haynsworth, for appellant, Price Messrs. and Poag, respondent, October 2, 1934. -Mr, opinion the Court was delivered Justice
Bonham. 12, 1922, the Commonwealth Insurance Life Com-
June (which we shall pany of as com- opinion speak issued its pany), contract it insured the life whereby Metz, an infant of the of one age year, sum of $250.00, in- with Frances mother * fant, as beneficiary. *3 Bowen, A. Hack and Thomas were en- N. A. S. as gaged of partners business industrial buying up of life or had, have, insurance which would soon value, cash surrender and them in if the cash as- The sented. business in name of was conducted C. S- Bowen, on the on the life attorney. premiums policy of the infant his father, C. Metz were by R. paid L. Mеtz, 30, 1932, until Metz and R. April day L. Metz, Frances B. named in ex- ecuted to and delivered Bowen a to C. S. paper purporting which, be a of power and attorney executory agreement by in consideration as- $20.00, sum of was policy and delivered signed to C. Bowen. Hack and Thomas were interested with Bowen transaction. Metz R. L. and Frances that B. Metz assert this they by understood transaction from were a loan Bowen they securing $20- .00; that Bowen to was additional premiums pay $1.36 convert the into a рolicy ten-year policy; paid-up loan and additional were secured premiums $20.00 Bowen pledge claims that he bought policy. himself, Thomas, for policy outright Hack and and ex- it men pected cash in on these had 1932. None June m the life insurable interest insured infant. Sub- not when Bowen discovered could sequently, policy of fifteen reached years, be cashed until the insured age Hack, his interest in the he sold Thomas, and executory did and of attorney a new power Francеs Metz favor executed was R. agreement by R. of Hack. killed in an automo- was
November insured Hack, eleven who age. He then years bile accident. was at time been an the company, procured one agent claim, of death and which were blanks for necessary proof asMetz, Frances signed made out the name of and B. Metz to Frances claimant. due time a check payable was sent to com- agent face the policy for the^ Frances B. Metz at for delivery Greenville pany met the Metz home. surrender of the at parties refused to sign Hack had the Metz As policy Mrs. Hack, surrendered the agent, check to not to either Hack or Mrs. who refused to deliver the check Hack sent it back to the company. Thereupon the amount of death to recover brought this action wit, benefits of the policy, $250.00. and a with the
The case tried by Judge Ramage jury claimed. amount result of verdict plaintiff refused fol- A motion for trial was аppeal new lowed. *4 facts, Bowen, record, as that from the admitted appears three hundred Thomas had some brought
Hack and like that this transaction. Mr. nature of involved examination: Bowen said on cross “I on minor I the of a knew was purchasing policy never in whom had no interest at all. whom had seen and I I I the until it had de- had extended into of policies purchase incidentally, I the business. was speculating, into veloped for incidental; feature was I bought principally sрeculative certain, definite if the cash surrender value which all the I to interest in it at wanted whole have I any were ** * took into that the child also consideration thing. I die I I when the might purchased the Metz policy, paid that.”
The contains this provision:
“Change The at insured time Beneficiary. Of the continuance of the during it be not then policy, provided assigned, beneficiaries, or the change writ- beneficiary ten on the request form, which must be sent to Company’s at the home Company office, accomрanied by policy, take effect so change to when endorsed on the policy by the Company.”
It is conceded no written of the insured for request made, change was ever as beneficiary required by above of the hence provision no consent to the policy, change was ever indorsed The com- policy by company. claims that it pany had no knowledge of assignment.
The complaint alleged issuance of the as- policy; the signment thereof Frances Metz to plaintiff; death insured; the refusal of Frances B. Metz to co-operate with plaintiff do, she had contracted collecting insurance, the check indorse for the death by refusing benefit which her, made been caused which payable to retain check; that notice of the company assign- n ment had been to the and it be- given agent company came the duty pay plaintiff due under benefits it refused do. was for the
prayer sum and interest. $250.00 The action was originally brought against Mrs. B. T. two last named were elimi- Leppard. E. J. trial, has not nated at the Metz there- appealed, and Mrs. the answer
fore, are concerned with we only company. that it the check for This sets to deliver up willing death claim to named surrender to the change beneficiary, that it never assented policy; has nor to the plaintiff policy; Metz; life of insurable *5 is unconscion- contract, transaction is a which wagering able, and morals against good is speculative, public policy, of a contract on the life of a gambling and is in the nature interest; no insurable in whom has person plaintiff face of the policy ready is company willing pay receipt Frances the surrender and policy B. Metz upon release. the execution of a proper the issues made by is needless to recite in detail It them for presented several exceptions. by questions are these: determination this Court by interest in life Has the an insurable plaintiff Jamеs to him Metz reason of assignment policy C. by to maintain this action ? which entitles him Is the the incontestable clause estopped by company from liability? policy contesting its Has the waived to contest right liability the plaintiff? transaction plaintiff acquired assign-
Is which contract, a ment from wagering nature, its is morals speculative good against public policy? of the charge.
Certain specific challenges he had is not claimed on behalf plaintiff interest in an insurable originally has Metz it is claimed that Frances but interest, of insurance to her the contract and as valid, was valid plaintiff her to and that under the carried all of her because it rights 872, that: Ed.), on Insurance It is said in Joyce (2d § where only can have no insurable “A person he had authority under contract which arises right make.” 290SD,
From the same “It has we authority, § quote: the life of been that insurance taken out on stated broadly another, without the is against latter’s consent public void.” wit, in- rule, parent may exception benefit, sure the life his infant parent’s child *6 419 in most recognized "jurisdictions, this, it including although denied, is or statute, in others. It is then governed by patent that the the on life of Metz in his policy C. favor James mother is It is a the life valid. equally plain policy infant, Metz, C. in favor of the A. plaintiff N. James Hack, who Metz, is nowise related and has C. James no insurable interest life, in his would be invalid.
Can the the mother of assignment by the who is case, named in the beneficiary con- policy vey an interest plaintiff which will énable him to cоllect the on the death the policy insured?
What is nature of the interest of Frances Metz in this policy? contains a that the insured policy provision he if he so in the
change when does beneficiary pleases, manner prescribed terms of has been held repeatedly beneficiary interest, as this has a
policy only contingent which, insured, without consent carries no in- terest to the it held that an has been assignee; assign- ment of is a or an to change policy change attempt beneficiary.
“The Co., C., 441, case last named v. Ins. 131 S. [Barron E., bar, 128 inis exact with the case 414], parallel S. at is there the assignment it held that was in effect change a what our Court held in Deal beneficiary, practically 395, C., 1912-B, case Cas., E., 69 S. Ann. S. [87 Co., C., 23, Antley v. N. Y. Ins. S. 1142].” Life E., 199, 202, R., 60 A. 184. L. In the case it held distinctly that: “Where Antley insurance, of life right change beneficiary policy named obtains inchoate depend- beneficiary merely right ent upon the will insured lifetime.” entirely during numerous authorities. Citing right beneficiary,
“Where reserved to change per- policy to have no right. son held vested designated beneficiary ”* * * Co., Insurance the case of Bost Volunteer State Life E., 771, contained 114 C., 163 S. identical with change provision Mr. are There which we considering. contained “By said: Watts Chief (afterwards Justice), Justice reserved terms insured change right consent, and under without the beneficiary’s beneficiary, *7 the not vested acquired, beneficiary provision That insured, the life of the but only during expectancy. life of time the be defeated at during could expectancy insured, the the with the insured complying provisions the of the in the manner provided policy, policy, made.” change of could be whereby beneficiary In the of Connecticut case Crosswell v. Asso Indemnity ciation, 105, E., 200, 202, the C., 109, 51 28 S. S. said: think our con authority “We both reason sustain insurance, clusion that in its inception, valid policy be the to one no interest in insurable assigned having life insured, with the interpolate, consent (we life’ insurer, person insured), and assignment if fide, bona and not a device to evade wager law against policies.”
It is the from this deduction declaration necessary if the be the “life” not made with the consent of assignment the insurer, it is void. C.,
In the case of Wannamaker et al., Stroman 167 v. S. E., 621, insured had three policies life, in each which his the named beneficiary. wife was reserved to the insured to In and B right A policies beneficiary, in the manner change prescribed poli In there no reservation to the insured cies. C poliсy The insured his will to beneficiary. attempted change of all of the as if were policies dispose they proceeds en assets of his estate. litigation disposing insured, sued the death writer pre said: vailing opinion conclusion is that to divert
“My the insured had no right Stroman, proceeds as his policies A B from Mrs. will did not evince a disposition change beneficiary that, these policies, if it it did not conform to did, regulation to a change beneficiary; he had no to interfere right right with Mrs. Stro- man tо receive the proceeds C.”
This last-named is that which there was no reservation to the insured of the the benefi- right change which, ciary, therefore, and in Mrs. a vested Stroman had interest. is taken from the case of N. Y. following v. Antley Co., supra: Ins.
Life “In Banks, E., 516, 31 Ga. Rattray App., the Court said:
“ ‘A in a life insurance the in- where sured has reserved right has change beneficiary, interest, vested and an the in- policy by *8 creditor, sured to a for the of an indebted- securing purpose ness of the insured which than the fаce is less value ” amounts to a pro tanto/ change beneficiary
These authorities from our Court are sufficient sustain to our conclusion that the in case this is assignment present invalid, for reason that the had the in inception its plaintiff insured; insurable interest in the and the beneficiary therein, in ef- and the only assignment, being expectancy fect in the a be effected could change beneficiary, only manner the clause the in which reserves prescribed to the to the valid insurеd the A right change beneficiary. in case such is will assignment dependent upon insured, insured. In case it be- urged is present minor, a that the law consent; recognizes cannot ing insurance life of to on the right parent procure his child will not take from the to enjoy right parent him to benefits of the which accrue during that the is more interested the child. It said law be may parent than in the enjoyment of the child safety was open The of equity under the rights policy. was case if the proposed tо and wagering and not a speculative transaction bona fide one Court, duly showing, by The ap- proper one. transaction insured, infant to pointed represent have author- would insured, to the was valid and beneficial ized assignment. insurance that the contract of pro
It is contended fourteen years the insured be under vides that if be for- of beneficiary change age, request such No both or duly appointed guardian. signed by parents, to the company. ever request prеsented signed volition to make of their own attempted parents ever to sort was presented change. request No the terms the policy. as required by company the effect that said argument Something the in deny liability by is estopped company an sufficient contestable clause of willingness liability swer admits is entitled is held be payment. who person pay contract, transaction a speculative Is this wagering nature, social order and good its obnoxious to morals, ? and аgainst public policy void, well nature is thoroughly of such That a contract established. record, this is one of from the
As hereinabove shown and his some three transactions which plaintiff hundred bought policies, associates were which they up engaged, by could make they amount profit and speculated upon they when cash surrender value of taking *9 on the chance speculated matured to that extent. also They the face of collect would they that the insured die might member of the part- much is admitted by So the policies. handled of purchasing who nership in life an infant whose insured was case the In the present interest. The no insurable of the purchasers
423 law- careful to ones from especially protect helpless the ' of or the of others. cupidity parents interests speculative
. In the case of Crosswell v. Connecticut Asso Indemnity ciation, 200, 203, 51 C., 110, E., 28 discussing question interest, Court, of insurable from quoting Davis, Warnock S., Ed., 775, 924, 104 26 said: U. L.
“It is not of or necessary the expectation advantage benefit should be for always estimation, capable pecuniary a parent child, has an insurable in the life interest of his a child in the a husband the life his parent, wife, and a wife life of her The natural husband. af- in cases this kind is considered as more powerful, fection more in- operating efficaciously, protect life of sured, than other consideration. But in all there cases any must be a reasonable founded ground, relations upon other, to еach either or parties or of blood pecuniary some the con- affinity, expect or advantage benefit from tinuance the assured.” (Italics added.) life of al., the case of et Diepenbrock Steinback v. reported Y., E., 662, A., 663, 417, Am. N. 44 R. 52 N. L. Parker, Rep., opinion St. Judge delivering York, the fol- New made Appeals State announcement citation which was sustained lowing authorities from other many jurisdictions: us, are, “These authorities it seems well grounded of, not the existence but the prinсiple. They recognize only for, rule that forbids insurance necessity upon life of a in which the whose benefit person person insurance is made has no constitutes interest. Such what mere con is termed a or a ‘wager policy,’ speculative tract the life of the insured, with a direct is, favor of in terms, its forbidden by termination. early c., other Ill, statute in and in many Geo. England (14 48), 1892, c., 690, jurisdictions, including (Laws § State 55); and this Court held in Mutual Ins. Ruse v. Ben. Life insurance common Co., Y., that such is void at N. *10 424
law, statute, it and that in so fаr as English prohibits insurance, a act.” merely declaratory is for insurance be basis such contracts of holding is the law against public policy grounded upon prohibiting in case of treated our own contracts. This is wagering C., Association, 51 Connecticut Crosswell Indemnity v. 103, E., 200, 28 further from 201. Quoting Crosswell clear we “There a dis- find seems to be following: case, tinction in is by between cases which policy procured it insured bona of his motion and is cases which own fide a procured different allow another. a very thing man to create termination and voluntarily to allow else to their some one do so at will.”
This case with principle operates especial emphasis of an of the transaction and infant incapable understanding thereto, of and which the consenting be- incapable a chattel comes an to be sold as asset a has interest whatever in stranger prolongation who or life of the child. protection F., case of Finnie (C. A.), Walker R., 831, deliverеd the A. Circuit Manton Judge L. said, he opinion in which inter alia: the estate of the intestate “These were issued to and the condemns rule of which salutary public policy retaining the forbids appellees wagering assignments, received, than other moneys premiums paid they * * * them. with contemporaneous issuance disclosed in rec- policy, and facts it the intent permit a that was ap- ord fair inference such result as the issuance a pellees wager- obtain a just * * * insurance thеse contract ing permits. If, from must, it intent be facts, presumed, wagering contract, tendency avoids the assignment. Any is to interest and public public good, endanger affect never to subversive sound morality, ought which is receive the be the equity sanction or founda- its judgment.” (Italics added.) tion In the annotation to the case McAllister, of Martin v.
Texas case A., reported 56 R. it is said: L.
“It seems that if insurance can be taken on in- lives of fants the of their question consent is not material.
tendency Courts in to regard restrictive, such insurance is tо prevent the lives of children jeopardizing in- by taking thereon, surance as, the desire to secure the insurance if value, of much the be temptation would the health neglect of the insured, or to shorten the In such life. cases as have the sustained policy, is held beneficiary strictly to rule that he must interest, establish an insurable but they have not considered the expressly question consent.” Cit- ing authorities.
In the same annotation from the case of Prudential Ins. Jenkins, Co. E., v. 15 Ind. 43 N. Am. App., 57 228, the Rep., St. Court said:
“The insurance of children who are and under the helpless control and authority others is of such susceptible possi- bilities of it evil that should not be and encouraged, the evi- dence ought establish an insurable interest most clearly and before satisfactorily a verdict should meet the approval of a trial Court.”
In the case the plaintiff has no insurable present insured, he but claims that he has acquired such interest under an assignment of which contravenes such every provision policy governing rule of assignments, law thereabout. every order, it the interest of Manifestly, would be social against morals, the rule of a claim good public policy uphold founded premises.
The respondent contends that inasmuch com pany received retained the premiums $1.36 were to its Mr. paid Bowen agent by when he that the bought has waived company right dispute and is es- legality assignment now topped deny thereon. from the record liability appears check to thе agent company by was paid $1.36 him checks and funds
which was with other deposited by him for sum was paid by premiums, paid aggregate ab him to the check of the There is agent. company by knowledge evidence that solutely company A. Hack. assignment Frances B. Metz On N. hand, other of officers of is the testimony there positive until knowledge it had no The case is in with analogy arose. strict controversy W., C., case of Perry Sovereign Camp, O.W. E., 397. member of a local died while arrears Perry, camp, death, month and after dues of the preceding *12 which, expiration days by thirty grace, pay- ment of his have rein- dues, he would been automatically event, death, The his stated. and after that day family camp, sent the amount of his dues the clerk local in- who forwarded them to the without Camp Sovereign the latter when he died was forming Perry suspended here, that the It was as nonpayment argued, his dues. a and the dues retention of thus worked waiver receipt paid was held that: Sovereign and estoppel against Camp. “Fraternal insurance in order to waive or organization, to assert rules of dues and be estopped applicable payment knowledge to have had of facts must be shown suspensions, on which waiver or is founded.” estoppel
Moreover, it not be contended successfully valid, doctrine of waiver or invoked make estoppel may be is obnoxious to a contract which impart enforceability invalid, and one, as a unеn- wagering speculative morals and forceable because it is against good public policy. Further, the not but its does asserts liability, company deny willingness pay person. proper The Circuit requested appellant Judge insured, a jury “that C. charge being James minor, could not make a valid assignment policy, there is no evidence in this case he made an ever assign- ment of the verdict for the defend- policy your should be ant.”
There is no of the fact that dispute Metz minor, was a and there can-be denial of the legal that he proposition could not make valid assign and, ment as there policy, is no that there gainsaying is in this record no evidence that he ever made, or attempted to make an assignment of the awas request one proper and it error to refuse to it. The give excep tion is sustained.
At request Circuit respondent, Judge charged the “that an insurance es- jury company may itself top rely in its upon provision policy.against assignment act on its done by any with part knowledge such assignment, which and that recognizes acceptance from premiums on assignee may be sufficient to create such an estoppel case except fraud.” taken is well and is exception sustained. charge, framed, amounted to the statement the Court that the from the accepted premiums with assignee
knowledge assignment. It was for the to de- jury termine whether that had been done.
Moreover, as was said heretofore in this when opinion *13 waiver, the considering doctrinе of question estoppel not be invoked to give to a legality wagering specu- lative contract which is and unenforceable illegal by Courts because it is morals and contrary good against public policy.
The rule is thus T., stated 10 R. 801: § “It is considered that'as between the generally to a parties contract cannot be to it if is validity it given by estoppel * * * prohibited law or Man- by is against public policy. reason the limitation the doctrine ifestly, underlying discussion, under is where the estoрpel, presently arises, matter ceases be one solely
matter of illegality individuals.” or between (Italics between the private parties, added.) are by
The other practically disposed exceptions body opinion. that as Frances
The contends respondent argument Metz been eliminated from the case by has B. not ap verdict from which she has and judgment claimant, is en other as pealed, respondent, only This is not now titled to the proceeds in this Metz cоncerned with the of Mrs. Frances B. rights is, Is the submitted us controversy. only question Hack, as A. entitled reason of his plaintiff, atttmpted N. Frances to the Metz signment proceeds from Mrs. answer, To this we No. question policy? remanded reversed, is case is below judgment enter
to the Circuit Court with directions to judgment Commonwealth Insurance appellant, Company, Life Hack. against respondent, N. A. Mr. Brease, Mr. Chiee Carter Justice Justice Acting concur. C. Cothran
Mr. W. Associate Justice I concur in the result of opin- Mr. StabrEr: Justice Bonham, ion of on the that the assign- Mr. ground Justice invalid, made, in effect a beneficiary, ment change reason, as him, for the stated its inception insured; in the life plaintiff had no insurable interest case the de- and that in such legality insured, who, in the present the will of pendent consent. If beneficiary, not case, a minor and could or circumstances, her desired assign expectancy in such to Court of have interest, she made application should out in the opinion. equity, pointed