47 Mo. App. 336 | Mo. Ct. App. | 1891
On February 15, 1873, the defendant insurance company issued a policy of life insurance on the life of James Herron Graham in favor of James Hutchinson Graham. It was a ten-year life policy. James Herron Graham was a son of James Hutchinson Graham, and on August 19, 1876, the latter assigned the policy absolutely to the former. On the' sixteenth of June, 1885, James Herron Graham made an assignment, absolute in form, of the policy to William Sessinghaus, who had previously made some advances of money to the family of Herron, and who also was obliged to pay about $150 to a brother of Herron, who seems to have held the policy at the time as security for
Mr. Sessinghaus held the policy until July 12, 1886, at which time James Herron Graham brought to him Mr. August Hauschild, as a person who was willing to take the policy and lend him, Graham, enough to pay the amount due Sessinghaus and something more. The latter had been pressing Graham for the money. On the date lase mentioned James Herron Graham executed his note for $280 in favor of Mr. Hauschild, payable in one year with eight-per-cent, interest, and, at Graham’s request, Sessinghaus made an assignment of the policy, also absolute in form, to Mr. Hauschild. The latter held the note and policy from that time down to February 19, 1889, at which time he transferred the policy by an absolute assignment to the plaintiff, John Heusner.
The evidence is conflicting as to whether or not, at the time of this transaction, Heusner was informed by Hauschild that he held the policy as collateral, and also as to whether or not he transferred by delivery, along with the policy and the previous assignments, the note of $280. Nothing had been paid on the note up to that .time, and he still held it. The amount' then due by calculation was $338.17, and he testifies that he received from Heusner only the amount then actually due him.
The plaintiff paid Hauschild $342. At the time of the transfer from Hauschild to Heusner, James Herron Graham was dead, but none of the parties to the transaction had any knowledge of the fact. The public administrator, Mr. Scudder, took charge of his estate, and demanded of the insurance company payment of the amount due under the policy. The plaintiff as assignee also brought suit on the policy. The insurance
The case was heard before the Hon. Jacob Klein, sitting as a judge in equity. Upon this evidence the court gave judgment for the plaintiff, not for the whole fund, but for the sum of $386.40, and directed the clerk to pay this amount to him, less one-fourth of the unpaid costs. The court also gave judgment in favor of the inter-pleader Scudder for the balance of the fund, and directed the clerk to pay over such balance to him, less three-fourths of the unpaid costs. From this judgment the plaintiff appeals.
I. The first assignment of error is that this was not a proper case for an interpleader. This objection was raised for the first time by the plaintiff in his motion for a new trial. As it was not an objection going to the jurisdiction, it came too late; nor was it well taken, if it had been taken in time. Upon this question we cannot do better than adopt the memorandum filed by the learned judge of the circuit court as a substantial expression of our own views.
“In this case the defendant was permitted to pay the amount of a life policy into court, and obtained an order requiring certain parties, making claim to it adversely to the plaintiff, to interplead with the plaintiff therefor. No objection was made by the plaintiff to this order, and no exception taken to the same at any stage of the proceedings before the trial. On the contrary the plaintiff joined issue on-the interplea, first by demurrer and then by answer. At the trial the plaintiff objected to the admission of any evidence in support of the interplea, because the assignments under which the plaintiff claims were absolute in form, and it
We will merely add that the course which was taken, in allowing the defendant to pay the fund into court and be exonerated, and in requiring the claimants for it to interplead, was in accordance with the settled practice in this state for years, and we have no doubt whatever of its entire propriety.
“It is the settled law of this state that a policy of insurance, procured by one upon the life of another for' the benefit of the former, will be regarded as void, as against public policy, unless the beneficiary has an interest, either pecuniary or natural, depending on family relation, in the life insured. Singleton v. Ins. Co., 66 Mo. 63; Whitmore v. Sup. Lodge Knights and Ladies of Honor, 100 Mo. 36. Although a policy of life insurance is assignable like any other chose in action (Baker, Trustee, v. Young, 47 Mo. 453, 456; McFarland v. Creath, 35 Mo. App. 112, 122; Life Ins. Co. v. Armstrong, 117 U. S. 597), still it cannot be regarded as negotiable; the assignor can confer upon the assignee no greater right or interest in the policy than he had at the time of the assignmen t. In the case-at bar, the evidence leaves no room for doubt that Hauschild only held the policy as collateral security for the payment of the note of $280, and he only undertook to assign all his right, title and interest in the-policy. But, aside from this consideration, it seems to be a sound and reasonable proposition that an assignment of a life policy to one who has no insurable interest in the life insured, is void as falling within the rule against wagering policies. Cammack v. Lewis, 15 Wall. (U. S.) 643; Warnock v. Davis, 104 U. S. 775; Stevens v. Warren, 101 Mass. 564; Lewis v. Ins. Co., 39 Conn. 100; Franklin Life Ins. Co. v. Hazzard, 41 Ind. 116; Gilbert v. Moose, 104 Pa. St. 74; Price v. Knights of Honor, 68 Tex. 361; Cawthorn v. Perry, 13 S. W. Rep. (Texas, 1890) 268; Lewy v. Gillard, 13 S. W. Rep. (Texas, 1890) 304; Roller v. Moore's Adm'r, 19 Ins. L. J. (Pa. 1891) 39; Downey v. Hoffer, 20 Ins. L. J. (Pa. 1890) 84. There are decisions which militate against this view, and some reasons are urged against it in one,
We will merely add that the learned judge was right in his supposition that there is nothing in our decision in McFarland v. Creath, 35 Mo. App. 112, which conflicts with the principle on which he disposes of the case. What we there held was that the assured may, if he sees fit, and acts in good faith, keep up the policy on his own life for the benefit of a third person, who may have no insurable interest therein ; and such a case was carefully distinguished from the case where a third person, who has no insurable interest in the particular life, takes out the policy as a wager or speculation. But, if this case were opposed to the conclusion reached by the circuit court in the present case, the result would be the same, because then we should be compelled to regard it as overruled by the subsequent decisions of the supreme court in Whitmore v. Supreme Lodge, 100 Mo. 36, 46. This last case holds, with obvious propriety, that what the law forbids a party to do directly, it does not allow him to do indirectly. It was accordingly held a good defense to an action on a
Nor is the argument pressed upon us in a supplemental brief, that a bona fide purchaser of a non-negotiable instrument may get a higher title than his vendor had to convey, on the principle of estoppel, available in its application to a life-insurance policy, in the face of this rule of public policy. That rule is stated by the learned counsel for the appellant thus : “Where the true owner of a non-negotiable instrument clothes another with the usual evidence of ownership, or with full power of disposition, and third persons are thereby led into dealing with such apparent owner, and receive a transfer of the same, they will be protected in their dealings ; their rights in such a case do not depend upon the actual title, interest or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing as against them the existence of the title or power which he caused, or allowed, to be vested in the apparent owner.”
That such a rule is frequently applied by the courts, especially in the case of sales of certificates of stock, indorsed and delivered in blank, is well known. But it can have no application to the sale of a life insurance policy, because the rule of public policy above stated prevents that from becoming a vendible chose in
The judgment will be affirmed. It is so ordered.