120 Mo. App. 701 | Mo. Ct. App. | 1906
(after stating the facts).
“St. Louis, September 26, 1904.
“Due W. H. Loeher seven hundred, thirty-six and 90-100 ($736.90) dollars.
“Henry Kuechenmiester.”
The petition treats it as a promissory note, and is in the usual form employed in such cases designating the writing sued on as a note. The defendant insists,
*720 “Insurable interest unnecessary, where the contract is between insurer and insured. Assuming the soundness of the doctrine of insurable interest, it seems a proper limitation on the application of it, that where the insured himself makes the contract with the insurer, he may select as beneficiary one having no insurable interest. This is seemingly on the ground that, if the insured himself chooses to place his life in a situation of hazard, there is no sufficient reason for preventing him from doing so.” [Cook on Life Insurance and Mutual Benefit Societies, sec. 60.]
See also 3 Am. & Eng. Ency. Law (2 Ed.), 929, where the rule stated does not preclude a recovery on or condemn a contract as void when entered into by the insured and the insurer but only precludes the beneficiary contracting with the insurer for insurance on the life of one in whom he has no insurable interest. Indeed, this proposition is abundantly well settled by the adjudicated cases and this, too by the courts of this State, and it is the rule with us that one may, of his own free will, in good faith, insure his life, paying the premiums therefor himself, for the benefit of another who has no insurable interest therein and the policy will be held valid.. The proposition is pointedly decided in the following Missouri cases: Ashford v. Ins. Co., 80 Mo. App. 638; Van Cleave v. Union Casualty Co., 82 Mo. App. 668; Reynolds v. Prudential Co., 88 Mo. App. 679. Our Supreme Court, in express terms, recognized the principle and cited Cook on Life Insurance, sec. 60, above quoted in Masonic Ben. Assn. v. Bunch, 109 Mo. 569-578-579. This court in McFarland v. Creath, 35 Mo. App. 112-122, also recognized the principle. [See also Connecticut Life Ins. Co. v. Schaefer, 94 U. S. 460; Aetna Life Ins. Co. v. France, 94 U. S. 561; Ingersoll v. Knights of Golden Rule, 47 Fed. 272.] It is true the cases of Ashford v. Ins. Co., 80 Mo. App. 638, and Van Cleave v. Ins. Co., 82 Mo. App. 668, are expressly overruled by the Supreme Court in Kern v. Supreme
Now with this rule before us, let us examine the facts. The defendant, Henry Kueehenmiester, did not take out insurance on the life of his brother, nor did John H. Kueehenmiester take out insurance on the life of Henry Kueehenmiester. The evidence shows that each brother, of his own free will and in good faith, insured his own life in favor of the other brother. There is no word in the evidence to the effect that Henry Kuechenmiester was to pay for the insurance of John H. Kuechenmiester, as between themselves, even though he executed the duebill to cover the premiums on both policies. The defendant, having pleaded the wager contract and no insurable interest, it devolved upon him to develop the facts in proof which would bring the case within the rule which he seeks to invoke. This he wholly fails to do. While it is true the duebill was executed by Henry Kueehenmiester alone, the evidence on the part of the plaintiff tends to show that it was done with the authority and consent of John H. Kueehenmiester given immediately prior to his being called out of the room and that as between the brothers, John H. Kueehenmiester was of course to pay for his policy, or in other words, his premium; whereas the evidence on the part of the defendant is that the duebill was executed as a mere receipt for the policies and that neither he nor Henry Kueehenmiester was expected to pay the premium on either policy. There is not a word in evidence tending to show that as between these parties, Henry Kuechenmiester, the beneficiary in the policy of John H. Kuechenmiester, was to pay the premiums on the policy of John H. Kueehenmiester and it devolved upon the defendant
“Now, when he talks about these letters here, he prevents you from knowing what is contained in those letters and he asks you to take his version of what those letters contain.
“Mr. Gilliam: X object to that, for the testimony is excluded and the gentleman is not permitted, to talk about them.
■ “Judge Collier: You talked about them and pretended to tell the jury why we should have sent them, but I wanted them in here, and I want to keep them in.
“The Court: One moment; confine yourself to the testimony that is admitted.
“Judge Collier: Your Honor, he discussed them.
“The Court: Well, if you had called him down, I would have stopped him.
“Judge Collier: Very well, the court says I can’t discuss them.
“Defendant’s counsel excepted to the action of the court in not reprimanding counsel for improper argument and not directing the jury to disregard the same.”
A reversal of the judgment is asked here because the court did not reprimand counsel in the presence of the jury. Now the matter of confining counsel to the record in the argument of a case is one peculiarly within the province of the trial judge and the matter as to when counsel should be reprimanded for transgression in that behalf is one within the sound discretion of the court in
There are other questions in the briefs. We have examined each and. find them of no merit, and without prolonging the opinion, which is now unduly extended in a case where the issues are so few and simple, they will be overruled. The judgment is manifestly for the right party and it will be affirmed. It is so ordered.