83 P. 410 | Kan. | 1905
The opinion of the court was delivered by
The controlling question in the case is, Can the beneficiary, Lizzie Elison, who joined in the contract by which the insurance on her husband’s life was assigned to Casper Elison, recover on the policy? In her petition, and in part as a basis of recovery, she set. up the contract, which appears to have been entered into with Casper Elison twelve days after the policy was issued. The demurrer to the petition raised the question whether, under the facts stated, as well as those admitted by the recitals of the contract, she had stated a cause of action. The contract is plain in its provisions and leaves no doubt
Casper Elison was an uncle of the insured, and therefore had no insurable interest in his life by reason of kinship. (Singleton v. St. Louis Mutual Insurance Company, 66 Mo. 63, 27 Am. Rep. 321; Prudential Insurance Company of America v. Jenkins, 15 Ind. App. 297, 43 N. E. 1056, 57 Am. St. Rep. 228; Appeal of Corson, Ex’r, 113 Pa. St. 438, 6 Atl. 213, 57 Am. Rep. 417; 2 Joyce, Ins. § 1069.) The consideration of the transfer was not advances made by the uncle, nor was the transfer made as security for any subsisting indebtedness. It therefore appears that Lizzie Elison, the beneficiary of the policy, undertook to assign and transfer an interest in the policy to one who had no interest in the life of the insured.
The theory of life-insurance is that one who is interested in the preservation of the life of the insured may safely take and hold insurance, but that insurance in favor of one who has no interest in the life of the insured — who would be interested in his early death — is contrary to good morals and a sound public policy. In the early case of Life Ins. Co. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761, it was held that such insurance, if sustained, would open the door to speculation and traffic in human life and invite to enter the most shocking of all crimes, and that “of all wagering
“The assignment of a policy to a party not having an insurable interest is as objectionable as the taking out of a policy in his name. ... If there be any sound reason for holding a policy invalid when taken out by a party who has no interest in the life of the assured, it is difficult to see why that reason is not as cogent and operative against a party taking an assignment of a policy upon the life of a person in which he has no interest.”
It has been said:
“The evil of wager policies would rather be aggravated than otherwise by such a rule, because speculators, desiring to indulge in this species of gambling in human life, could more easily purchase from embarrassed policy-holders than procure the issue of such policies directly to themselves upon the lives of strangers. ‘In either case,’ as observed by a recent author in treating of this subject, ‘the holder, of such policy is interested in the death, rather than the life, of the insured.’” (Helmetag’s Adm’r v. Miller, 76 Ala. 183, 188, 52 Am. Rep. 316.)
As tending to sustain the view that a person cannot take directly, or by assignment, a policy of insurance on the life of one in whose life he has no insurable interest, see Cammack v. Lewis, 82 U. S. 643, 21 L. Ed. 244; Gilbert v. Moose, 104 Pa. St. 74, 49 Am. Rep. 570; Carpenter, Appellant, v. U. S. Life Ins. Co., 161 Pa. St. 9, 28 Atl. 943, 23 L. R. A. 571, 41 Am. St. Rep. 880; Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329, 1 South. 561; Whitmore v. Sup. Lodge Knights & Ladies of Honor, 100 Mo. 36, 13 S. W. 495; Heusner v. The Mut. Life Ins. Co., 47 Mo. App. 336;
In this case the interest of Casper Elison, who contracted with the beneficiary to pay all the premiums, would have been best subserved by the early death of Adolph Elison; and, in fact, death did occur in less than five months. It was a matter of much concern to him whether he should get the contingent amount of $1000 for a few premiums, or whether he should be required to pay them during the period of twenty years. In this respect it was more mischievous and vicious in its tendencies than many of such arrangements, because, if the insured had lived until the maturity of the policy, the assignee would have been required to pay even more than he was to receive. In that event he would have paid $1116.80, saying nothing of interest, for the $1000 of insurance money which he would receive; and, while there would have been a profit in the early death of the insured, his living until the end of the twenty-year period would have occasioned the assignee a substantial loss. Contracts of this character have been frequently denounced and held bad because they were regarded as wagers, but this court has declared them to be void on the broader ground that they are contrary to public policy.
If the transaction is tainted as to the assignee, who has no insurable interest, how does it stand as to the beneficiary in the contract of insurance, who participated in the wrong? If the agreement which furnished an inducement to take human life and a temptation to commit the most atrocious of crimes was participated in by the beneficiary voluntarily, how can she escape the condemnation of the law? She not only signed the agreement, but it appears that she was to take an active part in carrying it out, and was to re
We have given much attention to the relation which Lizzie Elison bore to the transaction, and if we follow the rule of Life Ins. Co. v. McCrum, 36 Kan. 146, 12 Pac. 517, 59 Am. Rep. 537, it must be held that the whole transaction was so tainted with illegality as to bar a recovery by her. There appears to be no substantial distinction between this case and the one cited. There the insurance company issued a paid-up policy to Snyder, payable to his two daughters. He and the beneficiaries, for a valuable’ consideration, joined in an assignment of the policy to Mrs. Parker, who had no insurable interest in Snyder’s life. After the death of Snyder, Mrs. Parker, on learning that she could not collect the insurance, transferred the policy back to the beneficiaries, who in turn transferred it to McCrum, and he brought an action to recover upon the policy. It was held that McCrum stood in the shoes of the beneficiaries; that the transaction between the beneficiaries and the assignee was contrary to public policy, not to be tolerated by law; and that the policy was worthless and void, not only as to the assignee but also in the hands of the beneficiaries. In speaking of the participation of the beneficiaries in the tainted transaction it was remarked:
“This policy was placed in her [Mrs. Parker’s] possession, not only with the written consent of the beneficiaries, but upon a valuable consideration paid to them for the same; they therefore aided in creating, in the mind of Mrs. Parker, a desire for the early death of the insured; they held out to her the temptation to bring about the event insured against. . . . In making the transfer and assignment, and in receiving the money therefor, the beneficiaries, Elizabeth and Desylvia Snyder, were participants with Mrs. Parker in the attempted fraud upon the insurance company; the whole transaction between the beneficiaries and Mrs. Parker contravenes public policy, and the law leaves the parties as it found them.” (Page 149.)
“If the party who attempts to speculate in human life cannot enforce the policy which he has purchased on the life of another, in whose life he has no insurable interest, the beneficiaries who knowingly and purposely sell and assign to such a person the policy on the life of another for a valuable consideration ought not thereafter to be permitted to enforce the same for their own benefit. . . . It is not for the sake of the insurance company that the transactions between the beneficiaries and Mrs. Parker are held wrongful, but such rule is founded on general principles of public policy forbidding speculative contracts upon human life. In all such cases the courts ought not to lend their aid to assist parties engaged in the perpetration or attempted perpetration of such wrongful speculations.” (Pages 150, 151.)
The case of Powell v. Dewey, 123 N. C. 103, 31 S. E. 381, 68 Am. St. Rep. 818, sustains the view taken in the McCrum case. There Powell took out a policy of insurance on his own life and assigned the same to the beneficiary named in the policy, who had no insurable interest. The assignee paid the premiums which accrued up to the death of the insured. Upon proof of death the insurance company paid the amount of the policy to the assignee, and the executor of Powell’s estate then brought an action on behalf of the estate
The McCrum case is deemed to be a controlling authority in the present one, and the court is not inclined to overrule or modify that decision. It follows that the judgment must be reversed and the cause remanded, with directions to sustain the demurrer of the insurance company to the petition of Lizzie Elison.