| Pa. | Jan 5, 1885
delivered the opinion of the court, January 5th, 1885.
While this record does not disclose with certainty the grounds on which the learned judge below ruled the case, we presume from the couz’se of the argument here, that he regarded it as coming within the pi'inciple of Gilbert v. Moose, 3 Out. 74, which was an admitted case of a wagering policy. We do not, however, regard this as within the authority of Gilbert v. Moose, for the reason that there is nothing in the facts as set forth in the case stated from which the deduction can fairly be dz’awn that this was a wagering policy. On the contrary thez-e is ezzough to show that John F. Scott, the defendant below, had an insurable interest in the life of Archibald Dickson. In the case stated, we find, inter alia, the following facts: “John F. Scott was not in any manner related to Archibald Dickson by blood or marriage, nor was he at aziy time a creditor of Archibald Dickson. Said Scott had been, for some years a surety upon Dickson’s official bond, but the latter had, to the time of his death, ■faithfully fulfilled the conditions of said bond, and neither principal nor surety was liable thereon.”
It appears to have been assumed that because there had been no breach of the official bozzd, and the suz’eties had never been called upon for payment, that Scott had no insurable interest in the life of Dickson. This was a mistake. The insurable interest is that which existed at the time the insurance was effected, not that which may exist at the time of the death of the assured. There was a time when life insurance was treated as a contract of indemnity znerely, and it was held that the interest must continue to the time of death. It was so held by Lord Elubneoroug-h in Goodsall v. Boldero, 9 East 72. But that case was overruled by Dalby v. The Life Insurance Company, 15 C. B. 365, where it was said by Baron Parkb, in construing the statute of 14 George III., which provides that “no insurance shall be made on the life or lives wherein the assured shall have no interest or by way of gaining or wagering,” and “ that in all cases whereizz the assured hath interest in such life, &c., no greater suzn shall be recovered than the aznount or value of such interest,” that the word “ hath ” must be construed as ziecessarily referring to the time of effecting the izisurance, and not to the time of
It requires but a moment’s reflection to see that this rule is based upon sound principles. It treats a contract of life insurance, not as a contract of indemnity, as in the case of fire or marine insurance, but as a contract to pay a certain sum of money in the event of death. And if the policy fell with the cessation of insurable interest it would lead to this result. A. is a creditor of B. to the extent of $1,000 and insures his life to that amount. He continues the policy until he has paid in premiums say $1,100. B. then pays the debt. If the policy ceases as soon as the debt is paid, A. loses all he has paid, and in reality is out of pocket $100, although he has received his debt in full.
Applying these .principles to.the case in hand, when Mr. Scott became 'Dickson’s bail on his official bond, he had an interest in liis life which he could have protected by taking out a policy directly thereon. That he was never called upon for payment upon this bond is not to the purpose; he might have been; he was liable for any breach of it, and this liability constituted an interest in the life of Dickson, and this interest existed at the time of the alleged assignment of the policy. Hence I have no doubt if the assignment was effectual to pass the title to the policy, Scott would be entitled to hold it and receive the insurance money.
But I more than doubt whether the assignment qua assignment was sufficient to pass the title. It was true an assignment .was made in form and lodged with the company, in accordance with its rules, but no copy of it was ever given to Scott, nor was he notified thereof, and. the policy was retained by Dickson, who continued to pay the premiums up to the time of his
In Taylor’s Appeal, Trough’s Estate, 25 P. F. S. 115, Trough effected a life insurance, being solvent; and in consideration of $1 and love and affection for his children, he executed under seal an assignment of the policy to one I-Iicks in trust for them; put the policy and assignment into an envelope addressed to “ John W. Hicks, Plumber, Second street,” &c.; “Please send this to him at my death — H. Trough,” and placed the envelope in a safe of his own firm. He paid the premiums until his death, seven years after the assignment, but never communicated the transaction to Hicks, who knew nothing of it until after his death. It was held by this court that the assignment was invalid for want of a delivery, and the proceeds were awarded to the administrator of Trough. In Zimmerman v. Streeper, Id. 149, there was an indorsement of a gift upon a bond by the testator, with a request to his executors to deliver it after his death, but it was held invalid for want of a delivery.
In the case in hand the delivery of the assignment to the company was not the equivalent of a delivery to Scott. The whole thing was in fieri; there was no consideration, and the assignment being the voluntary act of the assured, was subject to his-power of revocation. That circumstances might have arisen which would have made the revocation a matter of some trouble and expense, is not to the purpose. The true test was the right to revoke or cancel the assignment. If that existed, nothing passed to the assignee at the time of said assignment.
There is, however, another view of the case which we think controls it. It is manifest from the case stated that this policy was intended for the benefit of Scott at the time it was taken out. The application was made by Dickson on December 80th,. 1882. On the fourth of the following Januaiy, only five days thereafter, he went to the office of the company to
Policies of this nature are in no sense wagering. It would be denying a man’s right to do what he will with his own to say that he could not in any form insure his life for the benefit of an indigent relative, or a friend to whom he felt under obligations. And the fact that he continues to pay the premium himself, and retains the control of the policy up to the time of his death, leaves no room for speculation or the improper practices which a few years ago brought such a scandal upon the life insurance business in this state.
The judgment is reversed, and judgment is now entered upon the case stated in favor of the defendant, with costs.