Singleton v. St. Louis Insurance Co.

stitute an insurable interest, to enable either to insure the life of the other. It is maintained with great ability by Messrs. McFarlane and Jones, attorneys for plaintiff, that a policy of insurance, effected by one on the life of another in which he has no pecuniary interest, is valid; and they rely upon Chisholm v. Nat. Capitol Life Ins. Co., 52 Mo. 213; 14 Am. Rep. 414, in which this court, WAGNER, J., said: "In this State we have no statute on the subject covering this case, and as the policy is not void by the common law, it can only be declared so on the ground that it is against public policy. There is nothing to show that the contract was a mere wagering one, or that it is in anywise against or contrary to public policy." These remarks, of course, are to be restricted to the case then under consideration. The plaintiff there had insured the life of Clark, between whom and herself there was a marriage engagement, and the court held that she had a pecuniary interest in the life of Clark, remarking that "had he observed and kept the same (his contract of marriage), then, as his wife, she would have been entitled to support. Had he lived and violated the contract, she would have had her action for damages." There are intimations in the opinion which support the views urged by respondent's attorney, but they are obiter dicta. The case of the Trenton Mut. Life and Fire Ins. Co. v. Johnson, 4 Zabr. 576, is approvingly cited by the court, but a different doctrine from that announced in that case has been held in Massachusetts, New York, Connecticut Maine, Rhode Island, Indiana, by the Supreme Court of the United States, by DILLON, J., in Swick v. Home Ins. Co., 2 Dillon, 161, and in this State in McKee v. Ins. Co., 28 Mo. 383. And in Gambs v. Covenant Mut. Life Ins. Co., 50 id. 44, it was held indirectly that a person procuring an insurance on the life of another must, to make it valid, have a pecuniary interest in the life insured. In the latter case, BLISS, J., said: "Gambling, or wager policies, are those where the persons for whose use they issue have no pecuniary interest in the life insured. But the wife has a direct interest in the life of her husband." In the former case, SCOTT, J.: "There is nothing in the contract as stated in the petition which shows it to be a wagering one, or in any wise contrary to public policy."

He then proceeds to show that the plaintiff had a pecuniary interest in the life of the husband, which she insured for her benefit. In Evers v. The Life Association, 59 Mo. 430, WAGNER, J., who

Singleton v. St. Louis Insurance Co.

delivered the opinion of the court, did not seem entirely satisfied with Chisholm v. Nat. Capitol Life Ins. Co. He said: "Our opinion on this subject was expressed in Chisholm v. Nat. Capitol Ins. Co., 52 Mo. 213; 14 Am. Rep. 414, to some extent, but it is not necessary to examine the question further in this case, as the plaintiff's own instructions assume that such an interest is necessary." As the observations of our court on this subject in the case referred to are obiter dicta, the question may be considered an open one in this State. In his Commentaries, vol. 3, p. 462, Chancellor KENT said: "But policies, without interest upon lives, are more pernicious and dangerous than any other class of wager policies, because temptation to tamper with life is more mischievous than incitement to mere pecuniary fraud." In Lord v. Dall, 12 Mass. 115, it was held that unless the assured had an interest in the life insured, it would be a mere wager policy, which we think would be contrary to our laws, and, therefore, void." In Stevens, adm'r, v. Warren, adm'x, and another, 101 Mass. 564, Lord v. Dall was cited and approved, and WILLIS, J., speaking for the court, said: "The general rule recognized by the courts has been that no one can have an insurance upon the life of another, unless he has an interest in the continuance of that life." To the same effect are the cases of Mitchell v. Union Life Ins. Co., 45 Me. 104; Lewis v. Phoenix Mut. Life Ins. Co., 39 Conn. 101; Bevin v. The Con. Mut. Life Ins. Co., 23 id. 244; Mowry v. Home Life Ins. Co., 9 R. I. 346; Franklin Life Ins. Co. v. Hazzard, 41 Ind. 117; 13 Am. Rep. 313; Ruse v. Mut. Benefit Life Ins. Co., 23 N. Y. 516; Freeman v. Fulton Fire Ins. Co., 38 Barb. 247; Cammack v. Lewis, 15 Wall. 643; Swick v. Home Ins. Co., 2 Dill. 161; May on Ins., § 587, p. 724.

Neither the case of Shannon v. Nugent, Hays' Reports of cases in the Irish Court of Exchequer, p. 539, nor Ferguson v. Lomax, 2 Drury & Warren's Reports of cases decided in the English High Court of Chancery, cited in Chisholm v. Nat. Capitol Life Ins. Co., supra, sustains the doctrine contended for by respondent. In the latter case the question was neither considered by the court nor presented in the brief of counsel, and in the former Joy, C. B., speaking for the court, said: "It is not now necessary for us to decide whether a life insurance made in Ireland must be on interest." He stated, however, that the leaning of the court was, that interest was not necessary to give it validity. We feel constrained, therefore, by the weight of authority, to hold that the policy of insur

Singleton v. St. Louis Insurance Co.

ance procured by one upon the life of another, for the benefit of the former, who has no pecuniary interest in the continuance of the life insured, is against public policy, and, therefore, void. This policy upon its face does not state an interest, nor in the application is it stated that Singleton had a pecuniary interest in the life of Anderson. The following question was propounded to the applicant: "Has the beneficiary (if a creditor) an interest in the life to be assured, to the full amount of this application?" To which he answered "No." He does not state that he is a creditor. It was neither averred in the plaintiff's petition, nor proved, that plaintiff had any pecuniary interest in the continuance of the life of John T. Anderson. The following instruction, asked by defendant, the court refused: "That to entitle plaintiff to recover in this action he must show some insurable interest in the life of John T. Anderson, the insured, and that in the absence of any evidence showing or tending to show such insurable interest, the jury must find for defendant."

Plaintiff's counsel contend that it devolved upon defendant to show that plaintiff had no such interest, and several cases from our own reports are relied upon as authority for this position. In the earlier of these cases all that was determined was that when a contract was good at common law, without being reduced to writing, after the passage of the statute of frauds it was matter of defense to be pleaded that the contract was not in writing. The case here is of a contract void at common law, upon its face, and of course it devolves upon plaintiff to show such facts as render it valid and binding. In Freeman v. Fulton Fire Ins. Co., 38 Barb. supra, the court said: "It must be considered as well settled at present that at common law, as well as under the statute of betting and gaming, a policy of fire insurance is void, unless the party has at the time an insurable interest. It follows that a complaint in an action on the policy must contain an averment of such an interest, in order to state a cause of action." "The plaintiff must aver an insurable interest, or if he has not that, the grounds upon which he rests his right to sue." May on Insurance, § 587. In Ruse v. The Mutual Benefit Life Ins. Co., supra, in which the opinion was delivered by that able jurist, Judge SELDEN, the court said: "And it is apparent from the authorities, that it had always been previously held in suits upon the policies, not containing the words, interest or no interest,' or other equivalent words, that the

Singleton v. St. Louis Insurance Co.

plaintiff must aver and prove that he had an interest."

This was said in reference to Depaba v. Ludlow, Comyn, 361, which shows how the doctrine that wagering policies upon ships are valid, originated. The defendant there had insured the plaintiff, "interest or no interest," and it was held that the import of that clause relieved plaintiff from proving his interest. That the plaintiff must, in these cases, aver and prove an interest, was held in the Supreme Court of Illinois, in Guardian M. L. Ins. Co. v. Hogan, 80 Ill. 35; 22 Am. Rep. 180, and that he must prove the same affirmatively as a part of the case.

The court below erred in refusing to give defendant's tenth instruction, and for that error the judgment must be reversed. The court did not err in excluding statements made by John T. Anderson, as to how he had been afflicted, and did properly admit statements made by him to witnesses, whether medical men or not, which were expressions of his feelings at the time. 1 Greenl. on Ev., § 101. Nor was it necessary to make such statements admissible that they should have been made in answer to inquiries as to his health, or observations of others as to his appearance, etc. But they must not have been made too long before the application to throw any light upon the condition of his health when the application was made. We think evidence properly admissible to show in what sense the term "spitting of blood," was used in the application. Without any evidence of the meaning of that term, the court might properly have instructed the jury that "spitting of blood," in consequence of a drawn tooth, or a cut on the gums, was not meant by that term, and yet if Anderson had spit blood from such trivial causes, literally his answer to the question would have been false. There was, therefore, a propriety in the admission of evidence of the meaning of the term. There is something ambiguous in the term "spitting of blood." There is room for interpretation. Literally, the meaning is spitting blood, whether from the teeth, gums or lungs, but it would be absurd to hold that it was used in that sense in the application. We have given two instances of spitting blood, which no court would hold as embraced within the term "spitting of blood," as used in that application. Hence, the necessity for an explanation; "spitting of blood," is, and was proved to be, a technical term. Other errors are assigned, but it is unnecessary to consider them. We are all agreed that the

Singleton v. St. Louis Insurance Co.

judgment should be and it is accordingly reversed, and the cause remanded.

Judgment reversed.

NOTE BY THE REPORTER,-In Missouri Valley Life Ins. Co. v. Sturges, 18 Kans. 93; 26 Am. Rep. 761, it was held that the assignee, with the consent of the company, of a policy of life insurance could not recover on it unless he had an insurable interest in the life of the assured. To the same effect is Franklin Life Ins. Co. v. Sefton, 53 Ind. 380; and the Supreme Court of Massachusetts, in Stevens v. Warren, 101 Mass. 564, held that the assignment passed no interest if made without the consent of the company. See, also, Cammack v. Lewes, 15 Wall. 643, which was a case of peculiar circumstances. On the other hand the Supreme Court of Rhode Island, in the recent case of Clark v. Allen, 11 R. I. 439; s. c., 23 Am. Rep. 496, held that where the policy contained no prohibition of such alienation, an assignment, in good faith and not as a device to evade the law, was good, and gave a right of action to the assignee. See, also, St. John v. Am. Mut. Life Ins. Co., 2 Duer, 419; s. c., on appeal, 13 N. Y. 31; Valton v. Nat. Fund Life Assurance Co., 20 id. 82; Cunningham v. Smith, 70 Penn. St. 450. To the same effect are Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Etna Life Ins. Co. v. France, id. 561.

A distinction is observable between the case of a policy without interest in its origin and a policy originally valid but assigned to one who has no interest. This was taken in the Valton Case, supra, where the court said: "It is unnecessary to determine whether previous to the statute making void all wagers, bets, etc. (1 R. S. 662), an insurance, effected by a party upon the life of a person in which he had no interest, was valid. Since the statute, such contract would clearly be void. Upon the trial there was no proof but that Schumacker obtained the policy for his own benefit. If he so obtained it, he had the right to dispose of it as he saw fit, and it would be no defense against his assignees that they had no interest in his life." Contra, Franklin Life Ins. Co. v. Hazzard, 41 Ind. 116; 13 Am. Rep. 313, where the court say: "Now if a man may not take a policy directly from the insurance company, upon the life of another in whose life he has no insurable interest, upon which principle can he purchase such policy from another? If he purchase a policy as a mere speculation, on the life of another in whose life he has no interest, the door is open to the same demoralizing system of gaming, and the same temptation is held out to the purchaser of the policy to bring about the event insured against, equally as if the policy had been issued directly to him from the underwriter." Approving Stevens v. Warren, and disapproving the Valton case.

In Cunningham v. Smith the court say: "The defendants may have had such an interest in the life insured under the contract of September 1, 1868, as would entitle them to insure his life in their own names. That, however, might have been a question. But Jerome Smith's interest in his own life was unquestionable, and if he was willing to insure himself with their money and then assign the policy to them, there is no principle of law which can prevent such a transaction."

The Supreme Court of the United States in Etna Life Insurance Company v. France, supra, consider the question whether a sister has an insurable interest in the life of a brother upon whom she is not dependent for support. The court says in affirming the judgment of the court below: "The construction given to the policy by the court below was, that it was a contract between the company and Chew for an assurance of his life, with a stipulation and agreement that the money should be paid to his sister; and the court held that such a policy is sustainable at law on account of the nearness of the relationship between the parties, and especially as Mrs. France, at the time the insurance was effected, was one of Chew's next of kin, prospectively interested in his estate as a distributee. We concur in the construction of the policy made by the court, and in the validity of the transaction. As held by us in the case of The Connecticut Mutual v. Schaefer, just decided, any person has a right to procure an insurance on his own life and to assign it to another, provided it be not done by way of cover for a wager policy; and where the relationship between the parties, as in this case, is such as to constitute a good and valid consideration in law for any gift or grant, the transaction is entirely free from such imputation. The direction of payment in the policy itself is equivalent to such an assignment.'