Hayward v. National Insurance Company.

court, as well as in other courts, which seem to have been well considered, have recognized a more liberal rule in favor of the insured. In these late cases, it has been held that the condition in the policy under consideration, as well as other conditions of similar nature, may be waived by the company, and that the waiver may be made as well by "acts as by positive declarations, and that the company may be estopped under certain circumstances, where, by a course of dealing or its open actions, it has induced the assured to pursue a policy to his detriment." Horwitz v. The Equitable Mut. Ins. Co., 40 Mo. 557; Franklin v. The Atlantic Fire Ins. Co., 42 id. 456; Coombs v. Hannibal Savings and Ins. Co., 43 id. 148; Northrup V. The Miss. Val. Ins. Co., 47 Mo. 435; Viele v. Germania Ins. Co., 26 Ia. 54, 55; Walsh v. The Etna Life Ins. Co., 30 id. 133; 6 Am Rep. 664; Von Bories v. The United Life, Fire and Marine Ins. Co., 8 Bush (Ky.), 133.

The Common Pleas Court, on the trial of this cause, instructed the jury that it devolved on the plaintiff to show that consent was given by the company to such other insurance and indorsed on the policy sued on, and unless the jury find from the evidence that such consent was indorsed on said policy sued on, they will find for the defendant." This instruction assumes that no waiver of the condition in the policy could be made by the company; but the jury are told that, unless the indorsement of consent was actually made on the policy, they must find for the defendant. This instruction was clearly wrong, and ignored the whole issues in the case to which it referred as made up by the pleadings. It is, however, said that this instruction was modified by another instruction given by the court. This, upon examination, will be found to be incorrect. There is no instruction given by the court that could be construed to be a modification of the one above referred to. There is another instruction which tells the jury that if the policy securing the additional insurance had expired before the loss, that then, although the consent of the company to the same was not indorsed on the policy, the plaintiff might recover. This instruction only applied and could only apply to the insurance existing on the property at the time of the issuing of the policy sued on, as there was no pretense that the subsequently procured policy had expired. And the first instruction referred to was complete in itself, and so far as the instruction given by the court, to which reference is made, dif.

Chisholm v. National Capitol Life Ins. Co.

fers from it, it is merely inconsistent with the other instruction given, and calculated to mislead and confuse the jury.

It is not necessary that any further notice should be taken of the instructions given or refused. The case must be reversed for the

erroneous view taken of the case in the instruction referred to.

The other judges concurring, the judgment of the Hannibal Court of Common Pleas is reversed and the cause remanded for a new trial.

Judgment reversed.

CHISHOLM V. NATIONAL CAPITOL LIFE INSURANCE COMPANY,

appellant

(53 Mo. 213.)

Life insurance — insurable interest.

A woman engaged to be married to a man has an insurable interest in his life.

ACTION by Harriet O. Chisholm against the National Capitol Life Insurance Company on a policy of insurance issued to her on the life of Robert Peel Clark. The opinion states the case.

Henderschott & Chandler, for appellant. A life policy is not one of indemnity. Dally v. The India & Life Assurance Co., 15 Com. Bench, 364; Bunyan on Life Ins. 17; Ruse v. Mut. Benefit Life Ins. Co., 23 N. Y. 516. Plaintiff held no insurable interest in the life of Clark; the interest must be pecuniary. Trenton Mutual Life Ins. Co. v. Johnson, 4 Zab. 576; Hoyt v. New York Life Ins. Co., 3 Bosw. 440; American Life Ins. Co. v. Robertshaw, 26 Penn. St. 189; Rawls v. The American Life Ins. Co., 36 Barb. 357; S. C., 27 N. Y. 282; Bevin v. Conn. Mut. Life Ins. Co., 23 Conn. 234; Miller v. Eagle Life Ins. Co., 2 E. D. Smith, 263; Mitchell v. Union Life Ins. Co., 45 Me. 104; Mutual Life Ins. Co. v. Wager, 27 Barb. 354.

Isaac T. Wise, for respondent. 1. There is no statute in this State touching this contract, and therefore is a contract at common law and valid. Bunyan on Life Insurance, 18, note b.; id. 21, §6;

Chisholm v. National Capitol Life Ins. Co.

Lord v. Dall, 12 Mass. 115; Bigelow's Life and Accident Reports, vol. 1, 154, 328, 374; Miller v. E. G. and H. Co., 2 E. D. Smith, 290; Trenton Life, etc. v. Johnson, 4 Zab. 576; Shannon v. Nugent, Hayes' Irish Rep. 537; Dalby v. India and London Life Ins. Co., 28 English Law and Eq. 312; Campbell v. N. E. Life, 98 Mass. 281. 2. Even if an insurable interest was a necessary prerequisite to the validity of the contract, the matrimonial contract between plaintiff and the person insured was amply sufficient.

The certainty or probability, direct or incidental, of pecuniary benefit to the living, or pecuniary loss or damage to any one by the death of another, gives an insurable interest. Phillips on Ins., ch. 3, § 14; Phila. Life Co. v. Amer. Life Co., 23 Penn. St. 65; Loomis v. Eagle Life, 1 Bigelow, 175; McKee v. Phænix Ins. Co., 28 Mo. 384; Miller v. Eagle Life Ins. Co., 1 Bigelow, 394.

WAGNER, J. The main error assigned and relied upon for the reversal of this case is the action of the court in refusing to declare that the plaintiff had no such insurable interest in the life of the person insured as would entitle her to recover.

The record shows that there was a contract of marriage existing between plaintiff and Robert Peel Clark, and that on the 17th day of July, 1869, the defendant made and delivered to plaintiff its policy of insurance, whereby it insured the said Clark for the term of his natural life, for the sum of $5,000. The policy was issued and delivered to plaintiff and made payable to her as the intended wife of Clark, she paying the annual premium of $90.20. The first premium was duly paid by her, and on the 12th day of January, 1870, whilst the policy was in full force, but before the contemplated marriage had been solemnized, Clark died.

What interest, or whether any, is necessary in the life of the person insured to support the contract of insurance is left in some confusion by the adjudged cases, as the authorities are contradictory. The leading case of Godsall v. Boldero, 9 East, 72, was decided that a contract of life insurance was simply a contract of indemnity, not only requiring an interest in the assured, in order to give it a validity at its inception, but continuing good only so far as it was rendered so by the permanence of such interest. But that case was generally received with great dissatisfaction, and insurance offices seldom availed themselves of the decision, as they found it very injurious to their interests to do so. They usually paid the amounts of their life insurances, and the decision was practically

Chisholm v. National Capitol Life Ins. Co.

disregarded. But the same question was subsequently taken to the Exchequer Chamber on error in the case of Dalby v. The India and London Life Assurance Co., 15 Com. Bench, 364, and Godsall v. Boldero was directly overruled.

There it was held, that the contract of life assurance was not one of indemnity, but a mere contract to pay a certain sum of money on the death of a person in consideration of the due payment of certain annual premiums during his life. An insurance on life has in fact very little resemblance to a fire or marine insurance. In a fire or marine insurance the particular object is to indemnify against a pecuniary loss, and the event upon which the money is made payable is the happening of the loss, the terms of the contract being to pay whatever is lost, not exceeding a specified amount. But a life insurance is a valid policy and a contract to pay a certain definite sum on the happening of a particular event, which may or may not occasion a pecuniary loss. In England there is a statute (4 Geo. III, ch. 48) which enacts in express terms, that no insurance shall be made on the life of any person, wherein the person for whose use such policy shall be made shall have no interest, and that in all cases where the insured hath interest in the life, no greater sum shall be recovered or received from the insurers than the amount or value of the interest of the insured during such life. But this statute does not extend to Ireland, and the courts of that country have held in a number of cases that, at the common law, policies of insurance are valid without any interest. Bunyon on Life Ass., p. 11; Shannon v. Nugent, 1 Hayes, 536; Fergusen v. Lomax, 6 Dru. & War. 120; Scott v. Roose, Long & Town. 54; Brit. Ins. Co. v. Magee, Cooke & Al. (Irish Rep.) 182.

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 any wise against or contrary to public policy. In McKee v. The Phonix Ins. Co., 28 Mo. 383, it was held that where the life of a husband was insured for the benefit of the wife, the policy was not necessarily determined by the wife's obtaining a divorce from the husband; that she might still have an insurable interest in the life of the divorced husband that would support the policy. In Lord v. Dall, 12 Mass. 118, the plaintiff was a young female without property, and had been for several years supported

Chisholm v. National Capitol Life Ins. Co.

and educated at the expense of her brother, who stood toward her in the attitude of a parent. He effected a life policy for her benefit, and it was decided that she had an insurable interest in his life. PARKER, C. J., who wrote the opinion of the court, said: "But it is said the interest must be a pecuniary legal interest to make the contract valid-one that can be noticed and protected by the law; such as the interest which a creditor has in the life of his debtor, a child in that of his parent, etc. The former case indeed of the creditor would leave no room for doubt. But with respect to a child, for whose benefit a policy may be effected on the life of a parent, the interest, except the insurable one which may result from the legal obligation of the parent to save the child from public charity, is as precarious as that of a sister in the life of an affectionate brother. For if the brother may withdraw all support, so may the father, except as above stated. And yet a policy effected by a child upon the life of a father, who depended on some fund terminable by his death to support the child, would never be questioned, although much more should be secured than the legal interest which the child had in the protection of his father. Indeed, we are all satisfied that the interest of plaintiff in the life of her brother is of a nature to entitle her to insure it. Nor can it be easily discerned why the underwriters should make this a question after a loss has taken place, when it does not appear that any doubts existed when the contract was made, although the same subject was then in their contemplation."

This case establishes the principle that an uncertain interest in the life of the person insured is sufficient to support and uphold a policy in favor of another for whose benefit it was taken. The brother supported and educated the sister, but he was under no legal obligations to do so, and he might have withdrawn that support at any time.

In a well-considered case (The Trenton Mut. Life & Fire Ins. Co. v. Johnson, 4 Zab. 576) the point has been directly decided, that it is not necessary for the plaintiff to prove an insurable interest in the life insured, and that, if any interest were necessary, it need not be such as to constitute any direct claim upon the insured, but it would be sufficient if any indirect advantage might result from the life.

There was no statute in New Jersey, when this decision was made, prohibiting such insurances, nor is there any here. The VOL. XIV. — 53