McKee v. Phœnix Ins. Co.

• Decision Date: 31 March 1859
• Citation: 28 Mo. 383
• Parties: MCKEE, Plaintiff in Error, v. THE PHŒNIX INSURANCE COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 383

MCKEE, Plaintiff in Error,

v.THE PHŒNIX INSURANCE COMPANY, Defendant in Error.

Supreme Court of Missouri.

March Term, 1859.

1. Should an insurance company wrongfully refuse to receive premiums due on a life policy, the assured may treat the policy at an end, and may recover back all the premiums paid under it.

2. Where the life of a husband is insured for the benefit of the wife, the policy is not necessarily determined by the wife's obtaining a divorce from the husband; she may still have, it seems, an insurable interest in the life of the divorced husband that will support the policy.

Error to St. Louis Court of Common Pleas.

Demurrer to a petition. The petition is as as follows: “Plaintiff states that the defendant is indebted to her in the sum of $548 for money had and received to and for the use of said plaintiff, as by the following account will appear; [here follows an account of cash payments commencing May 12, 1849, and ending November 12, 1855, amounting to $548;] all of which will also appear by reference to the endorsements on a certain policy of insurance which will be herewith filed. Also in the sum of $1,452 for damages on account of a breach of contract by the said defendant, the particulars of which are as follows: On the 12th day of May, 1849, plaintiff was the wife of Hiram McKee, by whom she had four children, then and now living. She determined, with her own means procured by her own labor and economy, to avail herself of the benefits held out by the defendant, and insured the life of her husband. A contract was made with said defendant to that effect on the terms and conditions contained in the policy aforesaid. Afterwards her husband went to California, whereby she was required by said defendant to pay an additional sum of fifty dollars, which she paid as shown by exhibit B., which will be herewith filed, and which is included in the foregoing account. Afterwards, on account of her husband remaining in California and abandoning her, she applied for and obtained a divorce, to-wit, in the month of October, 1854, and after said time continued to pay the semi-annual instalments required by said policy, which the defendant continued to receive till the 12th day of May, 1856, at which time plaintiff offered to pay said instalment then due, being thirty-five dollars and fifty cents, and tendered the same within the time required by said policy, which they refused to receive; and have thereby in other respects broken their aforesaid contract with the plaintiff. Whereby the plaintiff is entitled to recover said damages so as aforesaid claimed. Plaintiff prays judgment for said sum of $548 and interest, and for said damages of $1,452.”

By the policy of insurance filed with the petition the Phœnix Insurance Company assured “the life of Hiram McKee, of the city of St. Louis, in the county of St. Louis, state of Missouri, for the sole use of the said Nancy Pettit McKee, in the amount of two thousand dollars, for the term of his natural life.”

The defendant demurred to this petition on the ground, first, that when the plaintiff was divorced from her husband, she had no further interest in his life, and could not recover on the policy in the event of his death, and second, that the payments mentioned in the petition were voluntarily made.

The court sustained this demurrer.

Morehead, for plaintiff in error.

I. Plaintiff had an insurable interest. She is a creditor. She has children. She supports them. The husband is liable for that support. He is liable for the costs of the divorce. The children also have an interest in his life, and this policy was for the benefit of wife and children. The receipt of premiums after the divorce was a waiver, and a sanction of the fact that she had an interest, even if the divorce rendered the policy void for want of interest. If it should be said they had no knowledge of the divorce, we...