National Life & Acc. Ins. Co. v. Middlebrooks, 1 Div. 222

• Decision Date: 06 October 1936
• Docket Number: 1 Div. 222
• Citation: 170 So. 84,27 Ala.App. 247
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. MIDDLEBROOKS.
• Court: Alabama Court of Appeals

170 So. 84

27 Ala.App. 247

NATIONAL LIFE & ACCIDENT INS. CO. v. MIDDLEBROOKS.

1 Div. 222

Court of Appeals of Alabama

October 6, 1936

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action on a policy of life insurance by James R. Middlebrooks, alias J.W. Mipplebrooks, against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

J.E Meredith, of Mobile, and Alex C. Birch, of Montgomery, for appellant.

George Taylor and Harry T. Smith & Caffey, all of Mobile, for appellee.

RICE Judge.

This suit is on a policy of life insurance.

The insured, Mrs. Lillian A. Walker, was the wife of the brother of plaintiff's (beneficiary's) wife. In such situation, appellee, plaintiff, beneficiary, of course had no insurable interest in the life of the insured.

The law that will govern our disposition of this appeal is thus stated by Mr. Justice Thomas in his opinion for the Supreme Court in the case of National Life & Accident Ins. Co. of Nashville, Tenn. v. Alexander, 226 Ala. 325, 327, 147 So. 173, 174, to wit:

"In the matter of the issuance of insurance, as was the case here, the authorities above cited are to the effect (1) that a person has an unlimited insurable interest in his own life, and that such person may take out a policy of insurance on his own life payable to whom he desires; that what is termed an 'insurable interest' is not necessary to the validity of such an issue procured by the assured; *** (2) that it is further settled, as fundamental law, that one taking out a policy of insurance for his own benefit, on the life of another person, must have an (insurable) interest in the continuance of the life of such insured. ***

"The general blood relations, recognized by the courts as constituting an insurable interest in human life and health, are discussed in 1 Cooley's Briefs on Insurance (2d Ed.) p. 370 et seq., viz: (f) Husband and Wife, page 377, 37 C.J. p. 394, § 59; (h) parent and child, page 380, 37 C.J. p. 393, § 55; (i) grandparent and grandchild, page 383, 37 C.J. p. 393, § 56; (j) brothers and sisters, page 383, 37 C.J. p. 393, § 57. The other relations of uncles and aunts, nieces and nephews, and that of cousins, have not been recognized by the courts as within the degree of blood of an insurable interest. 1 Cooley's Briefs on Insurance, p. 385. (k) Other relationships; 37 C.J. p. 394, § 58." (Italics ours.)

Because the application for the insurance was actually signed by the insured, appellee would invoke the rule as stated in subdivision (1) of the above-quoted excerpt from Mr. Justice Thomas' opinion in the Alexander Case cited.

But the question here is: Who "took out" the policy of insurance? If it was the insured, then there would seem to be no invalidity in the contract; on the other hand, if it was the beneficiary (plaintiff), the circumstances obtaining as set out in the second paragraph of this opinion would prevent a recovery in the suit.

We have not found it easy to answer the question we have stated above.

We quote the essential (as bearing on the said answer) portions of the testimony, to wit: Appellee, plaintiff, testified "Lillian A. Walker, the insured, is, my sister-in-law. My wife and her husband are brother and sister. *** The premiums on this policy were paid up regularly until the time of the death of Lillian A. Walker. I gave the agent a check every time it was due. *** I did not live in the same house with her but lived quite a way from her. Her husband was out of work and was on relief and so was she; she had a grown son on relief and there was not anybody in the family financially able to keep up the payments. That is the reason I negotiated insurance on her life. The policy was made payable to me. *** I had a policy on my boy with that company and Mr. Huggins came to collect, and every time he came he was always ding-donging for me to give him some business, and Mrs. Walker had asked me to renew that policy on her husband and take one on her if I could afford it, so I intended to renew the policy on her husband with the Metropolitan and give him the other one on her to help him out and get rid of him. I made myself beneficiary, telling the agent to put me down as beneficiary. *** She was taken sick sometime in July or the latter part of June. I do not remember the exact date. She was washing dishes when she was taken sick and it was before the policy of insurance was issued, and I believe it was before the application was made for the policy. I believe that she continued to be sick of that illness until she died and that illness was treated by Dr. McCrary, I do not know whether he was her family physician or not. *** The policy was mine. *** At the first meeting with Mr. Huggins, he asked me if I had anything I could give him--he was soliciting business all the time--and I explained to him that he could take insurance on Mrs. Walker, if he wanted to. *** He said: 'Take this application and get her to sign it.' I said 'you will have to see her, won't you?' He said 'not necessary,' I took the application and let her sign it, brought it back and gave it to him, and he told me, 'there are two things to find out--find the place of her birth and date of her birth,' and I did and gave that to him and he...