Powell v. Mutual Ben. Life Ins. Co.

• Decision Date: 01 November 1898
• Citation: 31 S.E. 381,123 N.C. 103
• Parties: POWELL v. MUTUAL BEN. LIFE INS. CO. et al.
• Court: North Carolina Supreme Court

31 S.E. 381

123 N.C. 103

POWELL v. MUTUAL BEN. LIFE INS. CO. et al.

Supreme Court of North Carolina

November 1, 1898

Appeal from superior court, Craven county; Brown, Judge.

Action by Emma H. Powell, executrix, against the Mutual Benefit Life Insurance Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Where a life policy was void because insured assigned it to one without an insurable interest, the next of kin or personal representative of the assignor cannot recover from the beneficiary what insurer may have paid him thereon.

Simmons Pou & Ward and M. De W. Stevenson, for appellant.

W. W Clark, O. H. Guion, P. H. Pelletier, and Shepherd & Busbee for appellees.

MONTGOMERY J.

This case differs from that of Albert v. Insurance Co., 122 N.C. 92, 30 S.E. 327, in one most material respect. In that case the person whose life was insured paid all the premiums, and the court did not find it necessary to decide whether the beneficiary had an insurable interest in the life of the insured person. In the case before us, at the very time when the policy was issued in which the life of the plaintiff's intestate was insured, there was an assignment of the policy to the beneficiary (the defendant Dewey), who paid the first and all of the premiums.

The first question that presents itself in the case is, did the defendant have an insurable interest in the life of Powell the plaintiff's intestate? The defendant avers that he did, and that the policy was duly and legally assigned to him by the intestate. The ground of this averment is that the plaintiff and intestate were co-partners. No particulars of the partnership are set out. There is no averment that the deceased co-partner, Powell, was indebted to the plaintiff or to the partnership in any amount, or that the deceased was to furnish any labor, skilled, or otherwise, as his contribution in lieu of money. Upon such conditions, we are of the opinion that the plaintiff had no insurable interest in the life of the deceased partner. In the case of Trinity College v Insurance Co., 113 N.C. 244, 18 S.E. 175, this court said that "under certain conditions a partner has an insurable interest in the life of his co-partner"; and cites Insurance Co. v. Luchs, 108 U.S. 498, 2 S.Ct. 949. There, the fact was that Luchs had furnished to the co-partnership fund, for his co-partner Dillingburgh, $5,000, which was unpaid. We suppose that was...