Rogers v. Atl. Life Ins. Co, (No. 11977.)

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtSTABLER
Citation133 S.E. 215
PartiesROGERS . v. ATLANTIC LIFE INS. CO.
Decision Date10 May 1926
Docket Number(No. 11977.)

133 S.E. 215

ROGERS .
v.
ATLANTIC LIFE INS. CO.

(No. 11977.)

Supreme Court of South Carolina.

May 10, 1926


[133 S.E. 216]

Appeal from Common Pleas Circuit Court of Spartanburg County; J. W. De Vore, Judge.

Suit by J. P. Rogers as administrator of the estate of James A. Rogers, deceased, against the Atlantic Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

DePass & Wrightson, of Spartanburg, and Andrew D. Christian, of Richmond, Va., for appellant.

Nicholls & Wyche and A. E. Hill, all of Spartanburg, for respondent.

STABLER, J. On November 22, 1022, the defendant insurance company, upon an application made by James A. Rogers, insured his life in the sum of $1,000; the policy being made in favor of his estate. At a later date, December 9, 1922, he assigned this policy to his brother, W. S. Rogers, but it seems that no copy of this assignment was sent to the company, as required by the policy, although W. S. Rogers testified that the agent of the company prepared the assignment and had James A. Rogers to execute it On the 28th day of August, 1923, the insured, James

[133 S.E. 217]

A. Rogers, died; the cause »f his death not being disclosed by the record. Proof of his death was made in September of that year, and the insurance company refused to pay the amount of the insurance, but offered to return the premium which had been paid on the policy

This suit was then begun, December 21,

1923, by W. S. Rogers, who claimed to be the beneficiary under the policy by virtue of the alleged assignment made to him by the insured, James A. Rogers. The defendant, by its answer, set up the defense on fraud on the part of the insured, James A. Rogers, alleging that in the application for the policy he had falsely and fraudulently answered certain questions propounded him by the company's examining physician, and had thus misled and deceived the company into is suing the policy on his life; that before and at the time of the issuing of the policy the insured had the fatal and malignant disease of cancer, which fact he had concealed from the defendant by his answers; and that for the reasons alleged the policy of insurance issued him was noneffective and not binding on the defendant.

The ease was called for trial October 1,

1924, and on that day W. S. Rogers assigned to J. P. Rogers, the administrator of the estate of James A. Rogers, deceased, all his interest in the policy, and by consent of all parties the said administrator was substituted as plaintiff in the case.

At the close of the testimony of Dr. Fike, one of the witnesses for the defendant, the defendant was allowed,.upon its request, to amend its answer by setting up the further defense that, under the testimony disclosed in the trial, which theretofore was unknown to the defendant, the contract of insurance entered into was a wagering contract on the life of James A. Rogers, deceased; that his brother, W. S. Rogers, had conspired with the deceased to have the policy made with W. S. Rogers as the beneficiary, although W. S. Rogers had no insurable interest in the life of his brother, and that the true beneficiary was not the estate of James A. Rogers, but was W. S. Rogers; that W. S. Rogers was to pay the premium on the policy; that James A. Rogers had falsely answered the questions as to the payment of the premium and who should be named as the true beneficiary; and that the transaction was a gamble or wager by W. S. Rogers on the life of his brother; and that both of them concealed these facts from the insurance company; and that, therefore, the policy was void in its inception. The plaintiff entered a general denial as to these allegations.

The jury found a verdict for the plaintiff for the full amount asked for, and the defendant comes to this court on appeal, stating fourteen exceptions, imputing error to the presiding judge in four main particulars: (1) Error in failing to direct a verdict for the defendant; (2) error in charging the law; (3) error in the introduction of certain evidence; (4) error in refusing to charge certain of defendant's requests to charge.

As to the specifications of error in refusing; to direct a verdict: The second exception, which we shall consider first, raises the question that W. S. Rogers had no insurable interest in the life of his brother, and is as follows:

"His honor erred, it is respectfully submitted, in refusing to direct a verdict for the defendant because the evidence, without contradiction, showed that, pursuant to a secret agreement and arrangement between the insured and his brother, William S. Rogers, the policy of insurance was obtained for the benefit of William S. Rogers, who paid the premium, and who had no insurable interest in the life of his brother, and under the circumstances there was no meeting of the minds or contract between the insured and insurer; that such a contract, if any existed, was a wager or gambling transaction, and was illegal and unenforceable by either party, his administrator, or assignee."

While the authorities are not in exact harmony as to what constitutes requisite interest, they all agree that the beneficiary of a life insurance policy must have some kind of interest in the continuance of the life of the. insured, when one person takes out insurance upon the life of another for his own benefit.

In 37 C. J. 385, it is said:

"A person cannot take out a valid and enforceable policy of insurance for his own benefit on the life of a person in which he has no insurable interest; such a policy or contract of insurance is void and unenforceable on grounds of public policy, it being merely a wagering contract."

See, also, 14 R. C. L. 919; Elliott on Insurance, 52.

"The essential thing is that the policy shall be obtained in good faith, and not for the purpose of speculating on the hazard of a life in which the insurer has no interest." Elliott on Insurance, 54.

In Croswell v. Association, 51 S. C. 114, 28 S. E. 200, 201, the court said:

"It is firmly established that insurance procured by one person on the life of another, in which the-party effecting the insurance has no interest, is void as a wager contract against public policy, which condemns gambling speculation upon human life. But it is also well settled that a person may insure his own life, and make the policy payable to whomsoever he chooses, even though the beneficiary has no insurable interest in his life, provided the transaction is bona fide, and not a mere cover to evade the law against wager policies. * * * In such case the interest which the insured has in his own life supports the policy, and prevents it from being condemned as a wager contract."

In the Croswell Case, supra, the court approves the doctrine that brothers and sisters

[133 S.E. 218]

have an insurable interest in the life of each other on account of relationship alone. It goes further, and broadly intimates, if it does not so hold, that a brother has an insurable interest in the life of his brother. The court in that case, pointing out that all the authorities agree that a pecuniary interest will preserve the policy, at least to the extent of the interest, and commenting upon the fallacies of the argument that a pecuniary interest will in all cases protect society against the danger that the life of the insured may be destroyed by the holder of the policy, says:

"Indeed, there is much fiction in reference to the supposed necessity of a pecuniary insurable interest to support a life insurance policy, when a near relative insures for the benefit of another. Close ties of blood or affinity, as parent, child, brother, sister, husband, wife, with the natural affection and moral forces which generally prompt one such to serve and protect the other, rendering it highly improbable that for money one would take the life of the other, afford a surer guaranty to society against the dangers of betting on the duration of human life than any mere pecuniary interest in the life insured, often more imaginary than real."

This reasoning of the court, which is sound and well founded, clearly indicates the view that the ties of blood and kinship which exist between brothers as a general rule may give the one an insurable interest in the life of the other. While in some jurisdictions it is held that a brother has no insurable interest in the life of his brother by reason of kinship alone, it does not seem unreasonable or against public policy, but more in keeping with an enlightened humanitarian view, that such insurable interest should exist, at least where the brother whose life is insured agrees to, and collaborates with the other in securing, the insurance. The natural laws of kinship and blood, the ties of affection and friendship which ordinarily exist between brother and brother, negative the idea and belief that one would desire the removal of the other by reason of the existence of such insurance.

In the case at bar, James A. Rogers consented that the insurance on his life be taken out by his brother in favor of the brother, and gave whatever assistance and help he could in securing same. There is nothing in the record of the case to show that the natural feelings of brother to brother were not sustained between the two men, but, on the contrary, the testimony tends to show that the relations between them were characterized by...

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50 practice notes
  • Rowell v. Firemen's Ins. Co, (No. 12339.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 21, 1927
    ...more than one inference can be drawn from the testimony, a question of fact is made for the jury. Rogers v. Insurance Co., 135 S. C. 89, 133 S. E. 215, 45 A. D. R. 1172; Holdings v. Bankers' Union, 63 S. C. 197, 41 S. E. 90. In Allen v. Insurance Co., 139 S. C. 41, 137 S. E. 214, the court ......
  • Fender v. N.Y. Life Ins. Co, No. 12958.
    • United States
    • United States State Supreme Court of South Carolina
    • August 13, 1930
    ...the agent of the company to be existing at the time of making the contracts." The recent cases of Rogers v. Insurance Co., 135 S. C. 89, 133 S. E. 215, 45 A. L. R. 1172, and Jennings v. Insurance Co., 146 S. C. 41, 143 S. E. 668, support the proposition that a condition precedent may be wai......
  • Henderson v. Life Ins. Co. Of Va., No. 14016.
    • United States
    • United States State Supreme Court of South Carolina
    • March 11, 1935
    ...wagering policies are void and unenforceable on the ground of public policy. See Rogers v. Atlantic Life Insurance Company, 135 S. C. 89, 133 S. E. 215, 217, 45 A. L. R. 1172; Crosswell v. Conn., etc., Ass'n, 51 S. C. 103, 28 S. E. 200, and Westbury v. Simmons, 57 S. C. 467, 35 S. E. 764. I......
  • Mutual Sav. Life Ins. Co. v. Noah
    • United States
    • Alabama Supreme Court
    • June 7, 1973
    ...124 N.W.2d 453 (1963); Webb v. Imperial Life Ins. Co., 216 N.C. 10, 3 S.E.2d 428 (1939); Rogers v. Atlantic Life Ins. Co., 135 S.C. 89, 133 S.E. 215 (1926); Woods v. Woods' Adm'r, 130 Ky. 162, 113 S.W. 79 (1908) (dicta); Hodge v. Globe Mut. Life Ins. Co., 274 Ill.App. 31 (1934); Inter-South......
  • Request a trial to view additional results
50 cases
  • Rowell v. Firemen's Ins. Co, (No. 12339.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 21, 1927
    ...more than one inference can be drawn from the testimony, a question of fact is made for the jury. Rogers v. Insurance Co., 135 S. C. 89, 133 S. E. 215, 45 A. D. R. 1172; Holdings v. Bankers' Union, 63 S. C. 197, 41 S. E. 90. In Allen v. Insurance Co., 139 S. C. 41, 137 S. E. 214, the court ......
  • Fender v. N.Y. Life Ins. Co, No. 12958.
    • United States
    • United States State Supreme Court of South Carolina
    • August 13, 1930
    ...the agent of the company to be existing at the time of making the contracts." The recent cases of Rogers v. Insurance Co., 135 S. C. 89, 133 S. E. 215, 45 A. L. R. 1172, and Jennings v. Insurance Co., 146 S. C. 41, 143 S. E. 668, support the proposition that a condition precedent may be wai......
  • Henderson v. Life Ins. Co. Of Va., No. 14016.
    • United States
    • United States State Supreme Court of South Carolina
    • March 11, 1935
    ...wagering policies are void and unenforceable on the ground of public policy. See Rogers v. Atlantic Life Insurance Company, 135 S. C. 89, 133 S. E. 215, 217, 45 A. L. R. 1172; Crosswell v. Conn., etc., Ass'n, 51 S. C. 103, 28 S. E. 200, and Westbury v. Simmons, 57 S. C. 467, 35 S. E. 764. I......
  • Mutual Sav. Life Ins. Co. v. Noah
    • United States
    • Alabama Supreme Court
    • June 7, 1973
    ...124 N.W.2d 453 (1963); Webb v. Imperial Life Ins. Co., 216 N.C. 10, 3 S.E.2d 428 (1939); Rogers v. Atlantic Life Ins. Co., 135 S.C. 89, 133 S.E. 215 (1926); Woods v. Woods' Adm'r, 130 Ky. 162, 113 S.W. 79 (1908) (dicta); Hodge v. Globe Mut. Life Ins. Co., 274 Ill.App. 31 (1934); Inter-South......
  • Request a trial to view additional results

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