Western & Southern Life Ins. Co. v. Webster

• Decision Date: 28 November 1916
• Citation: 172 Ky. 444,189 S.W. 429
• Parties: WESTERN & SOUTHERN LIFE INS. CO. v. WEBSTER.
• Court: Kentucky Court of Appeals

189 S.W. 429

172 Ky. 444

WESTERN & SOUTHERN LIFE INS. CO. v. WEBSTER.

Court of Appeals of Kentucky.

November 28, 1916

Appeal from Circuit Court, Campbell County.

Action by Carrie Webster against the Western & Southern Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

A. M Caldwell, of Newport, for appellant.

Judson A. Shuey and L. J. Crawford, both of Newport, for appellee.

CLARKE J.

Appellee filed this action seeking to recover of appellant the sum of $1,000, the amount of a policy issued by appellant upon the life of James P. Weesner on the 29th day of June, 1907, in which she was designated as the beneficiary, alleging that she was married to Weesner on the 14th day of February, 1906 and that he had died on or before the 22d day of March, 1915. She further alleged that the policy was issued and delivered to her and Weesner, but that she had paid all the premiums that were paid upon it, and that she had been divorced from insured by judgment of the Campbell circuit court on the 7th day of January, 1909; that the company had refused to accept the offered proof of Weesner's death, or to pay her the amount of the policy. A demurrer was filed to the petition and overruled. Appellant answered in three paragraphs. In the first paragraph it denied that Weesner was dead. In the second it denied that appellee was the legal wife of the insured or that she had any insurable interest in his life and tendered and paid into court the sum of $287.75, alleged to be the total amount of premiums, with interest and costs then accrued, paid by appellee, which it asked that appellee be required to accept in full settlement of all demands. In the third paragraph appellant alleged that if appellee ever had any interest, insurable or otherwise, in the policy of insurance sued on, or in the life of James P. Weesner, such rights were terminated by the judgment of divorce. A demurrer was sustained to the second and third paragraphs of the answer, and appellee declined to accept the amount tendered and paid into court in full satisfaction of her claim. At the conclusion of the evidence, both appellee and appellant entered a motion for a peremptory instruction. The motion of appellant was overruled, to which it excepted, while the motion of appellee was sustained, to which appellant objected and excepted, and the jury, pursuant to the instructions of the court, returned a verdict in favor of appellee for the full amount of the policy, upon which judgment was entered and from which judgment this appeal is prosecuted.

Numerous errors are relied upon by appellant for reversal; but, as the questions involved depend upon the validity of the contract, it will only be neecssary to construe the contract, in the light of the facts of record.

Since appellee alleged in her petition that "the said contract of insurance was entered into by and between the James P. Weesner, plaintiff and defendant therein," but that she had paid all the premiums paid to appellant upon the policy, it was necessary to the validity of the contract that she should have, at the time the contract was made, an insurable interest in the life of Weesner; otherwise it would have been a wagering contract and against public policy. Western & Southern Life Ins. Co. v. Grimes' Adm'r, 138 Ky. 338, 128 S.W. 65, and Rupp v. Western Life Indemnity Co., 138 Ky. 18, 127 S.W. 490, 29 L. R. A. (N. S.) 675. That appellee and Weesner were not legally married is admitted, and appellant contends that appellee therefore did not have an insurable interest in his life. In Joyce on Insurance, § 155, it is said:

"Although it is held that by the term wife is meant a lawful wife, yet a woman has an insurable interest in the life of a man with whom for years she had been living as his wife."

In Mutual Life Ins. Co. v. Martin, 108 Ky. 11, 55 S.W. 694, 21 Ky. Law Rep. 1465, this court said:

"Where a man and woman live together as husband and wife, either has an insurable interest in the life of the other, irrespective of whether there is a valid marriage."

See, also, 25 Cyc. 705.

It is true that, in all of the cases so holding which we have examined, the policy was procured by the insured and the premiums paid by him; but insurable interest is not dependent upon who pays the premiums, but solely upon the relationship the parties bear toward each other. As said in Warnock v. Davis, 104 U.S. 775, 26 L.Ed. 924:

"It is not easy to define with precision what will in all cases constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated generally, however, to be such an interest, arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life."

As the policy was issued upon the life of Weesner while he and appellee were living together as husband and wife pursuant to a formal but illegal marriage, and they were recognized as such by friends and acquaintances, we conclude appellee had, when the policy was issued, an insurable interest in the life of Weesner, such as permitted her to pay the premiums thereon, and that the contract was not therefore void.

But one other question with reference to the policy remains, and that is: Did the judgment annulling the marriage of appellee and the insured, upon the ground that it was void ab initio because Weesner had a...