Wisecup v. American Ins. Co.

• Decision Date: 12 December 1914
• Docket Number: No. 1237.,1237.
• Citation: 172 S.W. 73
• Parties: WISECUP v. AMERICAN INS. CO. OF NEWARK, N. J.
• Court: Missouri Court of Appeals

172 S.W. 73

WISECUP v. AMERICAN INS. CO. OF NEWARK, N. J.

No. 1237.

Springfield Court of Appeals. Missouri.

December 12, 1914.

Rehearing Denied January 7, 1915.

1. INSURANCE (§ 371) — WAIVER — INSURABLE INTEREST.

An insurance company cannot be held liable on a policy on the theory of waiver, if insured had no insurable interest.

2. INSURANCE (§ 115) — INSURABLE INTEREST — SEPARATE PROPERTY OF WIFE.

A husband conveying property to a third person to convey to his wife, so as to vest the absolute title in her, which, under the statute, made it her separate property under her absolute control, has thereafter no insurable interest in such property, though, by reason of the marital relation, he collects the rents and uses the money as his own.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by J. E. Wisecup against the American Insurance Company of Newark, N. J. From a judgment for plaintiff, defendant appeals. Reversed.

John Schmook and Paul M. O'Day, both of Springfield, for appellant. Neville & Gorman, of Springfield, for respondent.

STURGIS, J.

This is a suit on a policy of insurance on a dwelling house in Webb City, Mo., wherein it is provided that same shall be void in case the insured is not the sole and unconditional owner of the same in fee both at law and in equity. The property insured burned during the life of the policy. The petition admits and the evidence shows that the legal title was in plaintiff's wife both at the time the policy was issued and when the property was destroyed by fire. The plaintiff had at one time owned the property, but several years before this policy was issued he had deliberately and advisedly conveyed the same by ordinary deed to a third party, and that party in turn conveyed same to his wife for the purpose of vesting in her the full title.

Plaintiff's evidence goes no further than to show that, after this conveyance, he and his wife had occupied this dwelling house and that the plaintiff (husband) had collected the rents from same and used the money thus collected as his own. The court instructed the jury that, if defendant's agent issuing the policy knew the condition of the title at the time of doing so, then the fact that the title was in the wife will not prevent plaintiff's recovery, provided plaintiff was in control and possession of the property collecting the rents thereof. If it should be deemed material, there is no showing made that the wife had agreed, verbally or otherwise, to hold this property for the husband, or to reconvey it to him at any time, or that she agreed to let him hold or use it as his own, or collect and use the rents therefrom for any length of time. It is just such possession and control of the wife's property by the husband as naturally grows out of the marital relations and his collection of rents by her sufferance.

The question arises as to whether the husband had any insurable interest in this property of his wife. If he had not, the policy of insurance is void as against public policy, and the question of waiver, by reason of the agent's knowledge of the title being in the wife, cuts no figure. The defendant company could not be held to a contract on the principle of waiver, which it could not make in the first instance. Agricultural Ins. Co. v. Montague, 38 Mich. 548, 31 Am. Rep. 326; Tyree v. Virginia F. & M. Ins. Co., 55 W. Va. 63, 46 S. E. 706, 66 L. R. A. 657, 104 Am. St. Rep. 983, 2 Ann. Cas. 30; Planters' Mut. Ins. Co. v. Loyd, 71 Ark. 292, 75 S. W. 725. It is so universally held that contracts of insurance are void, unless the insured has some insurable interest in the subject-matter thereof, that we will not enter into any discussion of that principle. The rule is so announced in several of the cases herein cited and assumed in the others.

As to the husband having any insurable interest in his wife's real estate, the rule is stated in 19 Cyc. 589, thus:

"Under statutes giving a married woman the right to acquire and hold real estate free from any control of her husband thereover or any liability thereof on account of his debts, the husband of such married woman has no insurable interest in her real property thus acquired and held; nor does it constitute an insurable interest on the part of the husband that a conveyance by the wife of her separate estate in property acquired from the husband can only be made by his joining in the deed."

In Bassett v. Farmers' & Merchants' Ins. Co., 85 Neb. 85, 122 N. W. 703, 19 Ann. Cas. 252, the husband had purchased and caused to be conveyed to his wife a farm. The husband insured the dwelling house thereon in his own name. In a suit on this policy, the court said:

"In jurisdictions where the lawmaking power has completely emancipated a married woman's property from the control of her husband, the possibility that he will receive a benefit from the real estate of which she may die seised is not considered an insurable interest during her lifetime. * * * So far as the proof goes, plaintiff holds possession of the farm by sufferance of his wife, and not by force of any lawful or equitable right. Counsel argue that Mrs. Bassett has only a dry, naked, legal title to the farm, and that the beneficial one is in plaintiff, but the difficulty is that the proof does not sustain that assumption. Mrs. Bassett did not testify, nor has plaintiff stated, that there was any arrangement between himself and wife, oral or otherwise, by which he was to have a life estate in the farm."

In Oatman v. Bankers' & Merchants' Mut. Fire Relief Ass'n, 66 Or. 388, 133 Pac. 1183, the court said:

"In an action on an insurance policy, the plaintiff must allege and prove that the insured had an insurable interest in the property, both at the time of the making of the contract of insurance and at the time of the loss. [Cases cited.] In this state a husband has no insurable interest in his wife's property. 19 Cyc. 589."

In German-American Ins. Co. v. Paul, 2 Ind. T. 625, 53 S. W. 442, the court considered this question under the laws of...