
    The National Benefit Life Ins. Co. v. Davis, Admr.
    (Decided May 13, 1929.)
    
      
      Mr. John E. Roundtree, for plaintiff in error.
    
      Mr. Harry E. Davis, for defendant in error.
   Vickery, P. J.

This cause comes into this court on a petition in error to the municipal court of the city of Cleveland, the purpose being to reverse a judgment against the plaintiff in error in favor of the defendant in error, Harry E. Davis, who as administrator of Samuel Reed, deceased, brought an action in the municipal court to recover on an insurance policy taken out in his lifetime by Reed, in which policy the sole beneficiary was his wife, Dora Reed.

The plaintiff below, Harry E. Davis, alleged in his statement of claim that he had been duly appointed and qualified as administrator of the estate of Samuel Reed, deceased, and then he goes on to allege the issuing of this policy on the life of Reed, that it was made payable to Dora Reed, his wife, as beneficiary, and that the insured, Samuel Reed, was feloniously killed by the said Dora Reed, his wife, named as beneficiary in said policy, which said felonious killing and the conviction of the crime of manslaughter for said killing made it impossible, it was alleged in the statement of claim, for her as such beneficiary to recover, inasmuch as she feloniously caused the death of the insured, and that therefore he, as administrator, brings this suit for the benefit of the estate. And he then made other allegations along this line.

To this statement of claim a demurrer was filed, and after argument in the lower court the court overruled the demurrer, whereupon the defendant below, the insurance company, filed an answer which set up the same state of facts that the administrator had set up in his statement of claim, with some other allegations which amounted rather to conclusions than a statement of new facts. A reply was filed to this answer by the plaintiff below, and after the pleadings were all in a motion was made by the plaintiff for judgment upon the pleadings, and the court, after hearing the argument, sustained such motion and rendered a judgment upon the pleadings; and, the amount not being in dispute, entered up judgment for the amount of the policy, and it is to reverse that judgment that error is prosecuted here.

The plaintiff below excused the statutory requirements in not attaching to his pleading the insurance policy, or a copy thereof, for the reason that it was in the possession of the defendant company, and,therefore, we have not had the aid that might be gathered from the contents of this policy; but inasmuch as it was in the possession of the defendant, and it not seeing fit to produce it, we must assume that it contains the allegations as claimed for it, and that the defendant admits that it contains the provisions as claimed by plaintiff below.

It is urged here that these pleadings, the answer, and the reply, together with the statement of claim, raise an issue of fact, and that the court erred in finding in favor of the plaintiff upon the motion for a judgment upon the pleadings. An examination of these pleadings will show that the court was consistent, that no other issue was raised than was raised by the statement of claim and the demurrer, and the question, became simply one of law,

Now the right of the plaintiff to maintain this action is based upon the decision of our Supreme Court in the case of Filmore v. Metropolitan Life Ins. Co., 82 Ohio St., 208, 92 N. E., 26, 28 L. R. A. (N. S.), 675, 137 Am. St. Rep., 778. The first proposition of the syllabus is as follows: "The beneficiary in a life insurance policy cannot recover thereon where the death of the assured is caused by the intentional and felonious act of such beneficiary.”

The statement of claim in this case sets up the fact, and the demurrer admits it, and the answer and the reply did nothing more than reassert the same thing that was before the court when the demurrer was filed. We think that the decision of the Supreme Court of Ohio in the 82d Ohio State, supra, gives voice to the general trend of authority upon this proposition, for, though there were no statute, it would be contrary to public policy to have a person as beneficiary gain by his felonious and criminal act the right to take the insurance upon the life of the insured, when such person feloniously and wilfully takes the life of the insured. Such, I say, would be contrary to public policy.

The question then arises whether this policy becomes uncollectible because the sole beneficiary, being in a position where she cannot collect, is to indirectly have the benefit of some part of this policy and the insurance. It might be that the policy had been carried for a great many years, and there had been a large amount of premiums paid on the policy, and manifestly it would be wrong to permit the insurance company to avoid payment and keep the premiums as they had been paid, for we assume there was no provision in this policy which made it void upon the felonious killing by the beneficiary of the insured. It then must be a contract in force, and it must be for the benefit of somebody. Manifestly it cannot be for the benefit of the insurance company. Its benefit came from its premiums, and its liability to pay accrued upon the death of the insured, unless there be some reason why. the policy became void.

Fortunately we are not left to conjecture upon this subject, for the question has been decided many times.

We quote the following from 25 Cyclopedia of Law and Procedure, page 895: “If the assignee or beneficiary feloniously causes the death of the assured, there can be no recovery in favor of such wrongdoer under the policy, regardless of whether there is any violation of the stipulations in the policy itself. Where the assignee or beneficiary is thus defeated, the amount of the policy becomes payable to the heirs or personal representatives who in the absence of the assignment or designation of a beneficiary would have been entitled to the proceeds of the insurance.”

This seems to be an authority exactly in point with the facts in the instant case, and in 37 Corpus Juris, page 576, we find the following: “Ordinarily where the assignee or beneficiary is defeated by his felonious act in causing the death of insured, the liability of the company is not canceled or extinguished, and the amount of the policy becomes payable to the heirs or personal representatives who in the absence of the assignment or designation of a beneficiary would have been entitled to the proceeds of the insurance, even though it is not expressly so provided by statute.”

In volume 6, Cooley’s Briefs on Insurance (2d Ed.), page 5229, the author says: “The insurer’s liability is not absolutely terminated, but the policy will be enforced for the benefit of the heirs or estate of the insured. ’ ’

In volume 2, Joyce on Insurance, page 1827, the author states that the beneficiary who feloniously kills the insured cannot take, but that the policy may be enforced by the administrator on the theory of a resulting trust for the benefit of the estate.

From these authorities, and probably many more are to be found, we must come to the conclusion that, although the named beneficiary cannot recover because of the felonious and willful killing of the insured, yet the insurance is still recoverable, and it is then for the benefit of the estate, and in this case H. E. Davis was appointed administrator, and as such administrator brings this suit.

Now it is argued that, if the administrator is permitted to recover, the wife or widow of the insured, being one of those entitled to a distributive share of the estate, would thus indirectly take the benefits, or be interested in the benefits derived from the suit, and, therefore, it will be defeating the authority laid down in 82 Ohio State, supra. It must be remembered, however, that she will not take in such case as a beneficiary, but the money goes into the estate, which, but for her felonious and willful act, had the insured died, would have all gone to her, and no part of it to the estate; but in cases like the instant case, if she gets anything, it will not be by way of beneficiary, but as one of those who are entitled to a distributive share of the husband’s estate, and before her distributive share could be obtained by her the debts of the estate and the cost of administration must have been paid; but, however this may be, it is not right that the insurance company after receiving the premiums should be able to avoid responsibility upon the policy. It has got what it contracted for, and it is only fair and right that the estate should get the results of the insurance policy; and that the person who caused the death of the husband incidentally gets something is no legal reason why the estate should not recover.

We have gone over this whole record, have heard the arguments of counsel, and have satisfied ourselves that there is no error in this record that would warrant us in disturbing the finding of the court.

The judgment of the court will, therefore, be affirmed.

Judgment affirmed.

Sullivan and Levine, JJ., concur.  