
    COURTS — INSURANCE.
    [Lawrence (4th) Circuit Court,
    October, 1905.]
    Walters and Cherrington, JJ.
    David Evans v. J. W. Moore, Admr.
    1. Decision of Supreme Court Limited to the Particular State of Facts Involved, and Enunciating no Governing Principles in Syllabus, not Absolutely Final.
    A decision by the Supreme Court of this state will not be construed by an inferior court to be absolutely decisive upon a question of substantive law where it appears that the court confined itself in the consideration to the particular state of facts involved, and no syllabus was prepared enunciating general governing principles thereon, if good conscience and public policy dictate a contrary decision.
    2. Life Insurance Policy not Assignable to One not Having Insurable Interest, WHEN.
    A policy on the life of a person is not assignable to one who has no insurable interest in the life of the deceased, and whose sole interest therein would rest upon a mere speculative or wagering basis. Eckle v. Renner, 41 Ó. S. 232, distinguished.
    3. Rule as to Insurable Interest Applied.
    M, a married woman, the owner of three policies of life insurance upon her own life, transferred the same by proper assignment to E, he having no insurable interest in her life, in consideration that he would pay all premiums thereafter until her death, and after her decease pay her burial expenses and remove the bodies of her deceased mother and sister from an old to a new cemetery. The balance left from the proceeds was to be the property of E. M at the date of the transfer, was in poor financial circumstances, in failing health, afflicted with consumption which caused her death within eighteen months after the assignment: Held, E could recover, only the amounts he had paid, with interest.
    [Syllabus by the court.]
    
      ERROR to Lawrence common pleas court.
    C. E. Belcher, for plaintiff Jin error;'
    Johnson & Corn, for defendant in error-.
   WALTERS, J.

The c^se.,pf jDayifl =H., Eyans.-v.. J. ,M9ore.,..as administrator of Georgia .Hamilton Moore is in this’court on petition in error. In 1899, Georgia Hamilton, being then single, and a resident of this county and a young lady about twenty-one years of age, took out three several policies of; insurance upon her-life,1 in what is known/,as’ the industrial companies. On November 2, 1902, she was married to the now defendant in error, J. W. Moore. On April 24, 1903, she executed what purported to be an assignment or substitution of the beneficiaries named in the policy, by which assignment or, substitution she named the plaintiff in error, David H. Evans. And such assignment or substitution of the beneficiary was "addressed to the company and signed1 by her and witnesses, providing that.in the case, of her death before the said David H. Evans, that the money should be paid upon these policies to the said Evans. In October, 1904, Mrs. 'Moore died. Before her death, how.ever, she instituted, a suit - in replevin to recover the, possession of the po&cies named; claiming that she was the owner of the same and therefore entitled to the- possession. The. case was tried after her de¿th, the administrator -being substituted in her person and- stead; and, a jury having been, waived,"the case'was submitted to the court below upon all .th.e evidence, and the. exhibits,, the court finding judgment for the plaintiff below. Error is prosecuted from that judgment. There are a number of errors assigned, only a few of which are relied upon.

In the first place it is claimed by the defendant in error that the plaintiff in error, David H. Evans, having ho insurable interest in the life of Georgia Hamilton, that' she could not make him a, beneficiary, either by assignment or otherwise. It is claimed, however, on behalf of the defendant in error, that the Supreme. Court of Ohio has decided that question. • ■ • ' . • .

. . "..There is ' a'straight .and square conflict in the authorities in the courts of 'the various states as to whether or not a person not having an /incurable interest in'the life of the insured can take and -accept, by assignment of, - or original, policy -taken out in the first- place upon the . life pi the insured — that no, person except .those who .¿re related by blood or affinity or who are the creditors or the sureties of the insured and those having some insurable interest in the' life off the person insured can take a transfer or assignment of the policy.

The largest number-'of-the'state courts-of the-'‘Union !(a collection of cases-is -made dn Elliott','• Insurance)'' ‘se'ems'- to be'in - flavor "of the doctrine that a-policy of life insurance is like any other chose in: action, and may pass ’by-‘assignment, regardless of the'insurable interest that the assignee'inay have in the-life-of the-irísúfed. '-The United States'Supreme'.'Court'and’the federal'courts generally, and quite-a number-of ‘ state courts' hold to thé Other'proposition'and principle, that: neper son except -those having insurhble‘interést -in 'the life of1 the insured can - take’such'an-assignment of a-polrcy; that it’is a ■'Wagering contract ;■ that - it is against public'policy, and therefore'void; that it stimulates.-and creates a- desire on the part'of the person^'receiving the assignment-that the death Of' the’ insured may: be-hastened/ And it is- set out-'by' the authorities that'Claim the opposite doctrine that the persons whó stánd in the relation to the insured growing-out 'of affinity or -contingent - affinity,' blood, or a‘debtor or surety, have'a tie'that-'interests them in the continuation, of the life of-the insured; a áort of'correlative proposition1 that--Offsets the interest or desire they may have tó hasten the death of the insured'.

It is claimed, however, that -the Supreme Court of Ohio, in the case of Eckel v. Benner, 41 Ohio St. 232, decides this question in'favor of the assignment of-policies to those who have no insurable interest. It seems that, in this case, a-gentleman took out a‘policy of insurance'upon his own life, for his-own benefit, and kept it alive'by the due payment of premiums, for the'sum-of' one"thousand'dollars.' Hé had neither wife nor child, -but became fond,- -it is said, of á child about nine years of age, the daughter of a friend of his-, -and -that -he assigned the policy to her'and delivered-the-policy to-her father for her.- He subsequently died, during1 the minority of the child:" It was held that one who has obtained- a valid insurance upon his' own life, may -dispose of it as he sees fit in the absence of prohibitory'legislation, or contract stipulation-. It is immaterial,-in such case, that the'assignee has no incurable-interest in the life.

It will be observed; • by the facts already stated in this case, that they contain no element of ■ traffic or contract relation or burdens assumed on the part of the'donee or-transferee of this-policy to the person whose life was insured; that the assignor' paid' all the premiums, both before and' after the assignment,'and delivered it-to the father-of the child; that the child’was only nine years of áge, and-was,' at the'time,, and perhaps düring all the-time of her minority and'-until the decease of the 'assignor/incapable'of -entertaining' any desire for the death' of the-insured;" : ■ ■ :-¡ • , ■ ...

It will be further observed that no burden was east upon the assignee, the child, or the father of the child, by way of the payment of premiums or any other thing to be performed. In other words, that it was purely and simply a gift from the insured, who had neither wife nor child, to this child that he had become fond of; 'that the paper policy evidencing the gift- itself was delivered to the father, properly assigned, to be delivered to the child and for her. Therefore it would seem evident, from the facts in that case, that it was simply the execution by delivery of the gift of the policy; no one dependent upon the payment by the insured of all premiums thereafter; no burden cast upon the assignee to do anything; no contract or arrangement entered into by the insured and the assignee, the child, or the father for her, that he was to do any single thing by way of accepting and assuming any burdens in that relation.

Now, this ease has often been cited by courts and by counsel in cases involving the delivery of gifts from donor to donee as showing when the delivery tabes place, in fact, as often cited for that purpose as any other; while in the text-books on insurance it is cited as authority in Ohio for the proposition that one having no insurable interest may take, by assignment, a policy of insurance. But it will be observed that the holding of the court goes beyond the facts in the case. It may be further observed that the court in tlie case did not publish any syllabus to the case; and, as we all know, the syllabus contains the law of any case decided since, I believe, 5 Ohio State. No syllabus appears in any published reports of this case. I have given, substantially, the whole of the case — a case of such importance that if the Supreme Court untended to lay down such an important rule in regard-to the transfer of life insurance policies, it would seem that some consideration would have been given to the case; a fuller statement made; the syllabus would have been published and the authorities more or less reviewed. We must take all decisions of all courts as referring to particular facts that they have under consideration; and, as I have before related, the facts in this case did not warrant the court, nor perhaps did the court intend to lay down the general rule in regard to the transfer of life insurance policies. At least, the facts did not warrant it.

We are, therefore, of the opinion that so far as that case is concerned and the facts stated upon which the decision is based, it does not contain a statement of the law of Ohio on that subject. Being, therefore, without any recognized authority, as we view it, in Ohio, in regard to the .assignment of such policies to persons having no interest in the life of the insured, the matter rests with this court as an initial proposition. And, there being a conflict of authorities in the different states of the Union — a square conflict — in regard to it, we should be governed more by the reason and logic of the different propositions than by the decided cases, unless their reasons appeal to us. Therefore, it is not in the number of decided cases we must look to' find the true principle which should govern, but rather to the right reason and the better reason and the better logic that underlies the truth to be decided.

As we said before, and as set out by Justice Field in deciding the case of Warnock v. Davis, 5 O. F. D. 103 [104 U. S. 775, 783; 26 L. Ed. 924], decided in 1882, persons who take out and who become the assignees of the policy of insurance upon the life of another in whose life they have no interest, no interest by blood, love, natural affection, by debt created, or a surety or liability incurred which would offset the desire on the part of the assignee to hasten the death of the insured, rest their interest upon nothing but a speculative or wagering basis.

Take the facts in this case. The plaintiff in error, Mr. Evans, according to his own statement, was to receive these policies, and to receive them upon this condition: That he was to pay the premiums on the policies during her life and, at her death,, he was to bury her and disinter the bodies of her mother and sister and brother I believe, who were buried in the old Nelly cemetery, and transfer them to the new cemetery. There was a direct contract — the contract that he was to have these policies after those expenses were paid out of the policies.

All in excess of the money that he paid out, or that he would have paid out after the death of the insured, Georgia Hamilton Moore, in burying her and removing the bodies of her mother and other members of her family — the balance was to be his. Now, as Justice Field says,, all over and above this actual outlay rested in — What? A pure speculation, a wagering, if you please, upon her death. No tie of relationship, no blood, no natural love or affection, no debt, no surety upon which she was bound for her debt, no obligation in the world rested upon him, outside of the premiums that he might pay and these other debts for the transferring of the bodies and her burial; and as to what was over and above that, it was simply speculative and wagering, depending upon her death, and he, Evans, would have a direct interest in hastening her death. As in other cases just , like this, we have the same spectacle in the court here of a woman insured, in failing health, for some time before she died afflicted with consumption, all parties and she herself knowing that it was only a question of a short time when she must die; and then we have the unseemly spectacle that we have had in this case - in. .thisVicourt,-. of. a-.fight' before .the'.death.,of-..the, insured for .the1'money.

Now, to prevent such:‘things .as.-that, to prevent this .speculation, this wagering, the healthy, rule, as..we think, has .been.-adopted,by the United States • Supreme‘Court, .and the* federal courts,-, by. which they-say that’a'person-having mb--insurable interest,: a‘Stranger-to the, blood, .to . whom no debt is Owing by the insured,-no.¡surety or other .contract obligation by the-.assignee--forAhe insured- .by. which to .offset-the -desire on the-part Of the transferee' to'1 hasten the’death, of the insured — that under- such circumstances — ~it seems;-to us- that,the,better rule)..the rule of public-policy,' the--rule which would-forbid,and.-,shut out .just* such eases as "the'one'We ha-ve mow-hefore-us, isthewisei and beneficent, rule based upbn principles of-public-policy..- That1 fio person, should, .be .allowed to speculate or-wager-upon-the-.death of another, and .then do those things or create a1 desire in the:-breast- of the assignee of the person insured-where he would reap-the'direct;.money value should .death,.be brought about. •••.■ . .-- , ■ .v, .. ... .i . •

-Now-,'it'¡is-useless-for-;us to -go-Over ..the-,authorities, . May and Elliott On Insurance- both. lay. down -■ both • principles and give --the., authorities'and states'that-hold'themv¡and it.,would be -useless • for.,us to go nver"the authorities. >pro and con.-, They come' down .simply..to ,the-one simple, naked proposition. -It. is .said by .counsel that'the. case, of Eckel v. Renner, supra, has become the rule as-it were,'in regard to life insurance policies-,in'Ohio-,, and that they-havd since-that, ease was decided- been-transferred‘.ad' Kbitum,), the-same, tas-any. other chose, inaction- is assigned and-transíerred; and-that'it-would-interfere.-with-the-business arid'coimmer'eial'frdde that-has already, been instituted, .pid the business relations of-the;-people between1 tbe insured and, the .assignee, or those' holding policies - would- be-, disturbed, -We- cannot hold-to, .that .view for the reason that the view we do hold makes,safe and sound and whole any person who -has ’advanced money under circumstances like-this, in regard-to' policies,■- and- that-he must-be paid -his- advancement, together with 6 per cent-interest.' ■ And-certainly-,if -those advancing .or .trading in-policies -get hack -what-they have, paid,.-with, the.-usual-interest, they cannot complain and-Would-be protected.1 y-..

Now, it is hardly'necessary-for-the court'to go, into--an examination o'f’thid reeord- but we’will examine'one or .two exceptions,,briefly. Mr. O’ShaughnesSy was'called1 as’fi'witness''for,defendant,!-,,On,page,29 of the reeord he-'was disked this- ¡question: ,;

“I 'will' ask!;yo'u'-if->Mr..;‘'Hamilton'said-‘anything with- reference. to. tbet eb,an,ge of .beneficiary, and transfer, >of tbe policies? • Whatdid-he -say?”

. Objectipn was made by. the defendant and.’the objection-sustained. Counsel for defendant stated.,that ;thpy,. expected witness to.state■ that Mr. Hamilton, beneficiary tinder one ¡of the policies, was present and consented to the change, and, stated,,that, jhe had been. advising, his daughter to,’make the.change. He^was then asked, substantially,..the same, question; to which he testifiejdj¡that.M¡r., Hamilton said.,he had. been advising his" daughter to turn them over to,,Mr. .Evans; it wa?..the best thing [she eonld do, for. .he couldn’.t help her; and fhe.boy, copldn/t,help her, and he knew that Evans would treat tjrem,.right... The question ¡that was answered wás, substantially, ¿he one ¡that the c.ourt ruled put-!,; .....

On page.31, on redirect examination,, , the,.same, .wjtne^ ¡was-.asked:

“I will ask you if, in,that.¡conversation, Mr.,Hamilton;made-«this-■statement, in answer to, a,.que§ti,on from me, whether,he kne,W'-what -the agreement was between Georgia and Evans: ‘ It was the understanding that he was to pay, the .doctor bill and the funeral expenses, apd,,buy a lot in Woodland and! also give me money to raise my,people in. iapUyis. graveyard — fiye up fhpre.’ Did you heqr him, m.ake th?f statement.?.1! \

Objection by defendant, .and objection sustained. -.Then...the-'following. question:-

“I will ask.you if.you .heard-him- say-in that sainé cohversatíonj-'in" .answer, to this, question,: , ‘.You never, heard, -the- agreement' kbetvideir Georgia and.-Dice? ■ . If.ha said, ‘I heard it talked -over1 dn the h’óiisé-’ frequently.’ And then this -question, was asked' him': Whit^h'' you say it was.?!. And did he,say; ‘He 'was-to. pay the doctor'billV^Ybit1, expect a .person to.be sick before'they die. - And-giVe hér' a'; fiíSt-eláS^' funeral; buy a lot in Woodland and raise iny family 'Or givé ih‘e 'ifrotíéy' •to raise ..my. family, and. take, them-to Woodland..' Three'boys '-small fellows.’ Did he say.,fhat?’’. And .the. answer was “Yes; sir-yhe-did1.1”’

,, That, is substantially the-same question-as before,'the sahfé' purport ■and meaning;, and-no.-substantial-prejudice-eould"arise.

.This question'was-askted'of Mary B’arr'Oh:'

' - “Stat’d tdthe’dótirt tfhat that conversation was.” (This.is a conversation she' had'"faith 'the deceased.) “A. I asked her if. her, being married now 'wóiil'd make any' difference with these policies, .and, ghg said, ‘NO,' she' didn’t'think* so.’' ” ’ , ¡,.

This answer, pn mption^pf, plaintiff,, was, excluded. -..That;-it a-p^; pears to jthe eourt,(was not substantially evidence, but-simply an,-opinion! that she expressed, that she didn’t think her marriage would have anything to do with the policies.

On page 57, Mrs. Mayne testified that Mr. Moore came to her house and they had a conversation something like this:

“He came to my house and told me his reasons for coming. I says ‘I can’t go and testify a thing in your favor.’ And he says ‘You can swear I was good to my wife,’ and I says,. ‘Yes, I can; but that has nothing to do with Evans carrying this insurance long before you knew that family.’ I says, ‘You was only married to her such a few months, why do you want what is rightfully Mr. Evans’?’ And he says, ‘I took out insurance for my wife after I married her. That is why I want her insurance.’ That’s just the conversation we had.”

Now, that did not bear upon any issue in the case. It was simply a conversation as to what she knew; and nothing was expressed in the conversation of any material value, reflecting upon the issues in the case.

On page 58, the funeral director was called and asked whether or not Evans had come to make any arrangements, after the death of Mrs. Moore, as to her funeral, and the court excluded it. There was no contest, so far as the issues in-this case are concerned, as to the fact that Evans was ready and willing to perform his part of the contract. No issue was made as to that anywhere in the evidence; and the evidence being objected to and then offered on the part of Evans again when Evans testified-, was then excluded by a remark of the court that it didn’t make any difference, it seems to us it would not; because, by the objection, the defendant himself would be estopped from afterwards claiming that no effort was made on the part of Evans to carry out his promise to bury the deceased.

Now, there has been a great deal of argument here as to the question whether or not this judgment was against the manifest weight of the evidence. As to that, we have but little to say. We might go over all this evidence in detail, and at the same time would not express1 our opinion upon the subject any clearer than to say we have listened patiently and have read considerable of the testimony outside of that read by the attorneys, in our consultation. The whole case of the plaintiff below rested upon the testimony of Mr. Hamilton, the old gentleman. His testimony is indefinite as to the time the conversation took place or where it took place; but he does say that he heard it, and that Evans agreed ydth his daughter at that time that he would take the policies, and he was to bury her and take up the bodies of his wife and three little children from the old Kelly cemetery and remove them; and she had the right to have the policies returned at any time during her life, upon her demand, and upon her paying to him what he had expended, together with 8 per cent interest.

If the old gentleman is to be believed, this would probably make out the case. But, as opposed to this is the declaration, or the declarations, of the deceased, Georgia Hamilton, as to what the contract was-, the testimony of Mr. Evans as to what it was; and the larger number of witnesses who testified by way of contradiction to Mr. Hamilton and what Mr. Hamilton said, up in the office of Mr. Belcher, where he made no such claim as that the policies were to be returned to her in her lifetime, upon her demand, and that she was to pay Evans what he had paid out, together with 8 per cent interest. No mention was made of that in any conversation detailed by any witness with Mr. Hamilton; but he always stopped short of that and said that he was to pay the. funeral expenses and to disinter the bodies of his wife and children and to pay her doctor bill.

It devolved upon the plaintiff below to make out his case by preponderance of the evidence; and if we were deciding the. case, we would have to say it was manifestly against the weight'of the evidence and would so do. But for the ruling of the court upon the proposition of the law, the case would be reversed. As it is, the ease will be affirmed.

Jones and Cherrington, JJ., concur.  