Bruer v. Kansas Mutual Life Insurance

ELLISON, J. The defendant issued a life insurance policy whereby it insured the life of Mrs. Mercy A. Carey in favor of her son C. E. Carey in the sum of $3,000. Afterwards, Mrs. Carey and her son assigned the policy to plaintiff. On the day of the assignment, and in connection with it, plaintiff and C. E. Carey entered into a contract whereby it was agreed that plaintiff should pay the premiums on said policy and on the death of Mrs. Carey he should secure $2,000 of the sum payable in! the policy and C. E. _Carey should receive the remaining $1,000. Under this contract, plaintiff paid to the company three quarterly premiums amounting to $174.39. The defendant assented to the assignment under the impression that plaintiff was a creditor of the insured. But when it learned of the facts upon [544] ■which, the assignment was based, it wrote plaintiff that it was not lawful for him to take an assignment of the-policy merely in consideration of his advancing- money to keep up the insurance. Afterwards, the company denied any liability to plaintiff; that is to say, denied the validity of the assignment and contract therewith, or that it would become liable to pay plaintiff any part of the policy on the death of Mrs. Carey. The company also denied plaintiff’s right to a return of the premiums he had paid. Plaintiff thereupon instituted this action to recover such premiums, and prevailed in the trial court. Plaintiff had no insurable interest in Mrs. Carey as a creditor or otherwise, and it is conceded that the contract of assignment, made as stated, was void as against the policy of the law. We think that plaintiff ought not to be allowed to recover. His right of action is necessarily based on an illegal contract, and being so, he is shut off from aid at the hands of the courts. To prove his case against the defendant he must necessarily rely upon the manner of his ownership of the policy. In investigating that question, the consideration leading thereto and supporting such ownership, would be brought out and thus his own illegal and wrongful conduct be made to appear. His case in the brief in his behalf is put upon the idea that the contract of insurance is executory until the death of the assured, and that he has a right to retire from the contract at any time before it becomes executed. That principle of law is not applicable to the facts. The contract whereby he became a party to the transaction was executed. The only thing which gave him any right or interest in the transaction and upon which he must depend to sustain his claim, is his wrongful act, and it precludes him from obtaining redress at the hands of the law. ■ We have examined the authorities cited by plaintiff and have gone over the reasons assigned by him [545] in support of the judgment; and while not questioning many of the statements of legal principles we deny their application. The authoriti es relied upon by defendant will be found collected in briefs of counsel. The judgment is reversed.