McKee v. Phœnix Insurance

Scott, Judge, delivered the opinion of the court. On what ground did the company claim to hold the premiums paid after the divorce, even admitting that the divorce [386] determines the contract ? Will tliey pretend to bold them on the ground that they were ignorant of the fact that a divorce had been obtained ? If they were ignorant of the fact, would that entitle them against all conscience to retain this unfortunate woman’s money ? The clause in the contract, that “ in every case where this policy shall cease or become null or void, all previous payments made thereon shall be forfeited to the said company,” had nothing to do with these payments; nor do we presume it will have any application where the policy ceases by the wrongful act of the company. If the defendant (the Company) wrongfully determined the contract by refusing to receive a premium when it was due, then the plaintiff had a right to treat the policy as at an end and to recover all the money she had paid under it. We will not undertake to say, from the pleadings in the cause, as they appear to us, that the wife, by suing for and obtaining a divorce from her husband, ceased to have such an .interest in his life as would render an assurance of it by her illegal. There seems to be a difference of opinion among jurists as to the legality of life insurances, where the party insuring has no interest whatever depending on the life of the person insured. (Philips on Ins. p. 131; Angel on Fire and Life Insurance, 307.) There is nothing in the contract as stated in the petition, which shows it to be a wagering one or in anywise contrary to public policy. We see no danger to the interests of the community in sanctioning this policy. Why should not a mother, who has four children by a man from whom she has been divorced, be permitted to insure the life of that father to whom her children may look for support ? If the care and custody of the children have by the decree of a divorce been entrusted to the mother, that will not extinguish the obligation of the father to provide for them. It is nevertheless his duty, though divorced and the care of the children taken from him, to support them. That natural obligation, by his own act, can not be impaired or destroyed. [387] There may be a provision decreed the wife for her support to be paid by the husband. This would in effect make her the creditor of her husband, and, being so, she would, without controversy, have a right to insure his life. The question of the measure of damages for a breach of the contract to insure the life of the husband, he being still alive, has not been argued and we express no opinion in relation to it. Certainly the mere return of the premiums with interest would not be the standard in all cases. In many it would be very unjust, especially after the policy had continued for years and the period of existenc^jjaff Consequently been shortened. If the person wl^s<^pj^j'ij! though alive, should be laboring under ú speedily result in his dissolution, the permitted to escape the payment of the an life was assured, by putting an end to th| contra ranee. Eeversed and remanded; Judge Napton concurring. Judge Eichardson not sitting.