Equitable Life Assurance Society v. Paterson , 41 Ga. 338 ( 1870 )

McCAY, J.

The law prohibiting the insurance of a life by another, who has no- interest in the continuance of that life, is founded in a sound public policy. It is intended to prevent gaming policies, and to avoid that inducement to crime which would exist if it were permitted : Bunyon on Rife Ins., 10, 15; Rev. Code, sec. 2776. *We do not think, however, the case at the bar comes within the reason of the rule. We cannot, it is true, agree with the Court below, that a marriage, where one of the parties has a lawful husband or wife living, is a legal marriage for all civil purposes, until it is set aside. Our Code, sections 1698 and 1701, declares such a marriage void. Nor is it by our law a ground of divorce. At any rate it is not among the grounds enumerated in section 1711 of the Code. Whether our Courts might not entertain a proceeding to have such a marriage declared void, it is not necessary to discuss.

It is true, that under our law, whilst such a marriage is void “the children born before the commencement of a prosecution are legitimate, notwithstanding the invalidity of such marriage: Revised Code, section 4457. It is true, also, that a man holding out a woman as his wife is bound for her acts as though she were his wife. But this holds even if there be in fact no marriage. The most that can be said is that, for some purposes, the law treats the marriage as existing. But these are purposes referring to the rights of others, and not to the rights of the parties themselves.

As respects the parties and their rights, we do not know of a particular in which such a marriage is otherwise than void. Surelv the wife is not entitled to dower and a year’s support, etc., etc.

By the Common Law, a marriage between two persons, when one was under a previously undissolved marriage, is absolutely void and thus did not require a sentence of divorce-: Shelford 223, and cases cited. Certain canonical disabilities rendered a marriage voidable—as consanguinity, affinity, bodily infirmity, etc. .In these cases, a sentence declaring the marriage void was necessary: Shelford, 223. To this class may, perhaps, be added pre-contract: Case of Anne Boleyn.

But impediments to marriage, such as idiocy, former marriage, etc., which existed at law, made the marriage void: Poynter on Marriage, 84.

The existence in England of two Courts—Ecclesiastical and Common Law—one administering the cannon and the other *tfie Common Law, kept these distinctions very clear. Here, where we administer, by 'one Court, both laws, it is necessary to preserve the distinction, since it is founded in the nature of things, and in the law of morals.

But though such a marriage is void, and may be so treated in any Court where the facts are made apparent, we do not see that it follows that a policy of insurance, effected by the husband on his own life, in the wife’s name and for her benefit, is void.

We do not think such a policy comes within the reason of the law prohibiting gaming policies, nor that it is open to the other objection, that it offers inducement to crime. In this case, though the marriage was illegal, yet in fact the woman had an interest, and a deep interest, in the life of the husband. He treated her as his wife. He supported her as such, she passed in society as such, and she was dependent upon him for support as such. It was the husband who in fact effected this policy. It was his own method of extending to this woman his assistance and protection, after he should himself be dead. Here is no gaming, since the very person whose life is insured is himself the actor in the transaction. So, too, as to the temptation to crime, offered to the beneficiary of the policy. It would seem, when the person whose life is insured is himself the actor in the matter, the amount of temptation held out to others to take his life, may, as a general rule, at least, he left to his discretion.

In Massachusetts (12 Massachusetts, 115) it has been held that a sister may insure the life of her brother, if she be actually dependent upon him. And the New York cases: 22 Barbour, 39; and 20 New York, 32; established that an insurance affected by one on his own life, for the benefit of a third person, (and that is in substance this case) is good. Since the idea of wager in such a case is absurd.

Our statute merely requires the person insuring to have an interest: Code, section 1776. Another section of the Code, 2778, expressly permits the insured to direct the money to be paid to his assignee, and if he may do this, we do not see *that an' insurance effected by him, as the assured of another, for that other’s benefit, is not equally good. We do not think, therefore, that this policy is void simply because the marriage was illegal.

But the utmost good faith is required in such cases. The applicant is bound to state every material fact in his know'ledge. Sections 2671 and 2672 of our Revised Code, and 2670 of the same, contains these distinct propositions: 1st, That any variation from the truth by which the nature, extent, or character of the risk is affected, will avoid the policy. 2d, If the party acts bona fide, and states what he thinks is the truth, this does not make the policy void, but the wilful concealment of a fact which enhances the risk, does do so.

To apply these principles to this case, it is clear to us that the Court erred in his charge to the jury. He told them that Paterson’s failure to inform the company of the true relations between himself and the defendant in error, was not such a false representation as avoids the policy. We think this depends entirely on whether Paterson knew at the time what the true relations were; if he did not know, then he acted bona fide, and under section 2761 of the Code the policy is good. But if he did know and kept back the truth, then, under section 2762 of the Code, the policy is bad.

We think the legality of the supposed marriage was a material fact. It affected the character of the risk. No man, observant of human conduct, can fail to have noticed that disturbance in one’s marital relations is, of all things, most calculated to create mental and physical unhealthiness, and no prudent company would be so ready to take the risk of a man’s life, whose condition was that of Paterson, as it would had the marriage been legal.

The history of these parties is itself a striking commentary of the idea we intend to convey. Very clearly, Mrs. Paterson, as she is called, knew that her last marriage was illegal, and, very clearly, her knowledge of the looseness of the tie that bound her to Paterson, influenced her conduct, in her relations to him, and in her daily association with others; *add to this the impending fear of discovery, social ostracism, and the consciousness that, at any moment, as with a petard, the whole fabric of her present domestic relations was subject to be scattered to the winds; and, under such circumstances, it is surely true that there are many influences unfriendly to health, and many conducive to the formation of habits, and the indulgence in practices calculated to shorten life.

We do not say that Paterson was aware of the illegality of the marriage, that is for the jury to determine on the proof. What we mean is, that if he was aware of it and concealed it, he kept from the company facts entering materially into the nature and extent of the risk, and that concealment, wilful and intentional as it was, and of facts contrary to the truth of the case, avoids the policy.

Very clearly, to our minds, a death by accident does not come within the description of dying by one’s own hand. There must be an intent to commit suicide. Even though it be but the intent of a drunken man, however, it is none the less an intent.

We think, taking all the charge together, the Court properly-put the law upon this point to the jury, though it was somewhat obscured by the' mode in which the charge was made. 'An accident, even though it be the result of that loss of perception produced by drink, cannot fairly be called the product of intent. But if the intent in fact exists, the other fact, that the man was maudlin from drink; and could have no very intelligent conception of his surroundings, does not help the case; since the drunkenness is his own act, and society would be in great danger if one could escape the consequences of his acts by the plea of drunkenness.

Judgment reversed.