ON MOTION FOR REHEARING. The motion of appellant for rehearing elaborately reargues the case and presents one point upon which perhaps the opinion *Page 990 was not sufficiently clear. It is complained that we misconceived appellant's position when we held that it took no account of the expression "balance if any," in each policy, and on its theory it took all the proceeds of the policy or none.
It has been strenuously contended from the start that defendant's insurable interest in Baker's life was in the value of his services and nothing else; that if his connection with the Dry Goods Company should be severed "for any other cause than death . . . then the insurable interest would cease."
If that means anything it means that while two beneficiaries are named, only one could have an insurable interest at the death; which one would depend upon Baker's continued connection with the company. The conclusion is ineyitable that either the company or Baker's estate would take all the proceeds of the policy as beneficiary, or none, and that the interest of the company would not be capable of computation, but would be liquidated in the sum named in the policy. It is now argued that in adjustment of the loss there is always computation and a "balance" struck.
The terms of the contract contemplate only a balance upon an adjustment between beneficiaries. It does not mean a balance after considering loans, advances, pledges and the like. They would be determined by the agreements and circumstances attending such collateral incidents, occurring after the contracts werewritten.
"To Keet-Rountree Dry Goods Company, its successors and assigns as its interest may appear; balance if any to the insured's executors, administrator or assigns, beneficiaries."
Balance of what? The face of the policy; the amount due the beneficiaries. Balance after what is deducted? No balance is provided for except to insured's estate, after the insurable interest of the Dry Goods Company is settled. "As its interest may appear," it gets the money to settle that interest, and then the "balance if any" goes to the insured's executors. The interest which must appear in order to leave a balance over, is the company's interest as beneficiary. That is the contract.
On appellant's theory, if it has an insurable interest it gets it all. There could be no balance of the fund to pay to the other beneficiary as such.
It is now said that a balance was struck when the judgment was rendered in this case. So it was, and that balance to insured's estate was found after defendant's interest appeared ascreditor and was settled. But that judgment was contrary to appellant's theory; it repudiates the notion that it could have any interest as creditor. It demands the whole sum as beneficiary with an interest measured not by computation, but by the sum named in the policy. *Page 991
It is said further that the Dry Goods Company had a right to collect the money on the policy, even if its insurable interest had terminated, and retain what might be due it for premiums advanced. Why? Because it had a lien for such advancements. Not because it was named as beneficiary. It could do that and could collect what Baker owed it on that account, even if it had not been named in the policy at all. That fact that it is named as beneficiary gives it no more advantage in that way than any other stranger to the contract would have with a similar lien. The advanced premiums would be due to the company as soon as Baker resigned, or whenever demanded. That claim did not accrue on account of Baker's death, but because the company advanced the money.
The balance adjudged to be paid to Mrs. Baker was after the advancements were deducted in favor of Keet-Rountree Dry Goods Company, as creditor. It was a creditor to that extent. If it was a creditor protected as such, because named in the policy as beneficiary, then we have the application of plaintiff's theory, which the trial court adopted. But defendant vigorously denies that it was protected in the policy as creditor. It cannot claim that Baker's estate ever owed it that money because it was named as beneficiary without abandoning its position maintained throughout. We must construe the contract as it reads and appellant's theory cannot be made to fit it.
The motion for rehearing is overruled. Graves, Gantt, Atwood and Ragland, JJ., concur; Walker, C.J., and Blair, J., dissent.