Enright v. Standard Life & Accident Insurance

| Mich. | Apr 8, 1892

Montgomery, J.

The plaintiff sues as administratrix of the estate of James Enright. The action is based upon a contract of insurance made between the defendant company and the Toledo, Ann Arbor & North Michigan Railway Company, and upon a certificate issued as supplemental to the contract directly to Enright. The contract between the two companies is in the form of an open policy of insurance, by the terms of which the insurance company insured the railroad company from month to month,—

“Covering such of its officers and employés as shall be entered in a schedule, and shall duly pay the premiums therein provided for their respective risks, against the effects of injury to the body caused by external, violent, and accidental means, within the meaning of this policy, its agreements and conditions printed or written thereon or on the back hereof, which cannot be waived or altered by any agent, as follows:

“ First. It is agreed, if such injuries shall, within three months from the happening thereof, be the direct cause of the death of any such officer or employé, that this company will, within sixty days after receipt of satisfactory proofs of death and claim, pay the principal sum set opposite the name of such person in said schedule to the assured for the benefit of whom it may concern.”

A further provision of the policy reads:

“It is agreed that all just claims accruing under the terms of this policy, whether for disability or death, shall be payable to said assured, in trust for whom it may concern, to wit, in case of disability, for the benefit of the injured person; or, in case of death, for the benefit of the heirs or assigns of the deceased.”

The evidence shows that it was the custom of the railway company to require its employés to contribute from their earnings monthly sufficient to cover the risk to their several lives, and that on their making payment the defendant company issued certificates to them, which certificate to Mr. Enright reads as follows:

“Certiricate or Accident Insurance.

“ Certificate No. 1,262. Dated April 25, 1889. Monthly premium, $2.

“ Principal sum .in case of death, $1,500. Weekly indemnity, not exceeding 52 weeks, $7.50.

“Special provisions: In case of the loss of two hands or of two feet, or one hand and one foot, the insured will be paid the full principal sum as given above; or for the .loss of one hand or one foot, one-third of said principal sum.

“The Standard Life and Accident Insurance Company of Detroit, Michigan, hereby certifies that Mr. James Enright is insured against the effects of accidental injury, under the conditions and agreements of its open policy, No. B 1,001, issued to the Toledo, Ann Arbor & North Michigan Railway of Toledo, Ohio, hereinafter called the ‘ assured, for such sum in case of death, and such amount of weekly indemnity in case of disabling injury, as shall be provided in the schedule referred to in said policy: Provided, however, that if he shall fail to pay any monthly premium when due, or shall quit the service of the assured, said insurance shall immediately cease, and this certificate shall become null and void.

“D. M. Perry, President.

“Stewart Marks, Secretary."

It was also in evidence that the employé was required to make application to the insurance company on entering the employ of the railway company.

The defendant in the present case, under the plea of the general issue, gave notice as follows:

“That, if the defendant ever executed and delivered the policy declared on in this declaration, it was upon a written application of the said James E. Enright, which application is dated April 2, 1889, wherein and whereby the said James E. Enright agreed with said defendant that such insurance should be under the terms, and subject to all the conditions and limitations, of open policy number B 1,001, issued by said defendant to the Toledo, Ann Arbor and North Michigan Railway Co., and that the insurance in case of death should be payable to Josephine Enright, his wife."

A trial was had, and verdict for the plaintiff for $1,500.

The sole question raised on this appeal is whether the plaintiff was entitled to recover this insurance, suing in her character as administratrix. The learned circuit judge ruled that, as the defendant had by its notice stated that the application by Enright provided for payment to the wife, she might waive her right to the fund in favor of the estate, and that, as the full merits of the case had been tried, the defendant could not be injured by a recovery in the present case. We think this ruling should be sustained. It was held in Peet v. Knights of Maccabees, 83 Mich. 92" court="Mich." date_filed="1890-11-14" href="https://app.midpage.ai/document/peet-v-great-camp-of-the-knights-of-the-maccabees-of-the-world-7934938?utm_source=webapp" opinion_id="7934938">83 Mich. 92, that, in a case where an administrator sues as such, recovery should be permitted if he is shown to be the only person entitled to participate in the fund, even though the action ought to have been brought by him in his individual capacity.

In this case the three instruments may well be considered together. It is true that under the terms of the original policy issued to the railway company the action, if any, would properly be brought in the name of the company, and the company would become trustee for the insured; but the certificate does not, in terms, provide that such payment shall be made to the company. On the contrary, it is provided that, in case of loss of two hands or two feet, or one hand and, one foot, the insured will be paid the full principal sum stated in the certificate, and the insured referred to in that clause is evidently Mr. Enright. This is followed by a certificate that Mr. James Enright is insured against the effects of accidental injury. It is true that it contains no statement as to the person to whom payment shall be made in case of death, but the defendant's plea states that by the application, which would become a part of the contract, James E. Enright agreed with the insurance company that such insurance should be subject to all the conditions and limitations of open policy No. B 1,001, and that the insurance in case of death should be payable to Josephine Enright, his wife. While it is true that this plea, as well as the certificate, states that the insurance is subject to the conditions and limitations of the open policy, the plea cannot be construed as so far contradictory of the terms contained within itself as to mean that the insurance which is there asserted to have been made payable under the contract to Josephine Enright was in fact payable either to the heirs of the insured or to the railway company for his use. Until there was a departure from the lines of the open policy, or a modification of such terms, the insurance was under its terms payable to the railway company. It is not clear, however, that this was intended in cases where certificates were subsequently issued directly to the beneficiary, as was done in this case, particularly as the certificate in terms provided for payment to Enright in case of injury not resulting in death; but, if it be assumed that the death loss would still be payable to the railway company for the heirs of Enright, if the terms of the certificate and the open policy alone are considered, yet the agreement embodied in the application is conclusive that the terms of the open policy were in that respect departed from.

We think the circuit judge was justified in treating the contract as, one shown to have been made between the insurance company and the deceased, and as one providing that in case of death the loss should become payable to_ his wife, Josephine Enright. This conclusion being reached, the case is ruled by Peet v. Knights of Maccabees, 88 Mich. 92.

While a more proper course may have been to have permitted an amendment to the declaration, still, under the authority of section 7636, How. Stat., the cause may be treated as though the amendment had been made before the judgment. Smith v. Pinney, 86 Mich. 484" court="Mich." date_filed="1891-07-28" href="https://app.midpage.ai/document/smith-v-pinney-7935335?utm_source=webapp" opinion_id="7935335">86 Mich. 484. The judgment will be affirmed, with costs.

The other Justices concurred.