152 Mass. 288 | Mass. | 1890
This action is brought upon a certificate, or contract under seal, issued by the defendant association, dated February 7, 1885, by which Eugene Sullivan, now deceased, was made a benefit member of the defendant association, and by which the association agreed to pay to his two children, Tamzina
The defendant contends that the action is improperly brought by the administrator of Sullivan, and that it should and could only have been brought by the children named, through their guardian or next friend, they both being as yet in their minority. Where the promise of the insurer in a policy of insurance in the ordinary form is to the insured, his executors, administrators, and assigns, an action cannot be maintained in the name of those for whose benefit the contract is expressed to be made. Campbell v. New England Ins. Co. 98 Mass. 381. Bailey v. New England Ins. Co. 114 Mass. 177. In Flynn v. North American Ins. Co. 115 Mass. 449, it was held that an action on a policy of life insurance under seal, whereby the insurer covenanted with A., his heirs, executors, administrators, and assigns, to pay the sum insured to B. upon the death of A., could not be maintained by B., upon the ground, well sustained by the authorities cited, that none but a party to an agreement under seal could maintain an action at law thereon. See New England Dredging Co. v. Rochport Granite Co. 149 Mass. 381. The defendant urges, that in a corporation of a beneficiary character, which the defendant is admitted to be, doing business on the assessment plan, a different rule applies; and that to the contractual relation which exists between the insured and the insurer there is added a statutory obligation, which may be enforced by an action in the name of him to whom its benefit is due. The act of 1877, c. 204, (Pub. Sts. c. 115, § 8,) provides that beneficiary corporations may establish by assessment a fund “to be held by such association until the death of a member, occurs, then to be forthwith paid to the person or -persons entitled thereto, and such fund so held shall not be liable to attachment by trustee or other process.” Similar language is used in section 2 of chapter 195 of the Acts of 1882, which largely increased the number of those for whose benefit such corporations could insure. From this language it cannot be inferred that the Legislature intended to provide that an action to enforce such a contract could be maintained by one who was not a party thereto,
We do not consider it necessary to consider the effect of the St. of 1885, c. 183, relied on by the defendant as showing that the action should be brought by the beneficiaries. The certificate in question was dated February 7, 1885, before the passage of that statute, which was approved April 21,1885, and would be governed by the law as it then existed. If, as the defendant urges, this was intended to add to the contractual undertaking an additional statutory obligation, it could not have been intended to apply to already existing contracts. There is no danger to the interest of the beneficiaries in holding that, upon a certificate such as that sued upon, the action should be brought by the administrator. In the case at bar, the beneficiaries have, indeed, through their guardian, fully assented that the action should be thus brought, and have consented to be bound by the result. But in any proper case, if the administrator should decline to bring the action, the owners of the equitable interest might maintain it in the name and without the consent of the administrator; Campbell v. New England Ins. Co. 98 Mass. 381; or if there was danger that he would not properly dispose of the funds collected, he could be compelled to do so by judicial proceedings, to which the corporation would be a necessary party. Rindge v. New England Aid Society, 146 Mass. 286. In the opinion of a majority of the court, this action is properly brought by the administrator of Eugene Sullivan.
The application of the plaintiff’s intestate is to be treated as forming a part of his contract. Clapp v. Massachusetts Benefit
Without recapitulating, even in a condensed form, all the evidence on this or the other points of the case, it sufficiently appears that a conflict existed on the important inquiry when the examination made by Dr. Plympton took place, and as to its correctness. If these examinations took place after January 31, 1885, they had but little relevancy to the case; while if they took place previously, and were correct, and included the information to Sullivan of his almost desperate condition, they wére decisive against the plaintiff. The accuracy of Dr. Plympton in his statements was a question that could not be withdrawn from the jury, and was submitted to them under proper instructions. On examining the requests made and the charge actually given, we do not perceive that anything was omitted necessary to aid the jury in a fair consideration of it. By their answers to the special questions submitted to them, the jury have found that the answers to the interrogatories above recited were not, according to the knowledge and belief of Sullivan, untrue.