49 Ill. App. 252 | Ill. App. Ct. | 1893
Opotioh' of the Couet,
William Gravett, one of the appellees, sued appellant in the Circuit Court of White County, in an action of trespass on the case to recover damages for an alleged fraudulent declaration of forfeiture of a policy of insurance on his life, which was payable to Ellen Gravett, his wife, and his children or heirs in the order named. Upon the trial, appellant objected to the introduction of the policy in evidence, upon the ground that it showed no cause of action in William Gravett, whereupon the latter asked and obtained leave, against appellant’s objection, to amend his declaration by making his wife, Ellen, a plaintiff with him in the action. When the policy was offered in evidence, under the amended declaration, appellant objected, alleging that William and Ellen Gravett had no joint right of action; and when .the court overruled the objection, appellant duly excepted to the ruling of the court. The jury returned a verdict for appellees, and the court rendered judgment on the verdict. The question of a misjoinder of parties was again presented, on the motion for a new trial, and was renewed on the motion in arrest of judgment, and is the principal question before us for consideration. Long ago it was held by the Supreme Court of this State, that the joinder of too many plaintiffs in an action ex delicto, is ground for non-suit on the trial. In this respect, actions on contracts and for torts are alike. Murphy et al. v. Orr, 32 Ill. 489.
In The City of Chicago v. Speer et al., 66 Ill. 154, the husband and wife sued jointly to recover damages for an alleged injury to the person of the wife. It was held that the husband was improperly joined with the wife as a co-plaintiff in the action, and the judgment in favor of the two was reversed on that ground. To the same effect are the cases of Hennies et al. v. Vogel et al., 66 Ill. 401, and Harris v. Brain et al., 33 Ill. App. 510. In the case before us, the policy is payable to “ Ellen Gravett, wife, the children, or heirs of said member, and in the order named, unless otherwise ordered by the member in his application, or, if he chooses, subsequently by will, or otherwise.” The policy provides that the constitution printed on the back thereof shall be a part of the contract. Sec. 6 of Art. YII of this constitution is as follows: “Any member having designated his beneficiary or beneficiaries, may change the same at his pleasure, without notice to, or consent of, the beneficiary or beneficiaries, and all accepting any interest in this policy or company do so upon these express terms.” HoWj if Ellen Gravett has any present right of action, it must be either to recover the premiums paid by her husband, or by his sons, for him, or to recover damages for being deprived of an expectancy, of which she might also, be deprived by death or by the act of her husband. She can not recover the premiums, for they were not payments made specifically for her use, but for the purpose of secur-> ing a benefit for her under the policy at the time of her husband’s death in case he should not exercise his power to appoint another beneficiary. The clause of the policy which fixes the amount payable at William Gravett’s death at $5,000, and all the money paid on the policy in assessments, was not intended to give Ellen Gravett the right to the specific moneys paid as premiums, but merely to state the rule for the ascertainment of the amount to be paid the beneficiary, when the policy should become due. Hor can Ellen Gravett be permitted to recover for being deprived of an expectancy, for there is no conceivable rule by which her damages for such deprivation can be estimated. If she should outlive her husband, and if he should not appoint' another beneficiary, and if he should continue to pay his assessments, she would be entitled to a certain sum of money at the time of his death. The case is altogether too hypothetical to authorize a present recovery of damages. But even if-Ellen Gravett has a present right of action, she can not sue with her husband, inasmuch as the measure of their damages can not be the same in any view of the case, and a joint judgment can not be rendered in their favor. For the error arising from the misjoinder of plaintiffs, the judgment is reversed, and the cause remanded.