88 Md. 137 | Md. | 1898
delivered the opinion of the Court.
The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, on the 23rd of May, 1877, in consideration of the payment of an annual premium of $118 insured the life of Paul E. Dorsey in the sum of $2,000 for his own benefit. The policy was made subject to the laws of Massachusetts, which provide “ that notice of the claim and proof of death shall be submitted to the Company within ninety days after the decease.” On the first of June, 1877, the insured assigned the
' Daniel Dorsey, the assignee, died in the year 1885, and in the same year on the 14th of August his will was admitted to probate in the Orphans’ Court of Baltimore City. By this will he devised and bequeathed all the rest and residue of his estate to his son, Joseph Dorsey, and his daughter, Annie J. Dorsey, and to them in trust for his two grandchildren. The proportions of the estate devised to each and the particulars of the trust are not important to be considered here. It is sufficient to say that nowhere in the proceedings in the Orphans’ Court as, to the estate of Daniel Dorsey does it appear that the policy assigned to him was distributed or even mentioned in the inventory. The estate of Daniel Dorsey having been fully administered, and the executor, Joseph Dorsey, having passed his final account, he, as executor, assigned to himself individually the policy with the assent of the company and also with the full consent of all the beneficiaries. It appears from the evidence that at the time of this transfer the two grandchildren being minors, and having no means with which to pay their share of the premiums, and the remaining person interested in the policy, Annie J. Dorsey, being also unable to pay her share of maintaining it, it was agreed by all the parties in interest that the assignment should be made to Joseph Dorsey, and that he should pay the premiums out of his own money and that upon the death of the assured the proceeds of the policy were to be divided according to the respective interests. This assignment to Joseph Dorsey was fully ratified and adopted by the minors after they arrived at age. It is admitted that all the premiums were duly paid up to and including that due on 22nd of May, 1894. The premium due the 22nd of May, 1895, was not paid, but the payment of the premiums prior thereto, it is admitted, kept the policy in force until the 22nd of May, 1896. The premiums paid by Joseph Dorsey with his own money amounted to $1,002.00, and the whole amount of premiums actually paid is. equal or nearly so
This suit was brought in the usual form by the plaintiff as trustee in insolvency of Joseph Dorsey to recover the amount claimed to be due on the policy. The defendant pleaded the general issue.
We have stated the facts at length which were offered in evidence by the plaintiff, for the reason that at the close of his case the learned judge below instructed the jury “ that under the pleadings in this case the plaintiff has produced no evidence legally sufficient to enable him to recover, because the undisputed evidence shows the trustee in insolvency has no such interest in the policy sued on as enables him to maintain this suit.”
There are two other questions which, though not passed upon below, we will consider and dispose of because they will necessarily arise in a retrial of the case, and if the contention of the defendant company be correct as to these other questions it would be useless to order a new trial even though there may be error in other rulings of the Court. Lycoming Fire Ins Co. v. Langley, 62 Md. 215.
The first of these questions is, were the proofs of death under the circumstances of this case sent to the company in time; and second, if not was there a waiver by the company of the requirement as to furnishing proof of death within 90 days after death?
The verdict and judgment were in favor of the defendant on the instruction of the Court, and the plaintiff has appealed.
' and the action must be in his name, for there cannot lie two legal owners of one contract at the same time.” See also Low v. Welch, 139 Mass. 33. The defendant has attempted to assail the validity of the assignment of the policy to the insolvent, and thus show that his trustee in insolvency has no better title. In order to do this he contends that the evidence shows that some of those who assigned to the insolvent were infants and that those infants and their aunt, Miss Dorsey, owned the larger part of the policy. But the evidence also shows that if the assignment was made by minors they ratified it fully after arriving at age. Nor do we think the evidence shows that the insolvent held merely as trustee. The remarks of Judge Dillon, who delivered the opinion of the Court in Smith v. Mo. Valley Life Ins. Co., 4 Dill. 353, etc., are particularly applicable to the position assumed by the defendant in this branch of the case. He said: “ The Company cannot set up such supposed rights in others to defeat an action on the policy. The wife having the legal title, may maintain the action, and this will protect the Company from another suit, and in the event of recovery, the equities, if any exist, which I do not decide, can be adjusted in action between them and the plaintiff. The administrators of the husband are not here insisting upon their rights, if they have any, and the Company cannot set up rights for them, and on its action introduce into this suit matters with which it has no concern.”
The plaintiff, therefore, having the legal title to, and also a large beneficial interest in the policy, he was the proper party to bring this suit.
2. The second question we shall consider is whether under all the circumstances of this case the defendant can escape liability by the defence that the proofs of death were not furnished within ninety days after death?
3. But, independent of this view, we think there is ample evidence in this cause to establish a waiver by the defendant of the failure to send proofs of death within 90 days from the death of the insured.
The following grounds or any one of them have been declared to be sufficient to constitute a waiver of any defect in, or defence arising out of failure to duly give notice and proof of death: “ A proposal to settle ”; “ an absolute refusal to pay on the merits ”; “a denial of all liability”; “a negotiation with the insured, without making the objection of defective proof of death.” Bliss on Life Insurance, sec. 268; Cooke on Life Insurance, p. 118. In its letter to the plaintiff the defendant said: “ The papers in themselves are correct enough, but the company has decided not to recognize the claim under this policy.” Not a word here to indicate that its refusal to pay the plaintiff was because of want of season
In May, 1896, Miss Dorsey sent proofs and they were returned to her for further information, and during the same month the additional proof was forwarded. On the 23rd of June it was approved by the medical examiner of the company. In the case of Interstate Casualty Co. of N. Y. v. Hohn, 72 N. W. Rep. 105, the Supreme Court of Michigan said: “ An insurer waived a condition requiring notice of the accident to be given within a certain time, when it wrote for further information.” Bliss on Life Ins., supra; Cooke on Life Ins. Co., supra; Merchants’ Life Ins. Co. v. Gibbs, 29 Atl. Rep., 486. This
Without prolonging this opinion by the citation of further authorities, our conclusion is that the judgment must be reversed.
Judgment reversed and new trial awarded.