137 Ark. 366 | Ark. | 1919
(after stating the facts).
tain this suit, for the reason that the policy provides that the amount due thereunder should be paid to the executor or administrator of the insured, unless payment was made under another provision granting the company the option to pay to certain other designated persons, which option the company had not exercised.
This contention cannot be sustained for the reason that the uncontroverted evidence shows that the appellee was the real party in interest. The insured at the time of his death was a minor, unmarried, and had no children. His father was dead and his mother inherited his estate. Sec. 2636, Kirby’s Digest, sub-div. 2. He died intestate. The undisputed evidence showed that the appellee had paid all the debts that had come against the estate of her son, and there was, therefore, no necessity for the appointment of an administrator. The appellee was adult and the only heir.
Our statute provides that every action must be prosecuted in the name of the real party in interest. Parties could not contract so as to defeat the salutary provisions of this statute.
The contract with the appellant company, evidenced by the policy, was made with the insured through the appellee, his mother, who is the real and only party interested. Thus the appellee being the real and only party in interest could maintain the suit, notwithstanding the provision that the- amount under the policy should be paid to the executor or administrator.
The trend of our decisions shows that the statute requiring every action to be prosecuted in the name of the real party in interest has received a very liberal construction with the view of effectuating the wise purpose to permit those who are the real parties in interest to a cause of action to maintain the suit. See Dickinson and Wife v. Harris & Gotham, 48 Ark. 355-358. See other cases collated in 4th Crawford’s Digest, “Real Party in Interest,” sec. 3. See also Reiff v. Redfield School Board, 126 Ark. 477-481.
There is no contention that the appellant had made, or would make, payment to some one other than the appellee under the terras of the option provided in the policy or that any one else was entitled to such payment. If an administrator had been appointed and had instituted this suit the uncontroverted facts of the record prove that, in that event, the amount to be recovered under the policy would go to the appellee as the real and only party in interest.
Therefore, it would be magnifying form above substance and contrary to both the letter and spirit of the statute to hold that the appellee could not maintain the suit. Moreover, the facts of this record would expressly authorize appellee to sue under the provisions of section 15, Kirby’s Digest.
The appellee testified that at the time the policy was issued she told the agent who solicited the application and also told the examining physician that the applicant, her son, had had malarial fever.
The examining physician reported he had personally seen and inspected the applicant ,for insurance and was of the opinion that he was in good health and had a sound constitution, that the insurance was applied for in good faith and he recommended that the applicant be accepted as first class.
The court at the request of the appellant instructed the jury that if before the date of the policy the insured had any disease of the kidneys and had been attended by a physician for any serious disease or complaint that their verdict should be for the appellant.
Under the evidence it was an issue for the jury as to whether the insured before the issuance of the policy had been attended by a physician for a serious disease and whether at the time of the issuance of the policy he was afflicted with such disease.
The only testimony tending to prove that the insured was attended by a physician for a serious disease prior to the issuance of the policy and that he was so afflicted at the date thereof is that of Doctor Medearis.
The court submitted to the jury under correct instruction to determine whether or not the appellee, under the evidence, had waived her right to exclude the testimony of Dr. Medearis on the ground of confidential relation. The verdict shows that the jury found that appellee had not waived her right, and that consequently, the tesimony of Dr. Medearis was not considered.
There is no error and the judgment is affirmed.