Mutual Life Insurance v. Stibbe

46 Md. 302 | Md. | 1877

Bartol, C. J.,

delivered the opinion of the Court.

This is a suit brought by the appellee, widow of Solomon D. Stibbe, on a policy of insurance made by the appellant on the life of her husband. By agreement of counsel all errors in pleading were waived.

At the trial below two exceptions were reserved by the appellant, which will be disposed of in their order.

The plaintiff read in evidence the Acts of Assembly incorporating the defendant, then offered the policy under the seal of the defendant, which the defendant’s counsel admitted had been duly executed, and delivered to Solomon Stibbe, and further admitted that Solomon died on the 29th day of January 1875 and that the plaintiff was his widow. The plaintiff then offered the proofs of death, which it was admitted, were exhibited to the defendant on or about the 9th day of February 1875, and that they were filled up from printed blanks furnished by the defendant. It was also admitted that Solomon had paid to the defendant all the premiums due on the policy to the time of his death. Here the plaintiff closed her case, whereupon the defendant objected to the admissibility in evidence, of the policy of insurance, because the plaintiff had not offered in evidence, the application for insurance on the life of the deceased and moved the Court to exclude the policy from the consideration of the jury. The refusal of this motion forms the ground of the first bill of exceptions. But the decision of the question intended to be raised thereby, has become altogether immaterial, inasmuch as the “ application ” was afterwards given in evidence by the defendant, and the company was therefore in no respect injured or prejudiced by the action of the Court, in overruling the motion. The second bill of exceptions brings before us for review the rulings of the Court below upon the prayers; and the first question we shall consider is the legal right of the plaintiff to maintain a suit upon the policy.

This question is raised by the defendant’s third prayer, which asserts the proposition'that “it is not competent for the plaintiff to sue in her own name, and in her own right upon the policy of insurance.” It is argued by the appellant’s counsel that the contract of insurance was made with Solomon, and being under seal, although made for apj>ellee’s benefit, she cannot maintain an action at law thereon, not being a party to the covenant. The law on this subject is well settled. “It is an inflexible rule,” says Chitty, (1 Ch, Pl., 3,) “that if a deed be inter partes, that is on the face of it expressly describe and denote who are the parties, to it, (as between A. of the first part and B. of the second part) G. if not expressly named as a party cannot sue thereon, although the contract purport to be made for his sole advantage, and contain an express covenant with him to perform an act for his benefit, in such case O. is a stranger to the deed, and violence would be done to the expressed intention of the parties, were he to be allowed to maintain an action in his own name.”

For this the author cites Bushell vs. Bevan, 1 Bing. N. C., 120, and several other authorities, many more might be cited. Flynn vs. N. A. L. Insurance Co., 115 Mass., 449, referred to by the appellant, was decided and no doubt correctly, in accordance with this rule ; but we think it has no application to this case. The contract here sued on is not one strictly inter partes, but is the covenant of the appellant alone, not executed by any other person, it is therefore a deed poll, and it is laid down by Chitty (1 Oh. P., 4,) that “ if the covenant in a deed poll be generally to pay B. * * * * * * there appears to he no difficulty in his maintaining an action in his own name, although he did not execute the deed, and were in all other respects a stranger to it.” See also, Platt on Covenants, 7, 8, (3 L. Lib.)

But in our opinion the contract of. insurance was made with her as well as with her husband. The Act of 1862, ch. 9, gave her the power to obtain the insurance, and the defendant was authorized to make it, both by its own charter, 1858, ch. 276, sec. 9, and by the Act of 1862. The application for insurance shows that she was one of the contracting parties, it is signed with her name as well as her husband’s, he signs “as the person whose Uféis insured,” and she “as the person for whose benefit the insurance is made.” The covenant in the body of the policy is “to pay to Solomon, at the time named, if he should be then living, and if he should die previous thereto, to pay to his wife Caroline or her legal representatives.”

It is therefore a covenant made directly with her, and there can be no valid objection to her maintaining a suit upon it in her own name; it was therefore not error to reject the appellant’s third prayer.

In the application for insurance, the habits of Solomon Stibbe were represented to be sober and temperate ; and the conditions of the policy were, that it should be void if the representations lucre untrue, or if the death of the party assured should be caused by the use of intoxicating drinlc or opium. The fourth and fifth prayers of the defendant, which were granted, gave it the full benefit of its defence before the jury, based upon the conditions in the policy to which we have referred. The first and second prayers of the defendant were refused, and require to be noticed.

By the terms of the policy the amount insured was payable “in ninety days after satisfactory proofs of death.” To show that the plaintiff had complied with this requirement of the policy, the proofs of death were offered by her at the trial, they were admissible for that purpose and for no other and their sufficiency was a question for the Court to determine. Citizens’ F. Ins. Co. vs. Doll, 35 Md., 89, 102. They were offered also by the defendant and were of course admissible, as declarations of the plaintiff. These preliminary proofs consisted of, or were accompanied with, a number of answers; to questions furnished by the appellant in printed blanks, filled up by the appellee, the physician, the undertaker, and one Stohe-s, a friend of the deceased. Among the questions answered by each of these persons, except the undertaker, was one requiring a statement of the cause of the death. In the answer to this question the appellee’s statement was, “ He was caused a great deal of mental anxiety on account of business troubles, which caused him to indulge somewhat in intoxicating drinks, and this anxiety and indulgence in drink caused his death in my opinion.”

The appellant contends that this statement is conclusive upon the appellee, and the first prayer asks an instruction to the jury “ that the affidavit of the plaintiff contained in the proof of death offered in evidence by her, is conclusive upon her as to the cause of the death of the insured, and that the cause of death set forth in said affidavit is not such as to entitle her to recover in this action, upon the policy of insurance sued on in this case.”

This prayer seeks to give undue force and effect to the statement made by the appellee ; this did not properly constitute any part of the proof of death required by the policy, it was the mere declaration made by the appellee of her opinion and belief as to the cause of the death, and as such the defendant was entitled to rely upon it before the jury; not as conclusive, but as evidence to be considered by the jury in connection with all the other evidence in the case upon the question as to the actual cause of the death of the insured, a question which the jury alone could decide and which was submitted to them by the appellant’s fourth prayer. Upon that question the jury had before them not only the statement of the appellee, but also that of the physician accompanying the proofs of death which formed a part of her declaration and to be taken with it. They had also the testimony of a number of witnesses examined both by the plaintiff and the defendant, all of which was to be considered by the jury, and it would have been error to instruct them, as asked by the defendant’s first prayer, that any part of this evidence was to be taken by itself as conclusive. For these reasons this prayer was properly refused, and for the same reasons the second prayer v as also properly refused. This prayer asked an instruction “that if the deceased died from a different cause from that set forth in the affidavit of the plaintiff contained in the proofs of death offered in evidence by her, then the plaintiff is not entitled to recover in this action. This prayer like the first is erroneous in ascribing to the declaration of opinion made by the plaintiff a conclusive effect, and in separating it from other parts of the evidence on the same subject, which had been given to the jury; all of which, as we have said, was to be considered by them in making their verdict.” Life Ins. Co. vs. Francisco, 17 Wallace, 672.

(Decided 7th March, 1877.)

As to the plaintiff’s prayer, we discover no .defects in it and think it was properly granted. The only objection made to it, by the appellant’s counsel in the argument, is “ that it was calculated to mislead the jury,” in submitting to them to find what was the direct cause of Stibbe’s death. The objection is to the use of the word “direct,” but we think the jury could not have been misled. The statement of the physician was that the disease of which Stibbe died was “ cerebral congestion caused proximately by mental anxiety and remotely by drink.”

By the terms of the policy, it was to be void, “if the death shall be caused by the use of intoxicating drink or opium.” The meaning of this is that the things prohibited should be the direct cause of the death in order to avoid the policy, and it was not error so to instruct the jury.

Judgment affirmed.