48 Minn. 82 | Minn. | 1892
This action was brought by and. in the name of Louisa Perine, probate guardian of the person and estate of Edward G. Perine, a minor, to recover on a cause of action in favor of her ward, as beneficiary of a contract of insurance upon the life of his father, alleged to have been made by defendant with the father as a member of a subordinate lodge of the order. The action should have been brought in the name of the minor. The rule at common law and in equity was that an infant had to sue in his own name, but by his guardian or next friend, and this has not been changed by statute. The infant is the real party in interest, and the general statutory rule is that every action must be prosecuted in the name of the real party in interest. 1878 G. S. ch. 66, § 28, provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted. But a guardian appointed by the probate court is not a trustee of an express trust, but an officer of the court. There would seem to be no good reason why the statute should not have placed a guardian, as respects his capacity to sue, upon the same footing as an executor or administrator, but it has not done so in any case, unless,- possibly, under 1878 G. S. eh. 66, §§ 33, 34, in the case of the seduction or injury of the ward, — a question which we have no occasion to consider here. Section one hundred and forty-eight (148) of the Probate Code (Laws 1889, ch. 46) provides that every guardian shall demand, sue for, and receive all debts due his ward. The same provision was found in 1878 G. S. ch. 59, § 29. But this was merely a re-enactment of the common-law rule that a suit by an infant must be brought by his guardian. The statute does not say that the guardian shall bring
2. The defendant held itself out, and assumed to do the business in hand, as an association or organization under the name by which it is sued, and hence, so far as plaintiff’s right of recovery is concerned, it is wholly immaterial whether it was a corporation de jure, a corporation de facto, or a mere voluntary association. This disposes of the assignments of error relating to the question of the corporate character of the defendant.
3. Many of the assignments of error have reference to the alleged invalidity of the organization of the subordinate lodge of which the deceased is claimed to have been a member, and the consequent irregularities in his admission as a member. These alleged errors all become unimportant, in view of the fact that it clearly appears that defendant, with knowledge of all the facts, retained the money which was sent by or in behalf of the deceased as a member of the subordinate lodge, accompanied by his medical examination and application for a beneficiary certificate. This constituted a waiver of all irregularities in the organization of the subordinate lodge or in the admission of the deceased to its membership. In view of this, the admission of the resolutions of condolence passed by the subordinate lodge after Perine’s death (which were clearly incompetent) was error without prejudice, as the only effect of them was to show that the subordinate lodge recognized his membership at the time of his decease.
4. Evidence as to the general reputation of the cause of the death of the mother of the deceased in the neighborhood where she died
5. The evidence as to the number and ages of Perine’s uncles and aunts was, so far as we can discover, entirely irrelevant to any issue in the case, but we fail to see how its admission could have been prejudicial.
6. Defendant’s 4th, 5th, and 6th requests were properly refused because inconsistent with the theory of the law upon which it framed its answer and tried the cause. The defense set up in the answer was that Perine, in his medical examination, made false and fraudulent answers to the questions put to him, with intent to thereby deceive and defraud the defendant. The evidence proceeded upon the same theory. In other words, the pleading was framed and the cause tried upon the theory that it was incumbent on the defendant, in order to maintain its.defense, to prove, not only that the answers were untrue in fact, but also that Perine knew them to be false when he gave them. But the requests asked for and refused proceeded upon the theory that the answers were in the nature of warranties, and that, if they were untrue in fact, no recovery could be had, without
7. Under the view of the law on which the case was tried, we are ■unable to say that the verdict was not justified by the evidence, for, while it tended very strongly to prove that one or more of Perine’s answers were untrue in fact, the evidence was not such as to require a •verdict that he knew them to be untrue or did not honestly believe ■them to be true.
8. There was, however, one prejudicial error committed on account ■of which a new trial must be granted. We refer to the exclusion of the evidence of St. Cyr on the ground that, by reason of interest in the event of the suit, he was incompetent to testify to conversations with or admissions of Perine in his lifetime. 1878 Gf. S. eh. 73, ■'§ 8. Undoubtedly the statute uses the expression “interested in the ■event” of the action in the sense in which it was understood at common law. While the earlier cases on the subject of the incompe-tency of witnesses on the ground of interest proceeded upon very •subtle grounds, yet the rule laid down as long ago as Bent v. Baker, ,3 Term E. 27, had been generally adopted and followed, viz., that to xender a person incompetent as a witness on the ground of interest he must have some legal, certain, and immediate interest, either in the event of the cause itself, or in the record, as an instrument of ■evidence for or against him in some other action. The interest must .be pecuniary, certain, direct, and immediate, and not an uncertain, ■contingent, remote, or a merely possible interest. 1 Greenl. Ev. §§ 386-391; Marvin v. Dutcher, 26 Minn. 391, (4 N. W. Rep. 685.)
Order reversed.
(Opinion published 50 N. W. Rep. 1022.)