| N.Y. App. Div. | Dec 15, 1897
Upon motion made at the close of plaintiff’s proof, the court struck out all the evidence and dismissed plaintiff’s complaint. This ruling proceeded upon the ground that the defendant had compro
The evidence given upon the trial disclosed this state of facts r The insured was the daughter of the plaintiff; on the 23d day of October, 1893, the plaintiff procured the life of the said daughter to be insured with the defendant, and the latter issued and delivered to the plaintiff a policy of insurance, upon such life. The premium required to be paid was the weekly sum of twenty-five cents,, which the plaintiff paid until the daughter’s death. The sum secured to be paid under this policy at the death was $500. About the 13th day of August, 1894, the plaintiff procured the issuance of another policy upon the life of her daughter, by the defendant, in all respects like the former policy except its date. Upon this policy the plaintiff [Daid the premium until the death of the daughter. After the issuance of the last policy the daughter married one .John Iioster,. and thereafter lived with him until.her death, which occurred on the l'ltli day of November, 1895. An indorsement was made upon the first policy that “An additional policy in this company for $500' is hereby permitted.” The fact of the marriage was also indorsed thereon. Proofs of death were immediately made' out and filed, with the company, corresponding in all respects with its requirements. No objection was made thereto by the company, and the same were retained by it.
At the times when the policies were issued, the agent who then represented the company stated to the plaintiff that, as she was a. blood relative of the insured, she would be the beneficiary therein, and-entitled to the amount of the insurance if she paid the premiums as required. It also appeared that the plaintiff could neither read nor write; that the contract of insurance'was not read to*her,' except, that part of. it which provided for payment to any relative by blood or connection by marriage of the insured. It also appeared that the superintendent of the defendant company instructed agents-in soliciting insurance to represent that a blood relative, or a relative by marriage of the insured, could become a beneficiary under the-policy, and that if such person held the certificate and paid the premiums, and was in good standing when the insured died1, upon making
If the policies which were issued did not conform to the contract which was made, the plaintiff, in order to assert her rights, might be compelled to resort to an action to reform the same. But we do not think such step a condition precedent in this case, as we think the policies as issued contain the contract as made in one of their alternative provisions, and this action permits of the enforcement of that clause as the contract of the parties. The recital in the policies is that, in consideration of the agreements and of the payment to the company of.the weekly premium, it promises to pay the amount insured unto the executors or administrators of the insured, “ unless payment shall he made under the provisions of article second,” upon filing satisfactory proofs of death during the continuance of the policy. Article 2d is as follows :
“ Second. To whom insurance may be paid.— The company may pay the sum of money assured hereby to any relative by blood or connection by marriage of the insured, or to any other person appearing to said company to he equitably entitled to the same by
This article corresponds with the representations made to the plaintiff, with this difference, that instead of being an absolute promise to pay it is permissive at the option of the company. As the company, however, made its absolute agreement with the plaintiff that she should be the beneficiary, we think such agreement had. the force of a present election upon the part -of the company to exercise the option in this regard in favor of the plaintiff.. This does not change or vary the terms of the policy ; it is ¡an agreement in addition thereto and entirely consistent therewith, which may rest in paroi and be enforced according to its terms. (White v. Hoyt, 73 N.Y. 505" court="NY" date_filed="1878-05-21" href="https://app.midpage.ai/document/white-v--hoyt-3599387?utm_source=webapp" opinion_id="3599387">73 N. Y. 505; Kenyon v. K. T. & M. M. A. Assn., 122 id. 247.) It was no more than an agreement upon the .part of the company to presently make its election, instead' of waiting until a loss had occurred. In this view of the case the plaintiff became ■ entitled to have the benefits of the insurance for which she had paid and which the defendant had agreed she should receive.
The scheme by which this company seeks to defeat this result is a fraud upon the rights of the plaintiff. The obliquity- which prompted the superintendent of this company to resort to the means which the evidence shows he did resort to, in. order to -escape payment of these policies, is quite astonishing and cals for severe condemnation. A bare recital of the evidence is sufficient to make this clear. Roster, the husband, of the insured, had never paid a penny of the premiums by which the policies were kept alive. He did not even know that the life of his wife was insured. The ■superintendent first informed him by letter, which had the' effect of producing him at the office, and being there the superintendent suggested that he make a protest against the company paying the money to the plaintiff. This plan was' readily acceded to' by the husband. As he expressed it, “ I would like to get my expenses out of it.” The superintendent discouraged the suggestion by the-
The judgment should be révérsed and a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.