308 Mass. 463 | Mass. | 1941
In this action of contract Susie B. Herrick (herein referred to as the plaintiff) as executrix under the will of Fred M. Wedgwood, a resident of Bailey, Tennessee, who died on March 25, 1934, two days after he had sustained a fall resulting in a fracture of his right arm, seeks to recover the indemnity provided for in a certificate of insurance issued to Wedgwood by the defendant. The certificate provided for the payment of $5,000 upon proof satisfactory to the defendant’s board of • directors that death had been caused wholly and entirely by external, violent and accidental means, and also provided that no indemnity should be paid unless proof of death was furnished within six months of the happening of the accident that caused the death. She also seeks to recover a disability benefit for the few days that the testator lived after his accident. The testator had designated his' wife as the beneficiary, but she had predeceased him and no other beneficiary had been named by him. The testator, who was in his eightieth year, was at the time of his death suffering from various diseases some of which could be found to be incurable and fatal; and one of the issues at the trial was whether his death was caused by the fall alone or whether it resulted from the fall and these diseases. The jury in answers to questions submitted to them found that the injury resulting from the accident was not in any way caused by disease; that death was caused wholly and entirely by external, violent and accidental means; and that, exclusive of statutory provisions relating to what person could be a beneficiary or succeed to beneficial rights under the terms of the policy, the defendant waived “any objections, if any it rightfully had, to the plaintiff as a proper party to make claim to the beneficial interest in the policy, and to pursue legal remedies to enforce payment thereof.” The jury found for the plaintiff and thereafter the judge,
After the trial, counsel for the plaintiff informed the judge that he had learned for the first time that the testator was survived by relatives by blood. The judge stated that he would accept an affidavit to that effect from counsel. Thereafter on the same day the judge allowed the defendant’s motion for the entry of a verdict for the defendant under leave reserved; the plaintiff’s motion to amend the writ so as to have the action brought by the plaintiff as executrix but for the benefit of nine named persons who, according to the accompanying affidavit of counsel, were relatives by blood of the testator; and also a motion by these nine persons purporting to adopt all the proceedings that had been had in said action and praying that they be substituted as plaintiffs instead of the plaintiff. The defendant excepted to the allowance of these two motions.
The declaration alleges that, the beneficiary named in the certificate of insurance having died and the insured having failed to designate any other beneficiary, the defendant then became bound to pay the death benefit to the wife, children, adopted children, parents, adopted parents, relatives by blood, father-in-law, mother-in-law, son-in-law, daughter-in-law, step-father, step-mother or stepchildren, in the order named; that if the insured left no such persons so related to him, then payment was to be made to his executor; that no such persons survived the insured; that the plaintiff having been duly appointed executrix and all his estate having been devised and bequeathed to her, the defendant owed her the amount of the death benefit and also the disability benefit for the few days the testator lived after his accident. The answer specifically set up that “the plaintiff is not the proper person to recover therefor or to whom any payment can be made.” At the trial the plaintiff contended that the death and disability benefits were her sole property, and in support of her contention she introduced two affidavits signed by her in one of which she stated that she had been appointed executrix under the will of the insured, that she was the sole bene
The plaintiff in such representative capacity or the blood relatives in their own right likewise were not prejudiced by the order for the entry of a verdict for the defendant for reasons hereafter stated.
There was error in submitting to the jury the question
There was, consequently, no error in ordering the entry of a verdict for the defendant in so far as it related to the death benefit, and there was no error in ordering the entry
The substituted plaintiffs gain nothing by the allowance of these motions to amend, and the defendant was not thereby harmed because these plaintiffs never submitted to the defendant any proofs of death or of the injury. Under the provisions of this certificate a plaintiff, in order to prevail, must allege and prove that he has submitted proof, which was in fact satisfactory to the defendant’s board of directors, or ought to have been satisfactory to them, that an accidental death or injury within the terms of the certificate had occurred. Noyes v. Commercial Travellers’ Eastern Accident Association, 190 Mass. 171. Traiser v. Commercial Travellers’ Eastern Accident Association, 202 Mass. 292. Eastern Commercial Travelers Accident Association v. Sanders, 108 Fed. (2d) 643. These alleged relatives can take no advantage of the proof of death made by the plaintiff. She was then acting entirely in her own behalf. She could not have acted in behalf of persons who, according to her own affidavits, did not exist so far as she knew. One cannot ratify or adopt an act done by a third person, unless the latter at the time of performance intended to act in his behalf. New England Dredging Co. v. Rockport Granite Co. 149 Mass. 381, 382. Hayward v. Langmaid, 181 Mass. 426, 429. Hixon v. Starr, 242 Mass. 371, 374. Carpenter v. Grow, 247 Mass. 133, 138. Allen v. Liston Lumber Co. 281 Mass. 440, 446.
Plaintiffs’ exceptions overruled.
Defendant’s exceptions overruled.