Bowen v. Nat'l Life Ass'n

• Decision Date: 13 December 1893
• Citation: 27 A. 1059,63 Conn. 460
• Parties: BOWEN v. NATIONAL LIFE ASS'N.
• Court: Connecticut Supreme Court

27 A. 1059

63 Conn. 460

BOWEN

v. NATIONAL LIFE ASS'N.

Supreme Court of Errors of Connecticut.

Dec. 13, 1893.

Appeal from superior court, Hartford county; F. B. Hall, Judge.

Action by Gavin against the National Life Association. Bowen, as administrator of Catherine O'Connell, was substituted as plaintiff. Judgment for plaintiff. Defendant appeals. Reversed.

C. E. Perkins, for appellant.

F. I. Hungerford and J. H. Kirkham, for appellee.

TORRANCE, J. From the record in this case it appears that the action was originally brought against the defendant by one Gavin, as assignee of the policy of insurance upon which the suit was brought The policy was issued by the defendant to and upon the life of Michael J. O'Connell, and was by its terms made payable to Catherine O'Connell, the mother of the insured, or legal representatives, or to such other persons as the insured should thereafter appoint by writing, on notice thereof being given to the secretary of the defendant. The complaint alleged that the insured and his mother, the beneficiary, for a valuable consideration, assigned the policy on the 20th day of October, 1890, to Luke Bowen, and that notice and a copy of said assignment had been given to the defendant on that same day. It further alleged that on the 19th day of February, 1891, said Bowen. for value received, assigned the policy to the plaintiff Gavin, his heirs and assigns. and' that notice of said assignment was on the same day given to the defendant On the trial before the superior court the original plaintiff, Gavin, offered evidence in support of the allegations of his complaint, and then rested his case. The defendant thereupon proceeded to offer testimony in its behalf, and, while so doing, the trial was adjourned over Sunday to the following Tuesday. In the meanwhile, Bowen, the present plaintiff, took out letters of administration upon the estate of said Catherine O'Connell, the mother, who had died before the commencement of the suit, and on Tuesday morning, as soon as court opened, plaintiff's counsel asked the court to allow said Bowen, as the administrator of Catherine O'Connell, to be substituted as plaintiff in the place of Gavin, upon the ground that the action had been commenced by mistake in the name of the wrong person as plaintiff, and that it was necessary, for the determination of the matter in dispute, to make such substitution. The defendant objected to such change of parties upon several grounds, one of which was, in substance, that Bowen, as administrator of Catherine O'Connell, had no interest in fact in said suit, or any rights under the policy as against the defendant. The court overruled the objections of the defendant, allowed the complaint to be amended by striking out Gavin's name as plaintiff, and substituting therefor "Luke Bowen, as administrator of Catherine O'Connell, late of New Britain in said county, deceased," and in certain other respects to correspond with the change of plaintiffs, and the case was thereafter prosecuted by Bowen as such administrator to final judgment in this way Gavin, the original plaintiff, went wholly out of the case, and the present plaintiff entered and prosecuted the suit as sole plaintiff.

The action of the court below in permitting this change of plaintiffs to be made under these circumstances is one of the errors assigned upon this appeal, and the one which will be, on account of its importance, first considered. If it be true that Catherine O'Connell, at her death, had no right, title, or interest in or to the policy sued upon, or to the money due thereon, as against the company, it would seem to follow inevitably that her estate would have none, and consequently her administrator would have none. To determine whether she had any such right or interest at her death it is necessary to look at the terms of the policy, and at the writings which passed between herself and her son and Bowen in 1890, as they appear of record. In discussing this question we assume, merely for the purpose of the argument, that the policy sued upon is in all respects a valid policy, regularly issued and binding upon the company, as upon its face it appears to be. The policy itself states that it is issued to Michael O'Connell on his life, and in it the company agrees with him, among other things, that the money which should become due on it should be due and payable "to Catherine O'Connell, mother, or legal representatives, or to such other persons as the insured may hereafter appoint by writing, on notice thereof being given to the association." It further provides that the policy should not be assigned or transferred "unless notice and copy of the assignment be given to said association." It thus apparently gives the power to Michael O'Connell to appoint, by way of substitution for his mother, another beneficiary or beneficiaries, at any time, and without her consent or acquiescence, provided the appointment be made in writing, and notice of it be given to the secretary of the association; and it recognizes the right to assign the policy if notice thereof, and a copy of the assignment, be given to the association. Whether Michael, under this policy, had in fact the power to appoint a new beneficiary in place of his mother without her consent, or whether he could assign it so as to deprive her of all rights under it unless she joined in the assignment, need not now be determined, for, as the only parties in interest, they could together certainly appoint a new beneficiary, and could together make a valid assignment, if such appointment or assignment could be made at all. Under the terms of the policy we think it quite clear that they together could make a valid appointment of a new beneficiary in place of the mother, and could together make any legal assignment of the policy. Under the law of this state they could assign the policy to Bowen. "In some jurisdictions the law forbids the transfer of a policy except to a person who has such an interest in the life insured as would have authorized the procurement of the policy. But we think the weight of argument is in favor of permitting the owner of a contract of life insurance, which has the sanction of the law, to sell it upon the most advantageous terms, having the world for a market, provided it is an honest exchange of property, and not a mere cover for a wagering transaction. In countless instances, and under many forms, the law has sanctioned contracts which of necessity must have resulted in pecuniary profit to one person if another had soon died. The danger to human life from this source has not yet become sufficiently appreciable to provoke condemnation of these. There is no good reason why the law should condemn an entire class of contracts, great in number, no more dangerous to life, and of equal capacity for good. The rule of law governing all other contracts would seem to be the proper one for these, to uphold those which are honest and beneficial, and annul all which are proven to be covers for fraud." Fitzgerald v. Insurance Co., 56 Conn. 116, 13 Atl. 673, and 17 Atl. 411. Under these circumstances, Michael and his mother, soon after the policy was delivered, gave to Luke Bowen a writing properly executed under their hands and seals, which recites that for a valuable consideration they sell, assign, transfer, and set over to him and his assigns forever, all their right, title, and interest, present or future, in and to the policy in suit, and directs all moneys due and accruing from said policy in case of Michael's death to be paid to Bowen. In the complaint it is alleged that notice and copy of this writing were given to the defendant, as required by the policy, on the day it was made. This allegation the defendant in its answer does not deny, "but leaves the plaintiff to proof thereof." The rule requires that every material allegation in any pleading, which is not denied, shall be deemed to be admitted, unless he avers that he has not any knowledge or information thereof sufficient to form a belief. Practice Book, p. 16, § 4. The defendant does not comply with this rule in its answer to paragraphs 2 and 3 of the complaint, and the allegations thereof may well be taken to have been admitted. From the record in the case we think it sufficiently appears, in the absence therein of all statements to the contrary, that such notice and copy were given to the defendant as alleged, and that no objection to the transaction was made by the defendant prior to the commencement of this suit. As the consideration for the delivery of this writing to him, Bowen, under his hand and seal, made and delivered to Michael a writing in which Bowen agreed with Michael in substance as follows: If Michael should outlive his expectancy of life under the policy, "there should be due and payable to said Michael J. O'Connell three hundred dollars;" but, in case "of the previous death of the said Michael J. O'Connell, the sum of three hundred dollars shall be due and payable" to Catherine, his mother. There is nothing upon the record to show that this transaction between these partics was not made in good faith. Upon this record, and for the purposes of the argument, we must assume that it was "an honest exchange of property, and not a mere cover for a wagering transaction, and was therefore a valid, legal transaction." This writing thus delivered to Bowen, and assented to by the defendant, was, under the circumstances, an appointment by writing of a new beneficiary, within the meaning of the policy, as well as an assignment. When notice of it was given to the defendant, as required by the...