Brown v. Greenfield Life Ass'n

• Decision Date: 28 February 1899
• Citation: 172 Mass. 498,53 N.E. 129
• Parties: BROWN v. GREENFIELD LIFE ASS'N (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 498

53 N.E. 129

BROWN v. GREENFIELD LIFE ASS'N (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

February 28, 1899

COUNSEL

J.B. Carroll, W.H. McClintock, and J.F. Stapleton Jr., for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

BARKER J.

The plaintiff now contends that upon inspection of the original policies and applications, which are before us, it appears that there are such substantial discrepancies between the application and the copies annexed to the policies as to require it to be held, as it was held in Nugent v Association, 172 Mass. 278, 52 N.E. 440, that the applications were not admissible in evidence as parts of the contracts, and that the defenses founded upon alleged misrepresentations by the insured were not open, and that therefore, the defendant's exceptions should be overruled, because it was not harmed by any errors at the trial. But we think it would be going too far for us to say that verdicts rendered under erroneous instructions shall stand, when it appears that any defense will be open upon a new trial. Here all the allegations of the declarations are denied by the answers, and it cannot be said that no other result than fresh verdicts for the plaintiff can come from a new trial.

One exception is to the refusal to rule that the actions cannot be maintained by the present plaintiff, as administratrix of the estate of the insured. One policy is made payable to her individually, and the other to one Graham, while each is made payable to the executors or administrators of the insured if the beneficiary named is not living at the death of the insured. The defendant contends that, although an administrator may ordinarily sue upon a contract made with his intestate, we have two statutes--St.1894, c. 225, and Id. c. 522, § 73--each of which gives to the beneficiary named in these policies the right to sue in his own name, and that the right so given takes away the right of the administratrix of the insured to maintain these suits. There are instances in which an action may be brought by either of two persons. See Palmer Sav. Bank v. Insurance Co. of North America, 166 Mass. 189, 44 N.E. 211. It is not a necessary consequence of the giving by statute of a right to sue to the beneficiary that the statute wholly takes away the common-law right of the administratrix; nor is it clear that either of the statutes cited applies to policies of assessment insurance. The provision of St.1894, c. 522, § 73, allowing a person to whom a policy of life insurance is made payable to bring suit upon it in his own name, is not contained in or derived from St.1887, c. 214. It follows from this fact and from the decision in Stocker v. Association, 170 Mass. 224, 49 N.E. 116, that policies of assessment insurance are not dealt with by this provision of St.1894, c. 522, § 73. There are also reasons for holding that policies of assessment insurance are not within the operation of St.1894, c. 225. That statute is entitled "An act to authorize the beneficiary of a life insurance policy to maintain an action thereon in his own name," and the body of the statute is as follows: Section 1: "The person to whom a policy of life insurance hereafter issued is made payable may maintain an action thereon in his own name." Section 2: "This act shall take effect upon its passage." This language would have been used if the legislature had in mind premium insurance only; while, if they had meant to include also assessment insurance, and that written by fraternal benefit societies, the statute would have said: "The person to whom a benefit certificate or a certificate or policy of life insurance is made payable may maintain an action thereon in his own name." Besides this, the statute has been treated as superseded and repealed by St.1894, c. 522. In the supplement to the Public Statutes issued under authority of St.1895, c. 363, St.1894, c. 225, is said to be superseded by St.1894, c. 522, § 73, and to be repealed; and in the tables of changes in the general laws published by direction of St.1895, c. 363, in the supplement just mentioned, and also in the tables of changes in the general laws prepared yearly under the provisions of St.1882, c. 238, and published in the volumes of Acts and Resolves for the years 1894, 1895, 1896, 1897, and 1898, St.1894, c. 225, is said to be superseded by St.1894, c. 522. This points to the conclusion that, notwithstanding the generality of its language, the legislature intended the provisions of St.1894, c. 225, to apply only to premium insurance, in which case only could it be said to be superseded and repealed by St.1894, c. 522. However this may be, and even if the provisions of St.1894, c. 225, were merely duplicated as to premium insurance by St.1894, c. 522, § 73, and not superseded or repealed, we are of opinion that, in the circumstances disclosed by the bill of exceptions, the plaintiff, as administratrix, can maintain these actions. The statute does not in terms forbid the executor or administrator to sue; and, while it is to be so construed as not to subject an insurer to two judgments for one cause of action, the statute is in derogation of the common law, and may have effect without wholly taking away the power of an executor or administrator to sue. We may fairly construe the statute to allow an executor or administrator to sue when the assent of the beneficiary to whom the policy is payable appears or is to be presumed, no action being instituted by the beneficiary himself. In one of these cases the person who sues as administratrix of the insured is the beneficiary, and her assent must be assumed. In the other case the beneficiary is a different person. But it is not contended that he has himself instituted any suit. It appears that he knew of this suit, for he was present at the trial, being summoned as a witness by the plaintiff, and put upon the stand...