Flynn v. Massachusetts Ben. Ass'n
| Decision Date | 24 October 1890 |
| Citation | 152 Mass. 288,25 N.E. 716 |
| Parties | FLYNN v. MASSACHUSETTS BEN. ASS'N. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J.E. Cotter, C.F. Jenney, and G.A. Healey, for plaintiff.
Edward Avery and A.E. Avery, for defendant.
This action is brought upon a certificate or contract under seal by which Eugene Sullivan, now deceased, was made a benefit member of the defendant association, and by which the association agreed to pay to his two children, Tamzina and Maria, described as his heirs at law, in 60 days after satisfactory proof of his decease, a sum equal to "the amount received from a death assessment not exceeding five thousand dollars." The defendant contends that the action is improperly brought by the administrator of Sullivan, and that it should and could only have been brought by the children named, through their guardian or next friend they being both now in their minority. Where the promise of the insurer in a policy of insurance in the ordinary form is to the insured, his executors, administrators, and assigns an action cannot be maintained in the name of those for whose benefit the contract is expressed to be made. Campbell v. Insurance Co., 98 Mass. 381; Bailey v. Insurance Co., 114 Mass. 177. In Flynn v. Insurance Co., 115 Mass. 449, it was held that an action on a policy of life insurance under seal, whereby the insurer covenanted with A., his heirs, executors, administrators, and assigns, to pay the sum insured to B., upon the death of A., could not be maintained by B., upon the ground, well sustained by the authorities cited, that none but a party to an agreement under seal could maintain an action at law thereon. See New England Dredging Co. v. Granite Co., 149 Mass. 381, 21 N.E. 947. The defendant urges that in a corporation of a beneficiary character doing business on the assessment plan, which the defendant is admitted to be, a different rule applies, and that to the contractual relation which exists between the insured and the insurer there is added a statutory obligation which may be enforced by an action in the name of him to whom its benefit is due. The act of 1877, c. 204, (Pub.St. c. 115, § 8,) provides that beneficiary corporations may establish by assessment a fund "to be held by such association until the death of a member occurs, and then to be forthwith paid to the person or persons entitled thereto, and such fund shall not be liable to attachment by trustee or other process." Similar language is used in section 2 of chapter 195 of the Acts of 1882, which largely increased the number of those for whose benefit such corporations could insure. From this language, it cannot be inferred that the legislature intended to provide that an action to enforce such a contract could be maintained by one who was not a party thereto, or that an action to enforce it could be brought both by the insurer and the beneficiary. It is intended to provide only for the mode in which the corporation shall collect and disburse its fund, leaving the remedy for any failure to perform its contract as it before existed. In Rindge v. Society, 146 Mass. 286, 15 N.E. 628, it was held that the administrator was the proper person to bring the action, and that, although there was in that case an averment, it was brought for the benefit of certain persons, who, under the statute as it then existed, could not lawfully be beneficiaries, this was unimportant, as, if the administrator received the money, this receipt would discharge the defendant's liability, as it would not be responsible for the proper application of the money by him. We do not consider it necessary to consider the effect of St.1885, c. 183, relied on by defendant as showing that the action should be brought by the beneficiaries. The certificate in question was dated before the passage of that statute, and would be governed by the law as it then existed. If, as the defendant urges, this was intended to add to the contractual undertaking an additional statutory obligation, it could not have been intended to apply to already existing contracts. There is no danger to the interest of the beneficiaries in holding that upon a certificate, such as that sued upon, the action should be brought by the administrator. In the case at bar, the beneficiaries have indeed, through their guardian, fully assented that the action should be thus brought, and have consented to be bound by the result. But in any proper case, if the administrator should decline to bring the action, the owners of the equitable interest might maintain it in the name, and without the consent, of the administrator, (Campbell v. Insurance Co., 98 Mass. 381;) or, if there was danger that he would not properly dispose of the funds collected, he could be compelled to do so by judicial proceedings to which the corporation would be a necessary party, (Rindge v. Society, ubi supra.) In the opinion of a majority of the court, this action is properly brought by the administrator of Eugene Sullivan.
The application of the plaintiff's intestate is to be treated as forming a part of his contract. Clapp v. Association, 146 Mass. 519, 16 N.E. 433. He warranted each of the statements made therein to be true, to the best of his knowledge and belief, agreeing that any untrue or fraudulent statements made by or for him should forfeit the insurance. It was contended by defendant that Sullivan's answers to certain questions were untrue, according to his best knowledge, and were made with knowledge that they were so. The burden of proving this was on the defendant association. Clapp v. Association, ubi supra. Upon this subject, in accordance with defendant's request, the court instructed the jury that, "if any of the answers were untrue, and the said Sullivan knew or had reason to believe that his answers were not true, or, if his answers were not made in good faith, the plaintiff cannot recover in this action, and the verdict should be for the defendant." The defendant claims to...
To continue reading
Request your trial