Smith v. United States Cas. Co.

• Decision Date: 08 February 1910
• Citation: 197 N.Y. 420,90 N.E. 947
• Parties: SMITH v. UNITED STATES CASUALTY CO.
• Court: New York Court of Appeals Court of Appeals

197 N.Y. 420

90 N.E. 947

SMITH

v.UNITED STATES CASUALTY CO.

Court of Appeals of New York.

Feb. 8, 1910.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Alice W. Smith, as administratrix of the goods, chattels, and credits of Clark M. Smith, deceased, against the United States Casualty Company to recover $5,000 on an accident policy on a claim that insured was killed by the accidental discharge of a gun while hunting. Defendant pleaded breach of warranty and other defenses, and from a judgment for plaintiff, affirmed by the Appellate Division (131 App. Div. 918,115 N. Y. Supp. 1145), defendant appeals. Affirmed.

H. B. Bradbury, for appellant.

Alexander C. Eustace, for respondent.

VANNY J.

The subject of this action is an accident insurance policy, dated November 2, 1901, which refers to the application as a part thereof, and to the warranties therein contained as part of the consideration of the contract. The application, addressed to the defendant, was signed by the insured under the name of ‘Maurice W. Mansfield,’ and the first declaration therein is the following: ‘I hereby apply for an accident insurance policy to be based on the following statements, which I warrant to be complete and true: (a) My full name is Maurice W. Mansfield.’ The name alone was in writing, the rest of the part quoted being in print, with the word ‘full’ in italics. The defendant pleaded a breach of warranty, in that ‘the true name of said applicant was Myron W. Maynard,’ of which fact it had no knowledge at the date of the policy, and that relying upon said statement in the application it ‘issued said policy of insurance in the false and fictitious name of Maurice W. Mansfield.’

Upon the trial it appeared that the name of the father and mother of the insured was Maynard, and that he went by the name of Myron W. Maynard until about 1892, when he was 22 years of age. He then called himself Maurice W. Mansfield, and thenceforth, until the policy was issued in 1901, almost uniformly did his business, held himself out and was known and addressed by that name. The court charged the jury in substance that if the insured, when the application was made, had assumed and acquired the name of Maurice W. Mansfield, and regarded that as his name, if his acquaintances, the persons with whom he was associated, and the people of the community where he lived knew him by that name, and he had ‘called himself by that name exclusively, or so exclusively and for such a length of time that he had thoroughly adopted it to such an extent that you can find it was his intention that he should be known by the name of Maurice W. Mansfield and thereafter retain that name, if you should find that he had to this extent acquired that name, then this representation in the application would not be false. But if it was not his name, and if he intended to conceal his real name and his identity by giving that name, knowing it was false-that is, if he had not acquired the name of Maurice W. Mansfield in any or all the ways I have stated, nor in any manner-then the statement in this application was false and no recovery can be had upon it.’ There was evidence to support the charge whether the jury found for the plaintiff or the defendant. Exception was duly taken to that part of the charge whereby the jury was instructed in substance that, if they should find that the insured had acquired the name of Maurice W. Mansfield, the statement in the application was not false and to whatever the court said on that subject.

The question presented by this appeal, therefore, is whether at common law a man can change his name in good faith and for an honest purpose by adopting a new one and for many years transacting his business and holding himself out to his friends and acquaintances thereunder with their acquiescence and recognition? A change of name by proceedings under the statute is not involved. As the common law rests so largely upon the customs of the people, it is often necessary to search the history of remote periods, both in England and in this country, in order to learn its full scope and meaning. While the legal name of a person now consists of a given name, or one given by his parents, and a surname, or one descending from them, history shows that this was not always the case. In the early life of all races surnames were unknown, while given names have been used from the most distant times to identify and distinguish a particular individual from his fellows. In England surnames were unknown until about the tenth century, and they did not come into general use or become hereditary until many years later. 8 Nelson's Encyc. 386. At first they were used, sometimes for an easy method of identification and at others from accident, caprice, taste, and a multitude of other causes. Mr. Bardsley in his History of English Surnames gives thousands of instances of change through selection, the action of neighbors in applying descriptive epithets, the use of nicknames and pet names and the gradual development through circumstances and the necessity of identification as population increased. Thus the son of John or Peter became known as John's son or Peter's son and finally as Johnson or Peterson, aside from his given name. It is well known that the word meaning ‘son’ in defferent languages, such as Fitz and Mac, was prefixed to the Christian name of the father to give the son a surname and ‘O’ to give one to the grandson, and thus we have the names FitzGerald, MacDonought, O'Brien, and many others. The place of birth or residence, the name of an estate, the business pursued, physical characteristics, mental or moral qualities, and the like were turned into surnames. It is to be noted, however,that the surname in its origin was not as a rule inherited from the father, but either adopted by the son, or bestowed upon him by the people of the community where he lived. Dudgeon's Origin of Surnames, 252. Father and son did not always have the same surname, and it was not regarded as important, for both frequently had more than one. Coke wrote in the fore part of the seventeenth century: ‘Special heed is to be taken of the name of baptism as a man cannot have two, though he may have divers surnames.’ Coke Lit. (1st Am. Ed.) 3, a. m.

So in Button v. Wrightman (Popham's Reports, 56), the learned chief justice and reporter said: ‘Anciently men took most commonly their surnames from their places of habitation, especially men of estate, and artisans often took their names from their arts, but yet the law is not so precise in the case of surnames, and therefore a grant made by or to John, son and heir of I. C. or filio juniori, I. S. is good, but for the Christian name this always ought to be perfect.’ Camden mentions a man with eight sons, each with a different surname and not one with that of his father. Camden's Remains, 141. In a scholarly opinion by Chief Judge Daly, to which we are much indebted, many instances are mentioned where the color of the individual as White, Black, or Brown, his height or strength, as Lettle, Long, Hardy, or Strong; mental or moral attributes as Good, Wiley, Gay, Moody, or Wise, fixed the surname. In re Snook, 2 Hilt. 566. The learned judge continued: ‘The surname was frequently a chance appellation, assumed by the individual himself, or given to him by others, for some marked characteristic, such as his mental, moral, or bodily qualities, some peculiarity or defect, or for some act he had done which attached to his descendants, while sometimes it did not. * * * It was in this way that the bulk of our surnames, that are not of foreign extraction, originated and became permanent. They grew into general use, without any law commanding their adoption or prescribing any course or mode respecting them; * * * but, though the custom is widespread and universal for all males to bear the names of their parents, there is nothing in law prohibiting a man from taking another name if he chooses. There is no penalty or punishment for so doing, nor any consequence growing out of it, except so far as it may lead to or cause a confounding of his identity.’

The history of literature and art furnishes many examples of men who abandoned the name of their youth and chose the one made illustrious by their writings or paintings. Melanchthon's family name was Schwartzerde, meaning black earth, but, as soon as his literary talents developed and he began to forecast his future, he changed...