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Bowen, Admr., v. Nat. Life Asso.

LUKE BOWEN, ADMINISTRATOR, vs. THE NATIONAL LIFE

ASSOCIATION.

Hartford Dist., Oct. T., 1893. ANDREWS, C. J., Carpenter, Torrance, FENN and BALDWIN, JS.

One who has no right, title, or interest in the subject-matter of the action cannot properly be substituted as plaintiff under § 889 of the General Statutes. Accordingly, where the insured and the beneficiary in a policy of life insurance united in a written transfer of such policy in conformity with the terms thereof, it was held, that such transfer operated not only as an assignment of the policy, but also as the appointment in writing of a new beneficiary, which the policy expressly permitted, and therefore the administrator of the original beneficiary had no interest in a suit brought to recover the amount of the policy from the insurance company, and his substitution as plaintiff by order of the trial court in a pending suit was error which entitled the defendant to a new trial. The substitution of a new sole plaintiff, under § 889 of the General Statutes, is not the commencement of a suit within the meaning of an insurance policy which provides that no suit shall be brought upon the policy after the lapse of one year from the death of the insured. In this state a transfer of a policy of life insurance by the owner, if otherwise valid, is not rendered illegal merely because the transferee or assignee has no insurable interest in the life of the insured.

Where the policy provided that the amount insured should be due and payable within ninety days after satisfactory proof of the death of the insured had been received by the insurance company, and there was no rule, by-law, or charter provision modifying the terms of the policy in this respect, it was held, that such proof of death did not require a true statement of the claimant's interest and how he acquired it, and that an untrue and false statement in these particulars could not detract from the sufficiency of the proofs of death.

[Argued October 4th-decided December 13th, 1893.

ACTION to recover the amount of a policy of life insurance, brought to the Superior Court in Hartford County, and tried to the jury before F. B. Hall, J.; verdict and judgment for the plaintiff and appeal by the defendant.

It was admitted by the defendant in its answer that the Association had issued the policy in question, insuring the life of Michael O'Connell, and that said policy was, by its terms, payable to Catherine O'Connell, mother of said Michael, “or

Bowen, Admr., v. Nat. Life Asso.

to such other persons as the insured may hereafter appoint by writing, on notice thereof being given to the secretary of the Association." The defendant also admitted the death of Michael O'Connell and the payment of all premiums up to the time of his death, and that no part of the sum named in the policy had ever been paid by the defendant; also that the plaintiff gave to the defendant notice and proof of death and demanded payment.

The plaintiff Gavin alleged in his complaint that shortly after the policy issued it had been duly assigned by said Michael and Catherine O'Connell to one Luke Bowen, and thereafter had been again assigned by the said Bowen to him, the said Gavin; and that in each instance notice and a copy of the assignment was given to the defendant.

These averments of the assignments of the policy the defendant answered as follows:-"As to paragraphs 2 and 3 the defendant is not informed, and leaves the plaintiff to proof thereof."

The defendant also pleaded three special defenses. One was that the said Michael O'Connell, in the application for said policy, had not made true, full, and complete answers, statements, and representations, in certain specified particulars. Another was that the policy in question was not, in fact, obtained by Michael O'Connell for himself, or for the benefit of his mother, but was in fact obtained by said Bowen, who, it was alleged, paid all the expenses connected therewith although he, said Bowen, had no insurable interest in the life of said Michael, and the policy was in fact a mere speculative or wager policy, fraudulent and void.

The other facts are sufficiently stated in the opinion.

Charles E. Perkins, with whom was Arthur Perkins, for the appellant (defendant).

I. The court erred in allowing Bowen, as administrator of Catherine O'Connell, to be substituted as sole plaintiff in place of Gavin.

It did not appear that there had been any mistake in com

Bowen, Admr., v. Nat. Life Asso.

mencing the action in Gavin's name and in fact there was

none.

While the defendant contends that Bowen was in fact the real party in interest, he certainly had no cause of action as administrator of Mrs. O'Connell. Mrs. O'Connell having joined with Michael O'Connell in an assignment of the policy, had thereafter no interest in the policy or its avails; and of course her administrator could have none. Of course, then, it could not be necessary for the determination of the real matter in dispute that a person should be made plaintiff who had no right to recover. The court seemed to think that it was merely a case of assignment of a chose in action, overlooking entirely the fact that by the terms of the policy it was made payable to Bowen. We have, therefore, a case where the plaintiff has no right to recover, an objection made on that precise ground, and a distinct ruling upon it by the court. We submit that this of itself is a clear ground for the reversal of the judgment.

II. The policy expressly provides that no action shall be brought after a year from the death. This limitation has often been held to be valid and proper, and will be enforced by courts. It is clear that as O'Connell died March 19, 1890, in January, 1893, no action could have been brought upon the policy by Bowen as administrator. His claim was barred by the provision of the policy as effectually as if the statute of limitations had run against it, and the bar of neither can be avoided by bringing in a new plaintiff against whom the limitation has run. The policy says, "no action shall be maintained after the lapse of one year," and it was obvious error to allow the substitution to be made against the objection on this precise ground.

It is well settled that if this suit had been defeated by being brought by the wrong person, another suit by the proper person would have been barred. Sherman v. Barnes, 8 Conn., 138.

The same rule has been applied to the six-months bar of suits against solvent estates. Spaulding v. Butts, 6 Conn., 28.

Bowen, Admr., v. Nat. Life Asso.

In Drake v. Watson, 4 Day, 37, it was held that after the statute has run, an amendment setting up the barred cause of action will not be allowed. This case was affirmed in State v. Rowley, 12 Conn., 107.

III. The last assignment of error is in relation to the proofs of death, and we will consider with it the question made about the proofs in objecting to the substitution of plaintiff, as the reasons are substantially the same.

The policy provides that the amount of insurance shall not be payable until satisfactory proofs shall be made to the company. These are to be made by the person to whom the policy is payable, and are the only means of information the company has in relation to the death. It is material that they should be correct, and if they are false and fraudulent in any material part, the approval of the company is obtained by fraud, and is of no effect, and the condition upon which the money becomes payable has not been performed.

Besides this the company has a right to know whether the claimant is entitled to the money, and whether he has any insurable interest in the life of the insured.

Now, in this case, Gavin, in his proofs, swore positively that he had "an actual and bona fide insurable interest" in the life of O'Connell to the full amount of $2,000, which was entirely untrue, as the policy had been conveyed to him merely to prevent its being attached by Bowen's creditors, and he had no real interest in it at all, and if he had stated the facts as they were, the company would not have accepted the proofs as satisfactory, so that their approval being obtained by his false representations was not binding upon the defendant.

At the time these proofs were made Mrs. O'Connell was alive, and if she was entitled to the money should have made the proofs; in which case the company would have certainly required further proofs from her. As an assignee could not be expected to know the facts relating to the death and previous sickness of O'Connell, his answers to the 11th, 12th, 13th and 14th questions relating to matters which it was of the utmost importance to the company to know, were re

Bowen, Admr., v. Nat. Life Asso.

ceived, whereas if the proofs had been made by the mother, the company would have insisted upon full answers.

The result was, that by the combined action of Gavin and the rulings of the court in allowing the substitution of a new plaintiff, and refusing to charge as requested, the company was deprived of its contract rights and of a valid defense.

The filing of true and proper proofs by the proper person was of such importance that it was made a condition precedent to any recovery, and we submit that the court erred in telling the jury that these pretended proofs, which were to the knowledge of the affiant false and fraudulent, were legal and sufficient.

F. L. Hungerford and John H. Kirkham, for the appellee (plaintiff).

I. Did the court err in allowing the substitution of Bowen, administrator, as plaintiff, in the place of Gavin ?

Section 889, General Statutes, provides that, "When any action has been commenced in the name of the wrong person as plaintiff, the court may, if satisfied that it has been so commenced through mistake, and that it is necessary for the determination of the real matter in dispute, so to do, allow any other person to be substituted or added as plaintiff."

It was within the discretion of the court to grant or to disallow the motion, and its decision is not the subject of error or of review.

The allowance of amendments is a matter of discretion, not the subject of error. Bulkeley v. Andrews, 39 Conn., 535; Hollister v. Hollister, 38 id., 180; Husted v. Greenwich, 11 id., 383.

In Merriam v. Langdon, 10 Conn., 472, 473, Judge Church says: "It is certainly very well settled at this time that where the power of permitting amendments is conferred upon courts, the allowance or disallowance of them is matter of discretion with the court, and therefore affords no ground of error."

In Hollister v. Hollister, 38 Conn., 180, the above citation is quoted by Foster, J., and he adds, "This was nearly thirty

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