Mutual Life Insurance v. Stibbe

Bartol, C. J., delivered the opinion of the Court. This is a suit brought by the appellee, widow of Solomon D. Stibbe, on a policy of insurance made by the appellant on the life of her husband. By agreement of counsel all errors in pleading were waived. At the trial below two exceptions were reserved by the appellant, which will be disposed of in their order.

The plaintiff read in evidence the Acts of Assembly incorporating the defendant, then offered the policy under the seal of the defendant, which the defendant’s counsel admitted had been duly executed, and delivered to Solomon Stibbe, and further admitted that Solomon died on the 29th day of January 1875 and that the plaintiff was his widow. The plaintiff then offered the proofs of death, which it was admitted, were exhibited to the defendant on or about the 9th day of February 1875, and that they were filled up from printed blanks furnished by the defendant. It was also admitted that Solomon had paid to the defendant all the premiums due on the policy to the time of his death. Here the plaintiff closed her case, whereupon the defendant objected to the admissibility in evidence, of the policy of insurance, because the plaintiff had not offered in evidence, the application for insurance on the life of the deceased and moved the Court to exclude the policy from the consideration of the jury.

The refusal of this motion forms the ground of the first bill of exceptions. But the decision of the question intended to be raised thereby, has become altogether immaterial, inasmuch as the “ application ” was afterwards given in evidence by the defendant, and the company was therefore in no respect injured or prejudiced by the action of the Court, in overruling the motion. The second bill of exceptions brings before us for review the rulings of the Court below upon the prayers; and the first question we shall consider is the legal right of the plaintiff to maintain a suit upon the policy. ³¹¹ This question is raised by the defendant’s third prayer, which asserts the proposition'that “it is not competent for the plaintiff to sue in her own name, and in her own right upon the policy of insurance.” It is argued by the appellant’s counsel that the contract of insurance was made with Solomon, and being under seal, although made for apj>ellee’s benefit, she cannot maintain an action at law thereon, not being a party to the covenant. The law on this subject is well settled. “It is an inflexible rule,” says Chitty, (1 Ch, Pl., 3,) “that if a deed be inter partes, that is on the face of it expressly describe and denote who are the parties, to it, (as between A. of the first part and B. of the second part) G. if not expressly named as a party cannot sue thereon, although the contract purport to be made for his sole advantage, and contain an express covenant with him to perform an act for his benefit, in such case O. is a stranger to the deed, and violence would be done to the expressed intention of the parties, were he to be allowed to maintain an action in his own name.” For this the author cites Bushell vs. Bevan, 1 Bing.

N. C., 120, and several other authorities, many more might be cited. Flynn vs. N. A. L. Insurance Co., 115 Mass., 449 , referred to by the appellant, was decided and no doubt correctly, in accordance with this rule ; but we think it has no application to this case. The contract here sued on is not one strictly inter partes, but is the covenant of the appellant alone, not executed by any other person, it is therefore a deed poll, and it is laid down by Chitty (1 Oh. P., 4,) that “ if the covenant in a deed poll be generally to pay B. * * * * * * there appears to he no difficulty in his maintaining an action in his own name, although he did not execute the deed, and were in all other respects a stranger to it.” See also, Platt on Covenants, 7, 8, (3 L. Lib.) But in our opinion the contract of. insurance was made with her as well as with her husband.

The Act of 1862, ³¹² ch. 9, gave her the power to obtain the insurance, and the defendant was authorized to make it, both by its own charter, 1858, ch. 276, sec. 9, and by the Act of 1862. The application for insurance shows that she was one of the contracting parties, it is signed with her name as well as her husband’s, he signs “as the person whose Uféis insured,” and she “as the person for whose benefit the insurance is made.” The covenant in the body of the policy is “to pay to Solomon, at the time named, if he should be then living, and if he should die previous thereto, to pay to his wife Caroline or her legal representatives.” It is therefore a covenant made directly with her, and there can be no valid objection to her maintaining a suit upon it in her own name; it was therefore not error to reject the appellant’s third prayer. In the application for insurance, the habits of Solomon Stibbe were represented to be sober and temperate ;