Denial of the motions to dismiss should be affirmed.
The declaration states a cause of action. The declaration is not artistic and may need some amendment but, as drawn, states sufficient to call upon defendants to join in framing issues of fact for trial. The action is upon promises, based on contract, with a third party as beneficiary, and the allegation that money, due and payable to plaintiff, has been paid by joint action of defendants to another without right thereto. This right of action is not dependent upon reformation of the policy in a court of equity.
As stated in 5 Joyce on Insurance (2d Ed.), p. 5852, § 3510:
"It is held that it is not a prerequisite to an action at law on a policy in the correct name of insured that a suit be brought in equity for reformation of the policy on the ground of mistake, et cetera, since it may be averred in the law action that the policy was made to assured in the name therein set forth." Citing Lumbermen's Mutual Ins. Co. v. Bell,166 Ill. 400 (45 N.E. 130, 57 Am. St. Rep. 140).
See, also, Lenning v. Retail Merchants Mutual Fire Ins. Co.,129 Minn. 66 (151 N.W. 425); National Life Accident Ins. Co. v. Saffold, 225 Ala. 664 (144 So. 816). *Page 528
Robert Alexander was the insured employee under the master group insurance policy and "Rita Alexander, wife of said employee," was the designated beneficiary.
The declaration charges that defendants paid the benefit to Rita Sutherland, who was not the wife of the insured, nor was her surname Alexander. The surname of the beneficiary named in the policy was Alexander, and the given name Rita which may, if there was such a person, identify the particular Alexander, and the same may also be said of the designation "wife of said employee," but this only sends the inquiry back to the true surname of the beneficiary.
In support of the motions to dismiss, affidavits were filed under Court Rule No. 18 (1933). That rule provides:
"Defendant may, within the time for pleading, file a motion to dismiss the action or suit, where any of the following defects appear on the face of the declaration or bill of complaint, and he may, within the same time, file a similar motion supported by affidavits where any of the said following defects do not appear upon the face of the declaration or bill of complaint."
The defects so appearing or by affidavits permitted are by the rule limited to: (a) want of jurisdiction of the person of defendant; (b) no jurisdiction of the subject matter; (c) incapacity of plaintiff to sue; (d) pending action for the same cause; (e) prior judgment; (f) statute of limitations; (g) release; (h) statute of frauds; (i) infancy or disability of defendant; (j) that the plaintiff assigned or disposed of the cause of action before bringing suit. *Page 529
It will be noticed that the supplemental matter permitted by way of affidavits is limited.
Defendants, by affidavits, brought the insurance policy before the court showing Rita Alexander, wife of the insured, the designated beneficiary, and also receipt of Rita Alexander of payment to her.
This added nothing to the declaration for such matter was alleged therein and the showing did not meet the allegations of the declaration nor uncover any defects warranting dismissal of the suit.
The declaration alleged:
"That the defendant, Prudential Insurance Company of America, knew that the party to whom it paid the money was not entitled to the same, and that she was not the wife and widow of the decedent, Robert Alexander; that disregarding this fact the said defendant paid the said sum of money to the improper party."
This allegation was not and could not be met upon the motions to dismiss, and had to be taken as true for the purposes of the motions and prevented dismissal of the cause.
Denial of the motions is affirmed, with costs to plaintiff.
BUSHNELL, C.J., and POTTER, CHANDLER, NORTH, McALLISTER, and BUTZEL, JJ., concurred with WIEST, J. *Page 530