
    APPELLATE DIVISION OF THE NORTHERN DISTRICT
    CHARLES YAKAS, ADMR. vs. METROPOLITAN LIFE INSURANCE CO.
    Suffolk, ss. Northern District Municipal Court of the South Boston District
    Argued October 20, 1941
    Opinion filed December 29, 1941.
    Present: Jones, P. J., Wilson & Henchey, JJ.
    
    
      G. J. Kalmauslcas, for the Plaintiff.
    
      Lyne, Woodworth & Evarts, for the Defendant.
   Jones, P. J.

This case is an action of contract wherein the plaintiff seeks to recover upon a policy of life insurance issued by the defendant.

This action, however, is disposable upon other grounds, on matters of jurisdiction. As to the right to consider the matter of jurisdiction, even though not raised, see, In re Mayberry, 295 Mass. 155 and In re Stern, 299 Mass. 107.

It appears from the docket entries that the case was entered July 30, 1938; February 21, 1940, a finding was entered for the defendant; February 26,1940, defendant filed a request for a report; on March 4, March 19, April 2, April 30 and May 28, 1940, extensions of time for filing a draft report were granted on plaintiff’s motions; on the last named date, May 28, 1940, extension of time for this filing was granted until June 25, 1940; the plaintiff did not comply with the last extension and filed his draft report a day later than the time given, to wit, June 26, 1940.

Passing over the question as to whether a judge has authority to grant five requests for extending time for filing a draft report, which we doubt, we have before us the fact that the draft report was not filed within the time allowed, but was filed a day later. In view of this we do not think the plaintiff, who is the party if anybody is, who should have been persistent in the pursuance of an appeal in this action begun by him, should be allowed at this date to prosecute an appeal not properly perfected by him. We think we have the right to inspect the docket entries to ascertain the true facts relative to this matter. Kolda vs. National Ben Franklin Fire Insurance Co., 290 Mass. 182. This case therefore comes under the Rules of the District Courts, 1932, Ed. and by the record the report was not filed within the time allowed by the court and it therefore can be of no avail to the plaintiff.

A further fact appears relating to this appeal. In order to be entitled to an appeal to this court a request for a report, according to Rule XXVII of said Rules must “contain a clear and concise statement of the rulings upon which a re-hearing is requested sufficiently full and accurate for identification.” The request filed was a request for a report on “requests numbered 1 and 2 appearing in plaintiff’s requests for rulings”. Where no request is filed within five days it is properly dismissed. Conway vs. Murphy, 287 Mass. 536. The steps required by the statute regarding requests for a report and the particulars thereof cannot be waived. Statutes of 1933, c. 255. sec. 1; Murphy vs. Barry, Inc., 295 Mass. 249.

In this case there have been but few decisions of the Supreme Court relating to the form of a request required, but it is plain that it is not sufficient to refer to requests by number, but that the substance of the requests must be set forth. Almeida vs. Alsdorf, 291 Mass. 115. The request in the last mentioned case was for a report in these words, “The defendant in the above entitled action being aggrieved by the refusal of the Justice to give the rulings of law requested by him requests that the matter be reported to the Appellate Division”. In passing upon Buie XXVII of the Buies of the District Courts, 1932 Ed., the court said on Page 116 of Almeida vs. Alsdorf, above, “It is plain that on authority the request for report did not conform to this rule. It contained no statement of the rulings upon which the re-hearing was desired. Merely to refer to prayers for rulings without identifying them in some specific way is not enough. The case at bar is governed by Stafford vs. Commonwealth Co., 263 Mass. 240, 242 and Rullings vs. Perry, 284 Mass. 488. It is clearly distinguishable from Zani vs. Phandor Co., 281 Mass. 139.”

And in Rollins vs. Perry, 284 Mass. 488, in passing upon a request for a report in this form: “Now comes the defendant in the above entitled action, and being aggrieved by the rulings and findings of the court therein and by the refusals to rule and to find as requested by the defendant in writing before argument and because the findings and rulings of the court are against the law and the evidence and the weight of the evidence, objects and excepts thereto and requests a report thereon to the Appellate Division for determination”; and the court said in passing upon this request that it “contained no ‘statement of the rulings’ upon which the re-hearing was desired. It merely referred to requests for rulings which had been filed by the defendant in writing and which perhaps might be identified. The rule requires something more. It demands a full and accurate statement of the rulings concerning which review is sought.”

In Stafford vs. Commonwealth Co. 263 Mass. 240, at page 242, the request for report read as follows: “Now comes the defendant in the above entitled action and says that at the trial of this case it requested certain rulings which were denied and claiming to be aggrieved thereby, it requests that the matter be reported to the Appellate Division for determination.” The court in its opinion said ... “It is plain that this request for a report does not comply with Rule 36 of the Municipal Court (1922) ” which rule is substantially the same as Bule XXVII under consideration.

Also in the case of Zani vs. Phandor, 281 Mass. 139, the request for a report was substantially as follows: “that he duly filed certain requests for rulings . . . which were denied and . . . being aggrieved thereby . . . hereby requests a report.” The court said the request was not in proper form and that it was incomplete in that it did not accurately state the action of the trial judge upon the requests. Gallagher vs. Atkins, 305 Mass. 261.

However the foregoing may be, we take up the case reported on its merits. We find the plaintiff is attempting to collect on a policy of life insurance issued in the first instance by the defendant to Antanas Yakas and payable upon his death to his executors or administrators. This policy was issued March 9, 1925, and the company, as expressed in the policy, agreed to pay the amount stipulated in the policy upon the death of the beneficiary to his executors and administrators. There was also in the policy the further promise “The company (issuing the policy) may make any payment ... to any other person appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured”.

At the time the policy was issued the deceased was a roomer in the house of one Mary Shinkus who was in no way related to him. On September 24, 1925, the policy was duly changed by adding thereto the following: “Beneficiary changed to Mary Shinkus, relationship cousin”. Upon the death of the insured, Mary Shinkus surrendered the policy with proofs of death and evidence of premium payments. It further appeared in evidence “that the deceased lived at her house for a long time before the issuance of the policy; that he stated to her that he could not live in her house as he had no money, and he then took out the policy when he was working. There was also her testimony that she did not pay the undertaker’s bill and she incurred no expense for the deceased.

The trial judge found “as a fact that the taking out of the policy and the naming of Mary Shinkus as beneficiary was not intended as a wagering contract and that she being named as beneficiary was entitled to the proceeds of the policy under the death of said Antanas Yakas”.

The plaintiff’s appeal is based upon the denial of his first request, viz: “The defendant is not excused from liability if it should be found that it paid the proceeds of the policy to one having no insurable interest”. Under Gr. L. (Ted. Ed.) c. 175, sec. 125, it is provided that “any person to whom a policy of life or endowment insurance, issued subsequent to April 11, 1894, is made payable, may maintain an action thereon in his own name”. It would appear therefore, from the provisions of this statute that upon the death of said Antanas Yakas the plaintiff was fully warranted in maintaining an action upon this policy and therefore it would appear that at the time she made proofs of loss the defendant was fully justified by this statute in paying the same to her as she had the right of action and such right is not limited by anything in the statute.

Further, by the provisions of said section 125, Mary Shinkus’ rights under this policy were fully protected. This statute provides that “if a policy of life or endowment insurance ... in favor of a person other than himself having an insurable interest therein, the lawful beneficiary thereof, other than himself, . . . shall be entitled to its proceeds against the creditors and representatives . . . whether or not the right to change the named beneficiary is reserved by or permitted to such person”. But the plaintiff fails to recognize the fact that in this Commonwealth there is no requirement that the named beneficiary in the policy should have an enforceable interest in the insured.

In Brogi vs. Brogi, 211 Mass. 512, it is stated, “In this. Commonwealth it is settled law that, in the absence of any indication that the transaction was intended as a wagering contract, the beneficiary designated in a policy of life insurance need not have an insurable interest”. King vs. Gram, 185 Mass. 103; Potvin vs. Prudential Ins. Co. of American, 225 Mass. 247, 251; Blinn vs. Dame, 207 Mass. 159.

It would seem to be that the trial justice who made the finding' that this policy is not a wagering policy and that the designation of Mary Shinkus thereafter was reasonable and proper, may have relied somewhat upon the fact that Mary Shinkus testified that she was the insured’s landlord, to whom the insured said he could not pay his bills, and it could be inferred therefrom that for this purpose he took out the policy; but the request of the plaintiff seems to be based upon the assumption that a person having no insurable interest in his life could not collect under the policy in question. However, it would seem that the trial judge denied the first request of the plaintiff and thereby in effect ruled that the beneficiary need not have a beneficial interest in the life of the insured. We think the request was properly denied. The rule prior to 1894 in Mass., as followed by Wright vs. Vermont Life Insurance Co., 164 Mass. 302 and Nime vs. Ford, 159 Mass. 575, was undoubtedly before the decisions of King vs. Cram, 185 Mass. 103, and has long since ceased to be followed.

Report dismissed.  