64 Ind. App. 49 | Ind. Ct. App. | 1917
This is an appeal in an action brought by appellant against appellee “Supreme Council of the
LeMasters and Kingsbury were made defendants below, but they are eliminated from further consideration by an agreement between the parties to the effect that LeMasters had removed from the State, and that, if appellant was entitled to recover, she was entitled to do so under her own name; that said Kingsbury’s interest in said matter resulted from his advancing money to pay the decedent’s assessments for a number of years, and that he should have judgment for the amount he paid with interest, etc.
The association filed an answer in three paragraphs, the second of which was withdrawn. The first para
“Sec. 324. A benefit may be made payable to any one or more persons of 'any of the following classes, to wit: Grade 1st. Member’s wife.” Here follows member’s relatives, by blood or marriage specially named in twenty grades, ranging from wife to stepchildren, the third grade being the “member’s grandchildren,” and grade tenth being “member’s cousins in the first degree.” Said section of the by-laws then continues as follows: “In either of which cases no proof of dependency of the beneficiary designated shall be required.”
'“Class Second: (1) To an affianced wife or any person who is dependent upon the member for maintenance (food, clothing, lodging or education) ; in either of which cases written evidence of the affianced relation or dependency, within the requirements of the laws.of the Order, must be furnished to the satisfaction of the Supreme Secretary before the Benefit Certificate can be issued.”
“2. Neither the decision of the Supreme Secretary, nor the issuance of a Benefit Certificate shall be conclusive as to the fact of the affianced relation or dependency.
“(3). If such satisfactory evidence, either of the affianced relation, dependency, or of legal adoption is not furnished, as hereinbefore provided, prior to the decease of the member, no benefit shall be paid unless such evidence is furnished to the satisfaction of the Supreme Secretary and Examiner . of claims.
“ (4). A certificate may be made payable * * * to a person who may receive the proceeds for the benefit of the beneficiary, or beneficiaries within the classes designated by the laws of the Order. The names and relationship of the beneficiary must be specified in all such cases. * * *
“Sec. 326. A benefit 'certificate shall not be*53 made payable to a creditor, nor to a person not a wife or relative, upon whom the member is dependent for maintenance nor be held or assigned, in whole or in part, to secure or to pay any debt which may be owing by the member or any other person.
“Sec. 330. If at the time of the death of a member who has designated as beneficiary, a person of Class second, the dependency required by the laws of' the order shall have ceased, or shall be found not to have existed, * * * or if any designation shall fail for illegality or otherwise, then the benefit shall be payable to the person or persons mentioned in Class first, Sec. No. 324, if living, in the shares and orders of precedence by grade as therein enumerated, * * *."
Said answer then alleges that the plaintiff was not and is not related to the member, Hiram Lynn, in any way nor in any degree; that she was at no time dependent upon him in any way as provided for in the by-laws of said association; that at the time of the issuance of such certificate, and continuously ever since, and now, there was and is living a granddaughter of said member, viz., Marie Leipold; that during all of said time, said Marie Leipold was, and still is, an infant under the age of twenty-one years; that said member had no wife, child or children when the certificate herein sued on was issued, and the only relative he then or has since had was said Marie Leipold, his grandchild; that said Marie Leipold is still living and is the only living person qualified to receive the proceeds from the beneficiary certificate herein sued on, under and pursuant to said sections above set out; that said association does not deny its liability for the payment of the amount due on the certificate, but says that by virtue of the by-laws and the facts herein set out, said amount is due and payable to said Marie Leipold, granddaughter, to whom the association admits liability and it is willing to pay said amount to her and will do so when it is determined that the plaintiff herein is not
Upon application, H. Leipold, as guardian of Marie Leipold, was made a party defendant to the action and filed a cross-complaint, the averments of which are substantially the same as those contained in said third paragraph of answer. In such cross-complaint, judgment is asked in favor of said grandchild as beneficiary under said certificate.
Upon the issues thus formed, the case was submitted to a jury for trial. A stipulation offered and read as part of the evidence provided, in part, as follows: For the purpose of this trial the parties agree: (1) That the constitution and by-laws of the code of 1912, issued by the association, and its subordinate lodges, which are now and have been in full force and effect during all the time that Hiram Lynn has been a member, that anything contained in such constitution and by-laws pertinent and relevant to the issues herein may be introduced on such trial by any of the parties hereto, without proof of their authenticity. . (3) That the association “makes no defense herein by reason of proofs of death not having been made regularly as required but that the same has been by it waived, and the only issue herein is as to who is entitled to the amount due on said benefit certificate.” (Our italics.) (4) That since’ Thomas D. LeMasters, the trustee mentioned in said certificate, abandoned his trust and. departed from the State of Indiana, the plaintiff is the proper party to bring this action so far as concerns any right that she or said LeMasters, as her trustee, might have in the certificate sued on.
“These conditions (before set out) being complied with, the Supreme Council of the Royal Arcanum hereby promises and binds itself to pay out of its Widows and Orphans’ Benefit Fund to Thomas D. LeMasters without bond for the benefit of Nancy E. Fuller (cousin in the first degree) a sum not exceeding Fifteen Hundred Dollars in accordance with and under the provisions of the laws governing said Fund, upon satisfactory evidence of the death of said member, and upon the surrender of this Certificate; * * * ” (Our italics.)
Upon this evidence, appellant rested her case.
The appellee then offered a witness, Unice Hewig, who testified to her acquaintance with Mr. Lynn and his family for a period of eleven years, and that Marie Leipold, a granddaughter, was his only living relative of which she had any knowledge. The association then read in evidence the notice of change of beneficiary given by the member February 28, 1908, as follows:
“ROYAL ARCANUM.
Evansville, Ind., Feb. 28, 1908.
“To Alfred- T. Turner,
Supreme Secretary.
“I herewith surrender and return to the Supreme Council of the Royal Arcanum, my Benefit Certificate, No. 25689, and direct that a new one be issued to me, payable to the following named beneficiary (or beneficiaries) :
“ (If more than one beneficiary, designate shares
Fee of fifty cents enclosed.
Hiram S. Lynn.
address: 1123 E. Delaware St., Evansville, Ind.
“I hereby certify that the above designation was delivered to the Secretary of this Council, on February 28, 1908, and the fee of fifty cents to the Secretary on February 14, 1908.
C. C. Pack, Secretary Of VANDERBURGH COUNCIL, No. 1129.
Located at Evansville, State of Indiana.”
(Seal)
The surrendered benefit certificate was also read in evidence and contained a beneficiary proviso the same as that above indicated, except that the promise to pay was “to Marie Leipold (granddaughter) two-thirds and to Eunice Hewig (cousin in the first degree) one-third.” The sections of the by-laws set out in the answer, supra, and §323 were read in evidence. The latter section provides as follows:
“Each applicant shall enter upon his application the name or names, residence, and relationship or dependence of the person or persons of the classes in the next Section embraced, to whom he desires his benefit paid, and the same shall be entered in the Benefit Certificate according to said direction.
“1. The power to designate his beneficiary cannot be delegated by a member to his wife. Until the designation is made in accordance with the laws and requirements of the Order, no person can be recognized as a beneficiary, and no certificate can issue.”
The jury returned a verdict for appellees, after which appellant moved for a new trial. This motion was overruled, and this ruling was assigned as error and relied on for reversal. The motion contains separate grounds challenging the action of the trial court in refusing to give and in giving said indicated instructions and also challenges the verdict as being contrary to law and not sustained by sufficient evidence.
We are met at the threshold of the consideration of the questions attempted to be presented by the appeal with a strong insistence by appellees that, because of appellant’s failure to comply with the rules of the court in the preparation of her briefs, no question is presented by her appeal. The briefs are open to the criticism that appellant assumes therein, as though conceded, that the questions which she attempts to present are properly
By the several grounds of her motion for new trial, appellant presents, in different form, the same question. It is conceded that appellant was not and is not a cousin of Hiram S. Lynn, and was not and is not related to him in any way; that if she is entitled to recover at all upon the certificate on which her action is based, it is as a dependent of' said Lynn. It is further conceded, in effect, that if, under the issues, the burden was on appellant to show that she was a dependent on said Lynn, then any' error, if any, committed by the trial court in its instructions, was in appellant’s favor rather than against her; that if appellant is not eligible as the beneficiary under said certificate, the judgment in favor of the association on appellant’s complaint and the judgment in favor of the cross-complainant on her cross-complaint were proper.
Appellant insists, however, in effect, that the burden was on appellees to allege and prove that she was not eligible as a beneficiary of said certificate under any or either of the classes of beneficiaries recognized and provided for in the by-laws of said association; and hence, that the trial court erred in giving said instruction which placed on appellant the burden of proving that she was dependent on said deceased member; that there
Appellees, on the other hand, insist in effect that inasmuch as the certificate on which appellant bases her action designates appellant as a cousin, the prima facie case, made by the introduction of such certificate, was a right to recover as such cousin, under-grade tenth of the beneficiaries provided for in the first class enumerated in the by-laws, supra, and hence, that when said, appellees introduced in evidence said by-laws, the evidence showing that appellant was in no way related to the deceased member and that the only living relative and person eligible as a beneficiary under said first class of beneficiaries was his grandchild, they thereby destroyed the prima facie case made by appellant, and put upon her the burden of showing that she was a dependent or otherwise eligible as a beneficiary under some other class provided for by said by-laws. In support of this contention the following cases are cited. Johnson v. Grand Lodge, etc. (1914), 91 Kan. 314, 137 Pac. 1190, 50 L. R. A. (N. S.) 461, Bush v. Modern Woodmen (1915), (Iowa) 152 N. W. 31, and Duenser v. Supreme Council, etc. (1914), 262 Ill. 475, 104 N. E. 801, 51 L. R. A. (N. S.) 726.
Appellees also invoke the principle of law which re
As before indicated, the burden was on appellant to show a certificate which entitled her to recover. She made her prima facie case by introducing the certificate in suit which entitled her to recover as a cousin, but she did not thereby shift the burden of proof on the issue of her right to recover, and when appellees showed that she was in no way related to the deceased member and hence not entitled to recover as a member, of the first class, and showed further, by said by-laws, that she could not recover as a dependent of the deceased member without proof of her dependency; that the furnishing of satisfactory written evidence of such dependency was a condition to the issuing of the certificate to her as a dependent in the first instance; and that when such evidence had not been furnished, in the lifetime of the member, no benefit could be paid unless such evidence were furnished to the satisfaction of the Supreme Secretary and Examiner of Claims, the prima facie case made by appellant was thereby destroyed, and the bur
For these reasons we conclude that no error resulted from the action of the trial court in giving or refusing to give the instructions indicated; that the verdict of the jury is sustained by sufficient evidence and is not contrary to law. Judgment affirmed.
Note. — Reported in 115 N. E. 372. Designation of beneficiaries of a member of a beneficial association, 19 Am. St. 786, 29 Cyc 114, 117; meaning of the word “dependent” as used to designate the beneficiary in an insurance policy, 7 Ann. Cas. 358, 17 Ann. Cas. 867, 13 Cyc 788. See under (4-6) 29 Cyc 232, 239.