40 Pa. Super. 392 | Pa. Super. Ct. | 1909
Opinion by
John B. Mikesell was, at the time of his death, a member in good standing of the Locomotive Engineers Mutual Life and Accident Insurance Company, a corporation regularly incorporated under the provisions of secs. 3631-16 of the annotated statutes of Ohio. Its declared object being “to transact a business of life and accident insurance on the assessment plan, for the purpose of mutual protection and relief of its members; and for the payment to the family, heirs, relatives by blood, marriage or lawful adoption, affianced wife, or to person or persons dependent upon the member of said association.”
At the time of the death of John B. Mikesell, which occurred
When the case was called for trial, the parties agreed in writing to waive a trial by jury, and to have it heard by the judge of the court, under the act of assembly in such case made and provided. Certain facts were submitted as being agreed to and no oral testimony was offered. Among the important ones were the following, in addition to those above stated; 5. That the said John B. Mikesell was never married; that his mother is dead; that George A. Mikesell is the father of said John B. Mikesell. 6. That Ada B. Mikesell never was the wife of John B. Mikesell, either by marriage performed or by common law marriage, and that she was at the time of the death of John B. Mikesell, and at all times while living with him, the lawful, undivorced wife of another man then living. 7. It is further agreed, that the insurance company did not know at the time the policy was issued that Ada B. Mikesell was not the wife of John B. Mikesell, but became cognizant of the fact for the first time, when the interpleader was asked for and the money paid into court.
The designation of Ada B. Mikesell as wife, was a violation of the fundamental laws and rules of the insurance company, and could only have resulted through a fraud perpetrated on it. While the association is not a party to this issue, it having paid into court the amount admitted to be due on the certificate of membership, for the use of such party as the law shall declare to be entitled to it, it is an essential rule to look to the law of the state where the beneficial society was created and to read it into the contract, in determining the validity of the designation in the beneficial certificate. This rule has been followed in Parke v. Welch, 132 Ill. App. 188; American Legion of Honor v. Perry, 140 Mass. 580; Supreme Lodge v. Nairn, 60 Mich. 44; Rose v. Wilkins, 78 Miss. 401; Masonic Benevolent Assn. v. Bunch, 109 Mo. 560; and in our own state, in Masonic Aid Assn. v. Jones, 154 Pa. 99; Fodell v. Miller, 193 Pa. 570; Harton’s Est., 213 Pa. 499. In this last case the court states that it is clear the object of the assured was to conceal the real nature of the transaction, in the belief that a full disclosure of it would result in a refusal of the company to sanction it. The relation between Hartón and the association was contractual, and the contract is to be interpreted in the light of conditions existing when it was entered into. The association was a beneficial society organized under the laws of the state of Ohio. The act authorizing associations of this character expressly indicated the purposes and objects of the same, and to this extent places a limitation upon their powers and privileges. The purpose and objects as expressed by the act are for the mutual protection and relief of the members, and for the payment (as in this case) to the family, heirs, relatives by blood, marriage or legal adoption, affianced wife or to a person or persons dependent upon the member of said association, stipulated amounts, etc.
The Ohio statute in regard to beneficiaries entitled to take, reads as follows: “Beneficiaries who take death benefits shall
A special designation may be invalid, but the benefit will not lapse. Naming a person outside of any class is the same in legal effect as selecting no particular person, and when the fund is payable to one of the classes named by the association it must go to the person of the class for whom it was created, for the reason that it is not in the power of the member to divert it to a person not within the specified class. The wording of the certificate in this case is as follows “All payments or benefits that may accrue or become due by virtue of this policy will be payable to Mrs. Ada B. Mikesell, wife, or his legal heirs.” The plain meaning of which is, that if Ada B. Mikesell should be dead or incapacitated for any reason whatever, then the money should go to the legal heir or heirs of the deceased. Inasmuch as she is incompetent to take, by reason of not being in any of the classes suggested, and is not the wife of John B. Mikesell, but admittedly the wife of another man, the alternative provision operates, and the lawful heir of the deceased, that is, the father as the legal heir, is entitled to the fund. The certificate as plainly directs payment to him in case Ada B. Mikesell is not entitled to take, as if his name had been mentioned in it.
The appellant, however, contends, independent of this phase of the case, that the right to defeat the claim of Ada B. Mike-sell can be asserted only by the association, and that the payment of the money into court constituted a complete waiver of fraud and noncompliance with the regulations. The question was before the court in B. & O. R. R. Co. v. Veltri, 37 Pa. Superior Ct. 399, in which we held that the fund was properly in court to be distributed in accordance with the law. In Brown’s App., 125 Pa. 303, the principle was announced that
In Hall v. Blackburn, 173 Pa. 310, in referring to the effect to be given the payment of money into court, it was argued that it was an acknowledgment of the plaintiff’s right of action, but it was held that whatever may have been the legal consequences of such payment in ancient pleading, no such effect as is claimed here is given it, as is said by Sharswood, J., in Elliott v. Ins. Co., 66 Pa. 22. It waives the benefit of no defense, even if such defense be to the whole. It seems, therefore, that after the payment of money into court, there may be nonsuit, a judgment as in case of nonsuit, a demurrer to evidence, or a plea of puis darrein continuance, in short, that the cause goes on substantially in the same manner as if the money had not been paid in at all; in other words, the defendant is not precluded by it from taking a defense which goes to the whole cause of action.
In White v. Turner, 217 Pa. 25, a feigned issue was framed to determine the right to a fund in court, where a number of preferences were alleged, and the Supreme Court held, “The board by payment into court declined to raise them, and the appellant is not in position to do so. And the evidence as to litigation against the school board was irrelevant for the same reason. At the trial, therefore, there was nothing but the alleged illegal preference. That depended on whether the contractors were insolvent when they gave the order, and whether plaintiff knew it at that time.” In Penna. R. R. Co. v. Wolfe, 203 Pa. 269, a member of a relief association designated his wife as beneficiary, but her death occurring close after, he substituted his sister, and her name was put into the certificate as such under the rules of the association. Soon thereafter he married a second time, and left to survive bim a widow, who claimed to be the beneficiary of the fund payable according to the rules of the relief association. In this case the money
In Barner v. Lyter, 31 Pa. Superior Ct. 435, this court stated, “Without undertaking to establish a general rule, that will apply to all cases, we think it safe to say that where the provision, as to such formalities is exclusively for the benefit of the company, and the company waiving its right to raise the objection, takes the position of a stakeholder, such noncompliance is not necessarily fatal in the claim of the new beneficiary in an: issue between him and the original beneficiary, who was a mere volunteer.”
In strict law, the right to the fund is in the beneficiary, and in this case, Ada B. Mikesell, falsely designated as wife, is not' entitled to take by reason of her not being in any of the classes designated as proper in the certificate; hence the other provision
The assignment of error is overruled. The judgment is affirmed.