143 Ga. 827 | Ga. | 1915
(After stating the foregoing facts.)
In Hoeft v. Supreme Lodge Knights of Honor, 113 Cal. 91 (45 Pac. 185, 33 L. R. A. 174), ’it was held that fraud inducing the
In Cason v. Owens, 100 Ga. 142 (28 S. E. 75), certain children brought suit against their mother, alleging, that their father was holding policies in his lifetime in certain insurance, or benefit, or assessment companies, to the amount of $7,500, payable to his three children as beneficiaries, one of them, for $3,000, being in a company called the Golden Chain; that shortly before his death, the policies being in force and valid, the defendant, by undue influence and with intent to defraud the plaintiffs, induced their father to change the beneficiaries of the policies and to name her as the sole beneficiary therein; that at the time he made this change he was without sufficient mind to do business and to understand that particular act, and was influenced to make the change by the fraud of the defendant, wherefore it was alleged that the change
It will not be controverted that the power of the member to change the beneficiary may be modified by contract or by equitable considerations working an estoppel; and that if the association . pays the fund into court, and thus waives defenses which it might
While there were some allegations in the amendment looking in the direction of'equitable relief, the action was begun as one for damages, and in its main features was so dealt with by the court and counsel; and we will consider that aspect of it. Although the beneficiary may have no vested interest which will prevent a change by the member, yet he is not an entire stranger to the transaction. The member has voluntarily caused him to be named in the contract as a beneficiary. If no change is made and the certificate remains of force, the beneficiary named will receive the benefit after the death of the member. The member, by the contract with the association, thus creates a certain status, which, unless lawfully changed, will result in the receipt of a pecuniary benefit by the appointed beneficiary. The fact that this status has not ripened into a vested and irrevocable ownership of the beneficial interest, and that the member has a right to change it, does not authorize a third party to maliciously and fraudulently destroy the status and thus prevent the interest or expectancy of the beneficiary from ripening, so that he will receive the fund.. The reserved right of the member is one thing; the malicious and fraudulent interposition of a third party to destroy the status is another.
In Moran v. Dunphy, 177 Mass. 485 (59 N. E. 125, 52 L. R. A. 115, 83 Am. St. 289), it was held that maliciously and without justifiable cause to induce one to end his employment of another is an actionable tort. This did not depend upon causing a breach of contract for further employment. In the opinion Holmes, C. J., said: “We apprehend that there no longer is any difficulty in recognizing that a right to be protected from malicious interference may be incident to a right arising out of a contract, although a contract, so far as performance is concerned, imposes a duty only on the promisor. Again, in the case of a contract of employment, even when the employment is at will, the fact that the employer is free from liability for discharging the plaintiff does not carry with it immunity to the defendant who has controlled the employer’s action to the plaintiff’s harm. The notion that the employer’s immunity must be a non-conductor, so' far as any remoter liability
The case of one who fraudulently prevents the making of a devise, and procures the property to be left to himself, has been mentioned. In May v. Wood, 172 Mass. 11 (51 N. E. 191), it was alleged that the plaintiff and another woman entered into an agreement to the effect that the plaintiff should continue to reside as before with the other woman, and to receive $4 as weekly compensation, and that the other woman-would provide by will a legacy of $700 to be paid to the plaintiff upon the death of the testatrix. It was further alleged that the defendants, for the purpose of depriving the plaintiff of the benefit of the agreement, and of the legacy provided for the plaintiff by a codicil to the will of the testatrix (the other woman), conspired together to influence and induce the testatrix, by divers false and malicious statements, and by inducing the testatrix to believe that the plaintiff was a dangerous person and unfit associate, to break the agreement with the plaintiff; and that the testatrix was induced to break the agreement and discharge the plaintiff, and also to revoke the provision in her will for the benefit of -the plaintiff. The right of action was recognized, but the majority of the court held that the false and malicious state
In Com. Dig., Action on the case (A), it is said: “In all cases, where a man has a temporal loss or damage by the wrong of another, he may have an.action upon the case to be repaired in damages.” Is it possible that where a will has been made, leaving a devise, a third person can fraudulently and maliciously cause the testator .to revoke the devise, and thus cause a loss to the devisee, without any redress on the part of the latter? Or, if a father should make a deed of gift to his son, but before delivery another should falsely and maliciously represent that the son was a fugitive from justice, or was in penal servitude, or had died without issue, and so cause the father to destroy the deed without delivery, could it be contended that the son would have no redress for the loss occasioned to him, because the deed had not been delivered and the title had not actually vested in him? And likewise, if 'a member of a benefit society has caused one of his family to be named in a certificate as the beneficiary thereof, can it be successfully contended that a third party can, by malicious and fraudulent representations, cause the member to change the certificate, and thus cut off and divert to himself a benefit which would have arisen to the beneficiary, with no redress to the latter, merely because the member had the power to change the beneficiary? Would not a man have the right to receive gifts or insurance or the .like, if 'they were in process of being perfected, and would have come to him but for malicious and fraudulent interference? A bare possibility may not be within the reason for this position. But where an intending donor, or testator, or member of a benefit society, has actually taken steps toward perfecting the gift, or devise, or benefit, so that if let alone the right of the donee, devisee, or beneficiary will cease to b.e inchoate and become perfect, we are of the opinion that there is such a status that an action will lie, if it is maliciously and fraudulently destroyed, and the benefit diverted to the person so acting, thus occasioning loss to the person'who would have received it. It is true that such an action is not of usual occurrence, but, as was said in Kujek v. Goldman, 150 N. Y. 176 (44 N. E. 773, 34 L. R. A. 156, 55 Am. St. R. 670), that an action is new and without precedent is not conclusive against the
It has been held that an action would lie for damages by reason of frightening wild fowl from the plaintiff’s decoy. Keeble v. Hickeringall, Holt, 14, 17, 18, 11 Mod. 74, 134; Keeble v. Hickeringill, cited in a note to Carrington v. Taylor, 11 East, 571, 574. From the different reports it is not clear whether the action was maintained on the ground that the wild fowl were frightened out of the plaintiff’s pond, or whether they were driven away and prevented from resorting thereto, as would seem to be the fact from the last citation of the case. In Tarleton v. McGrawley, 1 Peake, 270, 274, it was declared that an action would lie for frightening the natives upon the coast of Africa, and thus preventing them from coming to the plaintiff’s vessel to trade, whereby he lost the profits of such trade. In the cases last cited it is apparent that the plaintiff had no property right in the fowl while not on his property, or in the custom of the natives, but that he was entitled to use his decoys, and to attract the natives to trade with him, without wrongful interference. -These cases may be analogized to interference with one’s business; but there was only an anticipation of benefit.
Actions for slander, where the words were not actionable in themselves, and special damages were claimed, furnish illustrations of losses which may be considered as damages proximately arising from a tort. In Davis v. Gardiner, 4 Rep. 17, it was held that, if a divine is to be presented to a benefice, and one, to defeat him of it, says to the patron that he is a heretic, or a bastard, or that he is excommunicated, by which the patron refuses to present him, and he loses his preferment, he shall have his action on the case for those slanders tending to such end. In Moore v. Meagher, 1 Taunton, 39, Smith, 135, it was held that the loss of hospitality of friends, gratuitously afforded, constituted special damages. So also, it has been declared, does the loss of any gratuity or present, if it be clear that the slander alone prevented its receipt. Odgers on Libel and Slander (5th ed.), 379; Hartley v. Herring, 8 T. R.
Of course, in the instant case, it would be necessary, in order to recover, to show that a benefit would have accrued to the plaintiff, and that the statements of the defendant were false and fraudulent, and were the proximate cause of loss to the plaintiff. But where the member died soon after the change was fraudulently procured, and the amount of the certificate was paid to the new beneficiary, the case was susceptible of proof.
Judgment affirmed.