Mund v. Rehaume

51 Colo. 129 | Colo. | 1911

Mr. Justice Garrigues

delivered the opinion of the court.

1. We will first consider a matter of practice. Plaintiffs offered in evidence voluminous depositions, which were excluded. They also offered parts of the stipulation and sections 4864 and 4858 of the statutes of Wyoming, which were excluded. The findings and judgment of the court were based on the evidence admitted. The bill of exceptions tendered by the defendant contained all the admitted, but none of the excluded evidence offered by plaintiffs. Upon plaintiffs’ objection, on this account, the judge stated it was the practice to put every word into the bill of exceptions taken down by the stenographer in his notes. So the defendant to get the bill signed, was obliged, though under protest, to put in it the offered, but excluded evidence of plaintiffs, and the clerk has incorporated bodily the excluded depositions into the transcript of the record. Counsel for appellees have argued this excluded evidence, and appellant has filed a motion to strike this portion of the argument.

The decree prepared by plaintiffs’ counsel and signed by the court without their objection or exception, finds:

“5. That this cause is to be and is determined entirely upon the allegations contained in the first cause of action in the complaint herein, and without any reference to the said second cause of action, for the reason that the said benefit certificate is not ambiguous in its terms, and that therefore the testimony contained in the depositions herein is not competent to vary or explain the meaning of the terms used in the said benefit certificate.”

The evidence offered by plaintiffs, and excluded, was in support of this second cause of action. The Judge’s certificate recites that the bill of exceptions contains not only all the evidence admitted, but also all the evidence offered and excluded. Appellant’s abstract does not contain any of appellees’ excluded evidence. Appellees have filed no supplemental or additional abstract, and have filed no cross errors nor "any assignment of error. Appellant complains of being required to insert appellees’ excluded evidence in the bill of exceptions.

Plaintiffs were successful; won all they asked, and, if satisfied, there was no occasion for including in the bill of exceptions their excluded evidence. But our code provides appellees could assign cross errors on the record filed by appellant. Appellees might be dissatisfied with the rulings of the trial court, though the judgment was in their favor. The case might be reversed and remanded for a new trial. Anticipating this, appellees might desire the opinion of this court upon the ruling of the lower court in excluding1 the offered evidence. If the judgment is affirmed, cross errors, in such a case, become mere moot questions of law. But if the case is reversed and remanded for a new trial, the opinion of the appellate court upon the assignment of cross errors would be a guide to the lower court on a retrial of the case. When the defendant tendered his bill of exceptions without this excluded evidence, it was proper for plaintiffs to ask to have it inserted if they desired to assign cross errors thereon. Plaintiffs (appellees could not appeal from the judgment in their favor, and inasmuch as the code allows them to assign cross errors on the record filed by appellant, it would be unfair to allow appellant to so prepare the record that appellees could not, though they expressed a desire to the lower court to do so, file-cross errors thereon. Appellees have assigned no cross errors, filed no supplemental or additional abstract, and cannot be heard on this excluded evidence.. —Rio Grande South. R. R. Co. v. Colo. Fuel & Iron Co., 41 Colo. 4; Seyfried v. Knoblauch, 44 Colo. 86; Golden Age No. 2 M. & M. Co. v. Langridge, 39 Colo. 158.

It was improper for appellees’ counsel to mention it, or base an argument upon it, and the motion to strike will be sustained.

2. The Head Camp, Pacific Jurisdiction Woodmen of the World, for the purposes of this case, must be treated as a mutual life insurance company; and the benefit certificate as a life insurance policy, which the courts, in construing, treat, as far as possible, as a will -or testament. The policy is the’ contract upon which the suit is based, and measures the rights of the parties. The beneficiaries take under contract and not by inheritance. — Chartrand v. Brace, 16 Colo. 19.

No specific beneficiary is named in the policy. The insured accepted the beneficiaries designated in the constitution of the order. No one outside of the class designated is eligible as a beneficiary. The mother was dead when the policy was taken out, and the question is, who are the beneficiaries? If the father and mother within the meaning of the contract are the parents of the insured, the money is all payable to the father as the only surviving parent. The insured was born within the wedlock of a marriage, and was legitimate by statute, though the marriage was void without a divorce. We are not dealing with an illegitimate, but with a legitimatized child born within the wedlock of a marriage contracted in good faith, but void without a decree of court./ The lower court went upon the theory that if the son could not transmit to .the father under the technical laws of inheritance, then the father was not his parent and could not be a beneficiary. This is not the proper test. . The proper construction of the contract, and not the law of inheritance, fixes the rights of the parties. The word “ parents,” if we accept the ordinary and common use of words, should be construed to mean the father and mother of the insured, under the circumstances of this case. The technical definitions of the words father, mother, child and parent, found in law dictionaries, are not controlling in this contract. Technically, water is a mineral, but no court would think of giving it that construction in a mining contract. The laws of the order should be liberally construed according to the ordinary and common use of words. Our statutes provide that all words, unless the intention was to use them in their technical sense, shall be understood and construed according to the approved and common usage of the language. Parent is a common word, and the court in construing this contract, should give it its common meaning. The dictionaries Webster, Worcester, The Standard and The Century, define it to be: “He that begets“ She that bears young;” “A father or a mother.” Applying the common meaning of the word to the facts in this case, it should be construed to mean the father and1 mother of the insured.

3. The eligibility of beneficiaries in orders of this kind, is determined by reference to the laws of the state where the association is organized. The local Camp at Douglas, Wyoming, was the agent of the Head Camp at Denver. — Johanson v. A. O. U. W., 31 Utah 45, 86 Pac. 494; Grimme v. Grimme, 101 Ill. App. 389. The legitimation statutes made the insured a legitimate child, which status remained with him through life, wherever he went. — Watts v. Owens, 62 Wis. 517; Dyer v. Brannock, 66 Mo. 391; Simsbury v. East Granby, 69 Conn. 302; McGunnigle v. McKee, 77 Pa. St. 81; Hartwell v. Jackson, 7 Tex. 575; Ives v. McNicoll, 59 O. St. 402; Binns v. Dazey, 147 Ind. 536; 5 Cyc. 636, 642; Henry v. McNealey, 24 Colo. 456; Fowler v. Fowler, 131 N. C. 169.

The insuring company, by filing an inter-plea, waived any objection it had to the right of either party being designated as beneficiaries. As heirs of the insured, appellees can raise no objection to appellant’s eligibility as a beneficiary. Appellees do not claim the fund as heirs, but as the beneficiaries, themselves. They admit the laws of inheritance are not applicable, but, by analogy, argue the father, not being the parent, does not belong to an eligible class of beneficiaries. If the mother was not a parent, her collateral kindred are not eligible as beneficiaries. Their standing of eligibility depends upon the parentage of the mother. This of necessity drives them to the position that the mother was a parent. How the mother could be a parent of a child begotten by a putative father who is not its parent, is beyond our conception. The appellees are the brothers and sisters of the mother of the insured, and their standing as beneficiaries is based upon the claim that they are his uncles and aunts, which claim is necessarily founded upon the parentage of the mother, and of necessity includes the parentage of the father.

It was agreed the court should award the fund to either plaintiffs or defendant, as the facts established by the evidence might warrant. Under the evidence, the court should have awarded it to the defendant. The case is therefore reversed and remanded with directions to the lower court to enter a judgment awarding the fund to the defendant. Reversed.

Chief Justice Campbell'and Mr. Justice Musser concur.