72 Ind. App. 385 | Ind. Ct. App. | 1919
Lead Opinion
—This was an action in the St. Joseph Circuit Court by the appellant against the appellee, the Supreme Tribe of Ben Hur, on a mutual benefit insurance certificate, issued by said appellee to W. T. Sherman Lammedee. The statute under which the appellee was incorporated, being Acts 1899 p. 177, §5043 Burns 1914, empowered said appellee to accumulate a fund that could be paid to the “families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent on the member.” The by-laws of said appellee contain a like provi-sion. The appellee filed an interpleader admitting liability, but averring that the appellee Charles F. Heinzman, as guardian of the persons arid estates of Louis Jr., George Jr. and Glen Heinzman, was claiming the amount of said insurance for and in behalf of his said wards. The appellee insurance company thereupon paid said sum of $1,500 into court, and asked that said appellee Charles F. Heinzman, guardian, be substituted as a party, and that said company be discharged.
Appellee Charles F. Heinzman, guardian, was ^thereupon made a party, and filed his answer in denial to the complaint and his cross-complaint, to which, after appellant’s demurrer thereto, which was overruled, appellant filed his answer in three paragraphs, the first being a denial. To the second and third
Of the errors assigned, we shall consider only one —the error of the court in overruling appellant’s motion for judgment on the answers to interrogatories notwithstanding the general verdict.
It is averred in the complaint, with the usual averments of such complaints, that said policy was made payable to Laura L. Lammedee, the wife of said Sherman Lammedee, who died prior to the death of said Sherman Lammedee; that after her death Sherman Lammedee made Jane Lammedee, his stepmother, the beneficiary under the policy; that Jane Lammedee died prior to the death of Sherman Lammedee; that Sherman Lammedee made no further provision for the disposition of the certificate and policy, as provided in the by-laws of the defendant association; that §121 of the by-laws of defendant association provides:
“In the event of the death of a designated beneficiary prior to the death of the member and*388 the member dies without having made a disposition of said portion or all of his certificate, the same shall be paid to the legal representative of said deceased member for the use and benefit of the deceased member’s heirs if any survive.”
Appellee’s cross-complaint sets out §118 of the insurance company’s by-laws, a part of which is as follows:
“A member may designate as beneficiary, any one or more persons of any of the following classes, viz.: families, heirs, blood relatives, affianced husband or affianced wife, or persons dependent on the member.
“It is expressly prohibited by the statutes under which this society is organized, to designate as a beneficiary, ‘a friend, creditor or trustee,’ not above contemplated.”
It then avers the naming of Laura L. Lammedee as beneficiary, and her death, and the naming of Jane Lammedee as beneficiary, and her death, both as in the complaint, after which it avers that said assured executed his written change of beneficiary, designating appellee’s ward as beneficiaries, which is as follows:
“Change of Beneficiary.
“I, William T. S. Lammedee, to whom the within certificate was issued do hereby revoke my former direction as to the payment from the benefit fund due me at my death, and now authorize and direct such payment to. be made to Louis Heinzman, Jr.,- George Heinzman, Jr. and Glen A. Heinzman, bearing the relation to me of nephews.
*389 “Dated at South Bend this 14th day of November, 1914.
“William T. S. Lammedee. (Seal).”
And to his written request to the supreme scribe of said insurance company for such change, which is as follows:
“Dear Sir and Brother: It is my desire to have these nephews named as beneficiaries to my certificate, as they are partially dependent, and their ages are from five months to seven years old. They are children of my wife’s brother. As I have no other beneficiary, kindly transfer and oblige.
“Tours in T. B. H.,
“William T. S. Lammedee.”
Then follows a general averment that said wards were, during all the time to the death of the said assured, dependent on him, and that said assured had done all things necessary to be done on his part to perfect said change according to the by-laws of said company, in order to perfect said change of beneficiaries, but that he died before said supreme scribe had approved such change.
The appellant’s second paragraph of answer to appellee’s cross-complaint avers that the assured failed to make any change to said wards as beneficiaries that was approved or accepted by the insurance company, or to make any change in the beneficiary as provided in the by-laws that was accepted by the company, and that such attempted change was never approved or accepted by said company, and that such company declined and refused to grant the change of beneficiaries to the said wards, until and only when said assured executed an affidavit tbat the
Appellant’s third paragraph contains no additional averments necessary to this decision. With these issues before it, the jury found, in answer to interrogatories' submitted to it by the court, that the assured was related to appellee’s wards by marriage only, and that they were his nephews only; that there was no evidence that said wards had lived continuously with their parents in a home provided by their parents, nor was there evidence as to whom they had lived with, or how long; that there was no evidence that the parents of said wards furnished them a home, board, clothes and medical services, nor was there evidence as to who furnished said wards a home, board, clothes and medical services, nor when and to what extent they were furnished; that the assured did not declare that said wards were not dependent on him for support; that there was no evidence as to the extent to which the assured did support said wards; that said assured did not, a few days before his death, declare that he was unable to make an affidavit to the effect that said wards were dependent upon him, because he was not contributing to their support; that said assured left heirs at law surviving him.
We conclude that justice will be .best subserved by granting a new trial. The judgment is therefore reversed, with instructions to the trial court to grant a new trial.
Dissenting Opinion
—In orderthat my position may be understood, I deem it advisable to make an additional statement concerning the pleadings.
(1) Appellant is the administrator of the estate of W. T. Sherman Lammedee, deceased, and' in his capacity as such administrator he instituted this action against the Supreme Tribe of Ben Hur, a fraternal beneficiary association, to recover on a certificate issued to Lammedee as a member of the association. The certificate recites, in addition to other things, that Lammedee “is entitled to all the rights, benefits and privileges of beneficial membership in the Tribe of Ben Hur, and to designate as his beneficiary under this certificate Laura Lammedee, bearing to him the relationship of wife;” also that “this certificate is issued subject to, and to be construed and controlled by, the laws, rules and regulations of the order, now in force or which may hereafter be adopted.” It is averred in the complaint that §121 of the by-laws of the association provides:
“In the event of the death of a designated beneficiary prior to the death of the member and the member dies without having made disposition of said portion or all of his certificate, the same shall be paid to the legal representative of said deceased member for the use and benefit of the. deceased member’s heirs, if any survive.”
It is further averred in the complaint that on the death of Laura Lammedee, the member designated as beneficiary his step-mother, Jane Lammedee, and that Jane died prior to the death of the member; that the member died without having designated 'any other beneficiary; and that by reason of the premises the
(2) The association filed a bill of interpleader in which it recited the history of its dealings with Lammedee. Of the averments of the bill the following will serve to show the attitude of the association: That after the death of Jane Lammedee the member expressed a desire to the association to designate new beneficiaries, and paid the usual fee for making the change; that he signed and executed a change of beneficiary in the following words:
“I, William T. S. Lammedee, to whom the within eertficate was issued, do hereby revoke my former direction as to the payment from the Benefit Fund due at my death, and now authorize and direct such payment to be made to Louis . Heinzman, Jr., George Heizman, Jr., and Glen A. Heinzman, bearing relation to me of nephews.
“Dated at South Bend this 14th day of November, 1914.
“William T. S. Lammedee.
“Attest: Orpha A. Elliot, Scribe. . (Seal).”
That the association received said change of beneficiary together with the following letter:
“South Bend, Indiana, Nov. 29, ’14.
“Dear Sir and Brother:
“It is my desire to have these nephews named as beneficiaries to my certificate as they are partially dependent and their ages are from 5 months to 7 years old; they are children of my wife’s brother, as I have no other beneficiary kindly transfer and oblige.
“Yours in T. B. H.,
“William T. S. Lammedee.”
“South Bend, Ind., Dec. 4th, 1914.
“Bro. Snyder, Supreme Scribe:
“I am enclosing a letter and the certificate of Bro. Lammedee. Hope it may be possible for you to make the change of beneficiaries as he desires. He has no one else to change it to and . unless you change it he will have to drop it and he does not want to do that as the near relatives are dead, and if you do not change it please return the 50 cents he sent you for the change.
“Yours fraternally,
“Orpha A. Elliot, Scribe.”
That the association attached to the certificate a modified form of change of beneficiary in blank, which form is still attached to said certificate and reads as follows:
“I, William T. S. Lammedee, to whom the within certificate was issued, do hereby revoke my former direction as to the payment from the Benefit Fund at my death, and now authorize and direct such payment to be made to Louis Heinzman, Jr., George Heinzman, Jr., and Glen A. Heinzman, nephews, children of my wife’s brother, and dependent on me, bearing relation to me of children of my wife’s brother and dependent on me.
*395 “Dated at South Bend, Ind., this .... day of December, 1914.
.................... Seal.
. “(Seal of Court)
“Attest:....................Scribe.
“The Supreme Tribe of Ben Hur hereby consents to the above change-of beneficiary.
“Dated at Crawfordsville, Indiana, this ....
day of............191..----
“(Seal of Supreme Scribe)
....................Supreme Scribe.”
That the association then transmitted, not directly to Lammedee but to its local representative, the certificate, with the change of beneficiary attached, together with the following letter:
“No. 6-N. December 7, 1914.
“Orpha A. Elliot,
“1410 Wiliver St.,
“South Bend, Indiana.
“Dear Sister:
“We are returning the certificate of Brother T. S. Lammedee with a new blank Change of Beneficiary attached to the back of his certificate. We will approve this direction as to change of beneficiary for this brother not because the beneficiaries named are children of his wife’s brother, but because of their dependence upon Brother^ Lammedee.
“Please have him properly complete the blank Change of Beneficiary and return to us accompanied by the enclosed Affidavit ofi Dependency which he should properly execute. Upon receipt*396 of which we will gladly attend to this for this brother.
“Fraternally yonrs,
“Supreme Scribe.”
That the association is informed and believes that Lammedee died before he was able to comply with the suggestions contained in said letter. That the Heinzman children by their guardian are claiming the amount due on said certificate as the beneficiaries of Lammedee. That the association “has no interest in the claim of the said plaintiff or of the said guardian or of the said Louis Heinzman, Jr., George Heinzman, Jr., and Glen A. Heinzman, other than its desire to pay said benefits accruing and payable under said beneficial certificate to the person or persons lawfully entitled to receive the same, and to protect itself from the hazard of paying the same to any of said claimants in the face of the demands and claims so m de by the others as herein alleged and set forth, witht at first having the rights and claims of said claimants adjudged and settled as between themselves. That it is impartial and indifferent and disinterested as between said claimants and has no intention to favor or promote the interests of any of said claimants as against the other with respect to said benefits under said beneficial certificate, and has incurred no independent liability to either of said claimants, except as herein alleged, and has not acknowledged liability to either of said claimants; but it has not denied, and does not now deny, but concedes, its liability to the full amount of said beneficial certificate, to wit: the sum of $1,500.00 to the party entitled to receive the same. ’ ’
After further formal allegations, the association
(3) The guardian then filed a pleading, denominated cross-complaint, against the administrator. This pleading sets out a complete history of the case, including the correspondence above set out, and certain by-laws of the association. It contains the averment that said children were dependents of Lammedee.
(4) To this cross-complaint the administrator filed answer in three paragraphs. The first paragraph is the general denial. Thé gist of the second paragraph is that the association never accepted nor approved the change of beneficiary by which said children were designated as Lammadee’s beneficiaries. The third paragraph does not differ in effect from the second.
In view of the pleadings I am of the opinion that the administrator has no standing in court for any purpose. He is not entitled to recover in his capacity as administrator on behalf of the estate. If the fund should come into his hands, he could hot put it in his inventory as assets subject to the claims of creditors. If he is seeking to recover on behalf of the heirs, then the heirs are the real parties in interest. §251 Burns 1914, §251 E. S. 1881. He has not shown by his answers that Lammedee left any heirs, nor that there has been any compliance with §118 of the by-laws of the association. ■ (That section is set out in full in the cross-complaint.)
But the greatest evil of the majority opinion is in the fact that it is a radical departure from the well-settled rules of procedure. In that opinion but one question is considered, viz.: Are the answers to the interrogatories in irreconcilable conflict with the verdict? In determining that question the courts will not consider the evidence. The rule in that regard is so familiar that it need no be repeated here. Illinois Car, etc., Co. v. Brown (1918), 67 Ind. App. 315, 116 N. E. 4; Indianapolis, etc., Traction Co. v. Hardwick, Admx. (1919), 70 Ind. App. 192, 123 N. E. 249. Under that rule it was the plain duty of this court to hold
But the majority opinion is strange and unprecedented in another particular. It holds that, where a jury in response to an interrogatory makes answer, “No evidence,” that answer absolutely settles as a conclusive fact that there is no evidence as to the fact sought to be elicited by the interrogatory, and is binding upon the trial court and upon this court on appeal. Surely that cannot be the law. The trial court is in as good position as the jurors to know whether or not there is any evidence on any subject involved. On appeal the court looks to the bill of exceptions to discover whether or not there is any evidence bearing on a material point, and not to the answers to interrogatories. Whether or not there is any evidence tending fairly to support a verdict arises in this court on the ruling on the motion for a new trial. ■ But in this case, without having considered the motion for a new trial and without having looked at' the bill of exceptions to determine whether there is any evidence to support the verdict, a new trial has been granted solely on the ground that the jury answered “No evidence.”
Furthermore, the interrogatories answered “no evidence ’ ’ are wholly immaterial, and should be disregarded. Citizens Tel. Co. v. Prickett (1920), 189 Ind. 141, 125 N. E. 193. Even if it were conceded that the administrator had the right to contest the claim of the Heinzman children, then the burden of proof would be on him; for the fact that Lammedee designated them as his beneficiaries makes a prima facie case in their favor, and consequently the answers to the interrogatories would be construed
Another defect in the opinion is that it treats dependency and support as identical.
The judgment should have been affirmed.