Morey v. Monk , 145 Ala. 301 ( 1906 )

ANDERSON, J.

The record in this case is similar to the one in the case of Morey v. Monk, (Ala) 38 South. 265, and shows no exception to the judgment; and we adhere to what was there said, and what has been repeatedly held by this court in construing the right to review the conclusion of the judge of the city court of Selma.,, and other inferior courts, when the trial is had without a jury. % This court has no jurisdiction to review the conclusion of the judge unless the bill of exceptions discloses the judgment and shows that an exception was reserved thereto. We are confined in the case at bar to a, consideration of the assignments of error relating to the admissibility of evidence.

It appears from the record that the plaintiffs grounded their action for the recovery of the fund in question upon the fact that they were the nearest of kin and heirs of Maj. Morey, the insured, and were entitled to the fund under the statutes governing the order, and the by-laws adopted thereby, upon the theory that, while the first-named beneficiary belonged to tire class provided for, the defendant, Monk, who was submitted as the beneficiary subsequent to the death of his mother, was not of the class provided for by the statute or by laws of the order. The classes provided for try the constitution and by-laws of tlie order are “husband or wife, child, affianced hus-band, affianced wife, relatives or persons dependent upon the applicant, whom it is desired to make beneficiary.” Section 132 of the American Legion of Honor is as follows: “In the event- of the death of all the beneficiaries selected by the member, before the decease of such member, if no other or further disposition thereof be made in accordance with the provisions of the by-laws, the benefit shall be paid to the widow. If none, then the heirs of the deceased member, and if no person or persons shall be entitled to receive the benefit, it shall revert to the benefit fund.” It therefore appears that the defendant must come within the first above mentioned classes, else the fund would go to the heirs of Maj. Morey, as provided by section 132 of the by-laws. ITis contention seems to be that he was a relative or a dependent, one or both, and to the establishment of which his evidence should have been directed.

Although the defendant was the stepson of Maj. Morey, the affinity was dissolved by the death of his mother, which was prior to the changing of the policy in his faAmr, as his mother left no children by Maj. Morey to continue the affinity existing prior to her death. — Tagert v. State, 143 Ala. 88, 39 South. 293 ; Pegues v. Baker, 110 Ala. 251, 17 South. 943 ; Mounson v. Mounson, 1 Leonard, 88 ; Dearmond v. Dearmond, 10 Ind. 191 ; Big-elow v. Sprague, 140 Mass. 425, 5 N. E. 144. There Avas much evidence admitted by the trial court and objected to by the plaintiff, which had no bearing upon the relationship of the parties, or whether or not the defendant Avas a dependent as contemplated by the statutes and by-laws gCA'erning the order. The supreme court of Massachusetts, in the case of McCarthy v. New England Or-der of Protection, 153 Mass. 318, 26 N. E. 867, 11 L. R. A. 144, 25 Am. St. Rep. 637, in defining the word “dependent” as used in this identical connection, says: “The beneficiary must be dependent upon the member in a material degree for support or maintenance or assistance, and the obligation on the part of the member to furnish it, must, it AA'ould seem, rest upon some moral, legal, oi* equitable grounds, and not upon the purely A’oluntary or charitable impulse or disposition of the member.” — American Legion of Honor v. Perry, 140 Mass. 580, 5 N. E. 634 ; Ballou v. Gile, 50 Wis. 614, 7 N. W. 561 ; Bacon’s Benefit Society, § 261. While the desire and obligation may have been great on the part of Maj. Morey to help his stepson, to Avhom he had acted as a father for years, can it be contended that Monk, aaIio avus grown and married, earning a good salary and sa.Aring money, was dependent upon Maj. Morey in 1891? Or that the evidence objected to, or all of it, had any bearing on this issue? We think not. It is true that in the case of Morey v. Monk, supra, it was held that all or most of this evidence was properly admitted. There it was offered to show that Monk was a member of Maj. Morey’s family, an issue involved in said case. Here we have no such issue, and things done to establish a family relationship did not necessarily show a relationship or a state of dependency, as contemplated under the terms of the policy.

. We cannot agree with counsel for appellee in the contention that the statute of Massachusetts which went into effect the last day of December, 1901, just six weeks before the death of Maj. Morev, cured all the errors of the trial court, upon the theorn^ that said law extended the class of beneficiaries so- as to include the defendaut and clothed him with the right to take under the policy. Said law simply authorized the substitution of persons not previously eligible, in case of the death of the first named beneficiary, “with the consent of the officers and under the rules as they may prescribe.” The by-laws existing- at the time the defendant was substituted and up to the present, so far as is disclosed by the record, fixed the class who could be substituted, and provided for the disposition of the fund in case of the death of the original beneficiary. The act simply gave the company the right to extend its field of operation, and was not imperative, and did not become binding on the company until -it took affirmative action by the adoption of appropriate by-laws, extending the class of beneficiaries as permitted thereunder. In other words, there is nothing before us to show that after the death of Mrs. Morey and before the death of Maj. Morey, a further disposition of the fund was made “in accordance with the provisions of the by-laws.” My Brothers are of the opinion that the act of Massachusetts which went into effect December 31, 1901, conferred the power upon the order named to name Monk as the beneficiary, and having continued as the beneficiary named in the certificate after said act went into effect and before the death of Maj. Morey, the insured, that the order could not have successfully defended an action brought by Monk on the certificate; that the plaintiffs stand, in no better position than the order would have stood, had Monk sued on the certificate; and, as the case was tried bv the judge without a jury, the error committed in admitting the evidence objected to was error without injury, since the defendant would have been entitled to a judgment with said evidence excluded. The writer cannot assent to this proposition, and thinks the case should,be reversed. I think the designation of Monk as the beneficiary was ultra vires, and that said designation was not cured by the act, unless the order adopted a by-law extending its field of operation before the death of the insured, or at least did more than the record shows was done to ratify the designation, even if it. could have been done without a bylaw, which I seriously doubt. The order is not repudiating the liability on the certificate, but .admits the indebtedness and wishes it to go to the one entitled to if, and, as Monk was improperly named as a beneficiary, the statutes and by-laws give it to these plaintiffs.

The judgment of the city court is affirmed.

Haralson, Tyson, Dowdell, Simpson, and Denson, JJ., concur. Anderson, J., dissents.