Stokes v. Rutherford , 192 Ga. 883 ( 1941 )

1. Properly interpreted, the action of the trial court complained of in the first special ground of the motion for new trial was merely to the effect that when the plaintiff's counsel tendered a part of the certificate of insurance involved in this case, and counsel for the defendant objected on the ground that the whole of it or none should be offered, the court would allow the plaintiff to offer in evidence what portion he wished, and would permit him to read that part to the jury, and also the court would permit opposite counsel to read the endorsement on the policy. There was no error in this ruling. Code, § 38-703.

2. The second and third grounds of the amendment to the motion are closely related to the first, and show no error.

3. The fourth and fifth grounds complain of the direction of the verdict, the insistence being that the evidence disclosed issues of fact. The basis of this complaint is untenable, since there was no conflict in the evidence, and that introduced, with all reasonable deductions and inferences therefrom, would have sustained only the particular verdict directed by the court. Code, § 110-104.

4. There was no error in overruling the motion for new trial.

No. 13822. SEPTEMBER 11, 1941. REHEARING DENIED OCTOBER 14, 21, 1941. Mrs. Stokes, as executrix of the will of Russell M. Young, brought suit against the Sun Life Assurance Company of Canada, alleging that Young was insured for $2500 in a policy issued by said company, payable to his estate. The defendant answered, admitting its liability in the amount alleged, but further asserted that demands had been made upon it for payment both by the plaintiff and by Amah Lee Rutherford as beneficiary. Its answer contained further allegations appropriate to what, under former practice in this State, was called a bill of interpleader; and the court ordered the two claimants to interplead. The case proceeded as one solely between the executrix and Miss Amah Lee Rutherford. At the conclusion of the evidence the court directed a verdict in favor of Miss Rutherford. A motion for new trial was overruled, and the movant excepted. The case as made by the admissions in the pleadings and the evidence was as follows: On November 1, 1929, Russell M. Young, an employee of the Central of Georgia Railway Company, took with the Sun Life Assurance Company a group-insurance policy No. 1241-G, for $5000, making his estate the beneficiary. On April 7, 1931, he signed a document wherein he reduced the amount of said insurance to $2500, and changed the beneficiary from his estate to Miss Amah Lee Rutherford. In December, 1934, the receiver of the Central of Georgia Railway Company addressed a communication to all of its employees, including Russell M. Young, wherein they were advised that new certificates were about to be issued in lieu of the certificates they held, which new certificate would modify the permanent-disability features of the old certificate. On February 10, 1935, Russell M. Young signed a receipt to the railway company for the new certificate, which receipt was as follows:

"To the Central of Georgia Railway Company. Number 1241-G. 5765. I hereby acknowledge receipt of the above numbered group-insurance certificate dated November 1, 1934, in replacement of canceled certificate or certificates issued to me under group policy 1241-G. [Signed] Russell M. Young."

Russell M. Young died testate on December 15, 1939, and the last-mentioned certificate, for which the receipt of February 10, 1935, was given, was in his possession at that time, and registered thereon and a part thereof was the change of beneficiary from his estate to Miss Amah Lee Rutherford, which change was dated March 1, 1931. The plaintiff gave testimony that she was the executrix of the estate of Russell M. Young, and that she saw in his possession the $2500 insurance certificate sued on, a short time before his death, but said she did not know whether the entry of the change of beneficiary was thereon at that time or not, because she did not look at the back of the policy. She introduced in evidence the first certificate for $5000, and undertook to introduce in evidence the last certificate for $2500, without the entry of the change of beneficiary thereon; but the court ruled that when a part of the certificate was offered in evidence the whole certificate, including the entry of the change of beneficiary, went in evidence, and that the plaintiff could use such parts of it as she saw fit, and read it to the jury, and that the defendant could use such parts of it as she saw fit and read it to the jury, but that it was all in evidence. Whereupon the plaintiff read to the jury the whole of the last certificate except the entry of the change of beneficiary, and counsel for the defendant read to the jury the entry of the change of beneficiary, which appeared on the policy. Counsel for the plaintiff objected to that entry being read, because the entry of the change of beneficiary predated the certificate of insurance. The court overruled this objection, allowed it to be read, and ruled that the whole policy, including the entry of the change of beneficiary, was in evidence. The plaintiff closed, and on motion the court directed a verdict for the defendant intervenor Miss Rutherford. That part of the certificate read in evidence by counsel for the intervenor was as follows: "Register of Change of Beneficiary. Entries in this register are to be made only by the Sun Life Assurance Company of Canada at its head office. Any such entry properly endorsed is evidence that the request for change of beneficiary has been duly received by the company, and not that such change is necessarily valid. An entry hereunder, or lack of entry, is not evidence that a further change of beneficiary has not been made by the employee. Date endorsed, 1 March, 1931. Beneficiary, Amah Lee Rutherford. Endorsed by Z. M."

The certificate of insurance as declared on was dated Nov. 1, 1934. Only the general grounds of the motion will be discussed. The original policy or certificate of insurance, No. 1241-G, in the sum of $5000, was dated November 1, 1929. It was payable to the estate of Russell M. Young, the insured, "provided that no other validly appointed beneficiary shall have a claim thereto (subject to the terms and provisions of the said policy and application.)" The certificate also contained the following: "Change of Beneficiary: The right to change the beneficiary is reserved to the employee, provided there is no legal restriction to the contrary, but such change shall take effect only upon receipt of a request at the head office of the company. Whenever a change of beneficiary is desired, this certificate, together with a completed change of beneficiary form should be given to the employee, to be forwarded to the company, in order that the change may be recorded. If the beneficiary named should predecease the employee, another beneficiary should be named immediately. Any addition to the initial amount of assurance will be paid to the person to whom such initial amount is payable, unless another beneficiary for the additional amount shall have been validly appointed." After the issuing of the policy, a new certificate was issued in the name of Russell M. Young, under the terms of the original policy of insurance as herein before referred to, plus the terms and conditions as set out in the subsequent certificate, which reduced the amount of insurance payable on the death of Russell M. Young from $5000 to $2500, and the subsequent certificate was dated November 1, 1934. In evidence was the following endorsement on the certificate: "Register of Change of Beneficiary. Entries in this register are to be made only by the Sun Life Assurance Company of Canada at its head office. And such entry, when properly endorsed, is evidence that the request for the change of beneficiary has been duly received by the company, and not that such change is necessarily valid. An entry hereunder, or lack of entry is not evidence that a further change of beneficiary has not been made by the employee. Date endorsed, 1 March, 1931. Beneficiary, Amah Lee Rutherford — Friend. Endorsed by Z. M."

In detailing what are the facts in the instant case, we have included such as were recited in an amendment to the motion for new trial, the recitals in which have the approval of the trial judge, although the whole of such facts does not appear in the brief of evidence, as for instance the writings affecting a change of beneficiary from the estate of the insured to Miss Rutherford, which were also set forth in the pleadings. A considerable portion of the brief of counsel for the plaintiff is devoted to an argument in support of the contention that the court erred in admitting these writings in evidence, as pointed out in one of the grounds of the motion for new trial, which is as much a part of the record as is the brief of evidence. There is nothing in the brief of evidence to contradict the facts which, as recited in the motion, were in evidence. When the judge was called on to approve the recitals of fact in the motion, his attention was thereby particularly called to this matter. His certificate that these writings were in evidence can be reconciled with their omission from the brief only on the theory that they were inadvertently omitted therefrom and should have been incorporated therein (compare Grooms v. Grooms,141 Ga. 478, 480, 81 S.E. 210), or else through a misapplication of that part of Code § 70-305, which declares that "Documentary evidence copied as an exhibit or set out in the pleadings, and introduced in evidence, shall not be set out in the brief except by reference to the same."

The contention of counsel for the plaintiff is that the change of beneficiary "bears an impossible date." It bears a date subsequent to the original certificate, but anterior to the date of the new certificate. Both certificates bear the same number. Both are issued by the same company, and both insure the same person. The inference is plain that all that happened was that the old certificate for five thousand dollars was surrendered for one for twenty-five hundred dollars, that the only substitution was in the amount, and that in all other respects there was to be no change. At the time the second was issued the insured had already exercised his privilege of changing the beneficiary; and the fact that the new certificate, dated November 1, 1934, carried, as the date of the change of the beneficiary from his estate to Miss Rutherford, April 7, 1931, can not, under this record as a whole, be given the effect of nullifying the insured's intention with respect to the change of the beneficiary. The directed verdict was the only one the jury could have rendered in accordance with the law and the evidence.

Judgment affirmed. All the Justices concur.