Sovereign Camp of the Woodmen of the World v. Warner , 25 Ga. App. 449 ( 1920 )

Luke, J.

There is no assignment of error upon the exceptions pendente lite, in the main bill of exceptions, nor in this court; hence the questions that could have been raised by a proper assignment of error upon the exceptions pendente lite are not considered by this court.

The evidence authorized the verdict, which has the approval of the trial judge. Eor none of the reasons assigned was it error to overrule the motion for a new trial.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.

The by-laws of the defendant provide that the benefit payable on the death of a member shall be paid “to the person or persons named in his certificate as beneficiary or beneficiaries, which beneficiary or beneficiaries shall be his wife, children, adopted children, parents, brothers and sisters or other blood relations, or to persons dependent upon the member.” By the act of 1914 as to fraternal benefit societies (Ga. L. 1914, p. 101, sec. 6, Park’s Code, § 2564 (v) ), cited in the briefs, it is provided that “The payment of death benefits shall be confined to” certain classes of relatives, “or to a person or persons dependent upon the member.”

The benefit certificate sued on was issued in 1915. H. P. Gallagher’s wife was then dead and he had no child. From the evidence it appears that the plaintiff was then twelve years old and was living with her parents, and she- continued living with them for the remainder of Gallagher’s lifetime. He died in 1918. During this period her father was supporting his family, which included several other children, and his earnings ranged from $23 a week in 1915 to $36 a week in 1918. On direct examination the plaintiff testified: “I was dependent upon Mr. Gallagher before his death. The way in which I was dependent was that as long ago! as wlien I was a little over two years old I went off to Texas with my uncle, . . and stayed three years with them and did not know any other father and mother except my uncle and his wife; and my mamma and papa wrote for me, but I did not want to leave, and they wanted to legally adopt me, but my father and mother objected and brought me home; and so my aunt died and she was brought here, and my uncle came with her, and when he came he gave me clothes and furniture, and he went back to Texas and sent me money, sometimes as much as $50 at one time; and then he left for Texas for good and came to Savannah and stayed a while, and then went off to Cleveland; and from there he also sent me money, clothes, or anything I wanted. He told me to write him and let him know if I needed anything and lie would send it, and I would always write when I wanted anything, and I always felt towards ■ him just as a father. I looked upon him as a father and looked to him to furnish me those things. I kept in correspondence with him; while he was away the whole time he wrote me, and always signed his letters, ‘Tour Texas Daddy/ I always wrote to him whenever I needed anything and wanted it, and he always responded in furnishing those things. I am named after him. After his wife died he sent all the furniture they had home, and also all of her jewelry; he gave it to me, and he left all the silver to mother., He brought it with him. He left me his trunk and his suitcase, and said he would not need it, and he always told me everything at his death was mine, and that he had no relatives at all.” On cross-examination the plaintiff testified, that after her return from her three-years visit to Mr. Gallagher and his wife in Texas, they sent clothing and mtfney to her, and he would send to her “every month, from time to time,” articles that she needed; she did not have to write; she wrote and asked for things and he responded; he kept that up until he died; she received, she supposed, five or six hundred dollars after her return from Texas; she needed things and he voluntarily gave them to her. The plaintiff’s mother testified, that Mr. Gallagher sent things to the plaintiff from the time she was a month old until he died, and he told the plaintiff he would always support her; “he contributed to her support all the way through; he said he felt like she was his own child and was all he had; . . he contributed to her during this time something between five and six hundred dollars in actual money, besides clothing and the household furniture; he always fitted her out each season;” her father “contributed vexy little to her support;” the wages he made were not sufficient; “of course her father supported the family and she lived with us; ” “ she lived at home, ate at home, and stayed at home the same as the rest of the children; all that she got outside of that was what was given her by Mr. Gallagher.” “ He just sent money for her support; he said he intended to support her just the same as if she' was with him, because he considered her his own child;” “he contributed right along, all the time, every month or two; sometimes he would send $50, sometimes $25; . . he sent $50 some months before he died.” “I suppose it was a voluntary gift on his part; he was under- no obligation from a parental standpoint; he knew I had a large family, and it was all we could do to do for those.” The plaintiff introduced in evidence an affectionate letter of H. P. Gallagher to her, dated December 12, 1915, referring to Christmas and saying, ‘You take this $50 and buy yourself and also something for the others after you are fixed up yourself,” and concluding, “I still remain your Tex Dady.”

One of the grounds of the motion for a new trial was that the letter of H. P. Gallagher to the plaintiff was admitted in evidence over the objection that it showed merely a gift to her and to others, and did not tend to show dependency. The plaintiff’s testimony on direct examination was objected ta as a whole, the defendant objecting “to bringing out anything of that kind, . . for the reason that the policy sets out that -she is a beneficiary as a niece, and the application for insurance was not made for a dependent, but made [for one named] as a niece.” In the motion for a new trial the admission of this testimony was alleged to be error because in this action as originally brought the plaintiff was designated as a niece, and the testimony was intended to support 'a new cause of action, to wit, dependency; and “it did not itself show such a ground, even if such a claim could now be set up.” Iu another ground it is alleged that the court erred in admitting in evidence, over the objection that it had nothing to do with the present cause of action, a benefit certificate issued by the defendant in 1909 to H. P. Gallagher, .naming his wife as beneficiary, which was surrendered on the issuance of the certificate sued on, and on which was written a direction by him that a new certificate, naming Pay Gallagher Warner as beneficiary, be issued in lieu of the surrendered certificate. Exceptions were taken also to the refusal to grant a nonsuit and the refusal to direct a verdict for the defendant.

William R. Hewlett, De E. Bradshaw, J. C. Farthing, for plaintiff in error,

cited, as to dependence: Ga. L. 1914, pp. 99, 101, sec. 6, Park’s Code, § 2564 (v); 29 Cyc. 114, 115; 1 Words & Phrases (2d series), 1298; 2 Id. (1st series) 1991; 29 Cyc. 114, 115; Sovereign Camp W. O. W. v. Noel, 34 Okl. 596 (126 Pac. 787-9, 41 L. R. A. (N. S.) 648); Ownby v. Supreme Lodge 101 Tenn. 16 (46 S. W. 758); Commercial Trav. Asso. v. Tennett, 128 Mo. App. 541 (106 S. W. 1073-7); Alexander v. Parker, 144 Ill. 355 (33 N. E. 183-4, 19 L. R. A. 187); Caldwell v. Grand Lodge, 148 Calif. 195 (82 Pac. 781, 113 Am. St. Rep. 219; 2 L. R. A. (N. S.) 653, 7 Ann. Cas. 356, 358); Murphy v. Nowak, 223 Ill. 301 (79 N. E. 113, 114); Martin v. Modern Woodmen, 111 Ill. App. 99

W. B. Stubbs, F. A. Tuten, G. N. Alford, contra,

cited: Grand Lodge A. O. U. W. v. Bollman, 22 Tex. Civ. App. 106 (53 S. W. 829); Wolf v. Pearce, (Ky. 1898) 45 S. W. 865; Erickson v. Modern Woodmen, 43 Wash. 242 (86 Pac. 584); Fuller v. Supreme Council, (Ind. App.) 115 N. E. 372; Sovereign Camp W. O. W. v. Noel, supra.