Whiteman v. Heinzman , 72 Ind. App. 385 ( 1919 )

Nichols, P. J.

—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 paragraphs of appellant’s answer to the cross-complaint of appellee Heinzman, guardian (hereinafter mentioned as appellee), said appellee filed his reply-in general denial, and the cause, being at issue, was submitted to a jury for a trial. At the close of appellee’s evidence, appellant filed his motion for an instruction to the jury to return 'a verdict for appellant, and a like motion at the close of all the evidence, both of which motions were overruled. There was a general verdict for the appellee for the $1,500 so paid into court as aforesaid. . Appellant filed his motion for judgment in his favor, on the jury’s .answers to interrogatories submitted to it, notwithstanding the general verdict, which motion was overruled, to which ruling the appellant excepted, and after a motion for a new trial, which was overruled, this appeal.

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 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.

“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 said wards were dependent upon him for support, but that the assured failed and refused to make such affidavit.

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.

1. Appellee’s wards were not blood relatives, as it clearly appears by these answers to the interrogatories that they were but nephews by marriage. If, then, they recover, it must be because it appears that they were dependents of the assured. The degree of relationship alone certainly does hot cast upon the assured any legal, moral or equitable obligation to support appellee’s wards. The reasonable presumption is that 'they were not dependent upon him for support, and the. burden was upon appellee to show such dependence. For authorities as to what may constitute one a dependent of another, sée Ownby v. Supreme Lodge, etc. (1898), 101 Tenn. 16, 46 S. W. 758; Martin v. Modern Woodmen, etc. (1903), 111 Ill. App. 99; Lavigne v. Ligue des Patriotes (1901), 178 Mass. 25, 59 N. E. 674, 54 L. R. A. 814, 86 Am. St. 460; Caldwell v. Grand Lodge (1905), 148 Cal. 195, 82 Pac. 781, 2 L. R. A. (N. S.) 653, 113 Am. St. 219, 7 Ann. Cas. 356; Royal League v. Shields (1911), 251 Ill. 250, 96 N. E. 45; Ballou v. Gile, Admr. (1880), 50 Wis. 614, 7 N. W. 563; Supreme Lodge, etc. v. Hutchinson (1892), 6 Ind. App. 399, 33 N. E. 816; Nye v. Grand Lodge, etc. (1893), 9 Ind. App. 131, 150, 36 N. E. 429.

2. It clearly appears from these authorities that dependence that will permit a recovery as a beneficiary must be for support or maintenance in a material degree, and that the obligation to furnish it must rest upon some moral, legal, or equitable ground, and not upon some purely voluntary, or charitable impulse, or disposition of the member. By its answers, the jury finds that there was no evidence that the assured furnished a home, or board, clothing, .or medical service for appellee’s wards. We can think of no substantial, material element of support that is not covered by such finding.

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.

Dausmann, J., dissents.