Gillespie v. Modern Woodmen Of Am.

• Decision Date: 11 May 1926
• Docket Number: (No. 5393.)
• Citation: 133 S.E. 333
• Parties: GILLESPIE . v. MODERN WOODMEN OF AMERICA.
• Court: West Virginia Supreme Court

133 S.E. 333

GILLESPIE .

v.MODERN WOODMEN OF AMERICA.

(No. 5393.)

Supreme Court of Appeals of West Virginia.

May 11, 1926.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Dependent.]

Error to Circuit Court, Mercer County.

Action by Callie M. Gillespie against the Modern Woodmen of America on a benefitcertificate. Judgment for plaintiff, and defendant brings error. Affirmed.

Truman Plantz, of Warsaw, 111., Geo. G. Perrin, of Rock Island, 111., and McClaugherty & Richardson, of Bluefield, for plaintiff in error.

Sanders, Crockett, Fox & Sanders and James S. Kahle, all of Bluefield, for defendant in error.

LIVELY, J. Plaintiff below, hereinafter called the plaintiff, obtained judgment for $3,000 upon a verdict against the Modern Woodmen of America, defendant below, hereinafter called defendant, on' December 17, 1924. Defendant below prosecutes this writ of error.

Defendant is a fraternal benefit association chartered under the laws of Illinois, and admitted to transact business in this state. About the year 1904, C. A. Mitchell, now deceased, became a member of a local lodge at Bluefield. A certificate was issued to him, the beneficiaries therein being his wife and children. About the year 1922 his wife died, having become an invalid for two or three years prior to that time. About the time of his wife's death he designated the plaintiff as his beneficiary, naming her as sister, and a new certificate in accordance with such designation was duly issued on January 23, 1922, and delivered to Mitchell on the 27th day of that month. He sealed the new certificate in an envelope and delivered it to plaintiff. She kept it in her desk, not knowing what it contained, until his death, when it was opened. Plaintiff was not a sister of Mitchell, but was the wife of Mitchell's wife's brother. She made her claim and filed her proofs as sister-in-law.

It appears that about 19 years before the trial of this case, the plaintiff's husband died, leaving with her a girl baby then about two or three weeks old. At the request of Mitchell and his wife, she came to live with them in their home, where she lived until the time of Mitchell's death, educating her child in the public schools at Bluefield. Until about three years prior to his death on March 14, 1923, she assisted Mitchell in his retail coal business at a small salary, not named. Then her sister became an invalid and she looked after the household affairs and waited upon and nursed the sister until her death, which resulted from cancer. After her sister's death, she continued in the home doing the household work and acting as the mistress of the household. It does not appear whether any wages were paid to her after she ceased to work at the coal yard office. The relations between herself on the one hand, and her sister and Mitchell on the other, were cordial and she was treated as a member of the family.

In 1922, Mitchell confessed to a violation of the Prohibition Laws on an information filed against him in the United States District Court for the Southern District of West Virginia, and was sentenced to pay a fine and to confinement in the jail at the county seat of Mercer county for a period of six months. He served that sentence, and during its service plaintiff continued in charge of his home, where she resided. A short time after he was released from the sentence, and in the year 1923, he was killed by his son Oscar in the city of Bluefield.

It appears that after Mitchell became involved in the criminal prosecution in the federal court, he conveyed his real estate to his wife, and, she having died, his children became her heirs at law of the property, subject to his curtesy. He desired to sell the property, divide the proceeds among those entitled thereto, and to leave the community. The son refused to join in the conveyance, and it appears that this brought about the ill feeling which resulted in the fatal shooting of Mitchell by his son Oscar.

Defendant pleaded the general issue, and filed special pleas averring that Mitchell had engaged in the manufacture and sale of spirituous liquors and had violated the terms of the benefit certificate, which made the policy void if he so engaged; that he came to his death as a consequence of a personal altercation in which he was the aggressor; that his death was occasioned by a violation of law or an attempted violation of law on his part, which also avoided the policy under its terms; that plaintiff was not eligible as a beneficiary under the charter, constitution, and by-laws of defendant, and the laws of this state; that she was not a sister nor other blood relative of deceased, and was not a person dependent upon the insured member. To this latter plea plaintiff replied that she was Mitchell's sister-in-law, a member of his family, and was dependent upon him, and was therefore eligible to be a beneficiary and receive payment of the certificate. To this replication defendant replied generally. Issue was joined on the other pleas and on the general issue, and on the issues raised by these pleas the case was tried before a jury, resulting in a verdict and judgment for $3.000, as above set out.

Defendant's by-laws restrict payment of benefits to the wife, surviving children, including legally adopted children, or some other person or persons specifically named in the benefit certificate as beneficiary or beneficiaries, who are related to the member as heir, blood relative (blood relative meaning relationship not farther removed than cousin in the first degree), or person dependent upon him, or member of his family whom the applicant shall designate in his application. Our statute on fraternal benefits societies, section 6, chap. 55A, Code, says that "payment of death benefits shall be confined to wife, husband, * * * or to a person or persons depending upon the member." Itwill be noted that under the by-laws of defendant a member of the family may be a beneficiary, but under the statute a dependent can be made such, not naming a member of the family in terms as a person to whom benefits may be paid. Plaintiff predicates her right to recovery as being a member of Mitchell's family, and also as a dependent. Defendant replies that the certificate of membership sued on is a West Virginia contract and governed by the West Virginia law which restricts payments of benefits to the persons therein named, including dependents, and therefore she cannot recover as a member of the family; while plaintiff says that the contract is an Illinois contract, and is governed by its laws, which authorize payments to a member of the family. If plaintiff be a dependent of Mitchell, it is immaterial which law governs, for both permit payment to dependents. Defendant's counsel frankly concede that if a beneficiary is designated under a relationship which does not in fact exist, but is eligible under some other permissible and legal relationship, the beneficiary is entitled to receive payment. It becomes material therefore to determine whether plaintiff was a dependent within the meaning of the law and our statute; for if she is not, she cannot recover, and it would be immaterial to consider the defenses interposed by the other pleas.

The question of dependency under fraternal benefit by-laws and the statutes governing them has been before the courts very many times. It would serve no useful purpose to review all these cases; the text-books and digests do that. One of the recent cases is Hunt v. Winkleman, decided in 1920 by the Supreme Court of Maryland, 136 Md. 250, 110 A. 490, where the various decisions, including McCarthy v. Order of Protection, 153 Mass. 314, 26 N. B. 866, 11 D. R. A. 144, 25 Am. St. Rep. 637; Wilber v. Order of Protection, 192 Mass. 477, 78 N. E. 445; Order of Foresters v. Heffernan, 283 111. 429, 119 N. E. 426; Goff v. Supreme Lodge Royal Achates, 90 Neb. 578, 134 N. W. 239, 37 L. R....