Ables v. Ackley

• Decision Date: 16 November 1908
• Citation: 133 Mo. App. 594,113 S.W. 698
• Parties: ABLES v. ACKLEY.
• Court: Missouri Court of Appeals

113 S.W. 698

133 Mo. App. 594

ABLES v. ACKLEY.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. APPEAL AND ERROR (§ 1194)—CONSTRUCTION OF DECISION — EFFECT IN LOWER COURT.

A former decision on appeal that defendant, by cross-examining plaintiff as to the terms of a contract between herself and her deceased husband, rendered evidence thereof by plaintiff admissible after a ruling that she was incompetent to testify to the transaction, did not decide that plaintiff was a competent witness as to such evidence.

2. APPEAL AND ERROR (§ 1097)—CONSTRUCTION OF DECISION—MATTERS DECIDED.

As a general rule, a question arising on a former appeal is res judicata only when it was fairly necessary to the decision and directly decided.

3. WITNESSES (§ 144)—COMPETENCY—SURVIVING PARTY TO CONTRACT.

In an action against one claiming as beneficiary under an insurance policy, plaintiff was not competent to testify to a contract with her deceased husband, by which he agreed to transfer the policy to her in consideration of the marriage, or as to transactions between them pursuant to the contract after the marriage.

4. INSURANCE (§ 784) — MUTUAL BENEFIT COMPANIES — CHANGE OF BENEFICIARIES — MODE.

The adoption, by the charter of a mutual benefit society, of a particular method of changing beneficiaries, excludes all other methods; but the society may waive compliance with its strict rules and validate attempts to change beneficiaries which would otherwise be ineffectual, in which case a substantial compliance is sufficient.

5. INSURANCE (§ 784)—MUTUAL BENEFIT SOCIETIES—CHANGE OF BENEFICIARIES—MODE.

The by-laws of a mutual benefit association provided that no change of beneficiaries should

be effective until the old certificate was surrendered and a new one issued. Plaintiff's husband agreed on their marriage to make her the beneficiary of a policy held by him, and afterward gave her the certificate. She paid all assessments thereafter with the society's knowledge, and her husband applied for a new certificate naming plaintiff as beneficiary; but the society refused to issue it because the old certificate was not then surrendered, and he thereafter neglected to have the change made. Held, that there was no change of beneficiaries under the by-laws of the society.

6. INSURANCE (§ 783) — MUTUAL BENEFIT INSURANCE—RIGHTS OF BENEFICIARIES.

Beneficiaries under a mutual benefit certificate have no vested interest in the certificate until the member's death.

7. INSURANCE (§ 773) — MUTUAL BENEFIT INSURANCE—RIGHTS OF MEMBERS.

Members of mutual benefit companies have no property right in the indemnity, but only the right to designate the beneficiary.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Jennie Ables against Ila Fern Ackley. From a judgment for defendant, plaintiff appealed. Affirmed.

See, also, 126 Mo. App. 84, 103 S. W. 974.

E. W. Shannon and Fyke & Snider, for appellant. Gamble & Taylor and W. J. Costigan, for respondent.

BROADDUS, P. J.

This is a case of interplea. The admitted facts are that: On the 4th day of June, 1896, the Modern Woodmen of America issued to Alexander Ables a benefit certificate providing for the payment at his death of the sum of $2,000 to the defendant, his daughter, then Ila Fern Ables, now Ackley. On December 24, 1901, the insured married the plaintiff, Jennie Ables. In January, 1904, Alexander Ables died, and in a short time thereafter plaintiff brought suit against the society and defendant. After a demurrer had been sustained to the petition, plaintiff filed an amended petition, after which the society paid the indemnity into court, and the controversy henceforward was between the plaintiff and defendant, Ila Ackley. The plaintiff seeks to recover on the ground: That, at the time of her marriage with Ables, it was agreed by him that, in consideration thereof, she was to become the beneficiary in the certificate upon the agreement on her part that she was to keep all dues and assessments against the same paid and thereby keep it in force; that she performed on her part all the obligations of said agreement; that Ables, intending, according to his agreement, to have the certificate changed so as to make her the beneficiary, applied to the society for that purpose, but, as he did not have the certificate with him, the clerk of the society refused to make the change; and that thereafter the matter was neglected, and the change was not made. The plaintiff was introduced as a witness and was allowed, in the first place, over the objections of defendant, to state in detail the matters we have recited as the facts upon which she relied to recover. The court, however, reserved the right to pass upon her competency as a witness. Her evidence was finally rejected on the ground that she was incompetent to testify as to what took place between herself and Ables, the other party to the contract, he being dead, and as to what he said to her after the marriage.

The plaintiff challenges the correctness of the ruling on the ground that the question of her competency was adjudicated when the case was before this court on a former appeal, wherein it was held that she was a competent witness to testify to said facts. The case is reported in 126 Mo. App. 84, 103 S. W. 974. It was so held, but not on the ground that plaintiff was a competent witness, but that defendant had waived the objection by cross-examining her as to such facts after the court had ruled that she was incompetent....