Atkeson v. Sovereign Camp, W.O.W.

• Decision Date: 08 May 1923
• Docket Number: 12463.
• Citation: 216 P. 467,90 Okla. 154,32 A.L.R. 1108,1923 OK 233
• Parties: ATKESON v. SOVEREIGN CAMP, W. O. W., ET AL.
• Court: Oklahoma Supreme Court

216 P. 467

90 Okla. 154, 32 A.L.R. 1108, 1923 OK 233

ATKESON v. SOVEREIGN CAMP, W. O. W., ET AL.

No. 12463.

Supreme Court of Oklahoma

May 8, 1923

Rehearing Denied July 3, 1923.

Syllabus by the Court.

The relation of marriage is created by a civil contract in which the state has a vital interest, it being the foundation of the family and society; and, where a party has been divorced and the statute provides that the decree shall not become absolute for a period of six months, held, any marriage in violation thereof is void; neither of the parties to the divorce having the capacity to legally contract a marriage with any other person during such period. An attempted marriage in violation of this statute is void in the state of domicile or any other place.

Under the statutes of this state and the constitution and by-laws of the Sovereign Camp, Woodmen of the World, no person not in relation to the insured, as provided therein, or legally married to the member, is qualified to participate in the benefits of a fraternal benefit certificate of the order.

Under the statutes of this state, relative to decree of divorce the parties are legally and fully divorced from all obligations and duties toward each other from and after the signing of the decree, with the sole exception that the contract is not fully and absolutely dissolved for a period of six months from and after the rendition of the decree. Thus the parties are in every way divorced except that the inhibition and restriction is placed upon them, preventing their remarriage within the period of time specified in the statute.

When it is made to appear that a determination of an action cannot be had without the presence of others not parties to the proceedings, and who are interested in the subject-matter of the litigation, the court may of its own motion order them brought in and made parties.

Where a fraternal insurance society instituted an action to have determined the rightful beneficiaries under a certificate of membership issued to one of its members, and the agreed facts show that such member had married a second time within six months from the date of a decree of divorce granted to his first wife, that such member had two minor children by his first wife, and that soon after his second marriage he caused his second wife to be named as the beneficiary in the certificate of membership in the society, and that such member died before the expiration of six months from date of the decree of divorce, held, the second marriage being void and the second wife being prohibited from taking the insurance under the applicable statute of this state and the by-laws of the society, the first wife being disqualified under the statute and by-laws of the society by reason of the decree of divorce, that the two minor children of the deceased by his first wife as the heirs of the deceased are entitled to collect the insurance.

Additional Syllabus by Editorial Staff.

A divorce "a mensa et thoro" is a conditional decree leaving in effect the marriage contract, in so far as the question of status is concerned, but relieving the parties from all obligations and rights as to cohabitation, support, and property interests while a divorce "a vinculo matrimonii" is an absolute dissolution of the marriage relation, and changes the status of the parties from coverture to that of single persons.

Appeal from District Court, Carter County; B. C. Logsdon, Judge.

Action by the Sovereign Camp, Woodmen of the World, against Minnie Atkeson, and another. From a judgment for plaintiff, and the other defendant, the named defendant appeals. Reversed, and remanded with directions.

McNeill and Kane, JJ., dissenting.

When it is made to appear that a determination of an action cannot be had without the presence of others not parties to the proceedings and who are interested in the subject-matter of the litigation, the court may, of its own motion, order them brought in and made parties, under Comp.St.1921, § 224, 12 Okl.St.Ann. § 236.

J. F. McKeel and Robt. S. Kerr, both of Ada, for plaintiff in error.

Champion, Champion & George, of Ardmore, for defendants in error.

KENNAMER J.

This action was instituted in the district court of Carter county by the defendant in error, Sovereign Camp, Woodmen of the World, filing its bill of interpleader making Minnie Atkeson and Mattie Atkeson defendants, to determine who is the beneficiary to a certificate of membership in the plaintiff's society, issued December 12, 1916, to Lee B. Atkeson insuring the life of said Atkeson in the amount of $1,000. The defendants Minnie Atkeson and Mattie Atkeson each filed a separate answer and cross-petition praying the judgment of the court that they be decreed to be the beneficiary of the insurance due from the plaintiff under the certificate of membership.

On the 27th day of April, 1921, the cause was tried to the court upon an agreed statement of facts, and judgment was entered in favor of the defendant Mattie Atkeson, decreeing her to be the beneficiary of the insurance payable by the plaintiff under the certificate of membership of the deceased, Lee B. Atkeson.

The defendant Minnie Atkeson prosecutes this appeal to reverse the judgment of the trial court.

The material facts necessary to be considered in determining the questions presented by this appeal briefly stated are:

The plaintiff, Sovereign Camp, Woodmen of the World, is a fraternal beneficiary association, organized and incorporated under the laws of the state of Nebraska, engaged only in the business of the fraternal beneficiary association, and on December 12, 1916, being authorized to do business in the state of Oklahoma, issued a certificate of membership, No. 9806, in said society to Lee B. Atkeson, naming Minnie Atkeson beneficiary with relationship of wife, payable to said beneficiary on proof of death, in the amount of $1,000.

Lee B. Atkeson, the insured, and the defendant Minnie Atkeson were legally married on the 23d day of November, 1911, and lived together as husband and wife until some time in the summer of 1918. Of said marriage there were two children born, whose names and ages are as follows: Pete Atkeson, 8 years of age; Harry Atkeson, 6 years of age.

In the summer of 1918 Lee B. Atkeson and Minnie Atkeson were separated, and at no time thereafter lived together as husband and wife. On the 29th day of August, 1919, in an action instituted by Minnie Atkeson in the district court of Pontotoc county, Okl., against Lee B. Atkeson, Minnie Atkeson was granted a decree of divorce from Lee B. Atkeson. The decree of divorce contained the following provisions: It is further ordered by the court that this decree does not become absolute and take effect until six months from the date thereof.

Subsequent to the decree of divorce, on the 15th day of September, 1919, and within six months from the date of said decree of divorce, Lee B. Atkeson, the insured, and Mattie Jeffreys, now the defendant Mattie Atkeson, being residents of the state of Oklahoma, went to the city of Gainesville, Tex., and there procured a marriage license from the proper authority authorizing the marriage of Lee B. Atkeson and Mattie Jeffreys. Thereupon the said Lee B. Atkeson and Mattie Jeffreys, in the city of Gainesville, Tex., caused a marriage ceremony to be performed and returned to the state of Oklahoma and lived together as husband and wife until the date of the death of Lee B. Atkeson, February 4, 1920.

It is agreed: That said last marriage of Lee B. Atkeson and Mattie Atkeson established the relation of husband and wife, unless such marriage is void by virtue of the provisions of the decree of divorce and sections 4971 and 4973 of Revised Laws 1910. That section 3 of the constitution, laws, and by-laws of the Sovereign Camp, Woodmen of the World, designating who may be beneficiaries under certificates of membership issued, reads as follows:

"The object of this society shall be to combine white persons of sound bodily health, exemplary habits and good moral character, between the ages of sixteen and fifty-two years into a secret, fraternal beneficiary and benevolent society, provide funds for their relief, comfort the sick and cheer the unfortunate by attentive ministrations in times of sorrow and distress; promote fraternal love and unity, create funds from which, on reasonable and satisfactory proof of death of a beneficiary member who has complied with all the requirements of this society, there shall be paid a sum not to exceed five thousand (5,000) dollars 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."

Section 72 of the constitution and laws of the plaintiff society provides for the manner for changing of beneficiaries by paying a fee of 25 cents and surrendering the original certificate and requesting in writing on the back of the certificate the name or names of the new beneficiary or beneficiaries, and providing, in case the original certificate is lost or the possession thereof is withheld, that the insured make satisfactory proof under oath of the laws of such certificate or the facts and circumstances of the withholding of the same.

In December, 1919, Lee B. Atkeson made an affidavit to the effect that the original certificate issued to him, in which Minnie Atkeson was named as beneficiary, had become lost, and requested the issuance of a new certificate in which Mattie Atkeson, his second wife, be designated as beneficiary therein. That, in pursuance of said affidavit the plaintiff society did on the 9th day of January,...