Barnett v. Boyd

• Decision Date: 10 March 1932
• Docket Number: 6 Div. 990.
• Citation: 140 So. 375,224 Ala. 309
• Parties: BARNETT v. BOYD.
• Court: Alabama Supreme Court

140 So. 375

224 Ala. 309

BARNETT v. BOYD.

6 Div. 990.

Supreme Court of Alabama

March 10, 1932

Appeal from Circuit Court, Jefferson County; R. B. Carr, Judge.

Action by Ella Boyd Barnett against the Zamora Benefit Fund Association, Maud Boyd, substituted defendant. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Question of insured's consent to change of beneficiary held for jury.

Appellant instituted this suit against Zamora Benefit Fund Association to recover percentage of a death benefit certificate in said defendant order, bearing date March 28, 1928, and in which order the life of Robert M. Boyd was insured. The full amount of insurance was $4,024, and the beneficiaries named in the certificate were Maud Boyd, to receive 70 per cent., and Elizabeth Boyd, to receive 30 per cent. Elizabeth Boyd is now Elizabeth Barnett. She was a child by insured's first marriage. Maud Boyd is his second wife, by whom there are three children, all minors. Robert M. Boyd died by his own hand June 19, 1930. The association paid the full sum of $4,024 into court, and suggested Maud Boyd as claimant. The interpleader was allowed, and thereafter the case proceeded between Elizabeth Barnett as plaintiff and Maud Boyd as defendant. The insured was in good standing at the time of his death, and the benefit certificate as shown was offered in evidence by plaintiff after its identification by the association's secretary, and without objection, and which makes plaintiff a beneficiary to the extent of 30 per cent of the whole. On cross-examination defendant was permitted to show there was another certificate issued after March 28 1928, and said certificate was admitted in evidence over plaintiff's objection, and which named Maud Boyd as sole beneficiary. The specific objection was based upon the ground that it had not been shown that at the time of its issuance it had been authorized by Robert M. Boyd, the insured. This latter certificate bears date June 16, 1930, and was mailed to insured's address June 18, 1930.

Plaintiff offered evidence tending to show insured was drinking heavily during the period from Sunday night June 15 to date of his death on June 19, 1930; that his home life was unhappy, and that his wife's aunt, who lived with insured and his family, made his surroundings unpleasant; that she greatly disliked plaintiff, and was constantly after him to give her nothing, etc.; that this aunt in May, 1930, went to the office of the association with a letter bearing insured's name requesting a change in his beneficiary from that as stated in certificate of March 28, 1928, to his wife, Maud but that the signature to the letter was not that of insured; that a change in the beneficiary by the order is predicated on the written request of the member filed with the secretary and the surrender of the certificate, and the certificate recites that the beneficiary may be changed on the written request of the member, and that under the rules such change cannot be made without such written request.

Plaintiff offered further proof that defendant's aunt first came to the office with the letter purporting to be that of insured, Robert M. Boyd, asking for change, and which was not his signature. It was declined, and the secretary had mailed to his address a blank application for such purpose with instructions as to witnesses, etc. The aunt then came a second time to the office with the application blank with insured's name signed thereto, but the blank as to name of beneficiaries was not filled, no name there appearing, although witnessed and defendant's name nowhere on the same. The secretary declined to change the beneficiary; the aunt requesting that the secretary fill in the name of his wife and minor child. "She asked me to fill it out for her." The secretary declined to do so, and this aunt gave as a reason why insured did not himself come was that he "was a traveling man," "did not tend to business matters, and inclined to be lazy."

Insured was in fact a contractor and carpenter.

The aunt came a third time with the application completely filled out and Maud Boyd, the widow, named as sole beneficiary. The application she brought back was the same one she had presented in blank previously. The secretary waited several days after receiving the completed application and issued the certificate, bearing date June 16, 1930, and mailed it out June 18, 1930. Plaintiff's certificate is No. 7449, and defendant's No. 7723.

Plaintiff's evidence also tended to show that insured did not spend the night in his home June 15, but stated he would sleep in his garage; that he could not go home, and would never stay there again; that he could not get along with his wife and her aunt; that insured shot himself on Thursday June 19, 1930, and just a few minutes before he had stated as to his unhappy home life, and that his financial condition was equally divided between the five; that he had left 30 per cent. of the Shrine insurance to his daughter and 70 per cent. to his wife; and that at that time he was not drinking. Insured made some reference to owing his wife's aunt some money, and she had "had him transfer some papers," and was drinking heavily at the time. Plaintiff and defendant rested their case on the foregoing proof in substance.

The court then stated to the jury in substance that, in his opinion, plaintiff had not made out a case, and it was his duty to direct a verdict.

The court then gave the affirmative charge, with hypothesis, for defendant, reading the same, and stated: "I will ask one of your number to sign your verdict. 'We the jury find the issues in favor of the substituted defendant and claimant, Maud Boyd.' Just retire, gentlemen, and one of you sign that verdict." To the oral instructions, as indicated, plaintiff reserved exceptions. There was verdict and judgment for defendant, and plaintiff appealed.

Drennen, Davis & Perrine, of Birmingham, for appellant.

Ross, Bumgardner, Ross & Ross, of Bessemer, for appellee.

GARDNER J.

The proceedings as to the interpleader appear to conform to our statute (...