Benner v. Pedersen

• Decision Date: 17 August 1962
• Docket Number: No. 2957,2957
• Citation: 143 So.2d 722
• Parties: Joy L. BENNER, Appellant, v. Elizabeth K. PEDERSEN, Appellee.
• Court: Florida District Court of Appeals

Page 722

143 So.2d 722

Joy L. BENNER, Appellant, v. Elizabeth K. PEDERSEN, Appellee.

No. 2957.

District Court of Appeal of Florida, Second District.

Aug. 17, 1962.

Rehearing Denied Sept. 5, 1962.

Robert G. Murrell of Sam E. Murrell & Sons, Orlando, for appellant.

Bernard C. Muszynski, Orlando, for appellee.

WHITE, Judge.

Appellant Joy L. Benner was one of two defendants in an interpleader suit by Prudential Life Insurance Company to determine the beneficiary of two policies on the life of Arthur J. Pedersen, deceased. The appellant was the last named beneficiary endorsed on the policies in question. The beneficiary previously named therein was Elizabeth K. Pedersen, the insured's surviving wife who was the other defendant in the interpleader proceedings. The policies permitted change of beneficiary by the insured.

The Prudential Company paid the insurance proceeds into the registry of the court, and the court on final hearing ruled in favor of Elizabeth Pedersen and against Joy Benner. The decree in effect sustained the contention of Elizabeth Pedersen that the change of beneficiary was invalid and ineffectual because of an unrebutted presumption of undue influence exerted upon Arthur Pedersen by Joy Benner. Joy Benner urges on appeal that the decree is contrary to the evidence and the law.

Arthur Pedersen was a forty-three year old major in the United States Air Force who died of cancer at an Air Force hospital in Texas on March 24, 1960. He first met Joy Benner in 1959 shortly before or after she became a member of the Florida Wing of the Civil Air Patrol with which Major Pedersen was connected as a liaison officer. Major Pedersen became enamored of Joy Benner, who was considerably younger than he, and there ensued a close association between them. Elizabeth Pedersen filed for divorce in September, 1959 and the suit was pending against Major Pedersen at the time of his death.

The change of beneficiary from Major Pedersen's wife to Joy Benner took place on December 28, 1959. Less than three months thereafter he attempted to change the beneficiary under both policies back to his wife. This was at the hospital in Texas on March 22, 1960, two days prior to his death. The request was by mail to the Prudential Company but could not be carried out because the policies were not enclosed. The policies thus lacked the formal endorsements contemplated by the terms of the policies. A search among Major Pedersen's effects after his death did not disclose the folders that usually contained his policies; but Joy L. Benner thereafter presented the policies to the Company, together with proof of death and her claim to the insurance proceeds.

The trial court determined, as stated, that Elizabeth Pedersen was the true beneficiary and entitled to the insurance proceeds. The findings in the nine-page memorandum opinion stated that from February 1960 until the insured's death on March 24, 1960 he was in a 'comatose' or 'stuporous' condition but that at intervals he was alert and knew what he was doing; that the insured, although generally weak on March 22, 1960, was in possession of his faculties and knew what he was doing when he made the request for change of beneficiary back to his wife. Directly on the crucial question of the validity vel non of the designation of Joy Benner as beneficiary, the court's memorandum opinion reads in pertinent part as follows:

'3. The legal relation of employer and employee did not exist between JOY L. BENNER and Major Pedersen, but the evidence shows she performed services as Secretary to him and as Director of Administrative Services of the Civil Air Patrol worked very closely and in the same office with Major Pedersen who was in Command of the Liason [sic] Office of the Civil Air Patrol so that a confidential relationship did exist between them. The evidence clearly shows an illicit romance between them, beginning at least in the early part of 1959 and continuing until he died or near that time. There is no direct evidence of undue influence by JOY L. BENNER on Major Pedersen in effecting the change of beneficiary in her favor on the two policies endorsed by Prudential December 28, 1959, but the evidence sufficiently establishes such a meritricious relationship between them that under the law a presumption of fact arises that there was undue influence. Beatty v. Strickland, [136 Fla. 330], 186 Sou. 542 supports this rule, although it appears to be the minority rule. A prima facie case is thus made out against JOY L. BENNER, thereby requiring that she assume the burden of proving that the change of beneficiary was not superinduced by undue influence. This, she failed to do, and there is no evidence whatever, either denying the facts showing the illicit romance or tending to prove the bona fides of the transaction a consideration therefor or the absence of undue influence. The change of beneficiary to JOY L. BENNER is therefore void, leaving ELIZABETH K. PEDERSEN as the beneficiary under the policies as they existed before the attempted change to JOY L. BENNER.' (emphasis added)

The trial court found that a meretricious relationship existed between Major Pedersen and Joy Benner as of December 28, 1959. If this finding is not reversible on appeal we agree that under Florida law as exemplified in Beatty v. Strickland, 1939, 136 Fla. 330, 186 So. 542, the change of beneficiary to Joy Benner was presumptively the result of undue influence. The further decisive question then would be whether or not the evidence adduced on behalf of Joy Benner, or the evidence as a whole, dispelled that presumption. Significant in this connection is the circumstantial similarity of Beatty v. Strickland wherein the court held for the wife and against the last named beneficiary. In drawing the comparison we shall first relate in further detail the facts in the instant case.

There were two policies on Major Pedersen's life, one for $6,000.00 and one for $1,000.00, and Elizabeth Pedersen was beneficiary under each policy until after the advent of Joy Benner. Joy Benner occupied an office adjacent to Major Pedersen. She toch dictation and performed clerical services for him and accompanied him alone on flights out of the State of Florida. She used his pink Cadillac automobile while he was in the hospital.

Colonel Joseph F. Moody, Florida Wing Commander of C.A.P., testified that Major Pedersen would go to the office on work nights of C.A.P. although the Air Force working day was over; that Joy Benner on occasion requested him, the witness, to drop her at the Bachelor Officers Quarters so that she could pick up Major Pedersen's car; that when the Major went to Orlando Air Force Hospital, Joy Benner visited him frequently. Colonel...