Brotherhood of Locomotive Firemen and Enginemen v. Ginther

• Decision Date: 31 August 1926
• Docket Number: 1271
• Citation: 35 Wyo. 244,248 P. 852
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. GINTHER [*]
• Court: Wyoming Supreme Court

248 P. 852

35 Wyo. 244

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. GINTHER ^[*]

No. 1271

Supreme Court of Wyoming

August 31, 1926

Rehearing Denied February 8, 1927, Reported at: 35 Wyo. 244 at 280.

ERROR to District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Rehearing denied, 252 P. 1026.

Action by Blaine F. Ginther against the Brotherhood of Locomotive Firemen and Enginemen. There was judgment for plaintiff and defendant brings error.

Affirmed.

Sullivan and Garnett, for plaintiff in error.

The insurance contract provided a method for changing the beneficiary; the attempted change was not completed before his death and was invalid; 1 A. L. R. 971; 29 Cyc. 130; Dean v. Dean, 156 N.W. 135; Stemler v Stemler, 141 N.W. 780; Stoningham v. Dillon, 69 P. 1020; Supreme Council v. Smith, 17 A. 770. A mere intention to change is insufficient; insurer has the right to rely upon compliance with its rules; 1 Bacon L. & A. Ins 404; Grand Lodge v. Edwards, 89 A. 147. The only exception to the rule is where compliance is waived; Supreme Conclave v. Capella, 41 F. 1; Taylor v. Grand Lodge, 178 N.W. 130; Holden v. Brotherhood, 132 N.W. 329. This case is not within the exception; Modern Brotherhood v. Kovitch, 104 N.E. 795. Another exception is where insured has followed the rules but death occurred before issuance of certificate; Stemler v. Stemler, supra; Wilkes v. Hicks, 186 S.W. 830; 1 A. L. R. 971. The rules and by-laws of the society specifically provide the method to be followed in changing beneficiaries; in this case the insured executed the form but did not surrender it; he did not, therefore, comply with the contract; 1 Bacon L. & A. Ins. 404; Faubel v. Eckhart, 138 N.W. 618; Knights of Honor v. Nairn, 26 N.W. 829; Grand Lodge v. Edwards, supra; Olmstead v. Ins. Co., 14 P. 449; Jory v. Council, 38 P. 524.

Arnold, Patterson and Arnold, for defendant in error.

The insured did everything possible to effect a change of beneficiary and the failure to complete was beyond his power; Capella v. Capella, 41 F. 1. The contract should be liberally construed; 32 CJ. 1152. Cases cited by plaintiff in error involve controversies between rival claimants to the fund; principles of equity and common sense should be applied; 41 F. 4, 6. The fact that notice of a change of beneficiary did not reach the society until after the death of the insured does not affect the validity of the designation; Estes v. Local Union, (Mass.) 97 A. 326; Hirschl v. Clark, (Ia.) 47 N.W. 78; the validity of the certificate, death of first beneficiary, maturity of the obligation, right of insured to designate his brother are admitted facts and no pleas of payment being offered as defense, the association seeks to evade payment of a valid obligation; the following authorities are against the proposition: Heydorf v. Conrack, (Kan.) 52 P. 700; Marsh v. Council, (Mass.) 21 N.E. 1070; McGowan v. Foresters, (Wis.) 80 N.W. 603; Lahey v. Lahey (N. Y.) 66 N.E. 670; Waldum v. Homstad, (Wis.) 96 N.W. 806; Locket v. Locket, (Ky.) 80 S.W. 1152; Wooten v. Odd Fellows, (N. C.) 96 S.E. 654; Dell v. Varnehoe, (Ga.) 95 S.E. 955; Henderson v. Woodmen, (Mo.) 146 S.W. 102. Rules of a beneficiary association will be construed against it where there is an attempt to work a forfeiture; Donnelly v. W. O. W., (Nebr.) 197 N.W. 125; Meyer v. Lodge, (Nebr.) 177 N.W. 828; 180 N.W. 579. We have here an original designation, in a change of beneficiary; Thomas v. Assn. (Ia.) 183 N.W. 629; Taylor v. Lodge, (N. D.) 178 N.W. 130; Shyrock v. Shyrock, (Nebr.) 70 N.W. 515; Hansen v. Assn., (Minn.) 60 N.W. 1091. Insured was prevented by fatal illness and death from forwarding the policy with the endorsement to the general Secretary and Treasurer of the society, all of which was established by the evidence.

KIMBALL, Justice. POTTER, Ch. J., concurs. BLUME, J., dissents.

OPINION

KIMBALL, Justice.

The plaintiff, defendant in error herein, brought an action against the Brotherhood of Locomotive Firemen and Enginemen to recover upon the beneficiary certificate hereinafter referred to and sometimes called the "policy." Judgment was for the plaintiff and the defendant brings the case here on error. The parties will be referred to herein as in the court below.

The plaintiff in his petition alleged that the policy was issued October 30, 1918, upon the life of Garrett F. Ginther, for $ 1000, payable, in case of the death of the insured, to William Ginther, his father; that said father predeceased the insured and that on June 24, 1922, said insured "designated on the back of said insurance policy a change of beneficiary, and therein named this plaintiff, Blaine F. Ginther, brother of said insured, beneficiary under said policy of insurance; that the said Garrett F. Ginther died on June 28, 1922." The defendant answered, admitting the issuance of the policy, but pleaded that the regulations of the defendant with respect to the change of beneficiary, had not been complied with. This was denied in a reply and plaintiff further pleaded that the said insured, immediately after the execution of the change of beneficiary by filling out the printed form on the back of the beneficiary certificate, was stricken with mortal illness, and incapacitated thereby from performing any other act in relation to the said policy of insurance, and while so incapacitated, died from his mortal illness four days thereafter. The policy provides that in the event of the death of said insured:

"William Ginther, father, related to him (insured), is hereby designated as his (insured's) beneficiary, and if the aforesaid member shall not have made a later designation of beneficiary, as may be provided in said constitution, the beneficiary named herein shall be entitled to receive, from the beneficiary fund of the said brotherhood, the sum of One Thousand Dollars, provided that the beneficiary designated herein shall not acquire any legal, equitable or fixed right or interest in and to the proceeds of this certificate which would prevent any change of beneficiary herein in the manner provided in said constitution * * *. This certificate is issued upon the express conditions that the constitution of the said brotherhood * * * is and shall be a part of this contract in the same manner and to the same extent as if said constitution * * * were written herein. Should the beneficiary named herein die before said member, or should there be a failure of a proper designation of beneficiary, then in all such cases the amount due upon the certificate shall be paid to the person or persons who may be entitled thereto in the order prescribed in the constitution of said brotherhood."

Printed on the back of the benefit certificate are the following instructions:

"To change beneficiary, write the name of the new beneficiary, and relationship of such beneficiary following the name, in the following blank form, designating same amount as on face of this certificate."

"Make acknowledgment of change of beneficiary before a notary public, or other officer authorized by law to take acknowledgments, and be sure that he impresses his official seal where indicated."

"Do not fill this blank form until change is desired."

Then follows the blank for use in making change of beneficiary. This was filled in, signed and acknowledged by the insured on June 24, 1922, and, omitting the acknowledgment, is as follows:

"Change of Beneficiary or Class of Certificate.

"I hereby certify that I am now a member of Lodge No. 86 of the Brotherhood of Locomotive Firemen and Enginemen, the same person to whom was issued the within beneficiary certificate. I hereby direct the cancellation of the certificate, and that assessments shall cease upon same, and that the proceeds arising therefrom shall no longer be payable as therein stated. I hereby direct that, in lieu of this certificate, a new certificate be issued to me for the sum of One Thousand Dollars, and in the event of my death while said new certificate is in force and effect, I hereby direct that the benefits arising therefrom be payable to Blaine F. Ginther, related to me as brother.

(signed) Garrett F. Ginther."

The following parts of the constitution of said brotherhood, relating to the designation and change of beneficiary, were introduced in evidence, namely:

"Article 8, Section 1 (c). A member may designate as his beneficiary or beneficiaries, one or more persons of the following class and no other. Viz.; wife, child or children, mother, father, sisters, brothers, blood relations, or persons depending upon him for support. And in the event that a member has no wife or child living, he may then designate as his beneficiary a charitable institution."

"Change of Beneficiary.

"Section 10 (a). A member desiring to change his beneficiary, shall make such change in writing on the form printed on the back of the beneficiary certificate, and such change can be made without the consent of the beneficiary. Said certificate must be forwarded to the general secretary and treasurer.

"(b). Beneficiaries shall not have, nor shall they require, a legal, equitable or fixed interest in or to said certificate or the proceeds thereof, so as to prevent any member from changing his beneficiary.

"(c). The member's signature thereto shall be acknowledged before a notary public or other officer authorized by law to take acknowledgments * * *.

"(d). A change or transfer of beneficiary shall not be valid or have any binding effect until said certificate has been received by the general secretary and treasurer, and by him cancelled, and a new certificate issued wherein a new designation of beneficiary shall appear. * * *."

It appears from the evidence that the insured became sick with tuberculosis in the...