Brotherhood of Railroad Trainmen v. Merideth

• Decision Date: 15 November 1920
• Docket Number: 247
• Citation: 225 S.W. 337,146 Ark. 140
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. MERIDETH
• Court: Arkansas Supreme Court

225 S.W. 337

146 Ark. 140

BROTHERHOOD OF RAILROAD TRAINMEN v. MERIDETH

No. 247

Supreme Court of Arkansas

November 15, 1920

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

F Weldin, for appellant.

1. The contract herein was void from the beginning for the reason that the insured made certain statements therein in breach of his warranties in said contract. The statements were warranties and were proved false as the beneficiary (appellee) was not the lawful wife of the insured. A wife of a man having another living wife not divorced is not a legal wife. 116 Ark. 501; Kirby's Digest, § 5176; 97 Ark 272. The insured had a living wife other than the appellee beneficiary, and the policy was void, as there was a breach of the warranty. 120 Ark. 605; 121 Id. 185; 123 Id. 620; 14 R. C. L., p. 1375, par. 3 of note; 106 Ark. 213. The insured must comply with the constitution and by-laws in designating the beneficiary or the certificate is void. 2 A. L. R. 1676; 135 Ark. 65; Acts 1917, act No. 462, p. 2091; 29 Cyc. 118 B 1; 17 Ann. Cas. 660. The society can not waive an illegal designation of a beneficiary. 19 R. C. L. 1289, par. 84; 17 Ann. Cas. 865. The beneficiary fund can not legally be used except for the purposes designated by the society and the statute governing it. 117 Ark. 145; 27 Ann. Cas. 868. The beneficiary has no vested interest in the benefits until after the death of the insured if a change of beneficiary is permitted, and such change is permissible if not forbidden by the society. 97 Ark. 50; 81 Id. 512; 104 Id. 538; 133 Id. 411; 135 Id. 65; Ann. Cas. 1918 C, 1047; Ann. Cas. 1918 E, 263; 102 Ark. 72; Acts 1917, p. 2092, § 8.

2. It was error to admit the lodge receipts issued to insured by a lodge at Thayer, Mo., to prove that the insured lived at Thayer and the testimony of E. A. King was erroneously excluded. The entire testimony of W. D. Jackson was not competent and should have been excluded. The appeal from the action of the general secretary and treasurer of the order disapproving his claim was premature, as plaintiff was required to exhaust all remedies provided by the society before bringing suit. The action is premature. 14 Stand. Enc. Proc., p. 51-56; 19 R. C. L. 1228-40.

Murphy, McHaney & Dunaway, for appellee.

1. There was no error in instructing a verdict for appellee. Appellee was the wife of the member; but, if not the actual lawful wife, she was lawfully dependent upon the insured. When a marriage in fact has been shown, whether regular or irregular, the law raises a presumption of its legality, and casts the burden of proof on the party objecting to show that the marriage is illegal and void. 47 Okla. 276; Bishop on Mar. Div. & Sep., §§ 77, 956-8; 19 S.W. 560; 222 Mo. 74; 17 Ann. Cas. 678-80; 28 Col. 308; 64 P. 195; 89 Am. St. 193. See, also, as to presumption of legal marriage, 34 Ark. 518. A legal marriage is presumed. 67 Ark. 281; 131 Id. 221-4; 9 R. C. L. 568.

2. If not the actual lawful wife, appellee was lawfully dependent on the insured and a proper beneficiary. 18 A. 675; 52 N.J.L. 455; 20 A. 36; 33 N.E. 816.

3. Appellant has failed to abstract the testimony and the judgment should be affirmed under rule 9. 103 Ark. 430; 101 Id. 207; 92 Id. 426; 82 Id. 547.

OPINION

SMITH, J.

This is a suit by appellee to recover as beneficiary on a certificate of insurance issued by appellant company to one Arthur C. Merideth. Appellant (hereinafter referred to as the company) denied liability under the certificate for the reason, as it contends, that appellee was not the lawful wife of the insured, who had alleged in his application for said certificate that appellee was his wife and warranted his statements to be true, full and complete. There was a trial before a jury, but at the conclusion of the testimony the court directed the jury to return a verdict against the company, which was done, and this appeal is from the judgment so rendered.

Appellee seeks to defend the action of the court upon two grounds, first, that appellee was a legal wife, and, second, that, if not a legal wife, she was a lawful dependent, and that, under the terms of the certificate and the constitution of the company, recovery could be had in either capacity.

As the verdict was directed against the company, we must view the testimony in the light most favorable to it. It may be summarized as follows: Appellee testified that she and the insured were married on November 19, 1915, in Amarillo, Texas, and that they lived there for one month after their marriage, after which they moved to Memphis, Tennessee, where they lived for about eight months. That they then moved to Booneville, Arkansas; then lived in Jonesboro, Arkansas; at Sayre, Oklahoma; Tucumcari, New Mexico; Thayer, Missouri; Pine Bluff, Arkansas; and finally in Little Rock, Arkansas, in all of which places they had lived together as man and wife. That a marriage ceremony was performed by a minister, and that while the marriage license was issued to Charles A. Merideth and Winnie Adams, those persons were none other than herself and her husband, Arthur C. Merideth, he being known both by the names of Charles and Arthur. That she did not know until after her marriage that her husband had been previously married, and that she acquired this information by opening a letter in a lady's handwriting addressed to him. This letter was signed Nora Merideth, and the writer stated that she thought it best for her and the children that she marry again, as she understood he (her husband) had married. That insured admitted that Nora Merideth was his former wife, but he claimed that they had been divorced, and appellee was satisfied with the explanation. That insured claimed and was allowed exemption from military service on the ground that he was a married man, and that she was his wife, and that insured died October 19, 1918, in Little Rock.

Nora C. Merideth testified that her home was in Rector, Arkansas, where she had lived for thirty-two years, and had married Arthur C. Merideth on November 26, 1908, and from whom she was never divorced, and that her husband died in Little Rock on the 19th day of October, 1918. That she lived with her husband in Rector for four years, when he took up railroad work, and thereafter he was away from home a good part of the time, but Rector was still his home, and he visited her frequently except during the last four or five years, but he wrote her and sent her money during that time, and that while in Texas he wrote her to come and bring the children to him and he would furnish money for transportation; that the money was not sent, but he later came himself; that he came to Jonesboro and ran as a brakeman out of that city for about a year, when he went to Amarillo, Texas, and worked for the Rock Island Railway Company for two years, and that he was later transferred to Little Rock.

The clerks of the courts having jurisdiction in divorce cases of Clay County, in which Rector is situated, and of Craighead County, in which Jonesboro is situated, and of the county in Texas in which Amarillo is situated, testified that after having searched the divorce records there was nothing to be found showing a divorce to the insured.

The company offered--but the court excluded--the testimony of Norman Reeder to the effect that witness had been insured's neighbor while he lived in Rector, and that insured told him in the month of August, 1917, that, without obtaining a divorce from his first wife, he had married a second time.

There was offered in evidence the application of the insured for his certificate, which the company designated Form A, and the examination, which was designated Form B. The certificate of insurance by express terms made these forms a part of the contract.

Form A contained the question, To whom do you want benefits made payable? The answer was, Winnie Elsie Merideth (appellee). Following this the question was asked, "State relationship of the person or persons to you?" and the answer was, "Wife." This answer was followed by the printed statement, "I hereby warrant the foregoing statements and answers to be true, full and complete." This application was signed and dated May 18, 1917.

The examination also contained the following printed statement, which was followed by the second signature of the insured: "Note carefully the following Declaration and Agreement: I, the undersigned applicant, hereby agree * * * that all the foregoing statements and answers to questions in forms 'A' and 'B' I adopt as my own, admit to be material, warrant to be true, full and complete, and make the basis of the contract with said brotherhood (the company), and in the event any untrue or incomplete statements or answers have been made, this contract shall be null and void and of no effect."

The constitution and by-laws of the company gave the insured the right to change the beneficiary at will, and there was offered in evidence a prior application of the insured dated January 5, 1914, in which he applied for, and in response to which there was issued, a certificate to Nora Merideth, whose relationship to the insured was stated to be that of wife.

There was offered in evidence the constitution and by-laws of the company, by section 63 of which it was provided that...