Farrow v. Grand United Order of Odd Fellows, Dist. Grand Lodge No. 21
| Decision Date | 02 March 1931 |
| Docket Number | 13,465 |
| Citation | 16 La.App. 100,133 So. 188 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | FARROW v. GRAND UNITED ORDER OF ODD FELLOWS, DIST. GRAND LODGE No. 21 |
Appeal from Twenty-third Judicial District Court, Parish of St James. Hon. C. H. Gilbert, Judge.
Action by Elisa Farrow, widow of Louis Farrow, against Grand United Order of Odd Fellows, District Grand Lodge No. 21. Valsin Farrow intervened.
There was judgment for plaintiff, and intervener appealed.
Judgment reversed and remanded.
Judgment reversed and case remanded.
Martin Woods & Woods, of Lutcher, attorneys for plaintiff, appellee.
J. V Chenet, of Mt. Airy, attorney for defendant, appellant.
This is a contest between the brother and the wife of a deceased member of a fraternal accident and benefit association. Plaintiff, the widow of Louis Farrow, brings this action against the Grand United Order of Odd Fellows, District Grand Lodge No. 21, to recover the sum of $ 500 alleged to be due under a policy dated June 26, 1918, covering the life of her husband.
Defendant answered admitting the issuance of the policy and that it was in full force and effect at the time of Farrow's death on November 22, 1928, but averred that the deceased, by a notarial act dated November 16, 1928, had named his brother, Valsin Farrow, as beneficiary in lieu of his wife, who was the original beneficiary; that it was a mere stakeholder, ready and willing to pay $ 500, the face value of the policy, to whomsoever the court should decide was entitled to it; that Valsin Farrow should be made a party to the suit.
Thereafter Valsin Farrow intervened and claimed the proceeds of the policy.
The judge, a quo, dismissed the intervention and gave judgment in favor of the plaintiff and intervener has appealed.
Since the appeal was lodged in this court, intervener died and his daughter, Albertha Farrow, wife of Olive Bolden, having been recognized as his sole heir, was made a party to the proceeding in lieu of her deceased father.
On the trial below the plaintiff offered in evidence the death benefit certificate, the constitution and by-laws of the society, and proved that plaintiff was the lawful wife of the deceased and the same party named as beneficiary in the original certificate and then rested.
Intervener then offered in evidence the alleged notarial act purporting to change the beneficiary and established by the testimony of witnesses that Farrow, on November 16, 1928, in the presence of a notary public and two witnesses on a form furnished by the society, executed a change of beneficiary from his wife, to his brother; that this document was mailed to the Grand Master of the society, but was not received by him until after the death of the insured on November 22, 1928; that no new policy was issued; that the original policy was in the possession of Farrow's wife, who had been residing in the state of Mississippi and living separate and apart from her husband, during the last six years of his life, but who was present at his bedside, during the last several days of his illness, that it was impossible for the insured or intervener to surrender the policy at the time the written change of beneficiary was forwarded to the society, as it was at the home of plaintiff in Mississippi.
The claim of the brother is resisted upon the ground that the change in beneficiary from the wife to him was not made in accordance with the statute law of this state and/or the charter and by-laws of the benefit association, for the reason that the policy was not surrendered at the time of the attempted change and the sum of $ 1 was not forwarded as required by the by-laws.
Section 6 of Act No. 256 of 1912, after declaring who may be beneficiaries in policies issued by fraternal associations, among whom are included both the wife and brother, recited:
"Within the above restrictions each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules or regulations of the society, and no beneficiary shall have or obtain any vested interest in said benefit until the same has become due and payable upon the death of said member; provided, that any society may, by its laws, limit the scope of beneficiaries within the above classes."
Section 2 of the by-laws of the society reads as follows:
(This was later changed to $ 1.)
It is clear that the insured had the right to change the beneficiary at any time, provided that the new beneficiary was one of those eligible under the provisions of the statute. It is also obvious that plaintiff's interest as beneficiary was contingent and could only be a vested interest upon the death of the insured, assuming no change had been made.
While it is true that the law requires that a party wishing to change the beneficiary must comply with the by-laws of the society in order to effect a change of beneficiary, the courts have uniformly recognized an exception when it is beyond the power of a party to literally comply with the regulations by surrendering the original certificate.
In the instant case the evidence shows that the policy was in the possession of the wife at her home in Mississippi, and therefore it was impossible to surrender it at the time of the attempted change.
The great weight of authority appears to be that the original beneficiary cannot defeat the change of beneficiary by refusing to surrender the policy, and that the insured is entitled to have the change of beneficiary effected if it is beyond his control to surrender the policy where he has substantially complied with the by-laws of the order.
"If for any reason beyond the control of the insured, surrender of the policy is impossible, the failure to surrender it will not invalidate the change of beneficiary." 7 Cooley's Briefs on Insurance, p. 6453; 40 Cyc. 199; Supreme Council, Royal Arcanum v. Behrend, 247 U.S. 394, 38 S.Ct. 522, 62 L.Ed. 1182, 1 A. L. R. 966, etc., etc.
"So the original beneficiary, in whose possession the certificate is, cannot defeat the change by refusing to surrender the certificate." 7 Cooley's Briefs on Insurance, p. 6453. Delaney v. Delaney, 175 Ill. 187, 51 N.E. 961, affirming 70 Ill.App. 130; Allgemeiner Arbeiter Bund v. Adamson, 132 Mich. 86, 92 N.W. 786; Lahey v. Lahey, 174 N.Y. 146, 66 N.E. 670, 61 L. R. A. 791, 95 Am. St. Rep. 554, affirming 66 A.D. 623, 73 N.Y.S. 1138; Cade v. Head Camp, Pacific Jurisdiction Woodmen of the World, 27 Wash. 218, 67 P. 603; Modern Brotherhood of America v. Matkovitch, 56 Ind.App. 8, 104 N.E. 795; Holden v. Modern Brotherhood of America, 151 Iowa 673, 132 N.W. 329; Modern Brotherhood of America v. Hudson, 194 Mich. 124, 160 N.W. 406; Polish National Alliance v. Nagrabski, 71 N.J.Eq. 621, 64 A. 471, etc., etc.
O'Donnell v. Metropolitan Life Insurance Company, 11 Del. Ch. 4, 95 A. 289.
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