Fletcher v. Wypiski

• Court: Indiana Appellate Court
• Writing for the Court: MARTIN
• Citation: Fletcher v. Wypiski, 120 Ind.App. 622, 94 N.E.2d 916 (Ind. App. 1950)
• Decision Date: 14 November 1950
• Docket Number: No. 18018,18018
• Parties: FLETCHER v. WYPISKI et al.

Page 916

94 N.E.2d 916

120 Ind.App. 622

FLETCHER v. WYPISKI et al.

No. 18018.

Appellate Court of Indiana, in Banc.

Nov. 14, 1950.

Harry Long, George Hitesman, Gary, for appellant.

Bomberger, Morthland & Royce, Hammond, for John Hancock Ins. Co. Frank A. Spychalski, and Kenneth Call, Gary, for Zygmunt Wypiski & Wicenty Wypiski.

MARTIN, Judge.

Action by appellees Zygmunt and Wicenty Wypiski against John Hancock Mutual Life Insurance Company, Elgin, Joliet and Eastern Railway Company and Mary Kotas Fletcher to recover on a certificate of insurance under a policy of group life insurance issued by the said John Hancock Mutual Life Insurance Company on the life of one Joseph Molendo.

The John Hancock Mutual Life Insurance Company as a defendant filed its answer of interpleader admitting that it had issued the certificate of insurance covering the life of said Joseph Molendo on October 18, 1938 under said group policy, and afterwards under date of August 2, 1948 issued another certificate which it alleges superseded the first certificate; that the John Hancock Mutual Life Insurance Co. admitted the death of said Joseph Molendo on September 4, 1948 as alleged in appellees' action and sets out that it had received claims from both the appellant Mary Kotas Fletcher and the appellees, Zygmunt Wypiski and Wicenty Wypiski; that by reason of the conflicting claims it does not know to whom it owes the proceeds of the policy in the sum of $2500; that it be allowed attorneys fees and that upon the payment of the $2500 to the Clerk of the Court it be discharged from all liability.

This order was made and the insurance company did pay to the Clerk such funds.

Appellant filed answer and cross-complaint. The court found for appellees Zygmunt Wypiski and Wicenty Wypiski, and the judgment was that they were the real beneficiaries of said insurance certificate and the owner of the proceeds thereof, and taxed attorney fees for the appellee John Hancock Mutual Life Insurance Company in the sum of $150 as costs in the action.

The error relied upon for reversal is the overruling of appellant's motion for a new trial, under which appellant presents that the decision of the court is not sustained by sufficient evidence, and is contrary to law, and a separate assignment of error that the court erred in taxing in favor of the appellee John Hancock Mutual Life Insurance Company the sum of $150 as costs on the interpleader filed by said appellee.

The material facts in the case at bar are undisputed. The evidence shows that a group life insurance policy was issued by John Hancock Mutual Life Insurance Company to insure employees of Elgin, Joliet, and Eastern Railway Company bearing date of May 16, 1935; that under said group policy a certificate was issued to the deceased, Joseph Molendo, under date of July 27, 1944 naming Mary Kotas, a friend as beneficiary; that said certificate was delivered by the deceased to the said Mary Kotas Fletcher, and that the evidence shows that the insured reserved the right to change the beneficiary in said certificate.

It is admitted by the pleading that the deceased, Joseph Molendo, signed and application for a change of beneficiary from Mary Kotas to the appellees, Zygmunt Wypiski, a friend, and Wicenty Wypiski, a friend.

Thereafter the John Hancock Life Insurance Company issued a certificate under date of August 2, 1948 insuring the deceased, Joseph Molendo, and naming the appellees Zygmunt Wypiski and Wicenty Wypiski beneficiaries.

Said latter certificate was issued during the lifetime of the deceased, Joseph Molendo, without the original certificate issued July 27, 1944 being surrendered.

It is further shown by the evidence that after Mary Kotas was named beneficiary in the original certificate she married, and her name is Mary Kotas Fletcher.

The group policy was amended, as shown by the record, and was signed by the insurance company, the party to the bound. The original policy provided: 'The employee may from time to time change the beneficiary by filing written notice thereof at the Home Office of the company accompanied by his certificate. Such change shall take effect upon endorsement by the company on the certificate, and not otherwise.'

The amendment to the contract dated July 17, 1935 provided: 'The employee may from time to time change the beneficiary by filing written notice thereof with the Employer accompanied by his certificate. Such change shall take effect upon the completion of a new certificate by the employer indicating the new beneficiary.'

Appellant contends that the so-called amendment was signed by the insurance company but was never signed by the Elgin, Joliet, and Eastern Railway Company. It makes little difference whether we use the provisions in the original contract or the provisions in the amendment as to change of beneficiary; the law applicable is the same. It is contended by the appellant that the decedent did not comply with the change of beneficiary provisions by surrendering the original certificate held by the appellant.

The beneficiary named in an insurance policy, in which policy the insured reserves the right to change the beneficiary, acquires only a defeasible vested interest in the policy by a mere expectancy until after the death of the insured. Bronson v. Northwestern Mutual Life Insurance Co., 1921, 75 Ind.App. 39, 129 N.E. 636; Stewart v. Stewart, 1930, 90 Ind.App. 620, 169 N.E. 593.

In the case at bar, the evidence conclusively established that the certificate naming the appellant as the beneficiary and which was issued long before the certificate naming the appellees, Zygmunt Wypiski and Wicenty Wypiski as beneficiaries, was in possession of appellant from the time of its issuance up until the time of the death of the decedent and there is no evidence that the decedent, or anyone on his behalf, ever made any demand upon the appellant for said certificate, so that a change of beneficiary could be made as required by the terms of the master policy; that is, so that said certificate could be sent or delivered to the employer railway company or delivered to the insurance company.

The question is whether a change of beneficiary could be made without the surrender of the original certificate to the company. It is the contention of appellant also that this requirement was for her benefit and that the company could not waive it.

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