Fuller v. Supreme Council of Royal Arcanum
| Decision Date | 09 March 1917 |
| Docket Number | 9,158 |
| Citation | 115 N.E. 372,64 Ind.App. 49 |
| Parties | FULLER v. SUPREME COUNCIL OF THE ROYAL ARCANUM ET AL |
| Court | Indiana Appellate Court |
From Posey Circuit Court; Herdis Clements, Judge.
Action by Nancy Ellen Fuller against the Supreme Council of the Royal Arcanum and others. From an adverse judgment, the plaintiff appeals.
Affirmed.
G. K Denton and Kreuzberger & Markel, for appellant.
Brill Hatfield & Brady and Ensle & Covert, for appellees.
This is an appeal in an action brought by appellant against appellee "Supreme Council of the Royal Arcanum" (hereinafter referred to as the "association") and others to recover on a beneficiary certificate issued by said association. The complaint, after setting out the nature and character of said association, alleges that it, on September 3, 1888, accepted Hiram Lynn as a member thereof and issued to him a certificate of insurance by which it agreed to pay to his wife, Anna Lynn, $ 3,000 on his death; that in July, 1898 the amount of insurance was reduced to $ 1,500; that on December 7, 1907, Anna Lynn died, and said certificate was afterward changed and made payable two-thirds to Marie Leipold, granddaughter, and one-third to Eunice Hewig, cousin, of the member; that on March 2, 1908, the beneficiary was again changed and the certificate made payable to Thomas D. LeMasters, for the benefit of appellant, Nancy E. Fuller; that the member, Hiram Lynn, died December 12, 1912, and that appellant had performed all the conditions of the contract, etc.; that a copy of the certificate is not filed with the complaint because the same is unlawfully withheld by A. L. Kingsbury, who claims to hold it under the authority given by said LeMasters; that said LeMasters, if ever created trustee, has moved out of the State and repudiated said trust.
LeMasters and Kingsbury were made defendants below, but they are eliminated from further consideration by an agreement between the parties to the effect that LeMasters had removed from the State, and that, if appellant was entitled to recover, she was entitled to do so under her own name; that said Kingsbury's interest in said matter resulted from his advancing money to pay the decedent's assessments for a number of years, and that he should have judgment for the amount he paid with interest, etc.
The association filed an answer in three paragraphs, the second of which was withdrawn. The first paragraph is a general denial, and the third alleges that it is a fraternal insurance association; that as a part of its by-laws in full force and effect at the time of the issuance of the beneficiary certificate sued on, there were §§ 324, 326 and 330. These sections are set out in said answer, the provisions of which, pertinent to the questions to be determined, are as follows:
Here follows member's relatives, by blood or marriage specially named in twenty grades, ranging from wife to stepchildren, the third grade being the "member's grandchildren," and grade tenth being "member's cousins in the first degree." Said section of the by-laws then continues as follows: "In either of which cases no proof of dependency of the beneficiary designated shall be required."
Said answer then alleges that the plaintiff was not and is not related to the member, Hiram Lynn, in any way nor in any degree; that she was at no time dependent upon him in any way as provided for in the by-laws of said association; that at the time of the issuance of such certificate, and continuously ever since, and now, there was and is living a granddaughter of said member, viz., Marie Leipold; that during all of said time, said Marie Leipold was, and still is, an infant under the age of twenty-one years; that said member had no wife, child or children when the certificate herein sued on was issued, and the only relative he then or has since had was said Marie Leipold, his grandchild; that said Marie Leipold is still living and is the only living person qualified to receive the proceeds from the beneficiary certificate herein sued on, under and pursuant to said sections above set out; that said association does not deny its liability for the payment of the amount due on the certificate, but says that by virtue of the by-laws and the facts herein set out, said amount is due and payable to said Marie Leipold, grand-daughter, to whom the association admits liability and it is willing to pay said amount to her and will do so when it is determined that the plaintiff herein is not entitled to receive the same. The prayer asks judgment and that defendant association be discharged from any obligation to plaintiff. To this answer appellant filed a reply in general denial, and a special reply which, for the purposes of the question presented by the appeal, is not important and need not be indicated.
Upon application, H. Leipold, as guardian of Marie Leipold, was made a party defendant to the action and filed a cross-complaint, the averments of which are substantially the same as those contained in said third paragraph of answer. In such cross-complaint, judgment is asked in favor of said grandchild as beneficiary under said certificate.
Upon the issues thus formed, the case was submitted to a jury for trial. A stipulation offered and read as part of the evidence provided, in part, as follows: For the purpose of this trial the parties agree: (1) That the constitution and by-laws of the code of 1912, issued by the association, and its subordinate lodges, which are now and have been in full force and effect during all the time that Hiram Lynn has been a member, that anything contained in such constitution and by-laws pertinent and relevant to the issues herein may be introduced on such trial by any of the parties hereto, without proof of their authenticity. (3) That the association "makes no defense herein by reason of proofs of death not having been made regularly as required but that the same has been by it waived, and the only issue herein is as to who is entitled to the amount due on said benefit certificate." (Our italics.) (4) That since Thomas D. LeMasters, the trustee mentioned in said certificate, abandoned his trust and departed from the State of Indiana, the plaintiff is the proper party to bring this action so far as concerns any right that she or said LeMasters, as her trustee, might have in the certificate sued on.
The appellant testified that Hiram S. Lynn died in December, 1912, at St. Mary's Hospital in Evansville and, on cross-examination, said that she was not related to him. She then offered in evidence the certificate on which her action is based and a stipulation to the effect that the original certificate was issued October 29, 1888, and that the one sued upon was a change afterwards made. The provisions of such certificate which names appellant as beneficiary provides as follows:
"These conditions (before set out) being complied with, the Supreme Council of the Royal Arcanum hereby promises and binds itself to pay out of its Widows and Orphans' Benefit Fund to Thomas D. LeMasters without bond for the benefit of Nancy E. Fuller (cousin in the first degree) a sum not exceeding Fifteen Hundred Dollars in accordance with and under the provisions of the laws governing said Fund, upon satisfactory evidence of the death of said member, and upon the surrender of this Certificate; * * *" (Our italics.)
Upon this evidence, appellant rested her case.
The appellee then offered a witness, Unice Hewig, who testified to her acquaintance with Mr. Lynn and his family for a period of eleven years, and that Marie Leipold, a granddaughter, was his only living relative of which she had any knowledge. The association then read in...
To continue reading
Request your trial