Jenkins v. Lovelady

• Decision Date: 01 February 1973
• Citation: 273 So.2d 189,290 Ala. 25
• Parties: Norma Louise JENKINS v. Eileen J. LOVELADY et al. SC 95.
• Court: Alabama Supreme Court

Page 189

273 So.2d 189

290 Ala. 25

Norma Louise JENKINS v. Eileen J. LOVELADY et al.

SC 95.

Supreme Court of Alabama.

Feb. 1, 1973.

John E. Lunsford, Birmingham, for appellant.

Matt Scalici, Birmingham, for appellee, Eileen J. Lovelady.

Cabaniss, Johnston, Gardner & Clark and C. Henry Marston, Birmingham, for appellee, Protective Life Ins. Co.

PER CURIAM.

This is an appeal from a decree rendered in a proceeding which was commenced when Protective Life Insurance Company, a corporation, filed an interpleader action as authorized by Equity Rule 36 against Norma Louise Jenkins and Eileen J. Lovelady.

Protective deemed it wise to institute the proceeding because Mrs. Jenkins and Mrs. Lovelady each claimed to be the beneficiary of a $1,000.00 life insurance certificate which Protective had issued to Robert L. Jenkins on October 25, 1947, when he was an employee of the City of Birmingham which certificate was in force and effect at the time of Jenkin's death on July 15, 1971.

The insurance certificate which bore the identification 103--F was issued under Protective's Group Policy 172--G, as amended, which insured the lives of certain employees of the City of Birmingham, including Jenkins.

The original beneficiary designated on Certificate 103--F was the respondent Eileen J. Lovelady, a sister of the insured Robert L. Jenkins.

On or about June 25, 1959, the beneficiary on Certificate 103--F was changed to respondent Norma Louise Jenkins, who was at that time the wife of the insured Robert L. Jenkins.

Contemporaneously with the filing of its bill, Protective deposited with the Register of the Circuit Court of Jefferson County, in Equity, the sum of $1,000.00, the entire amount due under Certificate 103--F on account of the death of Robert L. Jenkins.

Protective in its bill prayed, among other things, that the trial court require the respondents to propound their claims to the insurance proceeds paid into court by Protective and to litigate between themselves the question of ownership of said proceeds and further prayed that the court determine the person who is legally entitled to those proceeds.

The respondent Norma Louise Jenkins, in her answer averred, in effect, that she was in possession of Certificate 103--F and that there had been no valid beneficiary change on said Certificate since she was designated as the beneficiary. She further averred in her answer that, on to-wit: October 18, 1966, after she was divorced from Robert L. Jenkins, she entered into 'a written contract with the said Robert L Jenkins by the terms whereof she and the said Robert L. Jenkins agreed, for a valuable consideration, that she, as beneficiary in said policy of insurance, would not be changed but that she would remain the beneficiary therein and be entitled to the proceeds thereof in consideration of her promise to pay the premiums thereon as the same became due, which said contract is in writing and a copy thereof is attached hereto and made Exhibit 'A' to this answer as though set out herein in detail. And this respondent further avers that pursuant to the terms and provisions of said written contract, she did after the date thereof to-wit October 18, 1966, make payment of all of the premiums coming due on said policy of insurance.'

The substance of the answer filed by the respondent Mrs. Eileen J. Lovelady is that she is entitled to the proceeds of Certificate 103--F because of a change in beneficiary made by Robert L. Jenkins on or about July 2, 1971, whereby she was designated as the person to receive the proceeds of said Certificate 103--F upon the death of Jenkins.

The trial court after a hearing wherein the testimony was taken ore tenus decreed, in effect, that after the costs of the proceeding were paid from the interpleaded fund that the Register pay from that fund the sum of $100.00 to counsel for Protective and pay to the respondent, Norma Louise Jenkins, the sum of $285.00. The Register was further directed to pay the balance of the interpleaded fund to the respondent Eileen J. Lovelady.

From that decree the respondent, Mrs. Norma Louise Jenkins, appealed to this Court.

The appellant, Mrs. Jenkins has made three assignments of error, but we will treat only Assignment 3 in that it seems to include the matters about which Mrs. Jenkins complains in her assignments numbers 1 and 2.

Assignment of Error 3 reads: '3. The Court erred in failing to award all of the proceeds of the interpleader (sic) funds, including attorney fees, to appellant.'

We think we would be entirely unjustified in construing Assignment 3 as complaining of the court's action in requiring the costs of the proceedings to be paid from the interpleaded funds, so we will give no consideration to that question other than to point out that under the express terms of Equity Rule 36, the trial court in an action of this kind 'may tax costs at its discretion.'

Robert L. Jenkins to whom we will sometimes hereinafter refer as the insured was a member of the Birmingham Fire Department of October 25, 1947, the day on which Protective issued Certificate 103--F insuring his life in the sum of $1,000.00 in which certificate his sister Eileen J. Lovelady was designated the beneficiary.

Insured retired from his position with the City of Birmingham on January 26, 1958. On May 28, 1958, he married the appellant, Norma Louise Jenkins, to whom we will sometimes hereinafter refer simply as Mrs. Jenkins.

Under the provisions of Certificate 103--F and those of Protective's Group Policy 172--B, as amended, insured reserved the right to change the beneficiary and he exercised this right to the end that Mrs. Jenkins became the beneficiary of Certificate 103--F on June 25, 1959. Certificate 103--F bears an endorsement made by Protective showing that the change of beneficiary was effective as of the date last mentioned.

Insured and Mrs. Jenkins were divorced on August 6, 1966. On October 18, 1966, they signed the following instrument:

'I, Robert L. Jenkins, borrowed $75.00 (seventy-five) (dollars) from Norma Louise Jenkins and told her that I would pay her back when I got my retirement check on November 7th. I also told her that I was going to drop all of my insurance policies and that they would not benefit me in any way. She tried to get me to keep them and then I told her that I didn't have the money to keep on paying for the premiums, we made an agreement that we would leave each other as beneficiary on all of our policies as they now stand and she agreed to pay all of my insurance premiums. She said that she would pay the insurance premiums direct to Liberty National Life that were due beginning November 1966 and that she would pay me $5.00 (five dollars) a month beginning this month for the premium payments that the City took out of my retirement check for the two group life insurance policies.

I told Louise that I didn't want any of my policies, except my burial insurance policy and that I wanted to (sic) burried at Morris. I also told her that I trusted her and that if I ever did want any of my policies that I would pay her in full (in one lump-sum payment) for all of the premiums that she had paid on any policy (or policies) that I wanted and that then I would get the policy (or policies).

Insured's life was apparently insured by three companies at the time of his death. In effect was a $2,500.00 policy issued by Liberty National Life Insurance Company, the proceeds of which were paid to Mrs. Jenkins the named beneficiary. Protective's Certificate 103--F, the subject of this litigation, was also in effect. The record tends to show that The Prudential Insurance Company of America had insured the lives of certain employees of the City of Birmingham, including insured, under its Group Policy G--4071 and its Certificate 923.

Mrs. Jenkins paid directly to Liberty National Life Insurance Company the premiums on its policy as they became due. The City of Birmingham paid the premiums on the two group policies and deducted from insured's monthly pension check the premiums paid for that month. The amount deducted monthly does not appear except as indicated in the agreement of October 18, 1966, when the parties to that agreement treated the monthly deduction for both group policies or certificates as being $5.00. There is testimony in the record given by the payroll supervisor for the City of Birmingham to the effect that the amount deducted from insured's monthly pension check because of the payment by the City of the premium due on the Protective policy 'xx was somewhat less than $1.00 a month.' There is no such testimony in regard to the amount paid Prudential each month or the amount of the coverage afforded by the Prudential insurance.

According to Mrs. Jenkins, she paid insured $5.00 each month to reimburse him for the amount deducted from his monthly pension check. Her testimony was not disputed, and the trial court must have believed her, because it awarded her the sum of $285.00 out of the interpleaded funds which represents the amount she would have paid if she began paying $5.00 in the month of October, 1966, and paid $5.00 each month thereafter through June, 1971. Apparently, no insurance premium was deducted for the month of July, 1971, the month in which insured died.

Insured was admitted to the Veterans Administration Hospital in Birmingham on or about June 8, 1971, on an application signed by Mrs. Jenkins who drove him to the hospital upon being advised of his illness by Mrs. Lovelady.

Exploratory surgery performed on or about June 16, 1971, revealed that insured had cancer of the esophagus. According to Mrs. Lovelady, insured, while in the hospital, expressed an interest in making her the beneficiary of Certificate 103--F which contained the following provision: 'The right to change the beneficiary is reserved.' But it seems to be admitted by all parties that the contractual provisions which governed the change of beneficiary were...