Johnson v. Johnson, 10806.

• Decision Date: 09 December 1943
• Docket Number: No. 10806.,10806.
• Citation: 139 F.2d 930,151 ALR 268
• Parties: JOHNSON v. JOHNSON
• Court: U.S. Court of Appeals — Fifth Circuit

151 ALR 268, 139 F.2d 930 (1943)

JOHNSON v. JOHNSON

No. 10806.

Circuit Court of Appeals, Fifth Circuit.

December 9, 1943.

Allan H. Kottwitz and A. B. Wilson, both of Houston, Tex., for appellant.

W. L. Kemper, of Houston, Tex., for appellee.

Before SIBLEY, HOLMES, and WALLER, Circuit Judges.

WALLER, Circuit Judge.

Will Johnson was a porter, employed by Pullman, Inc. (hereafter called "Pullman"). The Prudential Life Insurance Company had issued a group policy to Pullman, insuring employees, named in the record of employees, of the latter, including Will Johnson. A master policy was issued to Pullman containing the insurance contract, but a certificate was issued to each person covered by the master policy. The policy and the certificate provided that the beneficiary might be changed in accordance with the terms of the policy by the insured employee, at any time while the insurance was in force, notifying the company, through the employer, but that such change should "take effect when due acknowledgment thereof is furnished by the company to such person insured, and all rights of his or her former beneficiary or beneficiaries shall thereupon cease". Will Johnson made Annette Johnson, his then wife, the beneficiary when the certificate was issued. In 1941 he changed the beneficiary to Mary Lee Jackson, a niece. In 1942 he changed the beneficiary to Sallie Johnson. He was not without experience in the matter of changing beneficiaries. On August 10, 1942, the insured wrote the following letter to his employer:

"Houston, Texas "August 10, 1943. "The Pullman Company "Group Insurance Bureau "Chicago, Illinois.

"Gentlemen:

"This letter is to advise you that I wish to name as my beneficiary, Ethel Mildred Johnson, in and under the policy that I carry with you and I direct that you pay the benefits due under such policy to Ethel Mildred Johnson as my beneficiary at my death. Ethel Mildred Johnson is my wife.

"Very truly yours "(Sgd.) Will Johnson "Will Johnson, "Pensioned Pullman Porter, "2501 Nettleton St., "Houston, Texas."

Accompanying the letter to Pullman was the following affidavit, which was duly notarized:

"State of Texas,

"County of Harris.

"Know all men by these presents: That I, Will Johnson, of Houston, Harris County, Texas, for and in consideration of the natural love and affection which I have for my beloved wife Ethel Mildred Johnson, do hereby name her as beneficiary under all policies of insurance issued on my life and more particularly those policies issued by Pullman Porters Benefit Association of America and the Group Insurance of The Pullman Company, both companies or organizations being in Chicago, Ill., and to both companies I have on this date directed to make such change on their records to be effective as of this date.

"I agree that for and in consideration of the nursing and attention and support which I am now and have for some time received from my said wife that I will never change her name from such beneficiary and I declare such beneficiary, Ethel Mildred Johnson, to and from this date to be my beneficiary for all sums of money due to any one by reason of my death and that this designation of beneficiary shall be and is irrevocable and shall continue to my death.

"I further agree that the said Ethel Mildred Johnson shall have the irrevocable right to collect all of said money or sums due as aforesaid.

"In witnesss to the above I have hereunto set my hand at Houston, Texas, this 10th day of August, 1942.

"(Sgd.) Will Johnson."

The affidavit and letter were received by Pullman on the 12th of August, two days before Will Johnson died.

For some reason, not explained by the record, the letter and affidavit were not received by the Insurance Company until August 27, 1942, or thirteen days after the death of the insured. Ethel Mildred Johnson was the wife of Will Johnson at the time of his death and Sallie Johnson was his sister.

The Insurance Company filed a bill in the nature of a bill of interpleader, admitted that it owed the face of the policy to someone, and set up the facts as to the change, or attempted change, in beneficiary from Sallie Johnson, the sister, to Ethel Mildred Johnson, the wife. Proceeds of the policy were tendered into Court to be paid as the Court should direct.

The propriety of the interpleader having been adjudged, the sister and the wife interposed their respective claims to the proceeds of the insurance policy. Sallie Johnson, the sister, alleged that there had been no lawful change of beneficiary; that Will Johnson did not have the mental capacity to execute the documents; and that he did not execute the same freely but under undue influence. The wife claimed that the efforts to make her the beneficiary had been fully effectuated or, if not, that the insured had done all within his power to comply with the provisions of the policy in reference to change of beneficiary, and that strict compliance with the provisions of the policy for change of beneficiary was for the protection of the Insurance Company, and that the Company, by its interpleader, had waived strict compliance with the provisions of the policy.

It was testified by witnesses Osborne and Cavanaugh, employees in the office of Pullman, Inc., at Houston, that insured's wife had made several requests upon them for blank forms to be used in requesting change of beneficiary, but that Johnson had telephoned these witnesses and requested them not to furnish his wife with the blanks because he did not desire to change the beneficiary. Witness Lowe, another Pullman porter, testified that Johnson had requested him not to supply his wife with such blank forms for use in changing the beneficiary in another insurance policy. The Court, however, found on the strength of the letter, affidavit, the will of the insured, and the testimony of the wife that Johnson had for some weeks prior to his death been trying to obtain blanks that he thought necessary to change the beneficiary. The Court also found that Johnson had full mental capacity to execute the documents of August 10, 1942, and that he did so freely and without undue influence.

We will not disturb these findings of fact although the undisputed testimony of these witnesses is at least sufficient to cast some doubt as to the actual desires of Will Johnson in the matter. His wife was very diligent in seeking to have the change made. The Court below found, and we will assume, that Johnson intended and attempted to make his wife the beneficiary.

The lower Court further concluded that the requirements of the policy in reference to change in beneficiary were not for the benefit of the sister but for the benefit of the Insurance Company, and that it had waived strict compliance with these provisions by filing the interpleader suit and tendering the money into Court; that if such provisions were for the benefit of the sister they had been sufficiently complied with by Johnson's placing the documents for the change of beneficiary in the hands of Pullman, Inc., as agent for the Insurance Company two days before his death; that the insured did all that he could reasonably have done; and that the wife was the legal beneficiary at the time of his death. From a judgment in favor of the wife the sister appealed.

We have not been aided by any brief or argument in behalf of the wife.

We agree with the lower Court that the Insurance Company could have waived strict compliance with the provisions for the change of beneficiary in a policy which permits, as does this one, the insured to change the beneficiary without the consent of the beneficiary theretofore named, but we...