Jovich v. National Croatian Society of United States of America, 2076

Decision Date24 January 1939
Docket Number2076
PartiesJOVICH v. NATIONAL CROATIAN SOCIETY OF THE UNITED STATES OF AMERICA ET AL
CourtWyoming Supreme Court

APPEAL from the District Court, Sweetwater County; V. J. TIDBALL Judge.

Action by Matt J. Jovich, alias Matt J. Yovich, against the National Croatian Society of the United States of America, also known as Croatian Fraternal Union of America, and Andrija Sulenta and another, for proceeds of two fraternal benefit society policies. From an adverse judgment, Andrija Sulenta appeals.

Affirmed.

For the defendant and appellant, the cause was submitted on the briefs of Joseph H. Galicich of Rock Springs.

Neither the administrator nor Grgo Sulenta had any vested interest in the certificates. No one but the society may question the eligibility of a beneficiary. The finding that Andrija Sulenta was not related to decedent is contrary to the evidence. A beneficiary named in a policy of insurance does not have a vested right therein. Supreme Council v Behrend, 247 U.S. 394; B. of L. F. & E. v. Ginther (Wyo.) 248 P. 852. A named beneficiary has a mere expectancy in the absence of a contract. Code v. W. O. W. (Wash.) 67 P. 603; Lentz v. Fritter (Ohio) 110 N.E. 637; 45 C. J. 169; Cristy v. Hudgens (Ariz.) 203 P. 569; Johnson v. Knights of Honor (Ark.) 13 S.W. 794; Supreme Lodge v. Terrell, 99 F. 330. By-laws of a fraternal insurance organization are a part of the contract. Pleasants v. Locomotive Engineers' Association, 73 S.E. 976. Deposit of the insurance fund with a stakeholder pending a determination of the rights of claimants is a waiver of defenses. Shinholser v. Henry, 106 S.E. 719; Coulson v. Flynn, 181 N.Y. 62; Cowin v. Hurst, 83 N.W. 274. Only the association can object to a change of beneficiary in the absence of contract. McGuire v. Supreme Council, 69 N.Y.S. 61; Stoelker v. Thornton (Ala.) 6 L. R. A. 140; Obrist v. Grand Lodge of Kansas (Kan.) 256 P. 955; Styles v. Byrne (Mont.) 296 P. 577. The burden of proof is upon the plaintiff to show that defendant is not an eligible beneficiary. 25 C. J. 303. This rule supplements the principle that a judgment based on conflicting evidence will not be disturbed. Wilde v. Amoretti Lodge (Wyo.) 41 P.2d 508; Rose v. Brotherhood (Colo.) 251 P. 537. Plaintiff's contentions of non-relationship are not established by the evidence.

For the plaintiff and respondent, the cause was submitted on the briefs of T. S. Taliaferro, Jr. and A. L. Taliaferro of Rock Springs.

The requirements for a valid change of beneficiary in the certificate of a fraternal insurance association are clearly set forth in Knights of Macabees v. Sackett (Mont.) 86 P. 423, a case apparently on all fours with the case at bar. An application to change the beneficiary must be received and acted upon before the death of the member. Grand Lodge v. Vann (Tex.) 282 S.W. 265; B. of L. F. & E. v. Ginther, 35 Wyo. 244; Arnold v. Newcomb, 104 Ohio St. 578, 136 N.E. 206; Hodalski v. Hodalski, 181 Ill.App. 158. There is no evidence in the record showing appellant to be a relative of decedent. Appellant's testimony was incompetent to prove pedigree. Wigmore on Evidence, Vol. 2, p. 1853. The authorities cited by appellant and relied upon by him do not support his contentions, and in fact are in opposition thereto. The Croatian Society never consented to the alleged attempted change of beneficiary. On the contrary, it refused to make the change. The society never paid the money into court. It is not within the power of the Croatian Society to waive the vested rights of its deceased member in the insurance money. Supreme Council v. Churlo, 263 F. 755; Modern Woodmen of the World v. Comeaux (Kans.) 101 P. 1; 45 C. J. 170. The association could not go beyond the persons named in the statute. National Union v. Keefe (Ill.) 105 N.E. 319; Grand Lodge v. Ehlman (Ill.) 92 N.E. 962; Royal League v. Shields (Ill.) 96 N.E. 45; Bush v. Modern Woodmen of the World (Iowa) 152 N.W. 31; Rollins v. Independent Order (Kans.) 257 P. 754; Meinhardt v. Meinhardt (Md.) 83 A. 715; Griffin v. Grand Lodge (Nebr.) 157 N.W. 113; Gregory v. Sovereign Camp (S. C.) 89 S.E. 391; West v. Grand Lodge (Tex.) 37 S.W. 966.

RINER, Chief Justice. KIMBALL and BLUME, JJ., concur.

OPINION

RINER, Chief Justice.

The question presented in this case is which party involved in the litigation is entitled to the proceeds of two policies of fraternal benefit society insurance. The facts material to be considered are as follows:

During his lifetime one Jure or George Sulenta, a resident of Rock Springs, Wyoming, formerly a native of the country of Jugoslavia in Europe, procured and held two certificates of membership in the National Croatian Society of the United States of America, subsequently known as or merged in the Croatian Fraternal Union of America, a Pennsylvania corporation, whereby he became entitled to "participate in the mortuary disability fund of said society," the certificates reciting that certain sums were upon the death of the holder of these certificates to be paid on account of his funeral expenses and the balance should be paid to his brother, one Grgur or Grgo Sulenta, who was named as the original beneficiary therein. One of these certificates was numbered 20, 700, while the other was given the number 17,039. At the time of Jure's death the certificate last mentioned appears to have become lost. Shortly before and during the month preceding his decease, which occurred about December 1st or 2nd, 1932, Jure not being able to meet the dues payable on these membership certificates, undertook to change the beneficiary from his brother, as aforesaid, to one Andrija Sulenta. The real controversy in the case lies between Matt J. Jovich or Yovich, as administrator of the estate of the insured, and Andrija Sulenta.

Jovich, under date of October 12, 1933, seems to have been given by Grgur or Grgo Sulenta, the original beneficiary named in the policies and who lives in Jugoslavia, a general power of attorney to collect the money due him under the certificates aforesaid as the beneficiary thereof.

On February 6, 1934, Jovich was also appointed by the district court of Sweetwater County, Wyoming, as the administrator of the estate of Jure or George Sulenta, deceased, and duly qualified as such officer.

May 15, 1934, Jovich, as plaintiff, brought an action in the district court above mentioned against the National Croatian Society of the United States of America, also known as Croatian Fraternal Union of America, Andrija Sulenta, and Grgur Sulenta, alias Grgo Sulenta, as defendants, setting out the facts hereinbefore recited and alleging among other things that "under the law, by-laws, constitution, rules and regulations" of the fraternal societies aforesaid, the defendant Andrija Sulenta was "incapable of being a beneficiary under any form of certificate issued by the said defendant corporations" and that the said Andrija was not a relative of the descendent within the "fourth degree."

Grgur Sulenta, by his attorney-in-fact, Matt J. Jovich, filed an answer in the cause admitting the averments in the petition. The two corporate defendants having paid the funeral expenses of the deceased, filed an answer admitting their liability under the certificates aforesaid in the sum of $ 980.82, concluding their pleading thus:

"which said sum the said defendants offer to pay into court to be distributed by the court to such claimants as the court, upon full hearing, shall decide are entitled thereto.

"WHEREFORE, defendants pray that upon payment of said sum of Nine Hundred Eighty and 82/100 ($ 980.82) Dollars into court, upon the order of the court, that they go hence without day with their costs."

Andrija Sulenta also filed an answer in the case averring that the change in beneficiary to himself in the membership certificates aforesaid, was proper and that he was related to the member of the society, Jure Sulenta, within the degree required by the constitution, by-laws, rules and regulations of the corporate defendants, and that though demanded of them, they "have failed, neglected and refused to pay" the amounts of these certificates to the defendant Andrija Sulenta. The cause was tried to the court sitting without a jury, with the result that the court found generally in favor of the plaintiff Jovich, as administrator of the estate of Jure Sulenta, deceased, and against the defendant Andrija Sulenta; that there was due to him as such administrator from the corporate defendants the amount admitted to be due as stated in their answer, and that "the evidence fails to show that said Andrija Sulenta was any relation whatever to the deceased member, George Sulenta." Other findings were made which are not necessary to be recited now. Judgment was entered for the amount aforesaid in favor of Jovich, as administrator, and it was adjudged also that the defendant Andrija Sulenta take nothing by his answer. The latter has brought the case here by the direct appeal procedure.

The by-laws of the fraternal society involved contained among others the following provisions:

"Section 249. Every member of the Croation Fraternal Union may name as beneficiaries of his death benefit his blood relatives to the fourth degree, as follows: (a) Legitimate wife or husband (b) Legitimate children; (c) Parents; (d) Brothers and sisters; (e) Half-brothers and half-sisters; (f) Grandchildren; (g) Grandfather or grandmother; (h) Uncle or Aunt; (i) Nephews or nieces; (j) Other blood relatives to the fourth degree; (k) Father-in-law or mother-in-law; (l) Step-father or step-mother; (m) Step-children; (n) Son-in-law or daughter-in-law; (o) Legally adopted children; (p) Those who are entirely dependent upon a member for food, clothing, maintenance...

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