Longer v. Carter

• Decision Date: 08 January 1912
• Citation: 143 S.W. 575,102 Ark. 72
• Parties: LONGER v. CARTER
• Court: Arkansas Supreme Court

143 S.W. 575

102 Ark. 72

LONGER v. CARTER

Supreme Court of Arkansas

January 8, 1912

Appeal from Lawrence Circuit Court; R. E. Jeffery, Judge; reversed.

Judgment reversed, and cause remanded.

W. A Cunningham, for appellant.

In a policy of the kind in question here, the beneficiary takes only an interest in expectancy, liable to be divested at any time at the will of the insured, and, in case of a change of beneficiary, the party originally named as such can not question the right of the beneficiary to whom the policy is changed to take thereunder. This question can only be raised by the supreme lodge or the insurer. 53 Ark. 262; 56 Ark. 62; 9 Am. St. Rep. 629; Id. 272.

J. N Beakley and McCaleb & Reeder, for appellee.

1. There was never in fact a substitution of beneficiary in the policy. The insured did not sign the request for change of beneficiary. The signature appearing upon the policy can not legally be construed to be his signature nor a signature authorized by him. Where a party desires to sign or subscribe an instrument, and can not write, it is essential to the validity of the signature that he at least make his mark. Kirby's Digest, section 7799; 51 Ark. 48; 49 Ark. 18; 70 Ark. 449.

2. The rule that only the supreme lodge or the insurer could contest the validity of the change of beneficiary does not apply in this case. Under the agreement entered into by the parties both sets of claimants were parties to the proceedings, and it was not necessary for the annuity company to raise the objection as to the regularity of the change of beneficiary. When all parties in interest are before the court and no possibility of a second recovery exists, the reason for the rule--the protection of the insurer--ceases to exist.

MCCULLOCH, C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Antone Frankring became a member of the Loyal Fraternal Home, a fraternal insurance society, and had a benefit certificate or policy therein for the sum of $ 1,000, payable to his two children, Annie and Bertie Frankring. One of the by-laws of the society contained the following provision:

"Benefits shall be made payable only to families, widows, heirs, blood relatives, affianced husband or affianced wife, to persons dependent upon the member, or to the member for accidental injury, and to such others as may be permitted by the laws of the State of Missouri, and the beneficiary or beneficiaries shall be designated by the applicant in his application. Should a member in good standing desire at any time to change his beneficiary, he shall pay to the secretary a fee of fifty cents, and deliver to him his benefit certificate, with written surrender on the back thereof and directions as to the change desired and name of new beneficiary. The secretary shall then forward said certificate with the fee of fifty cents to the supreme secretary, who shall at once issue a new certificate as requested."

Subsequent to the issuance of said certificate to Frankring, the National Annuity Association, another corporation engaged in the same business, took over and assumed the obligations of the Loyal Fraternal Home. On September 19, 1908, Frankring signed a written application, in accordance with the laws of said association, for a change of beneficiary, offering to surrender the original certificate, and requesting therein the issuance of a certificate payable to appellant, Mary L. Longer, who was designated in said application as a "dependent." This application was forwarded to the national president, together with the surrendered benefit certificate, and that officer erased the names of the two beneficiaries originally designated therein, and inserted in the same place the name of appellant as dependent aforesaid, this change being attested by the signature of said officer and dated September 28, 1908. The certificate as thus changed was returned to the local secretary and delivered to appellant, who still holds it. Frankring died January 7, 1909, while still a member of said fraternity, and while said benefit certificate was outstanding in the hands of appellant, and an action was thereafter instituted against the National Annuity Association by the two children suing by their guardian, F. T. Carter, to recover the amount of said benefit. Appellant appeared in that action, and asked to be made a party, which was done by consent of all parties. The National Annuity Association denied liability under the policy or benefit certificate on account of alleged misrepresentations of Frankring concerning his habits with reference to the use of intoxicating liquors and also with reference to past illness. While the cause was pending in the circuit court, and before the trial thereof, the three parties to the action entered into the following written agreement:

"It is hereby agreed by all the parties to this suit that the cause may proceed to trial as if Mary Longer was joined as party plaintiff; and if it is found that the defendant, the National Annuity Association, is liable upon the policy of insurance, the court shall determine which of the parties under the law and the evidence is entitled to a judgment; and it is further agreed that, if either party desires to do so, they may submit to the court additional evidence upon the question of the amount recovered."

The cause was tried by a jury, and the trial resulted in a verdict and judgment against the defendant in the action for the full amount named in the benefit certificate, and on appeal to this court the judgment was affirmed. National Annuity Association v. Carter, 96 Ark. 495, 132 S.W. 633. The judgment was rendered in favor of appellant, Mary Longer, and appellees, Annie and Bertie Frankring, and contained an order directing that the sum so recovered "be paid to the clerk of this court, to be held by him until the rights of Mary L. Longer and Francis P. Carter, guardian for Anna and Bertie Frankring, can be determined by this court." After the affirmance by this court, appellees filed an amended complaint, naming appellant and the National Annuity Association as defendants, alleging that they (appellees) were the daughters and sole heirs of Antone Frankring; that the original benefit certificate was payable to them, and that appellant, Mary Longer, is falsely and fraudulently asserting some rights to the benefit. Appellant filed her answer to this amended complaint, setting forth the aforesaid change of benefit certificate in her favor. The National Annuity Association made no further appearance in the suit, and, we assume, paid the amount of the benefit over to the clerk of the court in accordance with the judgment. The cause was tried before the court sitting as a jury, and the court found for appellees, and rendered judgment in their favor, awarding the amount of the benefit to them.

The benefit was subject to change according to the by-laws of the association, and appellees, as the original beneficiaries had no vested interest therein. Carruth v. Clawson, 97 Ark. 50. It seems to be settled by the weight of authority that, where a member of a fraternal benefit society has the right, under the laws of the order, to change the beneficiary, and does make a change in the manner prescribed by the laws of the order, no one but the society itself can question the eligibility of the person...