Modern Bhd. of America v. Matkovitch

• Decision Date: 02 April 1914
• Docket Number: No. 8288.,8288.
• Citation: 56 Ind.App. 8,104 N.E. 795
• Parties: MODERN BROTHERHOOD OF AMERICA v. MATKOVITCH et al.
• Court: Indiana Appellate Court

56 Ind.App. 8

104 N.E. 795

MODERN BROTHERHOOD OF AMERICA

v.MATKOVITCH et al.

No. 8288.

Appellate Court of Indiana, Division No. 1.

April 2, 1914.

Appeal from Superior Court, Lake County; Virgil Reiter, Judge.

Action by the Modern Brotherhood of America to compel Louis Grahovac to interplead with George Matkovitch and others as to the proceeds of a mutual benefit certificate. From a judgment for defendant Grahovac, defendants Matkovitch and others appeal. Reversed, with directions.

James W. Brissey, of Indiana Harbor, for appellants. J. A. Patterson, of Indiana Harbor, and C. E. Greenwald, of Whiting, for appellee.

FELT, J.

[1] The title of this cause is in the form above indicated, and seems to have been kept the same on appeal as in the court below, notwithstanding the real controversy is between the parties appearing in the caption in the position of appellees. However, both in the caption and the body of the assignment of errors, notwithstanding the position of the parties, George Matkovitch, Joe Matkovitch, Mary Krizmanich, and Barney Cohen, executor of the will of Bara Grahovac, deceased, are clearly designated as appellants, and Louis Grahovac is designated as appellee. The assignment of errors is thereforesufficient to present the questions on behalf of the appellants as against the appellee, notwithstanding the erroneous form of caption. Town of Windfall City v. State ex rel., 174 Ind. 311-314, 92 N.E. 57;Ferguson v. Despo, 8 Ind.App. 523, 34 N. E. 575.

On December 26, 1906, the Modern Brotherhood of America, a fraternal benefit association organized under the laws of the state of Iowa, issued a benefit certificate for $1,000 to one Bara Grahovac, in which appellee Louis Grahovac, her husband, was named as beneficiary. Said Bara died on May 28, 1910, while said benefit certificate was in full force and effect. The assured in her lifetime attempted to change the beneficiary named in said certificate and to make the same payable one-half to her former husband, George Matkovitch, and one-fourth to each of her children, the appellants Joe Matkovitch and Mary Krizmanich. Said association did not dispute the claim, and filed in the lower court a pleading in which it named as defendants Louis Grahovac and said appellants, and stated that the beneficiary therein named was claiming the benefits due on said certificates as against the other codefendants, and vice versa; that it desired to pay into court the sum of $1,000 for the use of the persons legally entitled thereto and to be released from all further liability on said certificate. The court made an order in accordance with said request, and the association, in pursuance thereof, paid the sum of $1,000 to the clerk of the court, and the court thereupon ordered the defendants “to interplead between themselves for said sum.”

The appellants and the appellee filed cross-complaints in which they set up their several claims. The first and second paragraphs were dismissed. The court sustained the demurrers of appellee to the third and fourth paragraphs for insufficiency of the facts alleged to state a cause of action, and, upon appellants' refusal to plead further, rendered judgment against them, from which this appeal is prayed.

Appellants George Matkovitch, Joe Matkovitch, and Mary Krismanich each separately and severally assign error of the court in sustaining the demurrer of appellee Louis Grahovac to the third paragraph of the cross-complaint.

The appellant Barney Cohen, executor of the last will and testament of Bara Grahovac, deceased, separately assigns error of the court in sustaining the demurrer of said appellee to the fourth paragraph of the cross-complaint.

The third paragraph filed by said appellants, separately and severally, against their codefendant, Louis Grahovac, avers in substance that plaintiff is and was at all times therein mentioned a fraternal society organized and engaged in the business of issuing benefit certificates to its members, providing for payment of a certain sum of money at the death of the member holding the certificate in force at the time of such death; that on December 29, 1906, Bara Grahovac became a member of a subordinate lodge of said association, which association issued to her a benefit certificate for $1,000; that Louis Grahovac, her husband, was beneficiary therein; that, at the time said certificate was issued, said Bara and Louis Grahovac were living together as husband and wife; that said Bara died on May 28, 1910, and said certificate was then in full force and effect; that four months prior to her death said Louis wholly abandoned her without cause and against her wishes and failed and refused to live with her and make any provision for her care and support; that during all said time she was a helpless invalid, without money or means of any kind, and it was necessary that she have constant care and nursing; that said Louis Grahovac was able to provide such care and wholly failed so to do; that George Matkovitch was her former husband, and Joe Matkovitch and Mary Krizmanich are the children of such marriage; that, after she was abandoned by said Louis, she was taken to the home of the cross-complainants, where she remained and was cared for by them until her death; that the terms of said certificate required that the sum of 75 cents per month be paid to keep said certificate in force; that said cross-complainants paid all assessments for a period of four months prior to said death; that, at the time deceased and her husband, Louis Grahovac, separated, he wrongfully secured the possession of said benefit certificate and continuously thereafter retained the same, against the wishes of the deceased, until her death; that prior to her said death she requested said Louis Grahovac to return said certificate to her, which he wrongfully and continuously refused to do; that the by-laws of said association provided that the beneficiary can be changed and a new beneficiary substituted by filling out the surrender clause on the back thereof and designating the change and the name of the person to be substituted, and surrendering the old certificate to the secretary of the subordinate to which the member belongs and paying a fee of 50 cents, provided that all beneficiaries designated shall be within the class mentioned in section 130 of the chapter, which provides that “benefit certificates shall be made payable only to the husband, wife, relative, legal representative, heir or legatee of the member”; that said Bara left a will which was duly probated in which the cross-complainants were named as legatees (setting out copy of the will); that after she desired to make a change in the beneficiary the deceased did not have possession of said certificate, and had no knowledge of the rules of said society relative to making changes of beneficiaries; that on May 18, 1910, she sent a written notice to said association notifying it of her desire to change the beneficiary therein to the cross-complainants, naming them; that the said notice was received by the society, and it refused to make any change in the beneficiary and in a letter dated May 21, 1910, written in reply to the request for the change, gave as the ground of such refusal that the letter was not sufficient authority to make the change and instructed her to fill out the blank on the back of her certificate and send this together with 50 cents to the secretary of the local lodge; that in a later letter dated May 25, 1910, addressed to the local secretary, said deceased, through her attorney, requested that the beneficiary be...