Nye v. Grand Lodge

• Decision Date: 03 February 1894
• Docket Number: 969
• Citation: 36 N.E. 429,9 Ind.App. 131
• Parties: NYE v. GRAND LODGE, ANCIENT ORDER OF UNITED WORKMEN OF THE STATE OF INDIANA, ET AL
• Court: Indiana Appellate Court

36 N.E. 429

9 Ind.App. 131

NYE v. GRAND LODGE, ANCIENT ORDER OF UNITED WORKMEN OF THE STATE OF INDIANA, ET AL

No. 969

Court of Appeals of Indiana

February 3, 1894

From the Marion Superior Court.

Judgment affirmed at costs of appellant.

F. M Finch and J. A. Finch, for appellant.

S. M Shepard, for appellees.

LOTZ J. GAVIN, J., and DAVIS, C. J., dissent.

OPINION

LOTZ, J.

The appellant, Nancy J. Nye, brought this action against the appellees.

From the allegations of her complaint, it appears, in brief, that she is the widow of Michael W. Nye; that the appellees Maria Lehr, John Nye and Benjamin F. Nye, are the children and heirs at law of Michael; that the Grand Lodge, Ancient Order of United Workmen, is a charitable and benevolent association, organized under the laws of the State of Indiana; that said order issues to each member thereof a certificate of membership, granting the privileges of the order and securing the payment of the sum of $ 2,000 on the death of such member, to such person as may be designated by such member, who was eligible as a beneficiary under the constitution and by-laws of the society and the laws of the State, to hold insurance on the life of another; that Michael became a member of said order, and secured a certificate insuring his life in the sum of $ 2,000; that said certificate was not made payable to any person by designation, but remained in blank for the personal benefit of Michael; that in the year of 1885 the appellee Joseph H. Clark, for the purpose of speculation, bought said certificate from Michael; that said Clark was not related to nor dependent upon Michael, and Michael was not indebted to Clark in any sum; that Clark could lose nothing, either socially or pecuniarily, by the death of Michael; that the purchase was a wager on the life of Michael; that after the purchase of the certificate, Clark sent the same to the grand lodge and procured a new certificate to be issued on the life of Michael, in which Clark was named as the beneficiary; that said new certificate was issued in ignorance of the facts and contrary to the constitution and by-laws of the order; that said Michael died April 18, 1890, being, at the time, a member in good standing in said order, and that proof of his death was duly made.

Certain sections of the constitution and by-laws of the order were set out in the complaint, and it was averred that under such provisions Clark did not come within the classes of beneficiaries named therein, and that the appellant was entitled to the whole fund.

The appellee, the Grand Lodge, filed an interpleader and paid the money, $ 2,000, into court, and was discharged.

The appellee Clark answered the complaint (1) by the general denial, and (2) by a special answer, in which he claimed to be entitled to the whole of the fund. He also filed a cross-complaint, or counterclaim, against the appellant and his codefendants, in which he averred, in brief, that in 1885 the said Michael W. Nye was a member in good standing in said order, the A. O. U. W., and the holder of a certificate of membership therein; that said Michael was desirous of raising a sum of money to enable him to go into business on his own account, and applied to him (Clark) to procure money on said certificate; that upon investigation, he learned through the officers of a subordinate lodge, that such purchase would be legal and valid; and thereupon he agreed with said Michael that if he (Michael) would surrender his old certificate to him, and the said Michael and his wife and his children would sign and transfer said original certificate, he, the said Clark, would pay the said Michael the sum of $ 300, and, in addition, pay all dues that might be assessed against and required of the said Michael, by the rules and regulations of said order; that in accordance with said agreement, the said Michael and his wife (appellant) and their children did assign said certificate, in writing, to him, the said Clark; that said original certificate was surrendered by said Michael, and the said order issued a new one, in which the said Clark was named as the beneficiary therein; that said last named certificate was delivered to Clark, and said Clark paid Michael the sum of $ 300, and agreed thereafter to pay all dues and assessments made against said Michael; that since the issuing of said certificate and until the death of said Michael, he (Clark) paid to said order the sum of $ 135.30 on account of dues and assessments.

There was a prayer that the cross-complainant be awarded the whole of the fund paid into court.

The appellant replied the general denial to the second paragraph of answer, and also filed a special answer to the counterclaim.

The other appellees made default on both the complaint and cross-complaint.

The sufficiency of these pleadings is not discussed by counsel in this court. We have made this brief summary for the purpose of showing upon whom rested the burden of proving certain facts.

The issues joined were submitted to a jury for trial.

The facts, as shown by the evidence, are substantially as follows: The Grand Lodge, Ancient Order of United Workmen, is a corporation organized under the laws of the State of Indiana, and is a charitable and benevolent organization. The business affairs of the association are managed by grand and subordinate lodges, one of the latter being located in the city of Indianapolis, and designated as Union Lodge, No. 6.

In the constitution and by-laws of the order, it is provided, among other things, that the objects of the order shall be: "To create a fund for the benefit of the members during sickness or disability, and, in case of death, to pay a stipulated sum to such person or persons as may be designated by such member, thus enabling him to guarantee his family against want."

"The beneficiary shall be named in the beneficiary certificate, and shall be confined to one or more members of the family of the member, or some person or persons related to him by blood, or who shall be dependent upon him."

The purpose of the beneficiary department of the Grand Lodge of Indiana, A. O. U. W., is to establish a fund, to be known as the beneficiary fund, from which the heirs or legatees of a deceased member who shall have complied with the conditions hereinafter recited, shall be entitled to two thousand dollars, and said fund shall be used for no other purpose."

"If one or more of the beneficiaries shall die during the lifetime of the member, the surviving beneficiary or beneficiaries shall be entitled to the benefit equally, unless otherwise provided in the beneficiary certificate, and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction, the benefit shall be paid to his widow, if living at the time of his death; if he leaves no widow surviving him, then said benefit shall be paid, share and share alike, to his children."

"Any member desiring to change his beneficiaries, may do so in the following manner: He shall fill out the blank form on the back of his beneficiary certificate authorizing the change; he shall have his signature attested by the recorder of his lodge, and the seal of his lodge attached thereto, or attested by a civil officer under his seal, when the member can not sign in the presence of the recorder. When this is done, he shall deliver his beneficiary certificate to the recorder of his lodge, together with a fee of fifty cents. The recorder shall forward the said certificate to the grand recorder, who shall make a record of the change on the books of the grand lodge, and shall issue a new certificate in lieu thereof, payable as directed on the back of the certificate. The new certificate shall bear the same number as the old one, which shall be safely filed and preserved. The provisions hereof, in special cases, may be waived by the grand lodge at its option."

In 1873 or 1874 Michael W. Nye became a member of Union Lodge, No. 6 and a beneficiary certificate was issued to him by the Grand Lodge, the certificate being numbered 38, and entitled him to participate in the beneficiary fund in the sum of $ 2,000. No beneficiary was named therein, it being in blank. He continued to be a member of said order in good standing until the day of his death, which occurred on the 18th day of April, 1890. In the year of 1885, desiring to procure money with which to purchase a bath house and to engage in business, he employed a broker to sell his beneficiary certificate in said order. The broker found a purchaser in the appellee, Joseph H. Clark. The said Michael, in pursuance to the constitution and by-laws of the order, surrendered his certificate and had a new one issued in which Clark was named as the beneficiary. Clark paid the said Michael the sum of $ 300 for such assignment, and at the same time, and as a part of the same transaction, the said Michael, the appellant Nancy J. Nye, Maria Lahr, Benjamin F. Nye, and John W. Nye, children of the said Michael, executed a written assignment of all their interest in said certificate to Clark. Before Clark purchased the certificate, he consulted the officers of the subordinate lodge and was informed by them that he could lawfully purchase the same. Michael paid the broker's commission of $ 20. It was also a part of the contract of said assignment, that Clark should thereafter pay the assessments and dues that might be made against Michael, and Clark did pay the same until the death of Michael. The date of this transaction was in September, 1885. The evidence is silent as to the age of Michael at the time he sold the certificate, and it is also silent as to his age at the time of his death. Nor was there any evidence given of his expectancy of...