Shinholser v. Henry

Citation151 Ga. 237,106 S.E. 719
Decision Date03 March 1921
Docket Number(No. 2078.)
PartiesSHINHOLSER et al. v. HENRY et al.
CourtSupreme Court of Georgia

(Syllabus by Editorial Staff.)

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Action by M. S. Henry and others against J. W. Shinholser and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

Some of the assignments of error were as follows:

(7) Because the court erred in admitting in evidence, over the objection of movants, the following testimony of Mary B. Henry, one of the contestants for the fund in court: "Q. Did you love Samuel D. Shinholser? A. Yes; I did. Q. Did you love him as a daughter loves her father? A. I did." To the question, "Did you love him as a daughter loves her father?" movant objected, on the ground that it was a patent appeal to the sympathies of the jury and utterly irrelevant. Said objection was overruled by the court, with the statement: "I think she can testify as to her affection for him, if for no other reason to combat the proposition she willfully neglected him." Movants contend that the admission of said testimony was error, and prejudicial to movants, because the affection or feeling of Mrs. Henry for Mr. Shinholser could not be relevant to illustrate either her dependency upon him, or his mental capacity to change the beneficiary originally named in the certificate, or the influence, if any, brought to bear on him to induce such change, but could only appeal to the sympathy of the jury, to influence them to award the fund to her by reason of the affection she claimed to have for the insured.

(8) Because the court erred in admitting in evidence the following testimony of Mrs. Mary B. Henry, one of the contestants to the fund in court, over the objection of movants: "Q. State whether or not he talked, when he did voluntarily talk, did he talk incoherently, or did he talk naturally and normally? A. Most of the time he talked incoherently; sometimes he would talk naturally." To the question and answer movants objected, because the question called for an opinion, and the answer was merely an opinion. The admission of said testimony was error, and prejudicial to movants, because the said 'Mrs. Henry was permitted to state her mere conclusion and opinion as to a matter involving the mental coudition of Mr. Shinholser, without stating any facts from which the jury might determine whether his talk was incoherent or not.

(9) Because the court erred in admitting in evidence the following testimony of Mrs. J. L. Grace, a witness for Mrs. Mary B. Henry, over objection of movants: "Q. What was the character and kind of association and relationship? (between Samuel D. Shinholser and Mrs. Henry). A. Just like any other fond parent for his daughter; he was very fond of her and foolish about her, and we all knew he was." To the question and answer movants objected, because the question called for an opinion, and the answer was an opinion, and the answer was an opinion and conclusion of the witness.

—Statement by editor.

Jones, Park & Johnston, and Richard Curd, all of Macon, for plaintiffs in error.

Hall, Grice & Bloch, John R. L. Smith, and Grady C. Harris, all of Macon, for defendants In error.

FISH, C. J. [1] 1. The.objection that the beneficiary named in the certificate issued by a fraternal beneficiary order was ineligible under its by-laws can be raised only by the order itself; and an admission of liability on the part of the order, and payment of the fund into court, is a waiver of any objection to the beneficiary. Johnson v. Knight of Honor, 53 Ark. 255, 13 S. W. 794, 8 L. R. A. 732; Knights of Honor v. Watson, 64 N. H. 517, 15 Atl. 125; Tepper v. Royal Arcanum, 61 N. J. Eq. 638, 47 Atl. 460, 88 Am. St. Rep. 449; Maguire v. Maguire, 59 App. Div. 148, 69 N. Y. Supp. 61; Markey v. Supreme Council, etc., Legion, 70 App. Div. 4, 74 N. Y. Supp. 1069; Sangunitto v. Goldey, 88 App. Div. 78, 84 N. Y. Supp. 989; Taylor v. Hair (C. C.) 112 Fed. 913; Meyers v. Schumann, 54 N. J. Eq. 414, 34 Atl. 1066; Clark v. Davenport, 95 N. Y. 479; Spencer v. Myers, 150 N. Y. 269, 44 N. E. 942, 34 L. R. A. 175, 55 Am. St. Rep. 675; Johnson v. Van Epps, 110 Ill. 551 (4), 563; 1 Cooley, Ins. Briefs, 320, 815, 816. See Doody Co. v. Green, 131 Ga. 568, 62 S. E. 984; Dell v. Varnedoe, 148 Ga. 91, 95 S. E. 977; Depee v. Grand Lodge A. O. U. W., 106 Iowa, 747, 76 N. W. 798; Order of Patricians v. Davis, 129 Mich. 318, 88 N. W. 874; Fischer v. Malchow, 93 Minn. 396, 101 N. W. 602; Pennsylvania R. Co. v. Wolfe, 203 Pa. 269, 52 Atl. 247; Schardt v. Schardt, 100 Tenn. 276, 45 S. W. 340.

(a) Accordingly, where, on the death of a member of a fraternal order, a person originally...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT