Stewart v. Shenandoah Life Ins. Co., Inc.

• Decision Date: 07 May 1941
• Docket Number: 188-1940
• Citation: 144 Pa.Super. 549,20 A.2d 246
• Parties: Stewart, Admrx., Appellant, v. Shenandoah Life Insurance Company, Inc
• Court: Pennsylvania Superior Court

20 A.2d 246

144 Pa.Super. 549

Stewart, Admrx., Appellant, v. Shenandoah Life Insurance Company, Inc

No. 188-1940

Superior Court of Pennsylvania

May 7, 1941

Argued October 23, 1940.

Appeal from judgment of M. C. Phila. Co., Aug. T., 1938, No. 21, in case of Agnes Stewart, administratrix, v. Shenandoah Life Insurance Co., Inc.

Interpleader proceeding. Before Jones, J., without a jury.

The facts are stated in the opinion of the Superior Court.

Findings and judgment for claimant, defendant in interpleader. Plaintiff appealed.

Error assigned, among others, related to the action of the trial judge in permitting the case to be reopened for the purpose of taking additional testimony.

Judgment affirmed.

James H. McHale, for appellant.

Franklin G. Banks, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker Rhodes and Hirt, JJ.

OPINION

Cunningham, J.

The controversy in this case is whether the proceeds of a policy of life insurance, in the sum of $ 1,000, upon the life of Frederick A. Organ, are payable to Agnes Stewart, as administratrix of his estate, or to one Anna Ellen Organ sometimes called Anna Ellen Merriman, described in the contract of insurance as the "wife" of the insured and designated as his beneficiary.

On January 1, 1930, the Shenandoah Life Insurance Company of Roanoke, Virginia, issued its group policy, No. 55-G, upon the members of Philadelphia Navy Yard Group Life Insurance Association of Philadelphia, and issued a certificate, No. 4882, in the sum of $ 1,000, to Frederick A. Organ, a member of the association.

The insured died on June 9, 1938, while the policy was in full force, and proofs of death were duly submitted to the insurance company on June 17, 1938, by the president and secretary of the association, in which it is stated: "The beneficiary is Anna Ellen Organ and resides at 603 N. 13th Street, Phila., Pa."

Before any payment had been made a suit was entered against the company in the Municipal Court of Philadelphia County by Agnes Stewart, as administratrix of the estate of the insured, against the insurer, claiming the face amount of the certificate, with interest, from the date of his death.

On October 27, 1938, the insurance company presented its petition to the municipal court reciting the institution of that suit, admitting the issuing of the policy, the death of the insured and the receipt of the "customary proof of claim" and averring that Anna Ellen Organ, or Anna Ellen Merriman, the named beneficiary, was about to sue it for the proceeds of the same certificate. The company stated it had no interest in the fund and therefore prayed that it be permitted to pay the money into court and that the rival claimants be directed to interplead.

On November 18, 1938, the rule to show cause why the prayer of the petition should not be granted was made absolute by agreement and the insurer paid the proceeds of the policy into court. On February 6, 1939, Anna Ellen Organ ruled Agnes Stewart, Adm'x., to file her statement of claim in the interpleader proceeding. A material paragraph of the statement filed February 17, 1939, reads:

"7. That the said Frederick A. Organ, deceased, was a widower, and left no wife surviving him, but to the contrary left only surviving him a son, James J. Organ, 14 years of age, and no other next of kin."

The seventh paragraph of the affidavit of defense filed by Anna Ellen Organ, as the defendant in the interpleader, denied that averment in the following language: "7. Denied. It is denied that the said Frederick A. Organ, deceased, was a widower. On the contrary the defendant avers that she is now the surviving wife of the said Frederick A. Organ, deceased, and was, at the time of the deceased's death, mentioned and designated as the beneficiary and also designated as the wife of the said Frederick A. Organ in the said policy of insurance."

The case came for trial before Jones, J., sitting without a jury, on October 31, 1939. Agnes Stewart then testified she was married to Frederick A. Organ on February 23, 1924, and obtained a divorce from him in October, 1933; that a son, James Joseph Organ, was born to them and was at the time of the trial about 15 years of age; and that she married Kendall Stewart, her present husband, in November, 1934.

One Edward James Merriman was called by plaintiff and identified Anna Ellen Organ, then present in court, as the person he had married on October 25, 1916, and stated her maiden name was Anna Dowling. His further testimony was that they had separated when he enlisted in the army in 1918; that they never resumed their marital relations, but had never been divorced.

With this prima facie case the plaintiff rested and Anna Ellen Organ took the witness stand. She testified she met Frederick A. Organ in 1935, subsequent to his divorce from Agnes (Organ) Stewart, and lived with him at various addresses in Philadelphia up to his fatal illness, at which time they were living at the above address, 603 N. 13th Street. There was ample testimony by the insured's father, the attending physician, and two of their friends, that the decedent and Anna Ellen Organ lived together as husband and wife; that he repeatedly introduced her as his wife; and that she was known in the community as Mrs. Organ. On cross-examination, she admitted her marriage to Edward James Merriman in 1916 and admitted she had never been divorced from him.

The affidavit of defense, which contained the above quoted averment to the effect that she is "the surviving wife of the said Frederick A. Organ, deceased," was called to her attention and the notes of testimony show the following "By Mr. McHale: (counsel for Agnes Stewart, Adm'x.) Q. Now, I show you the original affidavit of defense, by Anna Ellen Organ, the claimant in the interpleader proceedings, and defendant herein, and ask you if that is your signature showing here? A. Yes, that is my signature. Q. That is your signature. And you appeared before a notary public and swore to that? A. Did I appear to that? No. Q. You never appeared before a notary? A. No. Q. And you never swore to it? A. Not that I ever knowed of." The affidavit bore a jurat purporting to show that it had been sworn to and subscribed before Herman Batoff, a notary public, on February...