Whiteman v. Heinzman

• Decision Date: 07 October 1919
• Docket Number: No. 9886.,9886.
• Citation: 72 Ind.App. 385,124 N.E. 405
• Parties: WHITEMAN v. HEINZMAN et al.
• Court: Indiana Appellate Court

72 Ind.App. 385

124 N.E. 405

WHITEMAN

v.HEINZMAN et al.

No. 9886.

Appellate Court of Indiana.

Oct. 7, 1919.

Appeal from Circuit Court, St. Joseph County; Walter A. Funk, Judge.

Action by William F. Whiteman, administrator, against the Supreme Tribe of Ben Hur, in which defendant interpleaded admitting liability and asking that Charles F. Heinzman, guardian of Louis Heinzman and others, be substituted as defendant. From judgment for the substituted defendant, plaintiff appeals. Reversed, and new trial granted.

For dissenting opinion, see 126 N.E. 245.

Clifford V. Du Comb, Floyd A. Deahl, and Louis M. Hammerschmidt, all of South Bend, for appellant.

P. C. Fergus and Van Fleet, Hubbell & Dinnen, all of South Bend, for appellees.

NICHOLS, P.J.

This was an action in the St. Joseph circuit court by the appellant against the appellee, the Supreme Tribe of Ben Hur, on a mutual benefit insurance certificate, issued by said appellee to W. T. Sherman Lammedee. The statute under which the appellee was incorporated, being Acts 1899, p. 177 (section 5043, Burns' R. S. 1914), empowered said appellee to accumulate a fund that could be paid to the “families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent on the member.” The by-laws of said appellee contain a like provision. Said appellee filed an interpleader admitting liability, but averring that the appellee Charles F. Heinzman as guardian of the persons and estates of Louis, Jr., George, Jr., and Glen Heinzman was claiming the amount of said insurance, for and in behalf of his said wards. Said appellee insurance company thereupon paid said sum of $1,500 into court, and asked that said appellee, Charles F. Heinzman, guardian, be substituted as a party, and that said company be discharged.

Appellee Charles F. Heinzman, guardian, was thereupon made a party, and filed his answer in denial to the complaint and his cross-complaint, to which, after appellant's demurrer thereto, which was overruled, appellant filed his answer in three paragraphs, the first being a denial. To the second and third paragraphs of appellant's answer to the cross-complaint of appellee Heinzman, guardian (hereinafter mentioned as appellee), the said appellee filed his reply in general denial, and the cause, being at issue, was submitted to a jury for trial. At the close of appellee's evidence, appellant filed his motion for an instruction to the jury to return the verdict for appellant, and a like motion at the close of all the evidence, both of which motions were overruled. There was a general verdict for the appellee for the $1,500 so paid into court as aforesaid. Appellant filed his motion for judgment in his favor, on the jury's answers to interrogatories submitted to it, notwithstanding the general verdict, which motion was overruled, to which ruling the appellant excepted, and after a motion for a new trial, which was overruled, this appeal.

Of the errors assigned, we shall consider only one, the error of the court in overruling appellant's motion for judgment on the answers to interrogatories, notwithstanding the general verdict.

It is averred in the complaint, with the usual averments of such complaints, that said policy was made payable to Laura L. Lammedee, the wife of said Sherman Lammedee, who died prior to the death of the said Sherman Lammedee; that after her death said Sherman Lammedee made Jane Lammedee, his stepmother, the beneficiary under said policy; that said Jane Lammedee died prior to the death of said Sherman Lammedee; that said Sherman Lammedee made no further provision for the disposition of said certificate and policy as provided in the by-laws of the said defendant association; that section 121 of the by-laws of said defendant association provides:

“In the event of the death of a designated beneficiary prior to the death of the member and the member dies without having made a disposition of said portion or all of his certificate, the same shall be paid to the legal representative of said deceased member for the use and benefit of the deceased member's heirs if any survive.”

Appellee's cross-complaint sets out section 118 of the Insurance Company's by-laws, a part of which is as follows:

“A member may designate as beneficiary, any one or more persons of any of the following classes, viz.: Families, heirs, blood relatives, affianced husband or affianced wife, or persons dependent on the member.

It is expressly prohibited by the statutes under which this society is organized, to designate as a beneficiary, ‘a friend, creditor or trustee,’ not above contemplated.”

It then avers the naming of Laura L. Lammedee as beneficiary, and her death, and the naming of Jane Lammedee as beneficiary, and her death, both as in the complaint, after which it avers that said assured executed his written change of beneficiary, designating appellee's ward as beneficiaries, which is as follows:

“Change of Beneficiary.

I, William T. S. Lammedee, to whom the within certificate was issued do hereby revoke my former direction as to the payment from the benefit fund due me at my...