ÆäÀÌÁö À̹ÌÁö
PDF
ePub

inability of the jury to discover unaided the evidences testified to by the experts would probably weaken the probative effect of the photograph with the jury, and work no injury to the defendant.

[14] In his oral charge the trial court reviewed in detail the averments of the complaint, properly placed the burden of proof, and stated correctly the facts to be found by the jury in order to a recovery. His further summing up in the words excepted to by defendant was not subject to the criticism stated in P. F. I. Co. v. Draper, 187 Ala. 103, 65 So. 923.

[15] The refusal of defendant's charge in writing, viz.: "I charge you, gentlemen of the jury, that if you find from the evidence that plaintiff sustained his alleged injuries as the result of an accident, you cannot award him any damages," was without error. Montevallo Mining Co. v. Little, 208 Ala. 131, 93 So. 873.

[16] The evidence for defendant tended to show knowledge of the use of this track by the Southern Railway Company, that after the track was constructed the defendant caused the wire to be raised, that it remained in the position placed by defendant until this accident happened. In view of the further evidence that the plaintiff did come in contact with the wire and received injury, there was a clear case for the jury on the whole evidence. The affirmative charge was properly refused to defendant.

The plaintiff's injuries were mainly subjective. The extent of the disability as well as pain depended much on the testimony of the plaintiff. The evidence of Dr. Furness, of Dr. Solomon, and of Dr. Meadows, in connection with the X-ray examination, all furnished some corroboration as to the nature of the injury, its duration, and the pain incident thereto.

In passing upon the plaintiff's testimony, his personal appearance, his manner upon the stand, and all the circumstances attending the giving of his evidence, were important. These matters were before the jury and trial court, and are not before us. The loss of wages, expenses of treatment, protracted pain, and uncertain duration of even partial future disability given support by the evidence, if true, fully warranted the amount of damages awarded by the verdict. We would not be warranted in holding the verdict excessive.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.

On Rehearing.

Attention is called to Steagall v. SlossSheffield Steel & Iron Co., 205 Ala. 100, 87 So. 787. In that case it is held that, in a suit by employee against employer, the case is presumed to be governed by part 2 of that law, and should be brought thereunder, or the complaint should aver facts excepting the case therefrom. There was and is no purpose to depart from the rule there announced.

Section 32 covers two classes of cases wherein an employee sues a third person for wrongful injury: (1) When the third person sued, as well as the employer, are both subject to the provisions of part 2 of the act. In that case the amount of recovery is determined by the act. (2) When the third person is not subject to such provisions. In that case the suit proceeds and recovery is had as though the plaintiff was not an employee of some other person. There is no presumption that a tort-feasor, with whom plaintiff has no connection as employer and employee, is or is not subject to the provisions of the act. Whether he is or not is within his knowledge, rather than the knowledge of the injured party. We think the act does not place the burden on the injured party in such case to ascertain whether the defendant is entitled to have the recovery limited to the compensation provided in the Compensation Act. The defendant must become the actor, and bring himself within the class of third persons entitled to the benefits of the Compensation Law. Application overruled.

McDONALD et al. v. McDONALD.
(6 Div. 148.)

(Supreme Court of Alabama.

Oct. 30, 1924. Rehearing Denied Nov. 20, 1924.)

I. Interpleader 39-Statute authorizing interpleader permits substitution of more than one claimant.

Code 1907, § 6050, providing for interpleader, permits substitution of more than one claimant at least where their claims are derived from common source, though statute uses singular number; section 1 providing that singular includes plural.

2. Jury 13(19)-No right to jury trial in statutory interpleader.

Statutory interpleader being an innovation on the common law, no right of trial by jury exists in absence of express provision therefor.

3. Interpleader 12-Interpleader properly allowed insurance company though controversy accrued from company's refusal to change beneficiary of policy.

Criticism is made of the foregoing opinion Where controversy over proceeds of inin the announcement made touching the ap-surance policy arose out of failure of company plication of section 32 of the Workmen's to substitute substituted defendants as beneficiCompensation Law. aries at request of insured without production

(102 So.)

of policy, rule that interpleader will not be allowed where claim of substituted defendant arose out of wrong of original defendant did not apply.

4. Insurance 587-By interpleading, insur. ance company waived, as to its interests, requirements of policy as to change of beneficiary.

Where insurance company, who had not changed beneficiaries at request of insured because policy was not presented, paid fund into court for adjudication between beneficiary named and those sought to be named by insured, company, as to its interests, waived requirements of policy as to change of benefici

ary.

5. Insurance 586

[ocr errors]

Insurance company's waiver of requirements for change of beneficiary could not impair "vested" right of true beneficiary.

Waiver by insurance company of policy's requirements for change of beneficiary could not impair any right of true beneficiary which vested upon death of assured, "vested" meaning, in this connection, right according to law to proceeds of policy which could not be destroyed, impaired, or divested by any authority whatever.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Vest.] 6. Insurance 586-Interest in policy vests in named beneficiary at death of insured, unless beneficiary changed in legal effect.

Interest of named beneficiary of policy becomes vested at death of insured, if beneficiary has not been changed in fact or legal effect. 7. Insurance 587-Insured entitled to change of beneficiary at time of, or within reasonable time after, written request.

Where insured in writing requested company to change beneficiary of policy, immediately, or at least after reasonable time, with no reason forthcoming why change should not be made, insured was entitled to change, and substituted beneficiaries were entitled to proceeds, though change was not made.

8. Insurance 587-Sufficient to allege as excuse for insured's failure to produce policy for indorsement of change of beneficiary thereon that named beneficiary had posses

sion.

10. Appeal and error 870 (2)—Order denying transfer to other side of court, assignable as error.

Though not specifically authorized by Gen. Acts 1915, p. 830, which authorize assignment of error on order transferring the cause to other side of court, order denying transfer may be assigned as error on appeal from final judgment of court in which order is made.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Suit on policy of life insurance by Emma C. McDonald against the Fidelity Mutual Life Insurance Company, with interpleader by defendant, and Kenneth M. McDonald and Aleta McDonald Berry interpose as claimants. From a judgment for plaintiff, claimants appeal. Reversed and remanded.

Black, Harris & Foster, of Birmingham, for appellants.

Harsh, Harsh & Harsh and Frank S. White & Sons, all of Birmingham, for appellee.

SAYRE, J. Appellee brought her action at law against the Fidelity Mutual Life Insurance Company on a policy of life insurance. The insured was plaintiff's (appellee's) husband at the time of his death; but she was his second wife, and the policy had been purchased during the life of the first wife who was then named therein as beneficiary. It provided as follows:

"The insured, upon presentation of this policy for proper indorsement, may, with the written approval of the president or vice president, and while this policy is in force, change the beneficiary hereof. Such change shall take effect upon the indorsement of the same on the policy by the company."

In pursuance of this provision, after the death of the first wife and after the marriage of plaintiff and the insured, the policy was changed and plaintiff was named therein as sole beneficiary, and so the policy read at the death of insured. Meantime insured and appellee, his second wife, became estranged, separated, and at the time of his death his bill for divorce and her claim for alimony were pending. In the meantime, also, insur

In controversy over proceeds of policy between named beneficiary and children of insured whom he sought to have substituted as beneficiaries, it was sufficient for latter to al-ed notified the company of his desire and lege, as excuse for insured's failure to produce policy for indorsement of change thereon, that named beneficiary had possession of it, insured being prima facie entitled to such possession.

9. Interpleader 16 After interpleader court may decide right to money on principles of law and equity relating to right to money.

Where, under Code 1907, § 6050, order for interpleader is made and money in controversy deposited in court, court may dispose of it on principles recognized in courts of law and equity in respect to right to money, without resort to equitable process.

intention to have the names of his son and daughter by his first wife substituted in the policy as beneficiaries and by his attorneys requested-such is the effect of his communication to the company-that the change be made, but was unable to present the policy for the company's indorsement to that effect, because it was in the possession of the plaintiff in this cause, and it was therefore impossible for him to present the policy to the company. To this, so far as appears by the record, the company made no response; and so the policy remained without further change until the death of insured some

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

months afterward. Before issue joined in, The statute provides a short method of acplaintiff's suit, defendant insurance company complishing the purposes of a bill of interfiled an interpleader suggesting that Kenneth M. McDonald and Aleta McDonald Berry, son and daughter of insured, individually and as administrator and administratrix of his estate, claimed the money due on the policy, and paid the amount thereof into court with a prayer that said claimants be given notice, and that it be discharged of all further liability in the premises. Claimants interposed their claim in two aspects, to wit: They claimed the fund in court as beneficiaries under the policy; they claimed it "as executors of the will of Thomas C. McDonald, deceased," alleging themselves to have been so appointed by the probate court of Jefferson county. Plaintiff demurred to each claim, alleging various and sundry objections thereto, after which claimants moved the court to make an order transferring the cause to the equity side of the court for further consideration. Plaintiff's demurrer was sustained, the motion to transfer the cause was overruled, and, claimants having nothing further to say, judgment was rendered for plaintiff. Claimants, individually and as executors, have appealed.

The facts have been stated as they appear in the pleadings. If it appeared from the pleadings that a case proper for interpleader was not presented-which is to say that the interpleader conferred no jurisdiction on the court or that clearly plaintiff was entitled to the fund, there was, after claimants declined to plead further, no course open to the court but to render judgment for the plaintiff. [1, 2] In limine appellee (plaintiff) insists that the pleadings made no proper case for interpleader because the statute does not authorize the substitution of more than one claimant, and it is suggested that the language of the statute (section 6050 of the Code of 1907), only authorizes a defendant to make affidavit "that a person * * claims the money in controversy" and provides means of bringing in "such person." To this objection the first section of the Code provides a sufficient answer: "The singular includes the plural." But it is urged that, if as many as two intervening claimants are authorized under the statute, there may as well be a dozen, and it is said, obviously, endless confusion would follow in a trial by jury where a plurality of claims are presented, and so that the right of trial by jury would be seriously impaired. In the first place this proceeding is an innovation upon the common law, and, no provision for trial by jury being expressed, it may safely be denied that the right exists. 15 R. C. L. 237, § 19; Clark v. Mosher, 107 N. Y. 118, 14 N. E. 96, 1 Am. St. Rep. 798, note 801. But aside from this, appellee's suggestion, in the form given it, is arbitrary and devoid of merit. There is no like

pleader in equity, and applies when the facts would authorize relief in equity. Stewart v. Sample, 168 Ala. 274, 53 So. 182, and cases there cited. One essential condition of a bill of interpleader is that all adverse titles or claims must be dependent or derived from a common source. Id. There must be privity of some sort between all the parties, and the claims should be of the same nature and character. 15 R. C. L. 224. "In cases of adverse independent titles or demands, not derived from a common source, but each asserted as wholly paramount to the other, the party holding the fund or other thing in dispute must defend himself as well as he can against each separate demand, and a court of equity will not grant him relief on a bill of interpleader." 15 R. C. L. 224. So this court held in the early case of Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592. It is said in the more recent authorities to be "questionable, however, whether the doctrine of privity, commonly recognized in respect of bills of interpleader, applies to the statutory interpleader." Northwestern Ins. Co. v. Kidder, 162 Ind. 382, 70 N. E. 489, 66 L. R. A. 89, 1 Ann. Cas. note p. 513; 15 R. C L. 236. However that may be, this requirement is not offended against in the present case. There are two claimants, and they claim alternatively-such is the effect of the two claims filed-as individuals and as executors of the insured; but each claim in the same right as the other; they claim in a common right under the policy issued by defendant on the life of T. C. McDonald.

[3] Nor do the pleadings show that the claims of the substituted defendants arose out of any wrong of the original defendant, in which event interpleader would not be allowed. The pleadings disclose that the controversy has arisen out of the fact that the insured was unable to procure the substitution of the names of his children, the claimants, by reason of the fact that plaintiff had possession of the policy, whereas, for aught appearing, insured was entitled to such possession. This was no fault of original defendant which then had a right under its contract, reasonably construed, to insist upon the production of the policy, or, according to the authorities to which we shall refer, a showing that such production was without the power of insured, as a condition to a formal change of beneficiary-this to save itself perchance from the annoyance of such complications as have arisen in this case.

The trial court appears to have proceeded upon the theory that, since the policy at the death of insured in terms and on its face was payable to appellee, the definitely expressed will of insured that appellants be substituted as beneficiaries of which the insurance com

(102 So.)

was not produced-availed nothing, and the | ble, to the present or future enjoyment of propcontract of insurance remained in legal effect erty," 40 Cyc. 199. unchanged. In this we think the court erred.

[4] In the first place, had the contract been changed for the benefit of appellants in such sort that a court of equity would recognize and enforce their rights? It may be conceded that the insurance company had a right to stand upon the letter of its contract so far as the provisions thereof affected its interests until a change was made according to the method stipulated in the policy or until proof was forthcoming that it was without the power of the insured to comply in some respects with its stipulations. The provisions of the policy requiring presentation of the a policy, the consent of the company to change of beneficiary, and that such change should take effect upon the indorsement of the same on the policy by the company, might, as matter of course, to the extent they affected its interests, be waived, and were waived when the defendant company brought the fund into court for an adjudication between the plaintiff and appellants as to the merits of their respective claims. These propositions are fully sustained by the authorities cited in appellants' brief. Knights of Maccabees v. Sackett, 34 Mont. 357, 86 P. 423, 115 Am. St. Rep. 532; John Hancock Mutual Life Ins. Co. v. Bedford, 36 R. I. 116, 89 A. 154; O'Donnell v. Metropolitan Life Ins. Co., 11 Del. Ch. 4, 95 A. 289; Modern Brotherhood v. Matkovich, 56 Ind. App. 8, 104 N. E. 795; John Hancock Mutual Life Ins. Co. v. White, 20 R. I. 457, 40 A. 5. Others might be| added. Thus on page 3772 of 4 Cooley's Briefs on Insurance it is said that:

"The rule requiring the surrender of the old certificate, and indeed most of the rules of procedure in effecting a change of beneficiaries, are intended only for the benefit of the association, and may therefore be waived by it,"

and numerous cases are there cited.

The cases referred to for the most part arose out of policies in mutual benefit societies; but where, as here, the insured in an old-line company has in the terms of his contract the express right to make a change, no reason occurs to us why the rule should be different. Mutual Life v. Lowther, 22 Colo. App. 622, 126 P. 883.

[5, 6] But, of course, such waiver could not impair any right of the true beneficiary which became vested upon the death of the insured. Vested, in this connection, must mean that appellee had a right to the proceeds of the policy according to the law of the land, a right which could not be destroyed, impaired, or divested by any authority whatever. According to Judge Thomas M. Cooley:

"A right cannot be considered a vested right unless it is something more than such a mere expectancy as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equita

As we have said in effect, the interest of the named beneficiary in a policy of insurance providing for a change of beneficiary at the will of the insured is a mere expectancy. The named beneficiary in such a policy has no vested interest during the life of the insured-4 Cooley's Briefs, p. 3755. But the right of the named beneficiary, no change having been made in fact or legal effect, becomes fixed, vested, at the death of the insured, and it is freely conceded that such right cannot be affected by any subsequent acts of the insurance company. Payment of the fund into court for the benefit of the party who may be declared to be entitled to it in no way improves or prejudices the legal position of either the original or substituted beneficiary as that position was at the death of the insured. L. R. A. 1915A, 580.

What was

[7, 8] But the question recurs: the true content of the contract at the death of the insured, if that content may be evidenced by the intent of the insured, as that intent, under the facts in evidence, must be presumed to have affected the concurrence of the company?

Appellee's contention comes to this: That the face of the policy at that time must be taken as conclusive. On the one hand, insured had the right to change the beneficiary-an absolute right according to some authorities, of which we may cite Lahey v. Lahey, 174 N. Y. 146, 66 N. E. 670, 61 L. R. A. 791, 95 Am. St. Rep. 554, but we think it should be conceded at least that equities may arise in favor of the named beneficiary which would deny such right, as, for example, the insured may, for valuable consideration, estop himself from changing his designation of the beneficiary. 4 Cooley's Briefs, p. 3764. But it is at least safe to say that the company could not capriciously reject insured's nominee for substitution. On the other hand, the rights of the named beneficiary could not be affected by anything done after the death of the insured-as between appellee and appellants in this case their rights could not be affected by the payment of the money into court. But the policy was not the contract, it was merely evidence of the contract between the parties, which, by mutual consent, might afterwards be changed without changing the paper, and as to which the parties were bound by the implications of their acts. The insured made an effort to have his contract changed in favor of appellants, which the company, for its part, now says may be accepted by the court as made in perfect compliance with the requirements of the policy. The insured gave the company notice in writing that he desired to have the name of the beneficiary changed, and requested that such Thereupon, if not immechange be made. diately and absolutely, after the lapse of a

283. The judgment in that case seems to have been governed in large part by a statute of the state of New York, as some of the cases have pointed out. But, however that may be, by the weight of authority and what appears to us to be the better reason, we are led to the conclusion stated above.

reasonable time, with no reason forthcoming the burden of the argument for appellee is why insured's nominee should not be sub-rested upon the decision in Freund v. Freund, stituted in the policy, insured was entitled 218 IIL 189, 75 N. E. 925, 109 Am. St. Rep. to such substitution, and a court of equity, if the insured desired to have the policy changed for future security, would have made a decree accordingly. But the change in the instrument, though suggested by prudence, was not necessary to the rights which insured desired to secure for his nominees, appellants. Appellee contends that it was necessary to produce the policy as a condition to substitution, and that appellants have failed to show any sufficient excuse why it was not produced; that the allegation that it was in possession of appellee, and therefore it was not possible for him to present it to the company, was the statement of a mere conclusion, and, objection being taken to it on that ground, should be held for naught. That appellee had possession is sufficiently alleged and is not denied. In these circumstances there are authorities which hold on what seems to be good reason that it may be fairly inferred that appellee would not have surrendered the policy on demand of the insured. Supreme Tent v. Altmann, 134 Mo. App. 363, 114 S. W. 1107; O'Donnell v. Metropolitan Life Ins. Co., 11 Del. Ch. 4, 95 A. 289. The facts of this case-the facts alleged and not denied, and therefore accepted as facts-afford strong grounds from which to draw such inference. Appellee's additional suggestion that, in absence of a denial of any such facts in appellants' claim, the presumption must be indulged that appellee's possession was rightful, that, for example, it may have been assigned to her, for value as part of a marriage settlement (assuming that insured was asking for a substitution in the nature of specific performance or reformation to meet new conditions), this suggestion is in our judgment correctly disposed of upon the consideration that prima facie the insured was entitled to the possession of the document evidencing his contract with the company, and the burden was on appellee to allege and prove facts establishing a conclusion to the

contrary.

There are numerous cases, based on quite

similar facts, which go to sustain our conclusion that insured was entitled to have the name of the beneficiary changed in the policy, and that now a court of equity would decree that appellants are entitled to the proceeds. Isgrigg v. Schooley, 125 Ind. 95, 25 N. E. 151; Nulty v. Nulty, 74 Ga. 669; Wilcox v. Equitable Co., 173 N. Y. 50, 65 N. E. 857, 93 Am. St. Rep. 579; Lahey v. Lahey; O'Donnell v. Metropolitan Life Ins. Co.; and Supreme Tent v. Altmann, supra. Other cases to the same general effect are cited on the brief for appellants, and numerous cases are cited by the court in Modern Brotherhood v. Matkovich, supra.

The briefs present the further inquiry whether the court of law, on a statutory interpleader, will take into judgment the considerations which would lead a court of equity to award the fund in question to appellants. Appellee's position is in substance that the principles of equity pleading and practice are due to be observed until the proceeding has conferred jurisdiction upon the law court; that is, until it be ascertained "(1) that two or more persons have a claim against the plaintiff; (2) that they claim the same thing; (3) that the plaintiff has no beneficial interest in the thing claimed; and (4) that he cannot determine without hazard to himself to which of the defendants the thing of right belongs" (15 R. C. L. 229, § 12), after which the substantive rights of the parties remaining before the court are to be determined according to the strict rules of law, no regard being had for the principles of equity, that the law court will not recognize nor enforce equitable rights-this, as we understand the argument, because such was the plan of procedure and theory of decision on interpleader at the common law and because, as we suppose the argument contemplates, equity jurisdiction is not by the terms of the statute conferred upon the law court. remedy at the common law was not allowed in any personal action except detinue, and then only when it was founded either in privity of contract or upon a finding. Story Eq. Jur. (14th Ed.) § 1114. "In at least one jurisdiction the statute"-meaning the modern statute of interpleader at law-"is held to be broad enough to determine equitable rights and interests." 15 R. C. L. 235, § 18, citing Brierly v. Equitable Aid Union, 170 Mass. 218, 48 N. E. 1090, 64 Am. St. Rep. 297. And further in the same text, page 237, § 19:

The

"A substitution effected under the statute changes an action, legal in its nature, into an equitable suit, and the principles which govern the remedy in equity then apply."

There are decisions to the contrary. As applied to cases like this they do not appeal to us; but, whatever may be thought of the broad statement of the text last quoted, our judgment is that in cases like that presented by this record, ownership of the money may be determined on equitable principles.

[9] It will be observed that under the statute (section 6050 of the Code of 1907), such

« ÀÌÀü°è¼Ó »