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inability of the jury to discover unaided the Attention is called to Steagall v. Slossevidences testified to by the experts would Sheffield Steel & Iron Co., 205 Ala. 100, 87 probably weaken the probative effect of the So. 787. In that case it is held that, in a photograph with the jury, and work no in- suit by employee against employer, the case jury to the defendant.

is presumed to be governed by part 2 of that (14] In his oral charge the trial court re- law, and should be brought thereunder, or viewed in detail the averments of the com- the complaint should aver facts excepting plaint, properly placed the burden of proof, the case therefrom. There was and is no and stated correctly the facts to be found by purpose to depart from the rule there anthe jury in order to a recovery.

His fur-nounced. ther summing up in the words excepted to Section 32 covers two classes of cases by defendant was not subject to the criti. wherein an employee sues a third person for cism stated in P. F. I. Co. v. Draper, 187 Ala. wrongful injury: (1) When the third per103, 65 So. 923.

son sued, as well as the employer, are both [15] The refusal of defendant's charge in subject to the provisions of part 2 of the writing, viz.; "I charge you, gentlemen of act.

In that case the amount of recovery the jury, that if you find from the evidence is determined by the act. (2) When the that plaintiff sustained his alleged injuries | third person is not subject to such provi. as the result of an accident, you cannot sions. In that case the suit proceeds and reaward him any damages," was without error.covery is bad as though the plaintiff was not Montevallo Mining Co. v. Little, 208 Ala. 131, an employee of some other person. There is 93 So. 873.

no presumption that a tort-feasor, with [16] The evidence for defendant tended to whom plaintiff has no connection as emshow knowledge of the use of this track by ployer and employee, is or is not subject to the Southern Railway Company, that after the provisions of the act. Whether he is or the track was constructed the defendant not is within his knowledge, rather than the caused the wire to be raised, that it re- knowledge of the injured party. We think mained in the position placed by defendant the act does not place the burden on the inuntil this accident happened. In view of the jured party in such case to ascertain whether further evidence that the plaintiff did come the defendant is entitled to have the rein contact with the wire and received injury, covery limited to the compensation provided there was a clear case for the jury on the in the Compensation Act. The defendant whole evidence. The affirmative charge was must become the actor, and bring himself properly refused to defendant.

within the class of third persons entitled to The plaintiff's injuries were mainly sub- the benefits of the Compensation Law. jective. The extent of the disability as well Application overruled. 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 MCDONALD et al. v. McDONALD. furnished some corroboration as to the na

(6 Div. 148.) ture of the injury, its duration, and the pain (Supreme Court of Alabama. Oct. 30, 1924. incident thereto.

Rehearing Denied Nov. 20, 1924.) In passing upon the plaintiff's testimony, his personal appearance, his manner upon the Interpleader 39-Statute authorizing in. stand, and all the circumstances attending

terpleader permits substitution of more than

one claimant. the giving of his evidence, were important. These matters were before the jury and

Code 1907, $ 6050, providing for interpleader, permits substitution of more

than one trial court, and are not before us. The loss claimant at least where their claims are derived of wages, expenses of treatment, protracted from common source, though statute uses sinpain, and uncertain duration of even partial gular number; section 1 providing that singufuture disability given support by the evi- lar includes plural. dence, if true, fully warranted the amount of damages awarded by the verdict. We would 2. Jury On 13(19)-No right to jury trial in

statutory interpleader. not be warranted in holding the verdict ex

Statutory interpleader being an innovation cessive.

on the common law, no right of trial by jury Affirmed.

exists in absence of express provision there

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

3. Interpleader 12 - Interpleader properly

allowed insurance company though controverOn Rehearing.

sy accrued from company's refusal to change

beneficiary of policy. Criticism is made of the foregoing opinion in the announcement made touching the ap- surance policy arose out of failure of company

Where controversy over proceeds of inplication of section 32 of the Workmen's to substitute substituted defendants as benefici. Compensation Law.

aries at request of insured without production For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(102 So.) of policy, rule that interpleader will not be al-,10. Appeal and error Om870 (2)-Order deny. lowed where claim of substituted defendant ing transfer to other side of court, assigna. arose out of wrong of original defendant did ble as error. not apply.

Though not specifically authorized by Gen. 4. Insurance Cw587—By interpleading, insur. Acts 1915, p. 830, which authorize assignment ance company waived, as to its interests, of error on order transferring the cause to othrequirements of policy as to change of ben: er side of court, order denying transfer may eficiary.

be assigned as error on appeal from final judgWhere insurance company, who had not

ment of court in which order is made. changed beneficiaries at request of insured because policy was not presented, paid fund into Appeal from Circuit Court, Jefferson Coun. court for adjudication between beneficiary ty; John Denson, Judge. named and those sought to be named by in

Suit on policy of life insurance by Emma sured, company, as to its interests, waived requirements of policy as to change of benefici. C. McDonald against the Fidelity Mutual ary.

Life Insurance Company, with interpleader 5. Insurance 586 – Insurance company's

by defendant, and Kenneth M. McDonald and waiver of requirements for change of bene- Aleta McDonald Berry interpose as claim. ficiary could not impair "vested” right of true ants. From a judgment for plaintiff, claimbeneficiary.

ants appeal. Reversed and remanded. Waiver by insurance company of policy's Black, Harris & Foster, of Birmingham, for requirements for change of beneficiary could

appellants. not impair any right of true beneficiary which

Harsh, Harsh & Harsh and Frank S. White vested upon death of assured, “vested” mean. ing, in this connection, right according to law & Sons, all of Birmingham, for appellee. to proceeds of policy which could not be destroyed, impaired, or divested by any authority SAYRE, J. Appellee brought her action at whatever.

law against the Fidelity Mutual Life Insur{Ed. Note.–For other definitions, see Words ance Company on a policy of life insurance. and Phrases, First and Second Series, Vest.] The insured was plaintiff's (appellee's) hus6. Insurance (m586–Interest in policy vests band at the time of his death; but she was

in named beneficiary at death of insured, his second wife, and the policy had been purunless beneficiary changed in legal effect. chased during the life of the first wife who

Interest of named beneficiary of policy be- / was then named therein as beneficiary. It comes vested at death of insured, if beneficiary provided as follows: bas not been changed in fact or legal effect.

"The insured, upon presentation of this pol7. Insurance 587 - Insured entitled to icy for proper indorsement, may, with the writchange of beneficiary at time of, or within ten approval of the president or vice president, reasonable time after, written request. and while this policy is in force, change the

Where insured in writing requested com- beneficiary hereof. Such change shall take efpany to change beneficiary of policy, immedi- fect upon the indorsement of the same on the ately, or at least after reasonable time, with policy by the company." no reason forthcoming why change should not be made, insured was entitled to change, and In pursuance of this provision, after the substituted beneficiaries were entitled to pro- death of the first wife and after the marriage ceeds, though change was not made.

of plaintiff and the insured, the policy was 8. Insurance 587 - Sufficient to allege as changed and plaintiff was named therein as excuse for insured's failure to produce policy sole beneficiary, and so the policy read at the for indorsement of change of beneficiary death of insured. Meantime insured and apthereon that named beneficiary had posses- pellee, his second wife, became estranged, sion.

separated, and at the time of his death his In controversy over proceeds of policy be- bill for divorce and her claim for alimony tween named beneficiary and children of insured whom he sought to have substituted as

were pending. In the meantime, also, insurbeneficiaries, it was sufficient for latter to al. ed notified the company of his desire and lege, as excuse for insured's failure to pro- intention to have the names of his son and duce policy for indorsement of change there- daughter by his first wife substituted in the on, that named beneficiary had possession of policy as beneficiaries and by his attorneys. it, insured being prima facie entitled to such requested—such is the effect of his communipossession.

cation to the company that the change be 9. Interpleader em 16 After interpleader made, but was unable to present the policy court may decide right to money on princi- for the company's indorsement to that effect, ples of law and equity relating to right to because it was in the possession of the plainmoney,

tiff in this cause, and it was therefore imposWhere, under Code 1907, 8 6050, order for sible for him to present the policy to the interpleader is made and money in controversy deposited in court, court may dispose of it company. To this, so far as appears by the on principles recognized in courts of law and record, the company made no response; and equity in respect to right to money, without so

the policy remained without further resort to equitable process.

change until the death of insured For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen

some

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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 pleader in equity, and applies when the facts M. McDonald and Aleta McDonald Berry, son would authorize relief in equity. Stewart v. and daughter of insured, individually and as Sample, 168 Ala. 274, 53 So. 182, and cases administrator and administratrix of his es- there cited. One essential condition of a tate, claimed the money due on the policy, bill of interpleader is that all adverse titles and paid the amount thereof into court with or claims must be dependent or derived from a prayer that said claimants be given no a common source. Id. There must be privity tice, and that it be discharged of all further of some sort between all the parties, and the liability in the premises. Claimants inter- claims sbould be of the same nature and posed their claim in two aspects, to wit: They character. 15 R. O. L. 224. “In cases of claimed the fund in court as beneficiaries un- adverse independent titles or demands, not der the policy; they claimed it “as executors derived from a common source, but each asof the will of Thomas C. McDonald, deceas- serted as wholly Paramount to the other, the ed,” alleging themselves to have been so ap party holding the fund or other thing in dispointed by the probate court of Jefferson pute must defend himself as well as he can county. Plaintiff demurred to each claim, al- against each separate demand, and a court of leging various and sundry objections thereto, equity will not grant him relief on a bill of after which claimants moved the court to interpleader.” 15 R. C. L. 224. So this court make an order transferring the cause to the held in the early case of Gibson v. Goldequity side of the court for further considera-thwaite, 7 Ala. 281, 42 Am. Dec. 592. It is said tion. Plaintiff's demurrer was sustained, the in the more recent authorities to be “questionmotion to transfer the cause was overruled, able, however, whether the doctrine of privand, claimants having nothing further to say, ity, cominonly recognized in respect of bills judgment was rendered for plaintiff. Claim- of interpleader, applies to the statutory interants, individually and as executors, have ap- pleader.” Northwestern Ins. Co. v. Kidder, pealed.

162 Ind. 382, 70 N. E. 489, 66 L. R. A, 89, 1 The facts have been stated as they appear | Ann. Cas. note p. 513; 15 R. C. L. 236. Howin the pleadings. If it appeared from the ever that may be, this requirement is not ofpleadings that a case proper for interpleader fended against in the present case. There was not presented-which is to say that the are two claimants, and they claim alternainterpleader conferred no jurisdiction on the tively-such is the effect of the two claims court-or that clearly plaintiff was entitled filed-as irdividuals and as executors of the to the fund, there was, after claimants de- insured; but each claim in the same right as clined to plead further, no course open to the the other; they claim in a common right uncourt but to render judgment for the plaintiff. der the policy issued by defendant on the life

[1, 2] In limine appellee (plaintiff) 'insists of T. O. McDonald. that the pleadings made no proper case for [3] Nor do the pleadings show that the interpleader because the statute does not au- claims of the substituted defendants arose thorize the substitution of more than one out of any wrong of the original defendant, claimant, and it is suggested that the lan- | in which event interpleader would not be alguage of the statute (section 6050 of the Code lowed. The pleadings disclose that the conof 1907), only authorizes a defendant to make troversy has arisen out of the fact that the affidavit “that a person

claims the insured was unable to procure the substitumoney in controversy" and provides means of tion of the names of his children, the claimbringing in "such person.” To this objection ants, by reason of the fact that plaintiff had the first section of the Code provides a suffi- possession of the policy, whereas, for aught cient answer: “The singular includes the appearing, insured was entitled to such posplural.” But it is urg that, if as many as session. This was no fault of original detwo intervening claimants are authorized un- fendant which then had a right under its conder the statute, there may as well be a dozen, tract, reasonably construed, to insist upon and it is said, obviously, endless confusion the production of the policy, or, according to · would follow in a trial by jury where a the authorities to which we shall refer, a plurality of claims are presented, and so that showing that such production was without the right of trial by jury would be seriously the power of insured, as a condition to a impaired. In the first place this proceeding formal change of beneficiary—this to save is an innovation upon the common law, and, itself perchance from the annoyance of such no provision for trial by jury being express- complications as have arisen in this case, ed, it may safely be denied that the right The trial court appears to have proceeded exists. 15 R. O. L. 237, 8 19; Clark v. Mosher, upon the theory that, since the policy at the 107 N. Y. 118, 14 N. E. 96, 1 Am. St. Rep. death of insured in terms and on its face was 798, note 801. But aside from this, appel- payable to appellee, the definitely expressed lee's suggestion, in the form given it, is arbi- will of insured that appellants be substituted trary and devoid of merit. There is no like as beneficiaries-of which the insurance comsuggestion in the authorities on the subject. pany had formal notice, though the policy

] :

(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 As we have said in effect, the interest of changed for the benefit of appellants in such the named beneficiary in a policy of insurance sort that a court of equity would recognize providing for a change of beneficiary at the and enforce their rights? It may be conced- will of the insured is a mere expectancy. The ed that the insurance company had a right to named beneficiary in such a policy has no stand upon the letter of its contract so far as vested interest during the life of the insurthe provisions thereof affected its interests ed-4 Cooley's Briefs, p. 3755. But the right until a change was made according to the of the named beneficiary, no change having method stipulated in the policy or until proof been made in fact or legal effect, becomes was forthcoming that it was without the fixed, vested, at the death of the insured, and power of the insured to comply in some re- it is freely conceded that such right cannot spects with its stipulations. The provisions be affected by any subsequent acts of the inof the policy requiring presentation of the surance company. Payment of the fund into policy, the consent of the company to a court for the benefit of the party who may be change of beneficiary, and that such change declared to be entitled to it in no way imshould take effect upon the indorsement of proves or prejudices the legal position of the same on the policy by the company, might, either the original or substituted beneficiary as matter of course, to the extent they affect- as that position was at the death of the ined its interests, be waived, and were waived sured. L. R. A, 1915A, 580.

What was fund into court for an adjudication between the true content of the contract at the death the plaintiff and appellants as to the merits of the insured, if that content may be eviof their respective claims. These proposi. denced by the intent of the insured, as that tions are fully sustained by the authorities intent, under the facts in evidence, must be cited in appellants' brief. Knights of Mac- presumed to have affected the concurrence of cabees v. Sackett, 34 Mont. 357, 86 P. 423, 115 the company? Appellee's contention comes. Am. St. Rep. 532; John Hancock Mutual to this: That the face of the policy at that Life Ins. Co. v. Bedford, 36 R. I. 116, 89 A. time must be taken as conclusive. On the one 154; O'Donnell v. Metropolitan Life Ins. Co., hand, insured had the right to change the 11 Del. Ch. 4, 95 A. 289; Modern Brother beneficiary-an absolute right according to hood v. Matkovich, 56 Ind. App. 8, 104 N. E. some authorities, of which we may cite Lahey 795; John Hancock Mutual Life Ins. Co. v. v. Lahey, 174 N. Y. 146, 66 N. E. 670, 61 L White, 20 R. I. 457, 40 A. 5. Others might be R. A. 791, 95 Am. St. Rep. 554, but we think added. Thus on page 3772 of 4 Cooley's it should be conceded at least that equities Briefs on Insurance it is said that:

may arise in favor of the named beneficiary “The rule requiring the surrender of the old which would deny such right, as, for example, certificate, and indeed most of the rules of the insured may, for valuable consideration, procedure in effecting a change of beneficiaries, estop himself from changing his designation are intended only for the benefit of the association, and may therefore be waived by it,” But it is at least safe to say that the com

of the beneficiary. 4 Cooley's Briefs, p. 3764. and numerous cases are there cited.

pany could not capriciously reject insured's The cases referred to for the most part nominee for substitution. On the other hand, arose out of policies in mutual benefit socie- the rights of the named beneficiary could not ties; but where, as here, the insured in an be affected by anything done after the death old-line coinpany has in the terms of his of the insured-as between appellee and apcontract the express right to make a change, pellants in this case their rights could not be no reason occurs to us why the rule should affected by the payment of the money into be different.

Mutual Life v. Lowther, 22 court. But the policy was not the contract, Colo. App. 622, 126 P. 883.

it was merely evidence of the contract be[5, 6) But, of course, such waiver could not tween the parties, which, by mutual consent, impair any right of the true beneficiary which might afterwards be changed without changbecame vested upon the death of the insured. ing the paper, and as to which the parties Vested, in this connection, must mean that were bound by the implications of their acts. appellee had a right to the proceeds of the The insured made an effort to have his conpolicy according to the law of the land, a tract changed in favor of appellants, which right which could not be destroyed, impaired, the company, for its part, now says may be or divested by any authority whatever. Ac- accepted by the court as made in perfect comcording to Judge Thomas M. Cooley:

pliance with the requirements of the policy. “A right cannot be considered a vested right The insured gave the company notice in writ: unless it is something more than such a mere ing that he desired to have the name of the expectancy as may be based upon an antici- beneficiary changed, and requested that such pated continuance of the present general laws; change be made. Thereupon, if not immeit must have become a title, legal or equita- | diately and absolutely, after the lapse of a

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 Ill. 189, 75 N. E. 925, 109 Am. St. Rep. to such substitution, and a court of equity, 283. The judgment in that case seems to if the insured desired to have the policy have been governed in large part by a statute changed for future security, would have of the state of New York, as some of the made a decree accordingly. But the change cases have pointed out. But, however that in the instrument, though suggested by pru- may be, by the weight of authority and what dence, was not necessary to the rights which appears to us to be the better reason, we are insured desired to secure for his nominees, led to the conclusion stated above. appellants. Appellee contends that it was The briefs present the further inquiry necessary to produce the policy as a condition whether the court of law, on a statutory into substitution, and that appellants have fail-terpleader, will take into judgment the coned to show any sufficient excuse why it was siderations which would lead a court of not produced; that the allegation that it was equity to award the fund in question to apin possession of appellee, and therefore it pellants. Appellee's position is in substance was not possible for him to present it to the that the principles of equity pleading and company, was the statement of a mere con- practice are due to be observed until the proclusion, and, objection being taken to it on ceeding has conferred jurisdiction upon the that ground, should be held for naught. That law court; that is, until it be ascertained appellee had possession is sufficiently alleged “(1) that two or more persons have a claim and is not denied. In these circumstances against the plaintiff'; (2) that they claim the there are authorities which hold on what same thing; (3) that the plaintiff has no seems to be good reason that it may be fairly beneficial interest in the thing claimed; and inferred that appellee would not have sur- (4) that he cannot determine without hazard rendered the policy on demand of the insured. (to himself to which of the defendants the Supreme Tent v. Altmann, 134 Mo. App. 363, thing of right belongs" (15 R. C. L. 229, § 12), 114 S. W. 1107; O'Donnell v. Metropolitan after which the substantive rights of the par. Life Ins. Co., 11 Del. Ch. 4, 95 A. 289. The ties remaining before the court are to be defacts of this case--the facts alleged and not termined according to the strict rules of law, denied, and therefore accepted as facts--af- no regard being bad for the principles of ford strong grounds from which to draw such equity, that the law court will not recognize inference. Appellee's additional suggestion nor enforce equitable rights--this, as we unthat, in absence of a denial of any such facts derstand the argument, because such was the in appellants' claim, the presumption must plan of procedure and theory of decision on be indulged that appellee's possession was interpleader at the common law and because, rightful, that, for example, it may have been as we suppose the argument contemplates, assigned to her, for value as part of a mar- equity jurisdiction is not by the terms of the riage settlement (assuming that insured was statute conferred upon the law court. The asking for a substitution in the nature of remedy at the common law was not allowed specific performance or reformation to meet in any personal action except detinue, and new conditions), this suggestion is in our then only when it was founded either in judgment correctly disposed of upon the con- privity of contract or upon a finding. Story sideration that prima facie the insured was Eq. Jur. (14th Ed.) 1114. “In at least one entitled to the possession of the document jurisdiction the statute"-meaning the modevidencing his contract with the company,

ern statute of interpleader at law—is held and the burden was on appellee to allege and to be broad enough to determine equitable prove facts establishing a conclusion to the rights and interests.” 15 R. C. L. 233, § 18,

citing Brierly v. Equitable Aid Union, 170 contrary. There are numerous cases, based on quite Mass. 218, 48 N. E. 1090, 64 Am. St. Rep.

297. And further in the same text, page similar facts, which go to sustain our conclusion that insured was entitled to have the

237, § 19: name of the beneficiary changed in the policy, A substitution effected under the statute and that now a court of equity would decree changes an action, legal in its nature, into an that appellants are entitled to the proceeds. the remedy in equity then apply.”

equitable suit, and the principles which govern Isgrigg v. Schooley, 125 Ind. 95, 25 N. E. 151; Nulty v. Nulty, 74 Ga. 669; Wilcox v. Equi There are decisions to the contrary. As table Co., 173 N. Y. 50, 65 N. E. 857, 93 Am. applied to cases like this they do not appeal St. Rep. 579; Lahey v. Lahey; O'Donnell v. to us; but, whatever may be thought of the Metropolitan Life Ins. Co.; and Supreme broad statement of the text last quoted, our Tent v. Altmann, supra. Other cases to the judgment is that in cases like that presented same general effect are cited on the brief for by this record, ownership of the money may appellants, and numerous cases are cited by be determined on equitable principles. the court in Modern Brotherhood v. Matko [9] It will be observed that under the stat. vich, supra.

ute (section 6050 of the Code of 1907), such There are some cases to the contrary, but rights only may be litigated as arise out of

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