Barbre v. Barbre , 192 Ga. 385 ( 1941 )

1. In a suit by parties at one time named as beneficiaries in a beneficiary certificate of insurance issued by the Woodmen of the World on the life of a person now deceased, against the beneficiary named in the certificate at the time of the death of the member, it was error to permit the agent of plaintiffs to testify to conversations and transactions with the deceased, on behalf of plaintiffs.

2. Since the judgment is reversed on one special ground, and other special grounds are expressly abandoned, and the evidence might not be the same on another trial, no ruling is made on the general grounds of the motion for new trial.

No. 13621. JUNE 16, 1941. In 1918 Primus J. Barbre, a member of the Woodmen of the World, a fraternal beneficiary society, obtained from that society a beneficiary certificate on which his brother, J. C. Barbre, paid the premiums until his death in 1934, and in which J. C. Barbre was named as beneficiary in 1933. After the death of J. C. Barbre in 1934, the defendants in error, Virginia, Ruth, Alice, Ann, and Joe Beall Barbre II, were named beneficiaries; and they and their mother, Mrs. J. C. Barbre, paid the premiums thereon until 1938. In 1938 Primus J. Barbre had the beneficiary changed, and named as the beneficiary the plaintiff in error, Joe Beall Barbre, and he paid the premiums thereafter until the death of Primus J. Barbre in 1939. The defendants in error brought suit in equity against the Woodmen of the World and Joe Beall Barbre, alleging that J. C. Barbre Sr., father of petitioners, paid the premiums on the policy until his death in 1934; that at the time Primus J. Barbre was still unable to pay the premiums as they became due, and he made an agreement with petitioners that if they would pay the premiums he would make them the beneficiaries under the certificate; that pursuant to the agreement the petitioners were made beneficiaries and paid the premiums until February, 1938, at which time the financial secretary of the association refused to accept further payments from petitioners; that subsequent premiums were not paid or tendered, for the reason that petitioners were advised by the financial secretary that further tender would be useless, as he would refuse the same; and that they were advised by said financial secretary, R. W. Gee, that the beneficiary in said certificate had been changed, and that defendant Joe Beall Barbre had been named as beneficiary in a duplicate certificate which had been issued in lieu of the certificate attached to the petition. The plaintiffs alleged that they had no previous notice of the change in beneficiary, and that no demand for surrender of the certificate held by them had been made; that Primus J. Barbre died in February, 1939; that the old certificate of insurance was in effect at the time of his death; that their demand upon the association for blanks in making proof of death had been refused; that the association was threatening to pay to the defendant Barbre the proceeds of the insurance which in equity belonged to petitioners; and that the defendant Barbre is insolvent, is unable to respond to any judgment, and if the insurance is paid to him it will be lost to petitioners. The prayer was for injunction; that the association be permitted to pay the funds into court, thereby relieving itself of further liability; and that petitioners have judgment for $1308, the full amount of the certificate.

Upon the trial of the case the certificate of insurance was put in evidence. It provides in substance as follows: If the member desires to change the beneficiary, he may do so by filing written request, properly witnessed, giving the name of the new beneficiary accompanied by a fee of 25 cents. The secretary of the society shall indorse the name of the new beneficiary upon the certificate, or he may issue a new certificate subject to the same conditions as the one surrendered, but containing the name of the newly designated beneficiary. He shall keep a record of such change in his office. The certificate also provides that the articles of incorporation, the constitution, laws and by-laws of the association, and all amendments thereof subsequently made, the application for membership, the medical examination, the application for change of certificate, and the certificate shall constitute the agreement between the association and the member. The society paid the amount due under the certificate into court, and was discharged from further liability therein.

The only evidence offered by the petitioners in proof of the alleged contract or agreement upon which their claim is based was testimony of their mother, Mrs. J. C. Barbre Sr., in substance, that her husband paid the premiums on the policy from 1918 until his death in January, 1934; that at the time of his death her eldest child was seventeen years of age and the youngest was five; that her children are nieces and nephews of Joe Beall Barbre; that after she got Mr. Manning to get the form to change the beneficiary she carried it to Primus Barbre, and he signed it; that after he signed it she paid all premiums beginning the next month after the death of her husband; that the beneficiary was changed within the next month after the death of her husband; that the next conversation she had after this with Primus Barbre, was when he remarked that he wanted to change it back to her children "where it belonged;" that he told her he was going to have it changed, saying that they had kept it up all these years, and it rightfully belonged to them; that at another time during Christmas he made practically the same remarks, and said that if she would get a paper typed providing for the change he would sign it; that she never did get the blanks; that the conversations with the insured with reference to changing the beneficiaries were after the plaintiff in error had been named as beneficiary; that she talked to the plaintiff in error after he was named beneficiary in the certificate; that the insured was in ill health and in dire need of help, and the plaintiff in error told her that if she would take the insured he would have her children, the defendants in error, named as beneficiaries; that she refused to take him or to contribute anything to his doctor, medical, and hospital bills or his funeral expenses. Ruth Barbre testified that she sent a premium on the policy to Mr. Gee by registered mail, and that he brought it back to her. R. W. Gee testified, that he recalled when plaintiff in error was named the beneficiary in the certificate; that the procedure set up in the by-laws of the society was followed in making the change; that the discussed with the insured at the time the reasons why the beneficiary was being changed, and the insured stated that he was in need of medical attention and Joe Beall Barbre had promised to give him that attention, while Mrs. J. C. Barbre had refused to speak to him; and that after the change was made Joe Beall Barbre paid the premiums on the policy.

Ground 6 of the motion for a new trial is an exception to the overruling of an objection to the testimony of Mrs. J. C. Barbre, relating to dealings she had with Primus J. Barbre in making her children, the defendants in error, beneficiaries. Verdict was rendered as follows: "We, the jury, find for the plaintiffs in the sum of $708, and for the defendant $600. 3/29/40. I. C. Fields, foreman." Judgment was entered, conforming to the verdict. Joe Beall Barbre filed his motion for a new trial, which was subsequently amended and on hearing was overruled, and he excepted. 1. Ground 6 of the motion for new trial assigns error on the overruling of the objection to testimony of plaintiff's witness, Mrs. J. C. Barbre, relating to transactions and communications with the deceased insured. It challenges the competency of the witness to give the testimony, the grounds of challenge being that she was testifying to conversations and transactions which she as agent for the petitioners had with a person now deceased. It is provided by statute that where a suit is instituted or defended by an indorsee, assignee or transferee of a deceased or insane person, the opposite party shall not be competent to testify in his own favor as to transactions or communications with such insane or deceased person; and that the agent or attorney of the surviving or sane party shall not be allowed to testify in favor of such party under circumstances where the principal could not testify. Code, § 38-1603 (1, 5). It is clear that under this statute, if the defendant in the present case is an indorsee, assignee, or transferee of Primus J. Barbre, deceased, the testimony objected to, both parties agreeing that she was the agent of petitioners, was inadmissible. In Hendricks v. Allen, 128 Ga. 181 (2) (57 S.E. 224), it was said: "It was not competent for the plaintiff to testify as to a transaction between himself and one since deceased, the effect of which would be to impeach the right of the deceased to convey the property in controversy to another person, when such other person or his personal representative was a party defendant in the case." In that case the legal representative of the deceased person was not a party to the suit, nor was the estate of the deceased person otherwise involved. In Hudson v. Broughton, 147 Ga. 547 (94 S.E. 1007), which was an action to recover a house and lot brought by a vendee against a donee in possession under claim of a parol gift from the same transferor, and where at the time of trial the vendor and donor was dead, it was said: "It was not error to refuse to permit the plaintiff and her agent to testify as to alleged conversations and transactions with the vendor relative to the transfer of the house and lot to the plaintiff." To the same effect, see Hendrick v. Daniel, 119 Ga. 358 (46 S.E. 438); Turner v. Woodward, 136 Ga. 275 (71 S.E. 418);Kramer v. Spradlin, 148 Ga. 805 (98 S.E. 487); Hardeman v. Ellis, 162 Ga. 664 (27) (135 S.E. 195); Brooks v.Brooks, 185 Ga. 549 (195 S.E. 869); Smith v. Smith,187 Ga. 743 (2 S.E.2d 417). The decision in Rosser v. GeorgiaPacific Railway Co., 102 Ga. 161 (29 S.E. 171), dealt with the testimony of an agent of a corporation, and it is distinguished from the present case by the language there used in the last sentence of division 1 of the opinion, as follows: "The fifth clause, which would be applicable if the defendant were a natural person, can not be made to apply to this case, because the term `surviving or sane party' limits its application to natural persons." Though recognizing the above rule, counsel for defendants in error contend that the plaintiff in error does not come under the classification of indorsee, assignee, or transferee; and it is further insisted that the law must be strictly construed. It is true that the legislature manifested an intention that the classes of persons rendered incompetent by the statute should not be expanded beyond the express provisions of the statute (Code, § 38-1603), but this does not mean that the law should be given such a technical construction as would defeat the obvious purpose of the legislation. The fundamental purpose of the law is to prevent a litigant from supporting his claim by testimony by himself or his agent as to communications, conversations, or transactions had with a deceased person, when the opposite party claims under such deceased person. If one's claim to property is dependent upon a contract with a deceased person, he must inevitably come within one of the classifications of indorsee, assignee, or transferee of the deceased person. In the present case both sides make claim to insurance money paid on a certificate of insurance on the life of Primus J. Barbre, deceased. The deceased had absolute control of the insurance certificate, together with the right to change the beneficiary as often as he chose. At the time of his death he held a certificate which was in force, and in which the plaintiff in error was named as beneficiary. In designating the plaintiff in error as the beneficiary who was to receive the proceeds of his insurance policy, Primus J. Barbre assigned or transferred that right to him. Thus Joe Beall Barbre, the defendant, was an assignee or transferee of the deceased. If the claim asserted by the petitioners in this action be true, then the deceased was without authority to name the plaintiff in error beneficiary under the certificate. The testimony objected to was offered by the petitioners for the purpose of sustaining their claim, and was against an assignee or transferee of the deceased person. Accordingly, under the authorities above cited, it was error to allow the testimony complained of, over the objection urged.

2. The evidence might not be the same on another trial; and accordingly no ruling is made on the general grounds. The other special grounds were expressly abandoned.

Judgment reversed. All the Justices concur.