Opinion
May 8, 1942.
July 23, 1942.
Fraternal beneficial societies — Insurance — Beneficiaries — Dependency upon charity of another — Need or want — Evidence — Burden of proof — Act of May 20, 1921, P.L. 916.
1. Under the Act of May 20, 1921, P.L. 916, section 6, which, after designating certain relatives by blood and marriage who might take, provided that if the member should become dependent upon the charity of an individual, he should, with the consent of the society, have the privilege of making such individual his beneficiary, the requirement that the member "become dependent upon the charity" involves the idea of need or want.
2. Under the Act of 1921, the fact that an insured, who had already adequate means of support, lived with another from mutual friendship, did not establish dependency upon the charity of the latter.
3. In an action for death benefits provided in a certificate of membership in a fraternal benefit society by a beneficiary not within one of the enumerated relatives, the burden is upon the plaintiff, if the Act of 1921 is applicable, to prove that the deceased member had become dependent upon his charity.
Appeal, No. 270, April T., 1942, from judgment of County Court, Allegheny Co., 1940, No. 939, in case of Anna Dragovich v. Greek Catholic Union of U.S.A., Inc.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, RHODES, HIRT and KENWORTHEY, JJ. Judgment reversed.
Assumpsit. Before McKIM, P.J.
The facts are stated in the opinion of the Superior Court.
Finding and judgment for plaintiff. Defendant appealed.
Error assigned, among others, was judgment.
W.W. Stoner, with him J.M. Stoner Sons, for appellant. J. Harry Pershing, with him Adam B. Shaffer, for appellee.
Argued May 8, 1942.
This is an appeal by a fraternal benefit society from a judgment for death benefits provided in a certificate of membership.
The certificate was issued in 1933 to Frank Nagy. The beneficiary named therein was Frank's wife. She died in 1927, and on March 13, 1928 Nagy, with the consent of the society, changed the designated beneficiaries to:
This was a new certificate issued after the old certificate, in existence since 1909, had been called in.
"Samuel Dragovich no relation amount $500
Anna Dragovich no relation amount $500"
Nagy died March 10, 1937. Samuel Dragovich predeceased him.
At the time Nagy's certificate was issued, the persons entitled to death benefits in such certificates were limited by law. Act of May 20, 1921, P.L. 916, Sec. 6, 40 PS 1017. After designating certain relatives by blood and marriage who may take, the act provides: "If, after the issuance of the original certificate, the member shall become dependent upon the charity of an individual or an incorporated charitable institution, he shall, with the consent of the society, have the privilege of making such individual or institution his beneficiary." (Italics supplied.) Admittedly plaintiff was not one of the enumerated relatives. The burden was therefore upon her to prove that Nagy had become dependent upon her charity.
Repealed by Act of July 17, 1935, P.L. 1092, Sec. 41.
It is not clear from the record whether this question was presented to the lower court. But it is fundamental; it goes to the root of the right of recovery, and we are bound to consider it. Kelly v. Pittsburg Birmingham Traction Co., 204 Pa. 623, 626, 54 A. 482; Hoffa v. Person, 1 Pa. Super. 357, 364. In addition, it was argued by both sides in this court and appellee made no contention based on the fact it was being raised here for the first time. See Summerson v. Hicks et al., 142 Pa. 344, 350, 21 A. 875.
The scope and purpose of the statute have been so comprehensively reviewed in the recent decisions of this court in Petrik v. National Slovak Union (et al.), 136 Pa. Super. 308, 7 A.2d 60, and Mizanin v. Mihuc et al., 137 Pa. Super. 269, 8 A.2d 543, that it would be useless repetition to discuss them at length. In both cases it was held the evidence was sufficient to support a finding of dependency upon the charity of the plaintiff.
In the present case we find no such evidence.
The Dragovichs and Nagys had been friends and neighbors for many years. Plaintiff testified that after the death of Nagy's wife Nagy moved into the Dragovich home and, off and on until 1936, lived with them, without paying board, for periods as long as a month at a time. He apparently had a roving temperament and would come to live with them between jobs. If all the visits during the nine-year period were put together, they would have amounted to approximately two years. The Dragovichs lost all track of him in 1936 and didn't discover his death until about a year after it occurred. To our minds, the determinative failure of proof was the lack of any evidence that Nagy was, during any of the period, a needy person. The pertinent requirement of the Act, supra, that Nagy "become dependent upon the charity" of plaintiff involves the idea of need or want. As Judge RHODES said in the Petrik Case, supra at p. 316-317: ". . . . . . the apparent objective of the statute is to encourage the rendition of assistance to needy persons who may possess only this means [the death benefits] of reimbursing their benefactors to some extent." From all that appears, Nagy's visits emanated entirely from mutual friendship and he, at all times during the period, had wholly adequate means of support. In this respect, the case differs materially from our previous decisions above referred to. We cannot infer he was dependent upon plaintiff's benefaction. The burden was on her to prove it.
Numerous additional questions have been raised by appellant which it is not necessary to consider.
Judgment is reversed and entered for defendant.