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(146 N.E.)

duty imposed by the government upon the mail clerks. Appellee in following the custom was performing the duty required of him by the government at the time he was injured. The fact that the mail car in which appellee was performing his regular duties was at the time standing on a track in the depot ready to be switched into the regular train did not take from him his rights as a passenger. Wabash Railroad Co. v. Jellison, 124 Ill. App. 652; Gemmill v. Illinois Central R. Co., 186 Ill. App. 124.

Appellant cites Pittsburg, etc., R. Co. v. Arnott, as decided by the Supreme Court, 189 Ind. 350, 126 N. E. 13, and as decided by this court (79 Ind. App. 135 N. E. 365), to sustain its contention, but the circumstances in that case were so different from those in the instant case that we hold it not in point. Appellant's contention is presented by error in overruling the demurrer to the complaint, and in giving an instruction to the jury, but we hold that the court committed no error in that regard. There was ample evidence to sustain the verdict.

The judgment is affirmed.

HENRICH v. PRIOR et al. (No. 12064.) (Appellate Court of Indiana, Division No. 2. March 17, 1925.)

1. Insurance 587-Insured may not revoke wife as beneficiary and name another in her stead, if policy does not create such right. Where a policy of insurance on the life of the husband is payable to his wife, without right in husband to revoke appointment of beneficiary and to name another in her stead, no such right exists; the policy in such case being the wife's absolute property over which the husband has no control.

2. Insurance ~587—Valid change of beneficiary, though without latter's consent, deprives former beneficiary of interest in policy permitting such change.

A valid change of beneficiary, though without latter's consent, deprives former beneficiary of interest in policy permitting such change. 3. Insurance 587-Change In beneficiary and assignment of policy held not invalidated by insured's assignment of policy before changing beneficiary.

Change in beneficiary and assignment of policy which gave insured such rights held not invalidated by fact that insured concluded to make the assignment before a change in the beneficiary was made.

4. Insurance 587-Change in beneficiary and assignment of policy held valid.

Insured's change of beneficiary, without latter's consent, and assignment of policy, pursuant to rights conferred therein, held valid.

Appeal from Probate Court, Vanderburgh County; Elmer Lockyear, Judge.

Action by Lillian M. Henrich against Frank Prior and others. From an adverse judgment, plaintiff appeals. Affirmed.

Denton & Denton, of Evansville, for appellant.

Leo H. Fisher, of Huntingburg, for appellees.

MCMAHAN, J. Complaint by appellant on a policy of life insurance. The insurance company paid the amount due into court, and was discharged from further liability. The contest is between appellant and appellee as to which one is entitled to the money. The cause was tried upon an agreed statement of facts, and resulted in a judgment in favor of Mr. Prior.

The policy in question was issued in May, 1918, on the life of Theodore Henrich, and was made payable to his wife, the appellant herein. It reserved to the insured the right of revocation, and provided that the insured upon written request filed with the insurance company might designate a new beneficiary, or have the policy payable to his estate, such change to take effect only when indorsed on the policy. It also provided that no assignment of the policy should be binding on the company, unless the original assignment or a duplicate thereof be filed with the company at its home office. The insured died in March, 1924, and after suit the amount due on the policy was paid into court for the use of the proper party. On May 20, 1922, the insured as evidence of a debt then owing Frank Prior gave him a note for $5,000. On the face of this note was the statement that it was secured by an assignment of the policy in question. On the same day the insured executed a writing reciting that under the right given in the policy he revoked the appointment of his wife as beneficiary, and requested that the policy be changed and made payable to his estate. A duplicate of this revocation and request was sent to the insurance company, and was by it attached to the policy. At the time of executing said revocation the insured, also in writing, assigned the policy to Frank Prior as security for the payment of said note. This assignment was sent to the insurance company along with the written revocation, and also attached to the policy by the insurance company at which time the insurance company made a written statement on the policy to the effect that the appointment of appellant as beneficiary had been revoked according to the right reserved to the insured, and that the company agreed the policy should be payable to the executors, administrators, or assigns of the insured. The policy with said indorsements on it was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-55

then sent to appellee Frank Prior, who ever, change in beneficiary was made the entire since has had possession thereof. transaction is invalid. We cannot concur in this contention.

There are two questions involved in this appeal: (1) Did the insured have the right Indiana National Life Ins. Co. v. McGinto assign the policy without the consent of nis, 180 Ind. 9, 101 N. E. 289, 45 L. R. A. (N. his wife? (2) Was the assignment legally | S.) 192, is not in our judgment of controlling made? influence. The insured in that case, without the knowledge or consent of the beneficiary who had possession of the policy, and who had a vested interest in the policy, undertook to surrender it to the insurance company and to release the company from all liability on the policy. No question as to the right of the insured to change the beneficiary or to assign the policy was there involved. That case recognizes the power of an insured to change the beneficiary, when that right is reserved, as in the policy now under consideration.

Appellant makes no claim that there was not a sufficient consideration for the execution of the note. Neither is there any claim that any fraud was exercised in connection with changing the policy of insurance so as to make it payable to the estate or assigns of the insured. Appellant, however, insists she had an indefeasible interest in the policy which could not be taken from her and destroyed without her consent.

Appellant does not dispute the right of her husband to change the beneficiary in the policy. But she insists that the policy still belongs to her; that the extent of the right and power of her husband was to change the beneficiary; and that he had no right to assign it without her consent.

In support of her contention appellant says that, where a policy provides the method of changing the beneficiary, such method must be followed, and, if the policy provides that the change shall not become effective until indorsed on the policy, such indorsement is necessary, and that, where several papers are executed practically at the same time, and one of them is invalid, all are invalid. In other words, appellant insists that, since the change in beneficiary and the assignment were both made on the same day, the transaction must be held to be invalid.

[1, 2] The law favors the making of reasonable provisions by a man for his wife and family. And where a policy of insurance on the life of the husband is payable to his wife, without right or power in the husband to revoke the appointment of the beneficiary and to name another in her stead, no such right exists. In such cases the policy is her absolute property, and he has no control over it. But the insured may retain the right to change the beneficiary without the latter's consent, and when such a change has been made in accordance with the terms of the policy it is binding on the former beneficiary, and she no longer has any interest therein.

[3] Appellant concedes that her husband had the right to change the beneficiary, and to make the policy payable to his estate, and that, if, after he had done so, he at some future date concluded to assign the policy, such assignment would have been valid, if made in the manner named in the policy. She contends, however, that the evidence con

clusively shows that before making the change of beneficiary he had concluded to make the assignment, and because he had concluded to make the assignment before the

[4] The trial court in our judgment correctly held the change in beneficiary and the assignment of the policy in the instant case were valid, and that the proceeds of the policy should be paid to Mr. Prior.

The judgment is therefore affirmed.

NOLTE v. EYDEN. (No. 12052.) (Appellate Court of Indiana, Division No. 1. March 20, 1925.)

1. Executors and administrators 452-Motion for new trial properly overruled, if evidence sufficient to sustain verdict based on either paragraph of claim.

In proceedings on claim for services rendered decedent, motion for new trial because verdict was not sustained by evidence was properly overruled, if evidence was sufficient to sustain verdict based on either paragraph of plaintiff's claim.

2. Appeal and error 768-Appellate court justified in assuming that testimony set out in appellee's brief correct where not challenged by appellant.

Appellate court was justified in assuming that testimony set out by appellee in his brief which he claimed was sufficient to sustain verdict was correct where it was not challenged by appellant.

3. Executors and administrators 205 (1)— Contract to pay for services held express and not special.

Contract to pay for services was express but not special, where it was an express promise to pay whatever services should reasonably be worth.

4. Appeal and error 930(1)—Evidence construed most favorably to appellee in considering sufficiency of evidence to sustain verdict.

In considering sufficiency of evidence to sustain verdict, appellate court can consider only that most favorable to appellee, together with reasonable inferences which may be drawn therefrom.

(146 N.E.)

Evidence held sufficient to sustain verdict based on paragraph of claim alleging that decedent promised to pay claimant reasonable value of services rendered by him.

6. Executors and administrators 225 (1) Motion to strike paragraph of claim in action against executrix held properly overruled. In action against executrix to recover for services rendered decedent, motion to strike from files second paragraph of claim because executrix intended to file her report in final settlement of estate within 30 days from date when such paragraph was filed held properly overruled, where executrix did not bring herself within Burns' Ann. St. 1914, § 2828.

5. Executors and administrators 221 (5)—| This testimony shows that prior to August Evidence held sufficient to sustain verdict on 1, 1906, the said deceased and one Kemper, express promise to pay reasonable value of as partners, were engaged in a retail busiservices. ness at Richmond, Ind., selling rugs, carpets, draperies, etc., and that the claimant worked for them as a clerk in their said store; that Kemper died on August 7, 1906, and that thereafter the said deceased became the sole owner of said store; that during the life of Kemper the work of the store was divided-Kemper doing the "outside" work and also acting as a salesman in the store, and Nolte taking care of the books; that after the death of Kemper the claimant did the work formerly done by said Kemper; that he also did other work connected with the operating of said store; that, after the death of Kemper, Nolte told one witness that they were getting along fine, that the business was getting better and bigger, and that Eyden was taking hold, and that he could not see that there was any change so far as the management of the store was concerned. In talking to another witness the deceased said that Eyden had been with him a long time, had been faithful, and had made him a lot of money.

Appeal from Circuit Court, Wayne County; Wm. A. Bond, Judge.

Action by Walter Eyden against Elma Nolte, executrix. Judgment for plaintiff, and defendant appeals. Affirmed.

Kelley & Kelley and Gardner, Jessup & Hoelscher, all of Richmond, for appellant. Will W. Reller, of Richmond, for appellee.

ENLOE, J. The appellee, hereinafter called the claimant, filed a claim against the estate of George H. Nolte, deceased, for a balance claimed to be due him on account of personal services rendered by him for the deceased. The cause was tried upon an amended claim in two paragraphs; the first being based upon an alleged express promise of the said deceased to pay to the claimant what his said services should be reasonably worth, and the second paragraph upon the implied promise of said deceased to pay to the claimant such sum. The services for which such claim was made were continuous and extended over a period of more than 16 years, and the balance claimed as owing was $10,000. The cause was tried by a jury and resulted in a verdict and judgment in claimant's favor for $5,000. The overruling of appellant's motion for a new trial is the only error assigned.

It is first insisted that the verdict of the jury is not sustained by sufficient evidence.

[1] It is fundamental that, if the evidence is sufficient to sustain a verdict based upon either paragraph of said claim, the court did not err as to the above alleged cause in overruling said motion, and we shall therefore proceed to an examination of the evidence herein.

[2] The appellee, in his brief herein, has set out certain testimony which, he claims, is sufficient to sustain said verdict. The appellant has not challenged the correctness of the said testimony as set out, and we are therefore justified in assuming that the same was correctly set out in said brief.

There was also evidence tending to show that the appellee was a popular salesman, and, as such, had a large personal following in the city of Richmond. It was also shown that the appellee had received offers of employment at Indianapolis, and at Louisville, Ky., but had not accepted them; that the deceased, speaking in reference to such offers, had said: "Eyden felt better satisfied to stay with him, because he knew he would be taken care of."

At another time the deceased while talk

ing to a witness in reference to Eyden said:

"Walter has got to move; he has been up against it; he is working at nights; we are busy; it is our busy time of year; he is worrying about it and I just can't do the work; I have always promised him that I would take care of him, and now is my time to do so; I told Walter to find out what he could buy that house for."

In talking to this same witness at another time the deceased said:

"I gave that house to Walter Eyden; Walter will have a home as long as he lives, and if anything ever happens Walter is taken care of."

In talking to this same witness, in a prior conversation, concerning Eyden and his services to deceased, the deceased said:

"Well, I will tell you, if you knew me as well as Walter Eyden understands me, Walter knows that he will be taken care of."

There is also testimony that upon one occasion the deceased remarked to his brother-inlaw that:

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"He would have to change his will because he wanted to fill the promise he had made to Walter Eyden; that he had promised to deed Eyden the property, but had just neglected it."

To another witness the deceased, speaking of Eyden, said:

"I am going to do something for him in the end, or when the time comes; I have bought a home for him."

[3] It will be noted that the express promise of the said deceased, relied upon in the first paragraph of said claim, was the promise of said decedent to fully pay and compensate claimant for his said services, if claimant would remain with him and in his service so long as he remained in business, or until his death. In other words, the claimant is relying, in this paragraph, upon an express promise of said deceased, not to pay a specific designated sum for said serv

In talking to this same witness, upon an-ices, but to pay whatever such services other occasion, concerning some repairs on the house which he had purchased, the deceased said:

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"I am doing this for Walter; he has been in my employ a good many years, and has been a good, faithful employé."

To another witness the deceased said:

"I have got the same kind of a case in Walter Eyden, and I have been intending to deed him the house in which he lives, and I have been putting it off from day to day."

should be reasonably worth. The contract relied upon was express, but not a special one. Forester v. Forester, 10 Ind. App. 680, 38 N. E. 426.

Under this paragraph of claim the jury had, at most, but two questions to answer. (a) Did the deceased make to claimant the said alleged promise? and (b), if so, what were the services rendered by claimant reasonably worth over and above all compensation received by him on account of such services?

[4, 5] In considering the sufficiency of the evidence to sustain the verdict, we can only consider that most favorable to the claimant together with the reasonable inferences which may be drawn therefrom. Reitz v. Hodgkins, 185 Ind. 163, 112 N. E. 386; Wainwright Trust Co. v. Kinder, 69 Ind. App. 88, 120 N. E. 419. We hold that the evidence in this record, with the reasonable inferences There was also testimony by other wit- which may be drawn therefrom, are amply nesses that the deceased, speaking of claim-sufficient to sustain a verdict founded upon ant, had said, "Walter is a very trustworthy the first paragraph of said claim. 'man, and I don't think I could keep store [6] The appellant also objects to instrucwithout him;" that Walter could run the tions numbered 8, 17, 18, 19, and 20, given store as well as he could; that his business by the court of its own motion. These indid not worry him; that he was satisfied to structions were each addressed to the averleave his business in Eyden's hands; and ments of the second paragraph of said claim. that Eyden had full control of his business. This paragraph of claim was filed January There was testimony by another witness 12, 1924, and on January 15, 1924, before that after the death of Kemper the deceased the commencement of the trial, the appeldepended upon Eyden in the matter of pur-lant moved the court "to strike from the chasing goods, and would not make any pur- files the second paragraph of claim," for chases unless Eyden was present to assist in selecting the goods.

Another witness testified that upon one occasion he remarked to the deceased that it was singular that he could keep such a man as Eyden in his employ, and that the deceased answered by saying, "Eyden will be taken care of all right;" that the deceased further said that he was giving Eyden a per cent. of in the business and giving him the house in which he was living. There was also testimony that, after Eyden moved into the house heretofore mentioned, he took down the fence, set out shrubbery, wired the house for electricity, repaired the furnace, painted and worked over the floors, papered the house, and made other improvements on said property, all at his own expense.

the reason "that this defendant, executrix,
intends to file her report in final settlement
of said estate within 30 days from the date
when said second paragraph was filed." This
motion the court overruled, and appellant
contends that this was error, and that as
said paragraph of claim was not rightfully
in the record, the court should not have
given the said instructions, or either of
them. Waiving the question as to the man-
ner in which appellant sought to raise the
said question, i. e., whether such question
can only properly be raised by answer in
abatement, yet the appellant by said motion
did not bring herself within the provisions of
section 2828, Burns' 1914, and there was no
error in overruling said motion.

We find no error in this record.
Affirmed.

(146 N.E.)

EUREKA BLOCK COAL CO. v. WELLS.

(No. 12159.)

(Appellate Court of Indiana, Division No. 1. March 17, 1925.)

1. Master and servant 397-Employer contesting application cannot question Industrial Board's jurisdiction.

ant to compensation, the employer appeals. Reversed, with instructions.

Hays & Hays, of Sullivan, for appellant. Paul R. Shafer, of Terre Haute, for appellee.

REMY, J. On January 30, 1922, appellee was awarded compensation as widow and sole dependent of James E. Wells, who had lost his life as a result of an accident arising out of his employment by appellant. Compensation in accordance with the award, which was for 300 weeks at the rate of $13.20 per week, was regularly paid, until No

Employer, which answered and contested application of wife of deceased workman to be reinstated as his dependent before Industrial Board, cannot claim on appeal that board was without jurisdiction because evidence failed to show that prior to filing of application parties had tried and failed to agree as to compensa-vember 7, 1923. On November 9, 1923, ap

tion.

Widow's right terminated by marriage

2. Master and servant 393 to compensation not voidable for fraud.

Under Workmen's Compensation Act, § 38, terminating dependency of widow on marriage subsequent to death of husband, marriage of such widow, voidable for fraud, does not terminate her right to compensation.

3. Master and servant 393-Annulment of marriage of widow held to relate back to time of marriage as to payment of compensation.

Where marriage of widow of deceased workman was annulled for fraud by court of general jurisdiction, decree of annulment related back to time of marriage contract, as to payment of compensation.

4. Master and servant

393-Receipt for compensation by widow on remarriage held not to prevent reinstatement as dependent.

Where widow of deceased workman on subsequent marriage, signed receipt in full for compensation due, and marriage was later annulled for fraud, receipt was not conclusive of facts recited therein, and did not prevent her reinstatement as dependent of deceased workman.

5. Master and servant 393—Award reinstating widow as dependent on annulment of marriage should be for remainder of compensation period.

Where widow of deceased workman had been paid compensation for 94 weeks under original award, and on remarriage payment was stopped, on annulment of such marriage for fraud, award reinstating her as dependent for period not exceeding 257 weeks was error, and should have been for remainder of period in original award, 300 weeks.

Appeal from Order of Industrial Board. Proceeding under the Workmen's Compensation Act by Letitia Wells for the death of James E. Wells, her husband, claimant, opposed by the Eureka Block Coal Company, employer. On claimant's remarriage, compensation paid under the award was stopped, and on subsequent annulment of such marriage, claimant asked to be reinstated as a dependent of James E. Wells. From an order of the Industrial Board, restoring claim

pellee was married to Charles McCormick with whom she lived as wife for about ten days, when she left him, claiming, at that time, to have discovered that the marriage contract was procured by fraud. On December 12, 1923, and after she had discovered the fraud, appellee formally certified to appellant that she had been married, and there being due her under the terms of the award, for the two days from November 7, 1923, to the date of her marriage, the sum of $3.77, she on that day receipted for that sum, and made settlement with appellant. As evidence of the settlement she signed and delivered to appellant, the following receipt:

"Received of Eureka Block Coal Company the sum of $3.77, making in all, with weekly payments already received by me, the total sum of $1,244.57, in final settlement of compensation agreed on, awarded me under the provisions of the Indiana Workmen's Compensation Act, as a dependent of James Wells, who died on January 19, 1922, by reason of an injury arising out of and in the course of his employment on January 19, 1922, while in the service of the said Eureka Block Coal Company."

This settlement was a transaction solely between the parties. It was not made pursuant to an order of the Industrial Board, nor was it approved by the board after it was made.

On December 13, 1923, appelleé commenced a suit in the Vigo superior court against McCormick for the annulment of the marriage on the ground of fraud in its procurement, and on January 24, 1924, the marriage was annulled as prayed. Thereafter appellee filed with the Industrial Board a petition setting forth the facts as to her marriage and the annulment thereof, and asked that she be reinstated as the dependent of James E. Wells, the reinstatement to be as of November 10, 1923. To the petition, appellant, in addition to a denial, filed a special answer setting up the facts as to the marriage and the settlement with appellee to the date of the marriage. At the hearing, the board found that the marriage had been annulled as set forth in the petition, and that appellee should "be restored to compensation

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