Thurmond v. Spoon

Eberhardt, Judge,

concurring. It appears that Prudential issued to the City of Atlanta a group life insurance policy under which the city issued to its employees certificates of life insurance, and that a certificate had been issued to Thomas Motley, a city employee June 1, 1967. In June, 1969 a Mrs. Pritchard, who carried a policy with Prudential and from whom Prudential’s agent, R. L. Hartupee, collected monthly premiums, informed Hartupee that Motley wanted to effect a change of beneficiary in his insurance and asked that he call on Motley and assist him. Hartupee ascertained that Motley was a city employee, insured under its group life program with Prudential, obtained from the city’s group life department a form for changing the beneficiary and called on Motley at his home.

He found Motley to be in an apparent bad state of health, emaciated, and in bed. He was introduced to Motley and Motley informed him that he wished to get the beneficiary changed in his insurance to Mae Bell Spoon, his half-sister, in whose home he was living.

Hartupee produced the form, filled in the name of the proposed new beneficiary, and Motley signed it by making his mark, and Hartupee signed as a witness.

The form was not fully completed. The numbers of the group policy and certificate were not filled in, but Hartupee explained that he did not have these and that it was gener-' ally done at the city hall. The insured’s name does not appear on the form, but there is no place f'or it except the signature line, and, as stated, this was done' by mark.

Hartupee returned the form to the group life department of the city, and the administrator of the department testified that it was received. An endorsement was entered (presumably for effecting the change of beneficiary) June 16, 1969, and this was noted on the form application. Mrs. Bowen, the administrator, testified that the endorsement *814was sent to Motley by interdepartmental mail to the department in which he was employed, though it does not appear that he received it. This was apparently because of the fact that he was sick and unable to appear for work.

The certificate of insurance provides, inter alia, that "The employee (insured) may at any time, without the consent of the beneficiary, change his beneficiary by filing written notice through the Policyholder (city) on a form satisfactory to Prudential. The new designation will take effect on the date the notice was signed, except that such change shall not take effect as to any amount of payment made by Prudential before receipt of notice of the change.”

Was the form submitted to the city insurance department sufficient to effect a change?

In its answer to the action Prudential "admits that Thomas Motley made his mark (X) on a change of beneficiary form in the presence of Robert Hartupee, an agent of Prudential Insurance Company of America, who is the defendant in this action.” It also admitted that the insurance was in force when Motley died and that Mae Bell Spoon had made demand for payment of the proceeds, and asserted that payment was withheld because of a conflicting claim by Daisy Thurmond, and interpleaded them, paying the proceeds into court.

Mr. Hartupee testified that Motley was rational when he signed the form with his mark, that he stated with clarity what he wanted to do and that he gave the information which Hartupee entered on the form — the name and address of the proposed new beneficiary.

The city group life department made no complaint as to the incompleteness of the form, or as to the signature, though there is testimony that the endorsement was held up because the signature by mark had been witnessed by only one witness.1 An endorsement appears actually to have been made, but not delivered.

The insured was in poor physical condition. He was in *815bed most of the time and had to be carried to the bathroom, though he could and did sit on the edge of the bed when Mr. Hartupee got the form filled in and signed. He could not sign his name. It is apparent that it was his intention to effect the change, and that he did all that he could do to bring that about. The city received the notice and apparently understood what was wanted, and the city was acting as Prudential’s agent in handling the group life program.

Although the form, was not as well completed as one would like, we believe that the proof brings the situation within the rulings made in several decisions of the Supreme Court.

In Nally v. Nally, 74 Ga. 669 (2a) (58 AR 458) it was held, under somewhat similar circumstances: "There is no condition in this policy requiring the consent of the beneficiary named there to a change of any of its terms or of the parties entitled to claim under it; and whether such change was to be effected by parol or in writing was a matter entirely between the assured and the company; and if the latter chose to dispense with any of the modes of effecting this purpose, this concerned no third party; nor could the company capriciously refuse the change.”

If it be said that the form for effecting the change here was skimpily filled out, or incomplete, or insufficient in some respects, it does not appear that the city or Prudential has so urged. Rather, it appears that the city was willing to accept it, with the single complaint that the signature had not been witnessed by two people. It is admitted that the insured signed the form, by mark, in the presence of Prudential’s agent. Consequently, it may be said that the insurer here has chosen to dispense with the requisite of a fully completed form. Since the insured could not read or write, how much more could he have done in effecting a completion of the form? The notation "End. 6/16/69” made on the application at the city hall indicates an acceptance of it in its incomplete form.

"If, however, the insured has done substantially all that is required of him, or all that he is able to do, to effect a *816change of beneficiary, and all that remains to be done is ministerial action of the association, the change will take effect though the details are not completed before the death of the insured.” Smith v. Locomotive Engineers Mut. Life &c. Ins. Assn., 138 Ga. 717 (2) (76 SE 44).

A similar result was reached in Barrett v. Barrett, 173 Ga. 375 (160 SE 399, 78 ALR 962), where it was observed that the insured’s "failure to comply strictly, and to the letter, with the written requirements as to a change of beneficiary were sufficiently explained and excused.” We believe this is true here.

Other cases to the same effect are West v. Pollard, 202 Ga. 549 (43 SE2d 509); Faircloth v. Coleman, 211 Ga. 356 (86 SE2d 107).

A requirement made neither by terms of the policy, the certificate, nor the form for changing the beneficiary.