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Shipbuilding Co. v. Whitney.

a reason for this inspection, he is not entitled to it. The court of common pleas decided in favor of the stockholder and granted the injunction, and the proceeding here is for the purpose of determining whether such order of the court shall be sustained.

It is provided by Sec. 8673 G. C., that "the books and records of such corporations, at all reasonable times, shall be open to the inspection of their stockholders." This section is found in the chapter providing for the organization and conduct of corporations for profit in Ohio. There is no doubt, therefore, that if this were an Ohio corporation, the stockholder would be entitled to the examination. This is absolutely settled by the case of Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189 [56 N. E. 1033; 48 L. R. A. 732; 78 Am. St. 707]. The syllabus of this case reads:

"Injunction is the proper form of remedy to enforce the right of a stockholder in a private corporation, given by Sec. 3254 R. S., to inspect the books and records of the corporation.

"The right to inspect does not depend upon the motive or purpose of the stockholder in demanding such inspection and a petition which shows that the plaintiff is a stockholder; that he has requested the defendant to allow him to inspect the books and records of the corporation, and fix a reasonable time for the same, which request has been refused, states a cause of action.

"As incident to such right is the right to have such inspection by a proper agent, and to take copies from such books and records."

It is urged, however, that the statute does not apply to foreign corporations, because the language is that the "books and records of such corporations" shall be open to the inspection provided for, and that the word "such" refers to the kind of corporations provided for in the chapter, to-wit, domestic corporations.

It is, however, provided in Sec. 5508 G. C., as amended in 102 O. L., 251, Sec. 119 of the amendment, in these words:

"All foreign corporations, and the officers and agents thereof, doing business in this state, shall be subject to all the liabilities and restrictions that are or may be imposed upon cor

Cuyahoga County Circuit.

porations of like character organized under the laws of this state, and shall have no other or greater powers."

That this applies to all foreign corporations, other than certain ones named later on in the section, is clear from the fact of those exceptions being made.

We have not found it necessary to consider other questions raised in this case. We regard the case as settled by these statutes and the decision of the Supreme Court already named. The result is that the judgment of the court of common pleas is affirmed.

Winch and Niman, JJ., concur.

BENEFICIAL ASSOCIATIONS-INSURANCE.

[Cuyahoga (8th) Circuit Court, February 13, 1912.]

Marvin, Winch and Niman, JJ.

BLANCHE MAHAR V. ROSIE MAHAR ET AL.

Divorced Wife not Entitled to Benefits From Fraternal Association. Under Sec. 9467 G. C., payment of death benefits by a fraternal beneficiary association can not be made to one who was the wife of the member when a certificate was issued to him, and named therein as his beneficiary, without after change, but was di vorced from him before his death and hence before the death benefits became payable.

ERROR.

Hidy, Klein & Harris, for plaintiff in error.

E. P. Strong, J. D. Clark and George C. Johnson, for de fendants in error.

MARVIN, J.

The Independent Order of Foresters filed its petition in the court of common pleas, alleging that it is a fraternal beneficiary association, organized under the laws of the Dominion of Canada/ and doing business in Ohio by authority of law. That on January 19, 1909, one William Mahar died, being then a member of said association, to whom it had theretofore issued a benefit certificate in the sum of one thousand dollars, which was then in full

Mahar v. Mahar.

force, and setting out that it was ready to pay said sum to the person entitled to receive the same, and brings the amount into the court to abide its order. That Blanche Mahar and Rosie Mahar each claimed payment of this benefit fund to herself, and so the question of the party entitled to the payment was submitted to the court.

Both of these parties answered, each setting up facts which she claimed entitled her to the money. The court ordered that Rosie Mahar was entitled to it and made its order accordingly. To this finding and order Blanche Mahar prosecutes this proceeding in error.

The facts are these: one William Mahar and the plaintiff in error, Blanche Mahar, were married June 20, 1900, at Lorain, Ohio. Soon after their marriage and in November, 1901, the said William Mahar became a member of Court Huntingtontower No. 3835 I. O. F. and took out insurance in the sum of $1,000, which insurance under the mortuary certificate was made payable to Blanche Mahar, the plaintiff in error, who was then his wife. The parties lived together from that time on until 1908 when they separated and the said William Mahar secured a divorce from his wife in the court of common pleas of Cuyahoga county, Ohio. Thereafter the said William Mahar, on or about December 2, 1908, married the defendant in error, Rosie Mahar, and the following month, to-wit, January 19, 1909, died, and during all of the time aforesaid the said William Mahar resided either in Cleveland or in Lorain, Ohio. The beneficiary was at no time changed. The policy now reads, and the certificate evidencing the insurance is made payable to Blanche Mahar, the plaintiff in error. No children were born to either the plaintiff in error or the defendant in error.

The contention on the part of the plaintiff in error is that Blanche Mahar, having been designated originally as the beneficiary in the beneficial certificate, and no change of beneficiary having been made, as it could have been made by William Mahar had he applied to the association to have such change made, the person entitled to payment remains unchanged, and so the court should have ordered that the money be paid to Blanche; whereas, on the other hand, it is argued that though Blanche was named as

Cuyahoga County Circuit.

the beneficiary in the certificate, yet the fact of the divorce of William from her took away from her all right to any payment under this certificate.

The certificate itself provides, among other things:

"The supreme court doth further agree, subject to the proviso hereinafter contained, on the death of the said member being established to the satisfaction of the executive council, to pay to the beneficiary or beneficiaries designated hereon (the said member reserving the power of revocation and substitution of other beneficiaries in accordance with the provisions of the constitution and laws of the order) a mortuary benefit of one thousand dollars, less the amount paid on account of the total and permanent disability benefit," etc.

It is further provided that the certificate is issued "subject to the provisions of the constitution and laws of the order as they existed at the time the said applicant became a member of the order, and as they may be amended from time to time thereafter."

The act of incorporation in the Dominion of Canada, under and by virtue of which the association was created and chartered provides, among other matters, that the purposes of such association shall be:

"A. To unite fraternally all persons entitled to membership under the constitution and laws of the society;

"E. To establish a benefit fund, from which, on satisfactory evidence of the death of a member of the society who has com plied with all its lawful requirements, a sum not exceeding $3.000 shall be paid to the widow, orphans, dependents, or other beneficiary whom the member has designated, or to the personal representative of the member; or from which upon the completion of the expectancy of life of a member, as laid down in said constitution and laws, such shall be paid to himself."

The constitution of the organization provides, among other things:

"The insurance or mortuary benefit of a member shall be paid to the member himself, or to the wife or husband of, or to the affianced wife of, or to the affianced hushand of, or to the

Mahar v. Mahar.

children of, or to the blood relations of, or to persons dependent on the member."

It is manifest that if the right to payment of this mortuary benefit depends upon the relation which subsisted between the nember and the person named as a beneficiary at the time of the issuing of the certificate, this money should be paid to Blanche Mahar. And it may here be said that if she is not entitled to such payment, she was not prejudiced by the order of the court fixing Rosie Mahar as the person to whom the money should be paid. This is said because objection was made to some evidence offered in support of the proposition that Rosie Mahar and Wilham Mahar were legally married after the divorce between Blanche Mahar and William Mahar. Since, however, it is a matter of indifference to Blanche Mahar to whom this money should be paid provided she is not entitled to receive it, no prejudice came to her because of any ruling upon evidence in relation to the marriage of Rosie Mahar and William Mahar.

Our attention is called by counsel for the plaintiff in error to a considerable number of cases in which it is held that the person designated as the beneficiary, if entitled to be so designated at the time the certificate is issued, remains such beneficiary, notwithstanding a change of relation thereafter occurring between the parties before the death of the person procuring the issuing of the certificate.

The case of Connecticut Mut. L. Ins. Co. v. Schaefer, 94 U. S. 457 [24 L. Ed. 251], is such case. The second clause of the syllabus reads:

"A policy of life insurance, originally valid, does not cease to be so by the cessation of the assured party's interest in the life insured, unless such be the necessary effect of the provisions of the instrument itself. So held, where, subsequently to effecting an insurance by husband and wife, upon their joint lives. pay. able to the survivor upon the death of either, they were divorced a vinculo matrimonii, and she, having thereafter paid the premiums to the time of his death, brought suit on the policy."

In the opinion of this case, Mr. Justice Bradley, at page 461, uses this language.

43 O. C. C. Vol. 36.

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