Cuyahoga County Circuit. "We do not hesitate to say, however, that a policy taken out in good faith and valid at its inception, is not avoided by the cessation of the insurable interest unless such be the necessary effect of the provisions of the policy itself.' Other cases cited by counsel support this proposition as applied to regular life insurance companies, but it is to be remembered that the company now being considered is governed by the statutes applicable directly to fraternal beneficiary associations. In White v. Brotherhood of American Yeomen, 124 Ia. 293 [99 N. W. 1071; 66 L. R. A. 164; 104 Am. St. 323], a case arose under the provisions of Sec. 1824 of the code of Iowa, and it is said in the second clause of the syllabus: "The code, Sec. 1824, provides that no fraternal association shall issue any certificate unless the beneficiary be the husband, wife, relative, legal representative, heir or legatee of such inember. An association which expressed its object to be a bestowal of financial benefits on the family, widow, heirs, relations and such others as may be permitted by the laws of the state, and constitution and by-laws, and which permitted a change of beneficiary, issued a certificate payable to a certain person by name, such person being the wife of the member when the certificate was issued. Subsequently she was divorced and the member remarried, but made no change of beneficiary. Held: That on the death of the member, the first wife was entitled to the proceeds of the certificate." In the opinion of this case, Judge Sherwin uses this language: "The statute provides only for the relationship that shall exist when the certificate is issued, and does not in words, or by fair implication, limit payment to those only who occupy such relation at the time of death. It was the evident intent of the legislature to prohibit anything in the nature of gambling contracts, and to so limit the beneficiaries as to accomplish such a result.' And further along in the opinion it is said: "It is a well recognized rule that a policy of life insurance or a designation of a beneficiary, valid in its inception, remains so although the insurable interest or relationship of the bene Mahar v. Mahar. ficiary has ceased, unless it is otherwise stipulated in the contract." Citing, Connecticut Mut. L. Ins. Co. v. Schaefer, supra, and Bacon, Benefit Societies, Sec. 253 Turning to the section referred to in Bacon, we find this: "The general rule undoubtedly is that a policy of life insur ance or a designation of beneficiary, valid in its inception, remains so, although the insurable interest or relationship of the beneficiary has ceased, unless it is otherwise stipulated in the contract." In support of this a large number of authorities are cited which sustain the doctrine in the text and as stated in the cases from which quotations have hereinbefore been made. Bacon then follows in these words: "Where, however, the beneficiaries of members of benefit societies were, by statute, restricted to the family dependents or relations of their members, and a member of one of such societies designated his wife from whom he afterwards was divorced, it was held that she lost her rights under the designation in consequence of such divorce." This case will seem to be apparently against the authorities, but the reason given is that under the statute the relationship or status must exist at the time of the maturity of the contract. Especially is this true if the regulating statute specifies certain classes to which payment of benefits shall be made. Bacon then calls attention to the Iowa case, White v. Brotherhood of American Yeomen, supra, and this, as has already been shown, is reasoned by the court upon the proposition that the statute fixes who may be named as beneficiaries, but it does not fix to whom payment shall be made. The section of our statute, which has already been quoted, expressly provides that the payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption affianced husband or affianced wife, or to a person or persons dependent on the member. Attention has already been called to the law of the association which provides for payment to be made to parties other than the beneficiary named, where the payment to the beneficiary would he repugnant to the laws of the state or country at Cuyahoga County Circuit. the time of the death of the member causing the certificate to be issued. The case of Supreme Commandery v. Margaret Everding, 10 Circ. Dec. 419 (20 R. 689), is cited in support of the claim of the plaintiff in error, Blanche Mahar. In that case nothing is said with reference to the statute of Ohio fixing the persons to whom payment should be made. The decision seems based entirely upon the proposition that the person to whom the money was awarded was the wife of the member at the time the certificate was issued, and was therefore a proper person to be named as beneficiary, and then to reach this conclusion because of the cases which hold that a person, properly a beneficiary at the time of the issuing of the certificate, remains such beneficiary so long as no change of beneficiary is made in the certificate. But the cases cited are those where the policies were issued by regular life insurance companies. That case was decided by a very able bench, consisting of Judges Scribner, Bentley and Haines, and the opinion was prepared by Judge Haines, for whose opinion we have the highest respect, as has the entire bar of the state. However, that case was decided in 1893. A later case, Brotherhood v. Taylor, not reported, decided by the circuit court of Ross county in 1906, holds the contrary doctrine. This case was also decided by a very able court, and we fell disposed to follow this rather than the Lucas county case. In that case there had been a divorce between the member on whose account the certificate was issued and the beneficiary designated in the policy, who was his wife at the time the certificate was issued. The third clause of the syllabus in this case reads: "Under the laws of Ohio, beneficiary certificates are to be construed with reference to the status of the beneficiary at the time of payment (meaning payment of the loss). The words 'Alice B. Taylor' in the certificate are descriptio personae, and may be rejected as surplusage, and the certificate is construed to mean that if there be no wife living, the benefits go to the administratrix in trust for his heirs." In the opinion in this case Judge Jones uses this language: "In the determinatior of this case, it may be said at the Mahar v. Mahar. outset that the various rules of law applicable to ordinary life insurance companies do not apply in this case, for the reason that it is provided by statute that such associations shall be exempted from provisions of the insurance laws of this state. and no law hereafter passed shall apply to them unless they be expressly designated therein." We reach the conclusion, both from the spirit and purpose of the statutes in relation to these associations, and from the express language of Sec. 9467 G. C., that there was no error in the decision of the court of common pleas, and the judgment is affirmed. Winch and Niman, JJ., concur. MASTER AND SERVANT. [Ashtabula Court of Appeals, January 31, 1913.] Metcalfe, Norris and Pollock, JJ. GUARRINO V. UNION DOCK CO. ET AL. Responsibility as Between Dock Company and Steamship Company For Safety of Employees Unloading Vessel. Plaintiff, an employee of a dock company, was by the direction of his employer engaged in unloading a steamship belonging to another company. While so engaged he was injured by reason of the unsafe condition of the place where he was working. Held: 1. The duty of furnishing a safe place for the plaintiff to work rested on his employer, the dock company, and not on the steamship company. 2. The plaintiff by engaging in the employment, by direction of his employers and without objection on his part of unloading the boat of another company, did not assume the risk of the unsafe condition of the place where he was working. 3. The duty which plaintiff owed to the steamship company was that of ordinary care only. [Syllabus by the court.] ERROR. Anderson & Lamb, for plaintiff in error. H. H. McKeehan, for defendant in error. METCALFE, J. The plaintiff in error, Stefano Guarrino, was plaintiff below, and brought this action for damages for injuries occa Ashtabula County Appeals. sionea by the alleged negligence of the defendants. Upon the trial at the clcse of the evidence the trial judge, on motion of the Union Dock Co., directed a verdict in its favor. Thereupon the case was submitted to the jury as between the plaintiff and the Interstate Steamship Co. and a verdict was rendered in the favor of the defendant steamship company. The errors here assigned are, first, that the court erred in directing a verdict in favor of the Union Dock Co., and that the court erred in the charge to the jury. The Union Dock Co. is the owner and operator at Ashtabula Harbor of a number of machines used in unloading iron ore from boats. The Interstate Steamship Co. is the owner of a boat known as the B. F. Jones. At the time the plaintiff was injured the B. F. Jones was unloading at the docks of the Union Dock Co., and the machines of the dock company were doing the work of unloading. The men who had charge of the machines and who were doing the work of unloading, including the plaintiff, were in the employ of the Union Dock Co., and not of the Interstate Steamship Co. The hold of the boat where the iron ore is stored consists of several compartments, each of which has a separate hatch. As the machines progressed in the work of unloading it became necessary to move them from one hatch to another, and when they were so moved it was necessary for the workmen who were in the hold of the boat attending to the filling of the hoppers to move to the different hatches as the machines moved. In so doing it was necessary to climb a ladder to the top of the compartment and then travel along a passageway on the side of the boat from one hatch to another. At the time of the accident to the plaintiff the unloading machine upon which the plaintiff was working had been moved from one compartment to another and the plaintiff was going from the one where he had been at work to the one where the machine had been moved. He was going in the usual manner and along the usual route. There was upon the shelf or gangway where the plaintiff was obliged to walk in going from one hatch to another some timbers which are called strong-backs. It was dark in going through the place where these things were left, and the plaintiff, as he came to the top of the ladder and stepped over the side of the hatch onto |