Opinion
22647.
SUBMITTED SEPTEMBER 15, 1964.
DECIDED NOVEMBER 5, 1964.
Interpleader. Fannin Superior Court. Before Judge Burtz.
Jack G. Tarpley, for plaintiff in error.
William Butt, Herman Spence, contra.
1. It is never error to allow evidence to be introduced over objections that it is irrelevant and prejudicial, where as here, the evidence was in proof of allegations of the pleadings which had not been demurred to. Beasley v. Burt, 201 Ga. 144 ( 39 S.E.2d 51), Adler v. Adler, 207 Ga. 394 ( 61 S.E.2d 824), and cases cited in these cases. Nor was it error to charge the jury to consider such evidence and that they would be authorized to make a finding based thereon. Western Atlantic Railroad v. Fowler, 77 Ga. App. 206 ( 47 S.E.2d 874); Martin v. Nichols, 127 Ga. 705 ( 56 S.E. 995); Savannah Guano Co. v. Christian, 159 Ga. 600 (3) ( 126 S.E. 376). As to any proper remedy in such a situation see Fleming v. Roberts, 114 Ga. 634 ( 40 S.E. 792).
2. While the customs and practices so alleged and proved might not be enough to thwart the law which requires that all assets of a deceased are a part of his estate, and if intestate, the administrator is entitled to receive and distribute them in accord with law, yet in the situation of this case, such a law would not authorize a reversal because of the allowance of the evidence as to customs and practices and the charge thereon. See Code §§ 110-702, 110-704; Evans v. Mills, 119 Ga. 448 (1) ( 46 S.E. 674); Jones v. Harris, 151 Ga. 129 (3) ( 106 S.E. 555); Deck v. Shields, 195 Ga. 697 ( 25 S.E.2d 514).
3. The evidence amply supported the verdict, and the general grounds of the motion are without merit.
Judgment affirmed. All the Justices concur.
SUBMITTED SEPTEMBER 15, 1964 — DECIDED NOVEMBER 5, 1964.
A member of a union, who was a participant in a program sponsored by the union known as the "Death Benefit Fund," in which program upon the death of the participant-member, each living participant-member authorized the employer to deduct $2 from his wages and pay it to the union which would pay the entire fund collected "to the deceased participant's family or designated beneficiary," died without a designated beneficiary; and thereafter, upon the collection of the fund and payment to the union, the union was doubtful as to who should receive the fund since the deceased was unmarried, living with his parents at the time of his death but had a minor child born of a previous marriage, and both the deceased's mother and the guardian of the minor child made claim to the fund. The union filed a bill of interpleader setting out the above and prayed to pay the fund into the registry of the court and require the parties making claim thereto and the administrator of the estate of the deceased to interplead in regard to the fund. The administrator answered admitting the child of the deceased was his sole heir at law, that no beneficiary had been named, but prayed that said sum be paid to the administrator to be used to pay all lawful claims of the estate and the remainder disbursed to the heirs at law. The guardian answered, admitting, in the main, the allegations of the petition and by amendment added that the custom and practice of the union was to pay said fund to the next of kin when no beneficiary was named, and prayed that said sum be paid to him for the benefit of the minor child. On the trial of the case a copy of the union-employer contract was introduced which set forth that the union had sponsored the "Death Benefit Fund Membership" and desired that the company, in the case of death of any member of the fund, would deduct $2 from the wages of each living member employee signing an authorization card and transmit the funds so collected to the union "to be paid to the beneficiary of the deceased member." The authorization card signed by each participating member was in effect the same, authorizing said sum to be deducted from wages and paid to the union "to be paid by them to the beneficiary of the deceased member." One of these authorization cards was also allowed in evidence. The court also allowed in evidence over objection testimony as to the custom and practice of the union as to the payment of the fund in the event no beneficiary was named to the widow, and if no widow to the next of kin, on the theory that the contract was ambiguous as to payment of the fund in the event no beneficiary was named. Thereafter, the court charged the jury that if the jury believed that the custom and practice of the union had been to pay the death benefit to the family of the deceased participant where no beneficiary was named then they should find in favor of the guardian. A verdict was returned in favor of the guardian, and the administrator filed a motion for new trial with two amended special grounds assigning error on the charge and the allowance in evidence of the usage, custom and practice because the contract as shown was not ambiguous and the fund should have been paid to the administrator in accordance with the law. The court denied the amended motion for new trial, and the exception is to this judgment.