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Zaidenberg v. Occidental Life Ins. Co.

DECEMBER 10, 1965.

HARRY ZAIDENBERG, D/B/A ALLSTATE ACCEPTANCE ASSOCIATION, AND ETHEL DALTON PURDIMAN, PLAINTIFFS-APPELLANTS,

v.

OCCIDENTAL LIFE INSURANCE COMPANY OF CALIFORNIA, A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This is an appeal from the summary judgment entered July 14, 1964, in the Circuit Court of Cook County in favor of Ethel Allen Purdiman, in the sum of $2,492.50. Richard Purdiman was insured under an Occidental Life Insurance Company policy carried through the Teamsters Union Health and Welfare Fund, which policy provided for life insurance benefits in the sum of $2,500. In order to secure the insurance, Richard Purdiman completed an enrollment card on October 14, 1954, which card designated as the beneficiary of the insurance policy "Ethel Purdiman, Wife."

Richard Purdiman died on December 31, 1962. On April 30, 1963, a "complaint in chancery" was filed against the Occidental Life Insurance Company of California, by Allstate Acceptance Association and Ethel Purdiman [hereafter referred to as Ethel Dalton Purdiman]. Among other things, the complaint alleged that the defendant had issued a policy of insurance on the life of Richard Purdiman, designating "the complainant, Ethel Purdiman, wife," as the beneficiary. There is a further allegation that Richard Purdiman and Ethel Dalton Purdiman were married on July 5, 1955, in Yazoo County, Mississippi. It further alleged the death of Richard Purdiman, and that proof of death was made to the defendant; that on January 3, 1963, in consideration of funeral services rendered and goods and chattels furnished in connection with the burial of Richard Purdiman, Ethel Purdiman assigned a portion of her interest to the benefits payable under the insurance policy, in the amount of $1,238, to L.C. Wesley, d/b/a L.C. Wesley Funeral Homes; that on the same date Wesley assigned his right, title and claim in the assignment to Allstate Acceptance Association, and that the original assignment and reassignment were forwarded to the defendant; and that Allstate Acceptance Association prays for judgment in the amount of $1,238, and Ethel Purdiman in the sum of $1,262. A copy of the assignment to the Wesley Funeral Home and of the Wesley Funeral Home to Allstate Acceptance Association was attached to the complaint.

On June 11, 1963, Ethel Purdiman [hereafter referred to as Ethel Allen Purdiman] filed a petition to intervene, in which petition she alleged that she and Richard Purdiman were married at Stacey, Arkansas, in 1936, and that the suit filed by Ethel Dalton Purdiman and her assignee, is false because at the time of the death of Richard Purdiman, Ethel Allen Purdiman was his legal wife, and she prays that she be permitted to intervene. On the same day an order was entered granting her leave to file her petition to intervene.

On June 14, 1963, defendant, Occidental Life Insurance Company of California, filed a countercomplaint of interpleader against Allstate Acceptance Association, Ethel Dalton Purdiman and Ethel Allen Purdiman. Occidental therein alleged among other things that the deceased was validly insured in a policy in its company in the sum of $2,500; and that he had executed an enrollment card naming "Ethel Purdiman, wife" as his beneficiary. The defendant admitted liability in the sum of $2,500 and prayed that an order be entered directing the defendant to deposit the sum of $2,500 with the clerk of the court.

On June 14, 1963, the defendant filed its answer to the complaint in chancery and the petition to intervene, setting forth in substance the same allegations contained in its countercomplaint of interpleader. On June 18, 1963, the court entered an order giving defendant leave to deposit $2,500 less costs with the clerk of the court.

On July 10, 1963, Allstate Acceptance Association and Ethel Dalton Purdiman filed their answer to the intervening petition of Ethel Allen Purdiman, in which they admit that Ethel Allen Purdiman and Richard Purdiman were married in 1936, and that at the time of the demise of Richard Purdiman she was his legal wife. The answer also states that Ethel Dalton Purdiman was married to Richard Purdiman on July 5, 1955, and that prior thereto, since on or before the year 1952, they had lived together as husband and wife and were so living at the time of his death. It is further alleged that "she was the intended and designated beneficiary to the aforedescribed policy."

Ethel Dalton Purdiman and Ethel Allen Purdiman each filed separate answers to the countercomplaint of interpleader of the insurance company, admitting all the allegations therein contained, and each urging that she was the beneficiary under the insurance policy.

On August 8, 1963, the court entered an interlocutory decree which, among other things, dismissed the Occidental Life Insurance Company from the cause after the deposit of the sum of $2,492.50 with the clerk of the court.

On November 20, 1963, Ethel Allen Purdiman filed a motion for summary judgment, alleging that she was married to Richard Purdiman, now deceased, and never divorced, as set forth in the attached affidavit; that she was legally entitled as the beneficiary to the money paid into court by the insurance company, and that there were no other valid claimants to the proceeds of the policy; she prayed that an order be entered giving her summary judgment, and that the money deposited in the court be turned over to her. With that motion Ethel Allen Purdiman filed an affidavit in which she again alleged that she was married to Richard Purdiman in 1936; that subsequent to the marriage eight children were born; that Richard Purdiman lived with her until 1954 when he left her; that since such time, until he died in 1962, he frequently visited her and their children at her residence; that at no time from the date of the marriage until the death of Richard Purdiman was any proceeding for divorce filed either by Richard or by the affiant; that he remained a resident of the City of Chicago until his death; and "that during all of the time affiant and Richard Purdiman resided in Chicago, until his death, he paid monies to affiant for the support of affiant and their children." She further alleged that on December 31, 1962, Richard Purdiman was her legal husband.

On November 20, 1963, Allstate Acceptance Association and Ethel Dalton Purdiman were given leave to file counteraffidavits to the motion for summary judgment, and on December 16, 1963, Allstate Acceptance Association and Ethel Dalton filed what they termed "answer to motion for summary judgment and counteraffidavit," asking that a summary judgment be entered in their behalf. The document realleges the 1955 marriage of Ethel Dalton Purdiman to Richard Purdiman, and also alleges that there was attached to the affidavit a photostatic copy of the marriage certificate. This certificate does not appear in the record. The document also alleges that Ethel Dalton Purdiman is the legal wife of Richard Purdiman and the intended beneficiary to the matter in question. This affidavit is signed and sworn to by Ethel Dalton Purdiman and Harry Zaidenberg, d/b/a Allstate Acceptance Association. On January 14, 1964, the court entered the following order:

"This cause coming before the Court on the motion of Ethel Allen Purdiman for Summary Judgment and the Court having heard arguments of counsel and having jurisdiction of the subject matter and being fully advised in the premises, and the Court finding that Ethel Allen Purdiman is the beneficiary in the policy of insurance herein."

It was ordered that a summary judgment be entered in behalf of Ethel Allen Purdiman, and that the clerk of the court be instructed to pay over to her the proceeds of the policy.

On January 24, 1964, Ethel Dalton Purdiman and Allstate Acceptance Association filed a motion to vacate the order of January 14, and with it filed a memorandum of law. In that motion they alleged that there was a triable issue of fact, to wit: "who did Richard Purdiman intend to designate as beneficiary to Occidental Life Insurance Company policy . . ." This motion also alleged that when the enrollment card was issued, providing for the designation of "Ethel Purdiman, wife," on October 14, 1954, "the insured, Richard Purdiman, had been residing with and cohabiting with Ethel Dalton Purdiman as ...


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