
    Wilson et al. v. Behr.
    (Decided February 17, 1936.)
    
      Mr. John D. Ellis, city solicitor, Mr. Henry M. Bruestle and Mr. Wm. C. Schuch, for plaintiffs in error.
    
      Messrs. Grischy & Grischy, for defendant in error.
   Matthews, J.

By ordinance, the city of Cincinnati provided for a “retirement” system available for most of its employees who might choose to join by complying with certain conditions.' The purpose of this system was to secure for such employees monetary benefits upon retirement from the city service, and also benefits upon the death of the employee. Provision was made for financing these obligations through contributions by the employees from their salaries and by the city from public money upon an actuarial basis. A board of trustees of designated city officials was created to administer the system.

Charles' E. Blankenbuehler was a city employee. On the 13th day of August, 1931, he complied with the requirements and became a member of this “retirement” system, and continued as a city employee and member until his death on the 14th day of February, 1935.

At the time he became a member he was married to Leona Blankenbuehler and had one minor child. He named his wife, Leona Blankenbuehler, as the one to whom death benefits should be paid.

On October 25, 1933, Leona Blankenbuehler obtained a divorce. Thereafter, on September 24, 1934, Charles E. Blankenbuehler went to the office of the board of trustees of this system and there, with the assistance of a city employee regularly assigned to that duty, made out and filed a document on a form prepared by the city for the change of the beneficiary. In this document he named Henriette Behr as the beneficiary upon his death. He stated to the employee at the time that he intended to marry Henriette Behr and this employee told him that he doubted her eligibility as a beneficiary but took the document, filed it and that was the situation from that time to the death of Charles E. Blankenbuehler. Charles E. Blankenbuehler never married Henriette Behr, but there is abundant evidence that he was' engaged to her at the time he designated her as beneficiary and that they continued to be engaged until his death.

The death benefits amount to $1,291.12.

This action was filed by Henriette Behr to recover that amount. She named as defendants the members of the board of trustees and the municipal corporation, the city of Cincinnati. Later the administrator of the estate of Charles E. Blankenbuehler was made a party defendant on his own application. They admitted all the facts necessary to entitle some one to the death benefits, but denied that the plaintiff was' so entitled, basing such denial upon the premise that she was not eligible as a beneficiary under tbe law and tbe provisions of tbe “retirement” system.

A jury was waived. Tbe court made a finding in favor of tbe plaintiff, overruled tbe defendants’ motion for a new trial and rendered judgment in accordance with tbe finding. Tbe defendants bave brought tbe case to tbis court on error.

After tbe case was argued in tbis court tbe plaintiffs in error (defendants below) raised tbe question of whether the plaintiff should not bave proceeded by mandamus instead of by ordinary action to recover money. Assuming that the extraordinary remedy of mandamus was available, we are of tbe opinion that tbe ordinary remedy was also. No prejudice could result to tbe defendants by resorting to it, and, clearly, if tbe objection were substantial, it would bave long since been waived. We, therefore, proceed to the question iaised by tbe pleadings and the evidence.

Tbe ordinance provided that upon tbe death of a member tbe ordinary death benefits should “be paid to such person having an insurable interest in bis life as be shall bave nominated by written designation duly executed and filed with tbe board, or if there be no such designated person then to bis legal representatives.” It is tbe ordinary death benefits that are tbe subject of controversy here.

Tbe ordinance makes provision for different benefits when death results from accident occurring in tbe actual performance of duty, payable specifically to tbe widow, if any; or if none or she remarries, to tbe child or children under 18 years of age; and if there are neither widow nor children, then to dependent father or mother as tbe member shall designate.

These provisions and a statement in the form furnished that “Only a person having an insurable interest in your life, such as a member of your family, a relative or a creditor” could be a beneficiary, are urged as throwing light' upon the meaning of “insurable interest,” as that phrase is used in relation to ordinary death benefits.

While the practical construction placed by an administrative officer or board upon words of doubtful meaning may have great, and in certain circumstances, controlling effect, this rule can have no application where the terms are clear and explicit. 37 Ohio Jurisprudence, 698 et seq. And this construction must be more than a mere expression of opinion by such officer or board. It must be predicated upon the actual application of the statute or ordinance, and the weight to be accorded is measured largely by the duration of the acquiescence of the public in such construction.

In the case before us the ordinance was passed less than five years ago and there is no evidence that the question of the eligibility of a fiancee had ever arisen before in its administration. There has therefore been no practical construction placed upon it.

The fact that the board of trustees and the city of Cincinnati in this case have denied her eligibility is not an aid to the construction of the ordinance. The plaintiff’s petition and the defendants’ answers simply make up the issue submitted for decision. Neither assists in deciding it.

Nor do we think that the provisions relating to the beneficiaries of other benefits conferred limit or qualify the language relating to the beneficiaries of ordinary death benefits with which we are concerned here. If there is any significance to be attached it is that the city council knew how to be specific in that regard when such was its intention. Had it intended to restrict the right of the employee to nominate only members of his family as beneficiaries, the other provisions of the ordinance show it had the phraseology for that purpose, and used it in other circumstances and retrained from using it in relation to ordinary death benefits.

But it is said that the whole spirit and purpose of the city was to provide for the employee and his family, and particularly for his minor children; and that when the words are read with this spirit and purpose in mind an aura emanates from them favorable to the employee’s estate and the minor child, notwithstanding the employee has specifically named another, and that this is in consonance with the general policy of the law. That the father of a minor child is under a moral and legal obligation to support the child there is no doubt. The legal obligation, however, ends with his death and he may. entirely disinherit the child. The extent of his moral obligation to provide for his child after his death would undoubtedly be influenced by a variety of circumstances. In this case the record is silent on that subject. It may be that this decedent left an estate which devolved upon this minor child under the laws of descent and distribution. If it were material, we would presume that the decedent had performed his moral obligation.

So it seems to us that this case must be decided by giving to the phrase “insurable interest” its ordinary meaning. It is conceded that a person to whom the insured is under contract to marry has an insurable interest within the ordinary legal meaning of that phrase. It has been so decided in- several cases. Harden v. Harden, 191 Ky., 331, 230 S. W., 307, 17 A. L. R., 576, and annotation; Opitz v. Karel, 118 Wis., 527, 95 N. W., 948, 62 L. R. A., 982, 99 Am. St. Rep., 1004; Northern Life Ins. Co. v. Burkholder, 131 Ore., 537, 283 P., 739; Clements v. Terrell, 167 Ga., 237, 145 S. E., 78, 60 A. L. R., 969; 22 Ohio Jurisprudence, 430; 2 Couch on Insurance, 1058, Section 362; 1 May on Insurance, 191 (4th Ed.), Section 107a. We have been cited to no authority to the contrary and we have found none.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., and Hamilton, J., concur.  