Avondale v. Sovereign Camp, Woodmen of World
| Decision Date | 29 April 1938 |
| Docket Number | 30259 |
| Citation | 279 N.W. 355,134 Neb. 717 |
| Parties | ETTA AVONDALE, APPELLANT, v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. A contract provision in a benefit certificate providing that no suit shall be brought thereon unless commenced within one year from the date of the member's death, if valid in the state where the contract is made, will be enforced in Nebraska.
2. A benefit certificate issued in Nebraska and sent to the clerk of the local camp in Louisiana and there delivered by the clerk to the member who at such time paid the first monthly instalment and signed an acceptance thereof is a Louisiana and not a Nebraska contract.
3. Refusal of a state court to recognize as valid a provision that suit must be commenced within one year after the date of loss, where such provision is valid under the law of the state wherein the contract was executed and was to be performed, is a denial of the rights guaranteed by the " due process clause," the Fourteenth Amendment to the Federal Constitution, is a refusal to give full faith and credit to the law of a sister state as required by section 1, article 4, and is a denial of the rights guaranteed under section 10, art. 1, of the Constitution of the United States.
4. Where a fraternal benefit society which had issued an ordinary whole life certificate to a member payable to one named as the wife of the member paid the policy without notice that the named beneficiary was not the legal wife of the member, the legal wife cannot thereafter recover the amount of the certificate, the society having paid in good faith and not having been guilty of any negligence.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Etta Avondale against the Sovereign Camp of the Woodmen of the World to recover the amount of a life certificate. From a judgment in favor of defendant, plaintiff appeals.
Judgment affirmed.
Mossman, Anderson & Meissner, E. J. Petersen and McKenzie & Dugan, for appellant.
Rainey T. Wells, J. M. Sturdevant, George Yeager, John F. Futcher and Albert F. Wahl, contra.
Heard before GOSS, C. J., DAY, PAINE, CARTER and MESSMORE, JJ., and LIGHTNER and SPEAR, District Judges.
Plaintiff seeks to recover $ 2,000 from defendant. At the close of the evidence both sides moved for a directed verdict. The district judge found for defendant, and under well-established rules in Nebraska his finding and judgment have the potency of a jury verdict. Plaintiff appeals.
The facts which give rise to the controversy are that defendant, which is a fraternal benefit society, issued an ordinary whole life certificate of $ 2,000 to Frank A. Avondale, who was then and for some time prior thereto had been a citizen and resident of Lake Charles, Louisiana, in which certificate and in the application therefor he named as his beneficiary "Edna Theodora Avondale, wife." Mr. Avondale died on August 1, 1931, and within a short time after his death the said Edna Theodora Avondale made due proof of his death and the entire amount of the certificate and interest, $ 2,006.59, was paid to her. The certificate naming Edna Theodora Avondale, the application and the proof were all in due form and gave in our judgment no notice to the defendant of the facts now about to be stated.
The evidence establishes that Edna Theodora was not the wife of Mr. Avondale at the time of his death, although a marriage ceremony had been performed between them December 30, 1917. The plaintiff was married to Mr. Avondale in 1908, and the evidence further establishes that no divorce was ever granted. The woman Edna knew at the time of her marriage to Mr. Avondale that he had a wife living from whom he was not divorced.
Further facts, which we consider of little importance, are that a benefit certificate was issued to Mr. Avondale on March 2, 1910, while he was living in Florida, in which he named the plaintiff, Etta Avondale, as beneficiary. This certificate was surrendered on June 10, 1918, and a new certificate was issued to Mr. Avondale, who was then living in Louisiana, in which the woman Edna was named as beneficiary. Later this was surrendered and on the 27th of April, 1929, an ordinary whole life certificate was issued to Mr. Avondale, who was still living in Louisiana, which was in effect when he died. It named the woman Edna "wife" beneficiary and she made proof and received payment thereof as such. Since Mr. Avondale had the right to surrender these prior certificates and could at any time have ceased to be a member of the society by failing to pay the premiums, we feel that the plaintiff can base no rights upon the original certificate. Her rights, if she has any, must be founded upon the provisions of our statute (Comp. St. 1929, sec. 44-1207) and the provisions of the by-laws limiting the beneficiaries to certain named classes, of which the woman Edna was not one, and the holding of our court to the effect that where the designation of beneficiaries is void one in the lawful classes may recover the benefit. It further appears that Mr. Avondale left no children and that the plaintiff is the only person within the lawful classes competent to take the benefits.
It is insisted in the briefs and oral arguments that it was not conclusively shown that Mr. Avondale was not divorced from his first wife. While the proof as to this fact was unsatisfactory, we think that it was sufficiently shown that no divorce was ever granted.
Another defense was that the woman Edna, regardless of her doubtful marital status, was a dependent and entitled to take the insurance as such, a dependent being within the prescribed classes, and cases are cited to the effect that an unlawful wife may take as a dependent. We have examined these cases and find the rule to be that a woman who believed in good faith that she was married to the deceased can recover. But the evidence here shows that the woman Edna began keeping company with Mr. Avondale while she knew that he was married to the plaintiff; that she went to the depot when Mr. Avondale sent his lawful wife away to California; that there was a marriage ceremony performed soon afterwards between her and Mr. Avondale when she must have known that he was not divorced from the plaintiff. Under these circumstances, the authorities cited by defendant cannot be applied.
There are however other considerations which in our judgment make it impossible for plaintiff to recover in this suit. One of the defenses interposed by defendant is that its by-laws provide that "no suit shall be brought upon this certificate, unless such suit is commenced within one year from the date of death." It is the law that this would not be a valid provision if the certificate in question was a Nebraska contract. Miller v. State Ins. Co., 54 Neb. 121, 74 N.W. 416; Omaha Fire Ins. Co. v. Drennan, 56 Neb. 623, 77 N.W. 67; Grand View Bldg. Ass'n v. Northern Assurance Co., 73 Neb. 149, 102 N.W. 246.
The evidence shows that defendant issued the certificate April 29, 1929, and sent it to the clerk of the local camp at Lake Charles, Louisiana. He delivered it to Mr. Avondale on May 3, 1929, who at said time paid the monthly installment thereon and signed an acceptance thereof as follows: "I have read the above certificate and accept the same, and warrant that I am now in good health and have not been sick or injured since the date of my application."
The authorities are to the effect that the state in which the last act of a contract is performed is the situs of the contract. 45 C. J. 56; McElroy v. Metropolitan Life Ins. Co., 84 Neb. 866, 122 N.W. 27.
It is further established by the evidence that such a contract provision is valid in Louisiana. Deal v. Sovereign Camp, W. O. W., 161 So. 621; Edson v. Merchants' Mutual Ins. Co., 35 La. Ann. 353; Carraway v. Merchants' Mutual Ins. Co., 26 La. Ann. 298; Clark v. Sovereign Camp, W. O. W., 8 La. App. 478; Blanks v. Hibernia Ins. Co., 36 La. Ann. 599; Williams v. Knights of Pythias, 144 So. 754.
Mr. Avondale died on August 1, 1931, and the present suit was filed on the 6th day of October, 1934.
A refusal of a state court to recognize as valid a provision that suit must be commenced within one year after the date of loss, where such provision is valid under the law of the state wherein the contract was executed and was to be performed, is a denial of the rights guaranteed by the "due process clause" of the Fourteenth Amendment to the federal Constitution, is a refusal to give full faith and credit to the law of a sister state as required by section 1, art. IV, and is a denial of the rights guaranteed under section 10, art. I, of the Constitution of the United States. Home Ins. Co. v. Dick, 281 U.S. 397, 74 L.Ed. 926, 50 S.Ct. 338; Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U.S. 143, 78 L.Ed. 1178, 54 S.Ct. 634; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389, 69 L.Ed. 342, 45 S.Ct. 129; New York Life Ins. Co. v. Dodge, 246 U.S. 357, 62 L.Ed. 772, 38 S.Ct. 337; New York Life Ins. Co. v. Head, 234 U.S. 149, 58 L.Ed. 1259, 34 S.Ct. 879.
The appellant relies to some extent on section 44-320, Comp. St. 1929, which provides: "No insurance company shall issue in this state any policy or contract of insurance containing * * * any provision limiting the time within which an action may be brought to less than the regular period of time prescribed by the statutes of limitations of this state."
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