Backdahl v. Grand Lodge A. O. U. W.

• Decision Date: 08 April 1891
• Citation: 46 Minn. 61
• Parties: AGNETTA BACKDAHL and others <I>vs.</I> GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN.
• Court: Minnesota Supreme Court

46 Minn. 61

AGNETTA BACKDAHL and othersvs.

GRAND LODGE ANCIENT ORDER OF UNITED WORKMEN.

Supreme Court of Minnesota.

April 8, 1891.

Action brought in the district court for Hennepin county by plaintiffs, alleging themselves to be the mother and sisters of Alfred Backdahl, deceased, and his only heirs at law, upon a "beneficiary certificate" of $2,000, issued to the decedent and payable upon his death to his "legal heirs," upon the condition that he should "in every particular comply with all laws, rules and requirements of said order." The defences are stated in the opinion. At the trial, before Rea, J., the defendant had a verdict. The plaintiffs appeal from an order refusing a new trial.

Merrick & Merrick, for appellants.

Jos. A. Eckstein, W. H. Adams, and E. Southward, for respondent.

COLLINS, J.¹

Plaintiffs, as the heirs of Alfred Backdahl, deceased, brought this action to recover the amount of $2,000 upon a beneficiary certificate issued by defendant to him. The answer denied that plaintiffs were the heirs, and alleged two defences, — the first, that Backdahl had been suspended for non-payment of an assessment; second, that he had been suspended for non-payment of dues. When the trial commenced, plaintiffs moved that defendant be required to elect between these two defences relating to non-payment, on the ground that they were inconsistent. The test of consistency in two defences is, can the facts pleaded in both be true? If so, then although, either being proved, proof of the other may be unnecessary, they are not inconsistent. As the two suspensions alleged in the answer were at different times, for different causes, effected in different ways, and having different consequences, the last in point of time being more comprehensive than the other, and as, notwithstanding the earlier, the defendant might have made the later suspension, they were not inconsistent. The verdict was for defendant. Each party claims, in effect, to have been entitled to a direction from the court for a verdict. As it is necessary to reverse the order denying a new trial, we will not consider in detail the 24 assignments of error, many of them unfounded, but will refer only to some general questions, which, in all probability, will arise on a second trial.

1. To prove that plaintiffs were sole heirs of Backdahl, they offered in evidence the decree of the probate court distributing his estate. This was properly excluded, for while binding, as to the matters adjudicated, upon the parties to the administration proceedings, it was no evidence of the facts on which it was based against a stranger to such proceedings, as was this defendant. To prove they were such heirs, plaintiffs further offered, and the court admitted, the testimony of a witness whose only knowledge in reference to the subject had been derived from his acquaintance with the family and with Backdahl, the witness and the latter residing in this country, the plaintiffs in Sweden. Although that sort of evidence is in the nature of hearsay, is based on hearsay, it is admissible from necessity, because many times in no other way could relationship be shown but by proof that relationship in and to a particular family was recognized by the members of the family. 1 Greenl. Ev. 106. When such testimony is introduced, it is for the jury to determine, from the extent of the witness's acquaintanceship with the family and his opportunities for knowing that its members recognized the particular person as a member, what weight to give it. In this instance, at least, the testimony of the witness made a prima facie case for the plaintiffs on the question of kinship.

2. There was a contest on the evidence as to the making and notice to Backdahl of the assessment for non-payment of which the suspension set out as a first defence was alleged. It appears from the constitution of defendant that, when a member entitled to participate in the beneficiary fund dies, the subordinate lodge to which he belonged is to...