Baumgart v. Sovereign Camp, W. O. W.

• Decision Date: 20 November 1934
• Docket Number: No. 29016.,29016.
• Citation: 257 N.W. 269,127 Neb. 865
• Parties: BAUMGART v. SOVEREIGN CAMP, W. O. W.
• Court: Nebraska Supreme Court

127 Neb. 865

257 N.W. 269

BAUMGART

v.SOVEREIGN CAMP, W. O. W.

No. 29016.

Supreme Court of Nebraska.

Nov. 20, 1934.

Syllabus by the Court.

1. If an insurance policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured. The language employed is that of the insurer and it is consistent with both reason and justice that any fair doubt as to the meaning of its own words should be resolved against it.

2. The written parts of a contract of insurance become the immediate and chosen language of the parties thereto, and, although they should be construed together with the printed clauses, and reconciled if possible therewith, so as to give effect to every part of the contract, yet, if the printed and written clauses are repugnant to each other and cannot be reconciled, the written parts, having been especially chosen for the occasion to express the agreement of the parties, will be given effect over the more general printed ones.

3. Evidence examined, and held to sustain the judgment of the district court.

Appeal from District Court, Douglas County; Thomsen, Judge.

Action by Augusta Baumgart against the Sovereign Camp of the Woodmen of the World. Judgment for plaintiff, and defendant appeals.

Affirmed.

D. E. Bradshaw, J. M. Sturdevant, Rainey T. Wells, and George Yeager, all of Omaha, for appellant.

James Nichols, of Madison, and Nelson C. Pratt, of Omaha, for appellee.

Heard before GOSS, C. J., and ROSE, EBERLY, DAY, and PAINE, JJ., and REDICK, District Judge.

EBERLY, Justice.

Plaintiff brought this action as beneficiary of an “Ordinary-Whole Life Certificate” issued by defendant on the life of plaintiff's husband, Carl Baumgart, now deceased. A trial in the district court for Douglas county to the court, a jury being waived, resulted in findings and judgment for the plaintiff as prayed. From the judgment of the district court defendant appeals.

Appellant is a fraternal benefit society. On January 6, 1913, it issued to Carl Baumgart, beneficiary certificate No. “42802 Nebr.” in the sum of $1,000 if assured should die during the first year of his membership, $1,500 if his death should occur during the second year, and $2,000 if assured's death took place after the completion of two years of membership in the society. Some time after the issuance of this policy, the defendant changed its methods and commenced the issuance of policies of different terms. One of these forms is a policy which it denominated the “Ordinary-Whole Life Certificate.” The plans of the society, as evidenced by their by-laws, contemplated the voluntary transfer by its membership from the form of insurance previously issued by it to the new form, but at an increased rate. Accordingly, on August 9, 1929, Carl Baumgart executed an application, on a blank provided by the defendant, for “exchange of certificate,” which set forth that he, as holder of benefit certificate No. 42802, desired to exchange it for an “Ordinary Life Certificate” in the sum of $2,000. This application contained the following stipulations:

“The new certificate is to become effective on the first day of Aug. 1929, and to bear the date of Aug. 1st, 1925, and age of 53. It is understood and agreed that withdrawal values, if any, on the new certificate will be available to me only after I have made payments on said new certificate for three full years from date thereof. First payment on new certificate is for the month of Aug., and I warrant that all the required payments on my present certificate have been paid up to the first of the month for which said first payment is made. * * * I hereby certify that I was born on the 16th day of Dec. 1872. In consideration of such exchange I hereby surrender my said benefit certificate to the Sovereign Camp of the Woodmen of the World, and I hereby, for myself and my beneficiaries, and for any one claiming any right in, through or on account of said certificate, release said Sovereign Camp of the Woodmen of the World from any and all liability thereunder, and I agree to abide by the laws of the Sovereign Camp of the Woodmen of the World as they now are or may hereafter be amended. I certify, warrant and represent that I am in good, sound bodily health, and that there is nothing in my habits or condition that is likely to impair my health or shorten my life. I agree this representation is a strict warranty, and that if the same shall prove in any respect untrue, or if my death occurs within one year from the date hereof as the result of any disease from which I am now afflicted, none of my beneficiaries shall be entitled to receive benefits on account of the new certificate, but instead will be entitled only to such benefits as may be due under my present certificate.”

All dates appearing in this application are in writing.

Thereupon, “in consideration of the warranties and agreements contained in the original application therefor, the application for exchange of certificates, and in further consideration of the payment to the association of the sum of $7.84 for the month in which this certificate is dated,” and other payments to be made as therein stipulated, the defendant issued to the insured the “Ordinary-Whole Life Certificate,” No. R. W.-923478-L, which is the policy in suit.

In the upper left-hand corner of the first page of the policy is set forth, “age 53,” and upon the first page immediately above the signature appear the words, “The nonforfeiture values shall be computed as if this certificate had been issued on the 1st day of Aug., 1925. Issued at Omaha, Nebraska, this 23d day of Aug. 1929.” These two dates are filled in in typewriting.

On page 2 of this policy, it is stated:

“2. Cash Surrender, Loan Value, Paid-Up and Extended Insurance: After thirty-six monthly payments on this certificate shall have been made, should the member fail to pay any subsequent monthly payment, the member, within three months after due date of the monthly payment in default, but not later, upon written application and legal surrender of this certificate, may select one of the following nonforfeiture options: Option (a). The cash surrender value set forth in column 1 of Table A on page 3 hereof for the period to the end of which premiums have been paid in full. Option (b). A paid-up certificate for the amount set forth in column 2 of table A on page 3 hereof for the period to the end of which premiums have been paid in full. Option (c). Extended insurance from such due date, for the amount of the death benefit on page 1 hereof, but without total and permanent disability benefits, for the period specified in column 3 of table A on page 3 hereof for the period to the end of which premiums have been paid in full. If there be any indebtedness against this certificate, the cash surrender value set forth in column 1 of table A on page 3 hereof shall be reduced thereby, and the value of the options above named shall be decreased proportionately.

3. Automatic Premium Loan: After thirty-six monthly payments on this certificate shall have been paid, if any subsequent monthly payment be not paid on or before its due date, and if the member has not, prior to such due date, selected one of the options available under the nonforfeiture provisions of this certificate, the association will, without any action on the part of the member, advance as a loan to the said member the amount of the monthly payments required to maintain this certificate in force from month to month until such time as the accumulated loans, together with compound interest thereon at the rate of five per cent. per annum, and any other indebtedness hereon to the association, equal the cash value hereof at the date of default in the payment of the monthly payments. When the said cash value has been consumed in loans advanced and interest thereon, then this certificate shall become null and void; provided, that while this certificate is continued in force under this provision, the member may resume the payment of monthly payments without furnishing evidence of insurability, and the accumulated loans and interest thereon shall become a lien upon this certificate and shall continue to bear interest at the same rate. Provided further, that such lien may be paid in whole or in part at any time by the member, but if not paid said loan and accumulated interest thereon shall be deducted upon any settlementwith the member, or from the amount payable at the death of the member.”

The table referred to in these paragraphs, quoted, so far as material to the questions presented, is as follows:

“Table A.

+-----------------------------------------------------------------------------+
                ¦End of Certificate¦Cash Value or Loan ¦Paid-Up       ¦Extended   ¦Insurance  ¦
                ¦Year              ¦Value              ¦Insurance     ¦Years      ¦Days       ¦
                +------------------+-------------------+--------------+-----------+-----------¦
                ¦3rd               ¦$49.15             ¦$91.00        ¦2          ¦199        ¦
                +------------------+-------------------+--------------+-----------+-----------¦
                ¦4th               ¦75.21              ¦136.00        ¦3          ¦221        ¦
                +------------------+-------------------+--------------+-----------+-----------¦
                ¦5th               ¦101.53             ¦179.00        ¦4          ¦183        ¦
                +------------------+-------------------+--------------+-----------+-----------¦
                ¦6th               ¦128.07             ¦221.00        ¦5          ¦91         ¦
                +------------------+-------------------+--------------+-----------+-----------¦
                ¦7th               ¦154.79             ¦262.00        ¦5          ¦317.”      ¦
                +-----------------------------------------------------------------------------+
                

All accruing dues upon this policy were paid without question up to and including June, 1931. Whether the dues for July, 1931, were paid in that month is a controverted question. However,...