Briggs v. Highlanders
| Decision Date | 25 June 1909 |
| Docket Number | 15,758 |
| Citation | 122 N.W. 69,84 Neb. 834 |
| Parties | MYRA E. BRIGGS, APPELLEE, v. ROYAL HIGHLANDERS, APPELLANT. [*] |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Cuming county: GUY T. GRAVES JUDGE. Affirmed.
AFFIRMED.
Hainer & Smith, for appellant.
A. R Oleson, contra.
On June 5, 1897, Robert N. Briggs, whom we will hereinafter designate as the assured, became a member of a local castle of defendant society, and under that date received from defendant a benefit certificate upon his life in the sum of $ 3,000, payable at his death to his wife (plaintiff) and son. In April, 1905, the assured, for the sole purpose of changing his beneficiary, surrendered his certificate of June 5, 1897 and received from defendant, as a substitute therefor, the benefit certificate in suit. Defendant wrote on the face of such later certificate the words: "The date of certificate No. 1,741 (the former certificate) shall be the date on which the settlement of this certificate shall be based." In its answer defendant admits that the later certificate "was issued in lieu of said first-named certificate."
The defense pleaded is suicide. It is conceded that, at the time the assured became a member of defendant society and obtained his original certificate, there was nothing in the edicts and laws of the society making suicide a defense, but defendant alleges that in June, 1901, its edicts and by-laws were amended by inserting the following provision: "The benefit certificate issued to a member shall become void and all benefits thereunder shall be forfeited in case the member shall die from suicide, felonious or otherwise, sane or insane"; and that in September, 1905, they were again amended so as to provide: "In case of the suicide of a member, either sane or insane, the amount of all contributions of a member to the fidelity fund of the fraternity only shall be paid to the beneficiary named in the certificate," and that the amount contributed by assured during his lifetime to the fidelity fund is the sum of $ 106.27, which amount it tendered plaintiff and which plaintiff refused, and that it has kept the tender good by depositing the same in court for the use and benefit of the plaintiff. The reply admits that the assured committed suicide, and alleges that the acts of defendant in attempting to amend its edicts and by-laws in June, 1901, and in September, 1905, are void, for the reason that defendant did not, at either of said times, have a representative form of government; that the body designated "Executive Castle," which is the governing body of defendant, is not a representative body; that it is not elected by the members of said defendant nor by delegates chosen thereby, and that the same is an arbitrary self-perpetuating body, not representative in form and not authorized or empowered by defendant to enact by-laws, rules or edicts for the government of the members of defendant, or to revise or amend the same. There was a trial to the court without the intervention of a jury, and judgment for the plaintiff for the full amount of her certificate, with interest; from which judgment this appeal is prosecuted.
The motion for a new trial in the court below is as follows: This motion raises but the one question: Is the judgment of the district court sustained by the evidence? If we give any consideration whatever to the second paragraph of the motion, then the question would simply be: Can a judgment, based upon the evidence actually received, be sustained?
Some point is made by defendant that the amendment of its edicts and laws in 1901 was prior to the issuance of the certificate in suit, and that the issuance and acceptance of such certificate was subject to the edicts as so amended. This contention is without merit. The mere substitution of the certificate in suit for the one first issued, for the sole purpose of changing the beneficiary, did not constitute such certificate a new and independent contract. We think it is clear that the certificate in suit must be considered, so far as its date and the rights and liabilities of the respective parties are concerned, as if it had been issued upon the date of the issue of said first certificate, viz., the date of assured's admission into the society.
That the alleged change in the edicts and laws of defendant by its convention of June, 1901, was ineffectual and void has already been determined by this court, in Lange v. Royal Highlanders (this same defendant), 75 Neb. 188, 106 N.W. 224. The opinion in that case so fully and fairly sets out the history of defendant from its organization down to and including its convention of June, 1901, and its attempted amendment of its edicts and by-laws at that convention, that it need not be restated here. The defense in that case, as in this, was suicide. We there held that defendant down to and including its convention of June, 1901, had not adopted a representative form of government and that its attempted change of the by-laws at that convention was therefore null and void. Down to that time, therefore, the rights of the parties in this case must be considered as having been determined by our decision in that case.
This leaves for our consideration the sole question as to whether or not the action of defendant in September 1905, was of such a character as to relieve it of liability in this action. The convention of September, 1905, was composed of 25 delegates elected from 25 districts, the number and boundaries of which districts were determined by an executive committee, which had been selected by the unrepresentative body of 1901, together with 13 officers, also elected by that body, and 10 committeemen appointed by the president elected at that convention. Did this constitute a representative government? It is claimed by defendant that, when the by-laws were voted upon at the convention of September,...
To continue reading
Request your trial