Dix v. Modern Woodmen of Am., 6533.
| Citation | 280 N.W. 663,68 N.D. 385 |
| Decision Date | 17 June 1938 |
| Docket Number | No. 6533.,6533. |
| Parties | DIX v. MODERN WOODMEN OF AMERICA et al. |
| Court | United States State Supreme Court of North Dakota |
DIX
v.
MODERN WOODMEN OF AMERICA et al.
No. 6533.
Supreme Court of North Dakota.
June 17, 1938.
1. When a beneficiary certificate is issued by the Modern Woodmen of America conditioned that the certificate shall be absolutely null and void, that all liability of the society upon such certificate shall be extinguished, and the insured shall forfeit all his membership in the society in case insured thereafter engages in the sale of intoxicating liquors for beverage purposes, it is not necessary that the defendant be convicted of the offense of engaging in the liquor traffic or in the illegal sale of intoxicating liquors before the rights of the insured are cancelled. It is sufficient if it be a fact that he did so engage in such traffic.
2. Where the defendant is charged with a felony and upon his plea of guilty is sentenced to serve a term in the penitentiary and such judgment has been enforced and satisfied, the trial court has no jurisdiction to entertain an ex parte application to set aside the judgment of conviction on the ground of the alleged mental incompetency of the defendant at the time of the commission of the offense. All proceedings of the trial court under such an application are a nullity.
3. In this action, brought to recover under the terms of the benefit certificate heretofore described, the beneficiary is bound by the admissions of the insured in certain criminal actions referred to herein and showing him to have been engaged in the liquor traffic in violation of the terms of his benefit certificate, and by the voluntary confession of the insured that he had engaged in the traffic in violation of the terms and conditions of his certificate.
Appeal from District Court, Renville County; John C. Lowe, Judge.
Action by Edward Dix against the Modern Woodmen of America and another. From a judgment for the plaintiff, the named defendant appeals.
Reversed and dismissed.
C. D. Aaker, of Minot, and Nelson C. Pratt, of Omaha, Neb., for appellant.
Henry E. Johnson, of Minot, for respondent.
BURR, Judge.
This is an action brought by the plaintiff as the beneficiary of one Albert F. Dix to recover on a benefit certificate issued by the defendant March 23, 1922, wherein it agreed to pay to the beneficiary named therein the sum of two thousand dollars “in case of the death of said member, Albert F. Dix, while a beneficial member of said society in good standing”.
The principal defense is that long prior to his death all rights and benefits of Albert Dix were forfeited, that the contract of insurance was cancelled, and all liability of the defendant thereunder ceased.
Judgment was entered in favor of the plaintiff and the defendant appeals.
The benefit certificate was issued to Albert F. Dix by the defendant under the conditions, rules, regulations and by-laws of the defendant, all of which were agreed to by the insured and were therefore part of the contract.
[280 N.W. 664]
Among these conditions it was expressly agreed that if the insured “* * * is now engaged in or hereafter shall engage in the manufacture, sale, or transportation of intoxicating liquor, for beverage purposes”, and further that if the said member “shall enter upon any of the prohibited * * occupations mentioned in the By-Laws of this Society, as the same now exist or hereafter may be modified, amended, added to, or enacted, the entrance into said employment shall extinguish or limit the liability of this Society upon said certificate in accordance with the By-Laws thereof in force at the time of his death”. (Italics ours.)
The By-Laws provided,
“Sec. 16. Membership Forfeited by Engaging in Liquor Business.-Any member of this Society who engages in the manufacture, sale, or transportation of intoxicating liquor for beverage purposes, shall by so engaging in said liquor business, ipso facto, forfeit his membership in this Society and all payments made on account of said membership, and his certificate shall be absolutely null and void, all without any action by his local Camp, or by this Society, or by any officer of either; and any payments thereafter made by him, of any dues or assessments, or the acceptance thereof by the local Camp, or by the Society, or by any officer of either, shall not waive such forfeiture nor reinstate him as a member.
Sec. 17. Engaging in Liquor Business Defined.-A person shall be deemed and held to be engaged in the manufacture, sale, or transportation of intoxicating liquor for beverage purposes, whenever he, with or without compensation, performs any of the work or duties incident to said liquor business.”
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