Donnelly v. Sovereign Camp, Woodmen of World
| Decision Date | 15 January 1924 |
| Docket Number | 23442 |
| Citation | 197 N.W. 125,111 Neb. 499 |
| Parties | MARIE K. DONNELLY, APPELLANT, v. SOVEREIGN CAMP, WOODMEN OF THE WORLD, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: CHARLES LESLIE JUDGE. Reversed.
REVERSED.
Will H Thompson and Byron G. Burbank, for appellant.
Gaines Van Orsdel & Gaines and D. E. Bradshaw, contra.
This is the second appearance in this court of this case. Plaintiff, who is the daughter of the insured, seeks to recover $ 2,000 on a fraternal beneficiary certificate of life insurance issued by defendant to her father, H. W. Sawyer. The certificate also provides for the payment of $ 100 for a monument. Mr. Sawyer died July 26, 1918. When the evidence was submitted the court sustained defendant's motion for judgment and dismissed the action. Plaintiff appealed.
At the former trial plaintiff recovered judgment for the full amount named in the certificate. Defendant appealed from that judgment and it was reversed and the cause remanded for a new trial. The case was again tried and is now here for review on plaintiff's appeal. The issues involved in the former case need not be discussed here. They are fully detailed in the former opinion. Sawyer v. Sovereign Camp, W. O. W., 105 Neb. 395, 181 N.W. 191.
Before the case was reached for trial the second time, the plaintiff and beneficiary therein, Mrs. Cathryn Sawyer, widow of the insured, died. The action was subsequently revived in the name of her daughter, who is her sole heir and is now plaintiff.
The material facts upon which our decision is based are substantially these: A fraternal beneficiary certificate was first issued to the insured November 23, 1899. He was then 22 years of age. November 13, 1902, a second or renewal policy was issued wherein his wife, Cathryn Sawyer, was named as beneficiary. That appears to be the sole change in the renewal policy. When the insured died he was 41 and for 19 years he had continuously paid dues to the defendant association. For seven months before his death he was a switchman in the employ of the Union Pacific railroad and worked at its yards at Omaha, and, while acting in that capacity, was swept to the ground by an overhead wire from the top of a moving freight car. He never regained consciousness. About two hours after the accident he died.
Briefly the defense is that the insured violated an amended law of the defendant association in that shortly before he died he changed from a nonhazardous occupation to that of a railroad switchman, which defendant's amended 1917 laws purport to rate as hazardous. It is not denied that such change was made without notifying defendant, nor is it denied that the insured did not pay the additional dues of 30 cents a month on each $ 1,000, as the amended section of the law purports to provide, for the seven months preceding his death, namely, a total of $ 4.20, in addition to the regular dues which were paid up to and including the month of his death. Defendant contends that the insured, under his contract of insurance, came within the provision of the 1917 amendment, and that, because of his alleged failure to comply with its requirements in the respects noted, the defendant association is not liable under the beneficiary certificate, and on that ground defendant refused payment. The plea is, in brief, that the fraternal beneficiary certificate in suit has been forfeited.
Defendant also points out and stresses the fact that plaintiff's application for admission to the order, under date of October 12, 1899, so far as applicable here, has this provision printed on the back of the application: "Persons engaged in the following classes of business or employment, to wit: * * * conductors and brakemen on railway freight trains, railway baggagemen, expressmen, switchmen, hostlers and other similar railway and steamship employees, * * * may be admitted to membership, if accepted by the sovereign physician, but their certificates shall not exceed two thousand dollars ($ 2,000) each and their rate of assessment shall be 30c on $ 1,000, in addition to the regular rate, while engaged in either of said hazardous occupations; the same emergency fund dues are paid as in the ordinary occupations."
The above indorsement on the application which relates to "hazardous occupations" is written in the present tense and evidently refers to a person who, at the time the application was made, was actually engaged in a hazardous occupation. There is nothing in the language there used, nor has our attention been directed to any law of defendant, then in force, to indicate that persons who at that time were, or thereafter might become, engaged in the occupations there denominated "hazardous" should give notice of such employment, nor was there any provision for automatic forfeiture therefor. And it is to be noted that it was in the 1917 amendment that the requirements for notice and for forfeiture first appeared in defendant's laws.
Plaintiff argues that the forfeiture clause was not binding upon the insured at any time. The claim for exemption from forfeiture is based in part on the fact that the insured became a member in 1899, and that subdivisions c, d, and e of section 56 of the laws of the order, pursuant to the terms therein expressed, fairly brought him within a nonforfeitable class. The subdivisions in question were adopted some time prior to 1917, but the date of adoption does not appear in the record. They provide:
Fairly construed and reasonably interpreted, the foregoing subdivisions c, d, and e of section 56, when considered together, apply to any fraternal beneficiary certificate issued by defendant prior to September 1, 1901, and this would of course include the certificate sued on. And there is nothing to show, nor does defendant contend in its brief, that the subdivisions in question were ever repealed. It seems clear that one whose membership dated from 1899, as in the present case, was in a class to whom the drastic provisions for forfeiture contained in the 1917 amendment, in respect of change of employment and the like, had no application, and that the beneficiary of such member would be entitled to the full amount named in the beneficiary insurance certificate less the sum of 30 cents a month for each $ 1,000 of insurance for the time that the insured was engaged in the hazardous occupation, and that such sum would constitute a lien in favor of the defendant association to be deducted from the fund represented by the face of the insurance certificate.
So interpreted the foregoing subdivisions, and particularly subdivision (e), exemplify real fraternalism. But to give meaning to defendant's argument would make of no effect a provision of its own law and would make a mockery of much that is vital in the expression "fraternity." An accepted definition of "fraternity" follows: "That mutual interest and affection which is characteristic of the fraternal relation; brotherly regard and sympathy for others." Century Dictionary. And "fraternity" is the fundamental expression of all mutual, fraternal insurance associations.
For a further plea against forfeiture, plaintiff argues that the publication of the amended laws in defendant's official paper does not comply with the mandatory provisions of the statute. So far as applicable here, the act in question which applies solely to fraternal...
To continue reading
Request your trial