Goff v. Supreme Lodge Royal Achates
| Decision Date | 03 January 1912 |
| Docket Number | 16,717 |
| Citation | 134 N.W. 239,90 Neb. 578 |
| Parties | MARY M. GOFF, APPELLEE, v. SUPREME LODGE ROYAL ACHATES, APPELLANT; SARAH E. LIPPS, INTERVENER, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: WILLIS G. SEARS JUDGE. Affirmed.
AFFIRMED.
A. H Burnett, for appellant.
J. C Kinsler and F. H. Woodland, for intervener.
Smyth, Smith & Schall, contra.
From a judgment in favor of plaintiff upon a certificate of membership, issued by defendant to Joseph A. Lipps, and payable by its terms to plaintiff, defendant and intervener separately appeal.
The petition alleges that defendant is a corporation under the laws of Nebraska; that on December 11, 1901, it issued a certificate for $ 1,000 upon the life of Joseph A. Lipps, in which it agreed to pay to plaintiff, "a dependent and niece," at the death of said Lipps, $ 1,000; that all assessments were duly paid from time to time, and that said Lipps died January 17, 1908; that shortly after the death of Lipps defendant refused to furnish plaintiff any blanks upon which to prepare proofs of death, denied all liability to plaintiff upon such certificate and refused to pay the same. Prayer for judgment. Intervener, Sarah E. Lipps, filed her petition, asking to be allowed to intervene, for the reason that she was the wife and widow of the deceased; that at the time of his death plaintiff did not and could not have an insurable interest in the life of said Lipps, and could not be a beneficiary in said contract, and that, "under the law and the terms and provisions of the by-laws and articles of incorporation of the defendant, she is entitled to the proceeds of said policy." Defendant filed its answer to the petition of plaintiff, in which it admits its incorporation, the issuance of the certificate to Lipps, in which "it agreed, among other things to pay to Mary M. Goff a sum not exceeding on thousand ($ 1,000) dollars on the death of said Joseph A. Lipps," the correctness of the copy of the certificate attached to plaintiff's petition, the payment of all the assessments, the death of Lipps as alleged, the request of plaintiff for blanks on which to make proof of death, the refusal to furnish the same, and the refusal to pay the money or any part thereof to plaintiff.
The answer then alleges that the defendant is a fraternal beneficiary association, and that the certificate was issued upon a written application made by Lipps, and on the conditions named in his application, one of which was that plaintiff was his niece; that the statement made by Lipps as to the relationship of plaintiff was false; that they were not in any manner related by consanguinity, and that plaintiff was not in any manner dependent upon Lipps. It then sets out in extenso the statements made in the application, the conditions contained in and indorsed upon the certificate, and the agreement therein that all such statements and conditions should constitute the basis for and form a part of the certificate, and making the same warranties on the part of the applicant, and an agreement that any untrue statements or answers contained in the application or made to the examining physician, or any concealment of facts or failure to comply with the laws, rules and usages of the order should render the certificate void, and that all rights of any person thereunder should become forfeited. Plaintiff replied to the answers of both intervener and defendant; said replies being substantially general denials.
The trial proceeded to the court and a jury upon the issues thus framed. When all parties had rested, each moved the court for a peremptory instruction. The court thereupon made the following order: "I will excuse the jury and take the case from the jury, a question of law solely being in the case." To this order the intervener alone excepted. This action of the court having been invited by all of the parties, neither can now predicate error thereon.
As it appears to us, the case involves but two simple propositions: (1) Was the statement in the application, that plaintiff bore the relation to the applicant of niece, a warranty, the falsity of which would, regardless of its materiality to the risk, render the certificate void? (2) Was plaintiff a dependent within the meaning of the constitution and by-laws of defendant, and of the statute in relation to such societies? We will consider these two points in the order named.
1. The wording of the application is: "I hereby direct that the amount of the beneficiary fund, to which my beneficiaries may be entitled at my death, shall be paid to Mrs. Mary M. Goff, residing at 1110 South Eighth, related to me as niece." Authorities are cited by defendant, from other jurisdictions, which sustain its contention that a false answer avoids the policy, where the application provides that all of the answers of the applicant contained therein are express warranties, and that, if any of them are shown to have been false, the policy is void. It would serve no good purpose to refer to those cases here, for the reason that this court is, by repeated decisions, committed to the rule that, "In construing a contract, for the purpose of determining whether the statements made therein were intended by the parties thereto to be warranties or representations, the court will take into consideration the situation of the parties, the subject matter, and the language employed, and will construe a statement made to be a warranty only when it clearly appears that such was the intention of the contracting parties; that the mind of each party consciously intended and consented that such should be the interpretation of his statements." AEtna Ins. Co. v. Simmons, 49 Neb. 811, 69 N.W. 125. In the opinion in that case (p. 842) we said: "We reach the conclusion, therefore, that in order that the answers under consideration--made by the assured--constitute a defense to this action, it was incumbent upon the insurance company to plead and prove not only that the answers were made as written in the application, but that they were false; that they were false in some particular material to the insurance risk; and that the insurance company relied and acted upon these answers." The rule there announced has been followed in Kettenbach v. Omaha Life Ass'n, 49 Neb. 842, 69 N.W. 135, AEtna Life Ins. Co. v. Rehlaender, 68 Neb. 284, 94 N.W. 129, Bankers Union of the World v. Mixon, 74 Neb. 36, 103 N.W. 1049, and in a number of other cases, which we will not encumber this opinion by citing. While this rule, when originally announced in the Simmons case, may have been a "blazed trail," it has now become a beaten path in which we are content to travel. That the statement in the application here, that plaintiff bore the relation to the deceased of niece, was not material to the insurance risk seems clear. The falsity of that statement in no manner shortened the life of the deceased, and hence did not increase the hazard assumed by defendant. If plaintiff had been required to prove this relationship, in order to bring herself within the class which defendant was permitted to insure, then there could have been no recovery by her; not because of the falsity of the statement, but because of the fact that she was not one of a class who, under the statute and the constitution and by-laws of the defendant, could lawfully become a beneficiary. This brings us to a consideration of the second point.
2. Section 94, ch. 43, Comp. St. 1909, provides: ...
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