Harr v. Nobles

• Decision Date: 05 January 1907
• Docket Number: 14,601
• Citation: 110 N.W. 713,78 Neb. 175
• Parties: MABEL HARR, APPELLEE, v. HIGHLAND NOBLES, APPELLANT
• Court: Nebraska Supreme Court

110 N.W. 713

78 Neb. 175

MABEL HARR, APPELLEE, v. HIGHLAND NOBLES, APPELLANT

No. 14, 601

Supreme Court of Nebraska

January 5, 1907

APPEAL from the district court for Buffalo county: BRUNO O HOSTETLER, JUDGE. Affirmed.

AFFIRMED.

W. C Saul and John N. Dryden, for appellant.

H. M Sinclair, contra.

JACKSON, C. ALBERT, C., concurs. DUFFIE, C., not sitting.

OPINION

JACKSON, C.

On September 22, 1902, the defendant, a fraternal-beneficial association, issued its benefit certificate covering the life of George T. Harr, payable in case of death to Mabel Harr, his wife, containing this clause: "This certificate shall be incontestable after two years from the date of this certificate given below, except only for under statement of age." The written application signed by the assured contained this stipulation: "Should my death occur within three years from the date of my initiation into the order, caused by suicide or attempted suicide, whether sane or insane, my benefit certificate issued upon this application shall be null and void." On December 9, 1904, Harr, while temporarily insane, took his own life. He was in good standing at the time of his death. Mabel Harr, the widow and beneficiary, made due proof as required by the laws of the order, and the society refused payment. She thereupon instituted this action in the district court for Buffalo county, where the facts were admitted, and the plaintiff had judgment. The defendant appeals.

The question presented by the appeal is whether the contract of insurance is to be governed and controlled by the stipulation contained in the application for insurance, or by the terms of the certificate itself. If the stipulations in the application are to control, then the beneficiary could not recover, because the contract was one which the parties had a right to make, and the death of the assured, occasioned by suicide, occurred within three years from the date of his initiation. On the other hand, if the provision of the certificate is to govern, then the plaintiff was entitled to recover, because the death of the assured occurred more than two years after the date of the certificate. While the stipulation contained in the application was one which the parties had a right to make, it was also one which the society might waive, and, in our opinion, it did waive that stipulation when it issued its certificate providing that it should be incontestable after two...