Johnson v. Modern Brotherhood of America

• Decision Date: 17 December 1909
• Docket Number: Nos. 15,967 - (3).,s. 15,967 - (3).
• Citation: 109 Minn. 288
• Parties: ETHEL JOHNSON v. MODERN BROTHERHOOD OF AMERICA.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 288

109 Minn. 288

ETHEL JOHNSON v. MODERN BROTHERHOOD OF AMERICA.¹

Nos. 15,967 - (3).

Supreme Court of Minnesota.

December 17, 1909.

Action in the district court for Ramsey county to recover $1,000, upon a benefit certificate issued by defendant corporation upon the life of plaintiff's husband. The complaint alleged that the deceased, contrary to the conditions of the by-laws, was employed for eighteen months in the manufacture and sale of intoxicating liquor and defendant, with full knowledge and notice of such employment, did demand and accept his monthly dues and assessments, and by its conduct waived compliance with the by-laws; that from September 20, 1907, until his death on November 10, 1907, deceased was employed as a railway switchman and defendant, with full knowledge of such employment, did accept his monthly dues and assessments and by its conduct waived compliance with the by-laws. The answer alleged that by the certificate it was agreed that, if the deceased should enter upon the employment of a railway switchman, in that case the certificate should be forfeited by such act, and that by reason of such occupation the certificate was null and void. The case was tried before Kelly, J., who directed a verdict in favor of defendant. From an order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial, she appealed. Reversed and new trial ordered.

Wondra & Helm and Richard A. Walsh, for appellant.

Arthur J. Stobbart, for respondent.

O'BRIEN, J.

The plaintiff's husband was the holder of an insurance certificate issued by the defendant, a fraternal insurance association, on March 25, 1903. The certificate in which plaintiff was named as beneficiary contained this provision:

"5. If said member enters upon or follows any of the employments or occupations enumerated in section A-1, division X, of the supreme lodge by-laws of this society, now in force or as hereafter amended, this certificate shall thereupon be forfeited by such acts, and the same shall be null and void, except as otherwise provided in said by-laws."

The by-law referred to was: "Section A-1. [Division X.] Persons engaged in the following kinds of business or employments shall not be eligible to membership in this society, except as social members and as herein provided: * * * Switchman. * * * If a person engages in any of the employments or occupations herein enumerated, after becoming a member of this society, his benefit certificate by such act shall become null and void: Provided, however, that a member may, without invalidating his benefit certificate, be employed in any of the vocations above enumerated, if he shall, before entering upon any of the above occupations, file with the supreme secretary a written waiver of any liability of this society upon his benefit certificate founded upon the death or injury of such member, while engaged in such prohibited occupation, from any cause traceable to his employment, and in such case claimant must show affirmatively that the death or injury is not traceable directly or indirectly to the member's employment in such prohibited occupation." * * *

The insured was accidentally killed November 10, 1907, while performing his duty as a railroad switchman, a prohibited occupation, in which he had been engaged since the twentieth day of the prior September. He was an officer of the local or subordinate lodge of which he was a member, and did not, when becoming a switchman, execute the waiver provided for in the by-laws, but continued to be a member in good standing until his death. There was at least some evidence that the secretary of the lodge knew his occupation.

After a trial the district court directed the jury to return a verdict in favor of defendant upon the authority of Abell v. Modern Woodmen of America, 96 Minn. 494, 105 N. W. 65, 906. Error is assigned for this, and also because the court excluded evidence to show that some of the members of the subordinate lodge knew that the insured was engaged in a prohibited occupation.

There is a marked distinction between this and the Abell case. The by-law which was controlling there read: "Engaging in, or entering on, or continuing in, any of the occupations or employments enumerated in section 14 of these by-laws, by any beneficial member of this society heretofore or hereafter admitted to such membership, shall totally exempt such society from any and all liability to such member, his beneficiary or...