Kernan v. Modern Woodmen of America
| Decision Date | 17 October 1930 |
| Docket Number | 27316 |
| Citation | 232 N.W. 590,120 Neb. 333 |
| Parties | ARTHUR J. KERNAN, APPELLEE, v. MODERN WOODMEN OF AMERICA, APPELLEE: STEWART F. KERNAN, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: FRANCIS M DINEEN, JUDGE. Reversed, with directions.
REVERSED.
Syllabus by the Court.
Record examined and the issues and facts therein presented found to be governed by section 7920, Comp. St. 1922 (Comp. St. 1929 § 44--1217), which reads as follows: " No contract between a member and his beneficiary that the beneficiary or any person for him shall pay such member's assessment and dues, or either of them, shall deprive the members of the right to change the name of the beneficiary."
Further, the fact that the original beneficiary pays any or all of the dues and assessments prior to the change of beneficiary does not modify or avoid the above statutory provision.
It not being charged in the pleadings nor shown by the proof that the laws of other states, if pertinent, are other or different than those existent in this state, it is conclusively presumed that the aforesaid section 7920, Comp. St. 1922, which was in full force and effect at the dates involved herein, entered into and became a part of the respective insurance contracts here under consideration.
" Fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence." Hampton v. Webster, 56 Neb. 628, 77 N.W. 50.
Appeal from District Court, Douglas County; Dineen, Judge.
Action by Andrew Kernan against Stewart F. Kernan, impleaded with the Modern Woodmen of America. Judgment for plaintiff, and impleaded defendant appeals.
Reversed and remanded, with directions.
Battelle, Morgan, Strehlow & Anderson, for appellant.
Smith, Schall & Sheehan, contra.
Heard before ROSE, DEAN, GOOD, THOMPSON, and EBERLY, JJ., and LESLIE, District Judge.
This action was instituted by Arthur J. Kernan, hereinafter called appellee, against Stewart F. Kernan, appellant, and the Modern Woodmen of America, appellee, hereinafter referred to as insurer, to recover the sum of $ 1,000 on a certain fraternal benefit certificate of insurance issued by such insurer on the life of the father of the above named Kernans in the sum of $ 2,000 payable in equal amounts to each of such Kernans, and to have a certain subsequent certificate issued to such father for the same amount, and made payable to the appellant alone, canceled and held for naught, which appellee alleged had been issued through fraud and circumvention. At the trial the insurer appeared and answered, pleading sufficient facts to absolve it from further contention as between the parties; alleging that it had paid to appellant $ 1,000 and that it be permitted to bring the other $ 1,000 into court to be disposed of as might on final hearing be found to be just and equitable, which was so ordered. The appellant for answer and cross-petition alleged, in substance, that the certificate made the basis of appellee's claim had been canceled at the request of the father and another certificate issued and delivered by the insurer to such father, for the same amount, in which certificate the appellant was made the sole beneficiary, all in harmony with the terms of the certificate, by-laws of the insurer, and the law applicable thereto; and denied appellee's allegations of fraud and circumvention. Appellant prayed, in substance, that the appellee's petition be dismissed; that the $ 1,000 paid into court by the insurer be released and paid to him; and that appellee pay all costs.
On submission of these issues the trial court found generally in favor of the appellee, except that out of the $ 1,000 paid into court the sum of $ 45.68 was ordered paid to appellant for dues and assessments advanced by him on the two certificates over and above his rightful share, and so entered decree. To reverse this judgment appeal is had.
From an examination of the record, we find the following pertinent facts reflected: On August 26, 1896, the father procured to be issued and delivered to him by the insurer (a fraternal beneficiary association of Illinois, and doing business in this state) a benefit certificate of insurance on his life for the sum of $ 2,000 payable at his death to his then wife. He complied with all the conditions of such insurance contract on his part until in February, 1911, when, he and his wife having separated, he surrendered such certificate and procured another to be issued and delivered to him as a member of the Fremont, Nebraska, Camp of the insurer, for the same amount, designating therein as his beneficiaries, to the extent of $ 1,000 each, the two sons of the above indicated marriage, Arthur J. Kernan and Stewart F Kernan, appellee and appellant herein respectively. The insured father paid the dues and assessments on such certificate until some time in 1915, when he was about to leave this state and take up his residence in South Dakota, at which time he delivered the certificate to his aforesaid sons, who remained residents of this...
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