Kinney v. Brotherhood of American Yeomen, 66

• Decision Date: 19 December 1905
• Court: North Dakota Supreme Court

106 N.W. 44

15 N.D. 21

ANNIE KINNEY v. BROTHERHOOD OF AMERICAN YEOMEN, 66

Supreme Court of North Dakota

December 19, 1905

Appeal from District Court, Richland county; Lauder, J.

Action by Annie Kinney against the Brotherhood of American Yeomen. From a judgment for plaintiff, defendant appeals.

Affirmed.

F. B Lambert and H. N. Morphy (E. C. Corey of counsel), for appellant.

Purcell Bradley & Divet, for respondent.

OPINION

ENGERUD, J.

This is an action by the beneficiary to recover $ 2,000 on a policy of insurance on the life of Marland D. Kinney. The plaintiff is the widow of the insured. The defendant is a fraternal and mutual organization, which insured the lives of its members and is incorporated under the laws of the state of Iowa. The policy was issued in April, 1902, and the insured died in May, 1903. The complaint, besides alleging the making of the insurance contract and the death of the insured, the submission of due proofs of death, and the refusal of the defendant to pay, further alleges that Marland D. Kinney "did pay or cause to be paid to the said defendant all dues and assessments thereafter [after the issuance of the policy] properly chargeable against him on account of his membership in and insurance upon his life by the said defendant corporation, and did continue a member thereof in good standing up to the time of his death." The answer admits the corporate capacity of the defendant and the making and delivery of the policy of insurance, but denies generally all other allegations of the complaint. It specifically denies that the deceased was a member of the defendant order in good standing at the time of his death, or that he has paid all assessments due under the terms of his membership. The answer also sets forth that according to the terms of the insurance contract the defendant, if liable at all, can be held only for the sum of $ 1,627.50 and interest. The defendant also pleads that it is not liable on the policy because the insured, in his application, falsely stated that he did not drink intoxicating liquor of any kind, except beer, which he drank to the extent of only one glass per week, and the truth was that the insured was then and thereafter during the remainder of his life, addicted to the excessive use of all kinds of intoxicating liquor to such an extent as to become frequently intoxicated, and that his use of it was such as to impair his health and shorten his life expectancy. It is further alleged that the excessive indulgence in alcoholic liquor was the cause of the death of the insured. It is alleged that the contract contained provisions by virtue of which it became void if the foregoing allegations were true. The answer finally pleads an accord and satisfaction. It is alleged that the defendant disputed plaintiff's claim for the insurance for the reasons stated in the answer, and thereupon, on July 15, 1903, a compromise was effected, by which the defendant paid, and the plaintiff accepted in full of all claims, "such an amount as would have been due had the deceased had a valid certificate of membership in said order in the sum of $ 500, other conditions being the same, to wit, the sum of $ 365.90."

Although the answer contained no counterclaim, the plaintiff voluntarily served and filed a reply thereto, denying the new matter alleged in the answer, and averring that the plaintiff was fraudulently induced to agree to accept $ 500 in full settlement of the claim; that the defendant did not pay plaintiff said sum, or offer to do so, but offered to pay $ 379.35, which offer plaintiff refused; and, subsequently discovering the falsity of the representations made to induce the compromise, she rescinded the agreement. The trial resulted in a verdict in plaintiff's favor for $ 1,718, that being the amount which it is conceded the plaintiff is entitled to if she can recover at all. Judgment was entered for the amount of the verdict, and costs, on June 25, 1904. Thereafter a statement of the case was settled, upon which the defendant moved for judgment notwithstanding the verdict or for a new trial. The motion was denied December 3, 1904. The defendant thereupon served a notice of appeal and the required undertaking. The notice states that the defendant appeals from the order denying the motion for judgment and for a new trial, and also from the judgment.

Respondent contends that a party cannot include in a single notice an appeal from the judgment and an appeal from an order made after judgment denying a motion for a new trial, and moves to dismiss this appeal for that reason. Respondent cites and relies on the numerous decisions in Wisconsin in which it was held that a single appeal could not be taken from two or more appealable orders, or from a judgment and one or more appealable orders. The same rule was announced in Hackett v. Gunderson, 1 S.D. 479, 47 N.W. 546, and in Anderson v. Hultman, 12 S.D. 105, 80 N.W. 165. These cases were cited with approval in Prondzinski v. Garbutt, 9 N.D. 239, 244, 83 N.W. 23, and the same point was referred to again in State v. Gang, 10 N.D. 331, 335, 87 N.W. 5. The reference to the subject in Prondzinski v. Garbutt was clearly obiter. In State v. Gang the motion was denied, because when the appeal was taken the time for appeal from the only appealable order made before judgment had expired. It was stated, however, that the objection to the appeal would have been well taken if the previous orders referred to in the notice of appeal had been appealable and the time for appeal therefrom had not expired. It will be observed that in both these cases the previous appealable orders mentioned in the notice of appeal were reviewable on appeal from the judgment, and it was held that the mere fact of mentioning them in the notice of appeal from the judgment was good ground for dismissal. We think these views were erroneous, and hereby expressly disapprove them. They are in accord with some earlier Wisconsin decisions which were extremely technical. The Supreme Court of Wisconsin subsequently recognized the unnecessary strictness of these earlier cases, and expressly modified them in the case of Ballou v. Railway Co., 53 Wis. 150, 10 N.W. 87, decided in 1881. In that case the court said: "In American Button Hole Co. v. Gurnee, 38 Wis. 533, and perhaps in other cases, it was held that an appeal would be dismissed for duplicity in the notice of appeal, although double only in form. We are now satisfied that this rule is unnecessarily technical and harsh, and should be modified. The court takes this occasion to announce that hereafter no appeal will be dismissed for duplicity unless it is double in fact; that is to say, unless it includes two appealable matters." The legislature of that state in 1883 still further mitigated the rule adopted by the court by providing that any number of appealable orders in a single action could be brought before the appellate court by a single appeal. Sanborn & B. Ann. St. Wis, sections 3042, 3042a. If it was intended by the language used in Ballou v. Railway Co. to adhere to the earlier decisions, to the effect that the inclusion in the notice of a statement that the appellant appealed from the judgment and also from one or more appealable orders made in the action before judgment rendered the appeal double both in form and fact, although the previous orders were reviewable on appeal from the judgment alone, then we think that the modified rule in that case is still too technical and harsh. If the previous orders are reviewable on appeal from the judgment alone, it is clearly nothing but surplusage to state in the notice that the appellant desires such review. Such a statement in the notice is manifestly a mere unnecessary formal demand for that which the appellant was entitled to without asking for it in the notice. Granger v. Roll, 6 S.D. 611, 62 N.W. 970. Although our appeal law is said to have been borrowed from Wisconsin, and we should therefore follow the decisions of that state, we will not adhere to that rule where no doubtful question of interpretation of language is involved, and where the decisions of the foreign jurisdiction are clearly erroneous. Morgan v. State, 51 Neb. 672, 71 N.W. 788; Dwyer v. Bank, 30 Colo. 315, 70 P. 323; Oleson v. Wilson, 20 Mont. 544, 52 P. 372.

As to the soundness of the general rule announced in Hackett v. Gunderson, 1 S.D. 479, 47 N.W. 546, and in the Wisconsin cases which that decision follows, to the effect that two or more orders in the same action cannot be brought up for review by one notice of appeal, we express no opinion, because we are agreed that, whether that is a correct statement of the general rule or not, it ought not to apply to a case like this. No case has been cited, and we have found none wherein it has been held, under laws similar to ours, that an appeal from a final judgment and from a subsequent order denying a motion for a new trial is objectionable for duplicity. We can conceive of no good reason for condemning such a practice, unless we regard the general rule, as broadly declared in Hackett v. Gunderson, to be an inflexible one, to which there is no exception. Notwithstanding the decision in Hackett v. Gunderson, the Supreme Court of our sister state held that it was proper to combine in one notice an appeal from the judgment and an appeal from a subsequent order denying the motion for a new trial. Hawkins v. Hubbard, 2 S.D. 631, 51 N.W. 774. That practice has been uniformly followed and approved in California. Carpentier v. Williamson, 25 Cal. 154; Winter v. McMillan, 87 Cal. 256, 25 P. 407, 22 Am St. Rep. 243; Chester v. Association, 64 Cal. 42, 27 P. 1104. It seems to us the practice is one which ought to be commended, rather than condemned. Errors of law...