Mitchell v. Brotherhood of Locomotive Firemen and Enginemen

• Decision Date: 18 October 1919
• Docket Number: 20539
• Citation: 174 N.W. 422,103 Neb. 791
• Parties: ALICE E. E. MITCHELL, APPELLEE, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, APPELLANT
• Court: Nebraska Supreme Court

174 N.W. 422

103 Neb. 791

ALICE E. E. MITCHELL, APPELLEE, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, APPELLANT

No. 20539

Supreme Court of Nebraska

October 18, 1919

APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Affirmed.

AFFIRMED.

Vinsonhaler McGuckin & Caldwell, for appellant.

James E. Rait, contra.

OPINION

LETTON, J.

The husband of the plaintiff held a life insurance certificate in the defendant association. He was a night watchman upon a railroad bridge then being constructed at Omaha across the Missouri river. In going to work it was usual for him to cross from the old bridge to the new bridge by means of a plank in place at a certain point. He was last seen about 7:30 on the night of October 30, 1916, when he told a companion he was going to an engine on the bridge to eat his lunch. His lunch was found next morning uneaten. His hat was found upon some lattice work below the old bridge near the plank, but his body was never recovered, although a thorough search was made. Mrs. Mitchell presented a claim to the defendant for the amount of the certificate, and accompanied it with a copy of the report made by a special master in an action she had brought in the United States district court against the corporation by whom he was employed, to recover compensation. This report stated the facts very fully, and found that Mitchell was dead. In the letter acknowledging the receipt of the claim and report, defendant, by its general secretary and treasurer, quoted a portion of its laws with reference to "Disappearance of Members," and stated that it would not pay the amount due upon the certificate until it was "furnished with positive proof of death," and further stated, "upon receipt of such proof of death, payment of the claim will be immediately made." Plaintiff then began suit. The petition did not set out a copy of the certificate, nor state its date, alleging it was in the hands of defendant. Defendant answered, admitting the issuance of a certificate, and that it was in full force and effect on the 30th day of October, 1916, and pleaded that proofs of death had not been furnished as required by the by-laws, that the policy was not payable until such proof was furnished, and denying the other allegations of the petition.

At the time of the trial the defendant filed an amended answer, denying that the policy was in full force and effect, alleging that it was void on account of certain false statements made by the deceased as to his physical condition in his application for insurance made January 5, 1910, on which the policy was issued, and setting up failure to furnish proof of death. The reply denies that deceased made application for a certificate on January 5, 1910, or made any false or fraudulent statements; alleges that he had been a member for many years prior to that time, and had paid all dues and assessments, denies that he was ever suspended or expelled, or that he ever executed an application for reinstatement. At the trial it was stipulated that deceased joined the defendant order many years prior to September, 1910.

All the facts with reference to the membership of deceased in this order and as to his payment or nonpayment of assessments prior to January 5, 1910, are neither pleaded nor proved. Plaintiff relies upon membership begun in 1905. Defendant asserts no membership before 1910.

Plaintiff was permitted by this court to file an amended reply alleging waiver and estoppel by reason of its promise, before the action was begun, to pay plaintiff's...