Modern Woodmen of America v. Lane

• Decision Date: 05 June 1901
• Docket Number: 11,508
• Parties: MODERN WOODMEN OF AMERICA v. JENNIE LANE
• Court: Nebraska Supreme Court

86 N.W. 943

62 Neb. 89

MODERN WOODMEN OF AMERICA v. JENNIE LANE

No. 11,508

Supreme Court of Nebraska

June 5, 1901

ERROR from the district court for Lancaster county. Tried below before HOLMES, J. Affirmed.

AFFIRMED.

J. W White, Talbot & Allen, J. G. Johnson and J. F. Hess, for plaintiff in error:

William A. Lane was suspended and his certificate became null and void by reason of his own failure and default. No act was necessary on the part of the order or of its officers as a condition precedent. Supreme Lodge v. Keener, 25 S.W. [Tex.], 1084; Borgraefe v. Supreme Lodge, 22 Mo. App., 127; Grand Lodge v. Jesse, 50 Ill.App. 101.

William A. Lane was bound to know the provisions of the by-laws of the order of which he was a member, to wit, (1) that he could not be reinstated while sick; (2) that he must be reinstated before he could change his beneficiary. Niblack, Accident Insurance and Benefit Societies, sec. 18; Supreme Commandery v. Ainsworth, 71 Ala. 436; Supreme Lodge v. Knight, 117 Ind. 489; Bauer v. Samson Lodge, 1 N.E. [Ind.], 571; Harvey v. Grand Lodge, 50 Mo. App 472.

Waiver in insurance law is governed by the same rules as equitable estoppel. The act relied on as a waiver, must have been done intentionally, or with gross carelessness and with a knowledge of the facts and circumstances surrounding the case. 2 Bacon, Benefit Societies and Life Insurance, 420-424 May, Insurance, secs. 505, 507; Burke v. Utah Nat. Bank, 47 Neb. 247.

There can be no waiver unless so intended by one party and so understood by the other. 2 Herman, Estoppel and Res Judicata, sec. 825; Bennecke v. Ins. Co., 105 U.S. 355, 359.

The waiver under consideration, never arises by implication. It is only enforced to prevent fraud. Security Ins. Co. v. Fay, 22 Mich. 467; Flower v. Elwood, 66 Ill. 438, 447; Illinois Masons' Benevolent Society v. Baldwin, 86 Ill. 479; Northwestern Mutual Life Ins. Co. v. Amerman, 119 Ill. 329, 336; Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 73, 89; Union Mutual Life Ins. Co. v. McMillen, 24 Ohio St. 67; Stohr v. Musical Fund Society, 82 Cal. 557; Robertson v. Metropolitan Life Ins. Co., 88 N.Y. 541; Diller v. Brubaker, 52 Pa. 498; Lantz v. Vermont Ins. Co., 139 Pa. 546; Schmidt v. Modern Woodmen, 84 Wis. 101.

The burden of showing such waiver is always on the party claiming it.

The by-laws must be followed strictly. Lyon v. Supreme Assembly, 26 N.E. [Mass.], 236; Wells v. Independent Order of Foresters, Vol. 9, Canadian Law Times, 178.

Matthew Gering, contra:

It is now the universal doctrine of courts that any mutual organization which has for its purpose, in addition to its fraternal character, the insurance of its members and the payment of a stipulated sum, upon the member's death, to his beneficiary is to all intents and purposes an insurance company and is bound in the same manner as ordinary life insurance companies, and the doctrine of waiver and agency is applicable to them. 1 Joyce, Insurance, sec. 34; Commonwealth v. Wetherbee, 105 Mass. 149, 160; State v. Live Stock Ass'n, 16 Neb. 549, 552; State v. Farmers' Benevolent Ass'n, 18 Neb. 276, 281; Burlington Voluntary Relief Department v. White, 41 Neb. 548.

The failure of a member to pay an assessment does not avoid the policy; it is only voidable at the option of the insurer. The by-law under which it was said the contract was void, and the one allowing the member to be reinstated under certain conditions are irrevocably opposed to each other, and both can be upheld only on the rational theory that the contract is voidable at the option of the insurer. If the constitution contains two inconsistent provisions, the one most favorable to the insured will be adopted. Wolf v. Grand Lodge, 102 Mich. 23; Phoenix Ins. Co. v. Lansing, 15 Neb. 494; Campbell v. Merchants & Farmers' Mutual Fire Ins. Co., 37 N.H. 35; Schreiber v. German-American Hail Ins. Co., 45 N.W. [Minn.], 708.

A society, after demanding, receiving and retaining, until after the death of a member, the amount of an assessment due from him, can not claim that the money was demanded and received by mistake, and that the certificate is forfeited. Niblack, Accident Insurance and Benefit Societies, sec. 302; Bailey v. Association, 71 Iowa 689; Millard v. Supreme Council, 22 P. [Cal.], 864; Menard v. Society, 27 A. [Conn.], 1115.

POUND, C. OLDHAM and SEDGWICK, CC., concur.

OPINION

POUND, C.

This action was brought upon two benefit certificates issued to William A. Lane, husband of the plaintiff. Upon trial to the court, a jury being waived, the plaintiff, as beneficiary, recovered upon the certificate set up in her second cause of action, and judgment was rendered for the defendant upon the other. The cause is here on error to review the judgment for the plaintiff upon the second cause of action.

The trial court made very full and clear findings of fact and conclusions of law, and we have been furnished with unusually careful and elaborate briefs in which a number of points arising thereon are exhaustively discussed. But we find ourselves unable to review a great number of questions suggested, by reason of failure to assign them specifically in the petition in error. There are eight separate findings of fact and three of law, and we are asked to review each of the latter specifically, upon an assignment in the petition in error that "the judgment is contrary to law and is not sustained by sufficient evidence." As we shall show presently, the findings of fact are sustained by the evidence. But we need not pass upon the effect of the joint assignment of error under such circumstances for the reason that, even if the assignment that the judgment is contrary to law stood alone, it would not suffice to call for a specific review of each of the conclusions of law. The Code of Civil Procedure (sec. 297) requires separate statement in writing of the findings of fact and conclusions of law, where trial is had to the court, if either party desires to except to "the decision of the court upon the questions of law involved in the trial." As the expressed purpose of making separate findings and conclusions of law is to enable the parties to question the rulings of the court upon legal questions involved, it would seem that if they desire so to do they should except to the conclusions found, or such of them as they desire to make exception to, expressly and specifically. In Indiana, where a similar statutory provision is construed by the courts as intended for the "express purpose of enabling a party to except to the decision of the court upon the questions of law involved in the trial" (Nading v. Elliott, 137 Ind. 261, 36 N.E. 695), it is well settled that in order to obtain a review of separate conclusions of law, error must be assigned with respect to them specifically, and that an assignment that the judgment is contrary to law will not avail to that end. Nading v. Elliott, supra; Midland R. Co. v. Dickason, 130 Ind. 164, 29 N.E. 775, and cases cited. In Midland R. Co. v. Dickason, the court says: "In order to present for review in this court the correctness of the conclusions of law, deduced by the court from the facts found, two things are necessary: 1. An exception to the conclusions of law must be taken at the time the decision is made. 2. It must be assigned as error in this court that the court below erred in its conclusions of law. * * * The appellants having waived, by failing to except, all objections to the conclusions of law, it was not error for the court to render judgment for the plaintiffs in accordance with such finding and conclusions." In Nading v. Elliott, the court says: "As the specifications make no legal attack upon the conclusions of law, but only seek to assail the judgment that the court rendered thereon, they are ineffectual to bring into review such conclusions." This rule seems to follow from the expressed purpose of the requirement that separate conclusions of law be made, and is in accord with the holdings of this court in analogous cases. World Mutual Benefit Ass'n v. Worthing, 59 Neb. 587, 81 N.W. 620; Frenzer v. Richards, 60 Neb. 131, 82 N.W. 317; Drexel v. Daniels, 49 Neb. 99, 68 N.W. 399. See also Hanover Fire Ins. Co. v. Shrader, 11 Tex. Civ. App. 255, 31 S.W. 1100; Lytle v. Prescott, 57 Minn. 129, 58 N.W. 688; Smith v. Kipp, 49 Minn. 119, 51 N.W. 656. For these reasons we do not think that the assignment that the judgment is contrary to law requires us to go further than to ascertain that the judgment follows from and is sustained by the findings of law, as to which there are no specific assignments of error. As they are not complained of, we may take them to be the law of the case, and a judgment in accordance with them may not be said to be contrary to law. Frenzer v. Richards, supra. If, however, it could be said that the assignment in question challenged the conclusions of law, there is still the difficulty that it would of necessity assign them as error en masse, and hence, in view of the obvious correctness of at least one of them, would clearly fail. An assignment of error which assails several conclusions of law jointly, will fail if any one is correct. Jones v. Mayne, 154 Ind. 400, 55 N.E. 956.

Another assignment of error, however, properly challenges the sufficiency of the evidence upon the 7th finding of fact which is also complained of in the brief. In that finding, the court finds that after the certificate recovered upon was issued no dues or assessments became payable or were levied; that prior to such time, Lane had been in arrears for dues, but that the defendant with notice and knowledge of that fact accepted a surrender of the prior certificate, and accepted and retained a fee for issuing, and issued the certificate...