Modern Woodmen of America v. Berry
| Decision Date | 05 February 1917 |
| Docket Number | 19100 |
| Citation | 161 N.W. 534,100 Neb. 820 |
| Parties | MODERN WOODMEN OF AMERICA, APPELLANT, v. WALTER BERRY, GUARDIAN, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Seward county: EDWARD E. GOOD JUDGE. Affirmed.
AFFIRMED.
T. S Allen, Truman Plantz and J. J. Thomas, for appellant.
Norval Bros. and B. F. Good, contra.
This action was begun by plaintiff against defendant, Walter Berry, guardian, in the district court for Seward county, to recover $ 3,000 paid by plaintiff to defendant in pursuance of the terms of a beneficiary certificate in that amount that had been issued by plaintiff to Zack Berry, the insured, father of Walter G. Berry, his minor son, the ward of defendant. Recovery is sought on two grounds: First, that the insured had violated the terms of his application for membership, the by-laws of the order, and the terms of the beneficiary certificate by having engaged in a prohibited occupation, namely, that of selling intoxicating liquors as a saloon bartender after he had become a member of the society; and, second, because the $ 3,000 named in the policy was obtained from plaintiff by the deceit and fraud of defendant, in that the fact of Zack Berry's having been engaged in the prohibited occupation was by the defendant concealed from plaintiff by the use of false and fraudulent statements and affidavits in the proofs of death that were submitted to plaintiff. To properly dispose of the issues involved, we find it necessary to consider only the first ground of plaintiff's contention. In the trial court the suit was dismissed and judgment rendered in favor of defendant on a directed verdict, and plaintiff appeals.
At the close of the testimony both parties moved for a directed verdict. Plaintiff's motion was overruled. Defendant's motion was sustained. For the purpose of review, the action is thus brought within the rule which provides that, where at the close of a trial in a law action both parties move for a directed verdict, and the motion of either party is sustained, the findings of the court in such case upon questions of fact have the same force and effect that the verdict of a jury would have on like questions, and will be so regarded upon appeal to this court. Dorsey v. Wellman, 85 Neb. 262, 122 N.W. 989; Martin v. Harvey, 89 Neb. 173, 130 N.W. 1039; Krecek v. Supreme Lodge, F. U. A., 95 Neb. 428, 145 N.W. 859. The pertinent facts upon which plaintiff relies for reversal appear in the discussion following.
Zack Berry, the insured, became a member of the plaintiff society in February, 1899, while engaged in the occupation of farming. He died on May 3, 1914. The required dues and assessments of the order had been paid by him yearly in advance, and at the time of his death all that were due or to become due until January 1, 1915, had been paid. Some time after Berry became a member of the society, he quit farming and became manager of a telephone company, and at a later period, leaving that employment, he engaged in the real estate business. He was engaged in the three occupations named from the time that his membership began until sometime in the fall of 1911, a period of about 13 years, when he entered the employ of Louis Hartwig, a saloon-keeper at Seward, and as a subordinate in the Hartwig saloon engaged more or less actively for his principal in the sale of intoxicating liquors over the bar to the customers. His employment continued in and about the saloon until sometime early in 1913, when he was discharged, and he followed no other regular employment between that time and his death, being mostly occupied in assisting in the care of an invalid wife. It seems that the insured was at the saloon of Hartwig frequently between the time of his discharge and until shortly before he died, a period of a little over a year, and that during this time he occasionally assisted his former employer, who was his friend, in the sale of intoxicating liquors to the customers of the saloon, but for these services he received no compensation. Within a convenient time after Zack Berry died, proofs of his death were submitted to plaintiff by defendant on the usual blank forms furnished by the society, and soon thereafter, in pursuance of the terms of the policy, $ 3,000 was paid to the defendant Walter Berry as guardian.
Zack Berry's application for membership, the by-laws of the society, and the beneficiary certificate or policy that was issued to him, together form the contract that is the basis of this suit. The application that is in evidence, among other things, provides that the applicant will conform to the by-laws then in existence or that may thereafter be adopted, and that he will not, while a member of the order, engage in certain prohibited employments, among them being that of a wholesaler or manufacturer of liquors, saloon-keeper or saloon bartender, and that an engagement by him in any of the prohibited occupations will release the plaintiff society from liability upon the beneficiary certificate.
Section 5 of the beneficiary certificate in evidence provides: "If the member holding this certificate shall be expelled from this society or become intemperate in the use of alcoholic drinks, or in the use of drugs, or if he shall be or become engaged in the manufacture or sale of malt, spirituous, or vinous liquors as a beverage, in the capacity of proprietor, stockholder, agent, or servant, * * * then this certificate shall be null and void, and of no effect, and all moneys which have been paid, and all rights and benefits which may have accrued on account of this certificate, shall be absolutely forfeited, and this certificate become null and void."
The insured was regularly employed as a saloon bartender by Louis Hartwig, beginning in the fall of 1911, and his employment continued until the spring of 1913. And it is clearly in evidence that after he quit work in that capacity he was frequently at the saloon, sometimes as a patron, and when occasion presented sold intoxicants for his former employer over the bar, but he received no compensation for such services as he rendered in the saloon after he quit Mr. Hartwig's regular employ in the spring of 1913. Plaintiff argues that the fact of the insured having engaged in the prohibited occupation of a saloon bartender either for pay or gratuitously, after he became a member of the society, made his contract of insurance void.
In view of the decisions of this court and those of...
To continue reading
Request your trial