Modern Woodmen of America v. Talbot
| Decision Date | 03 May 1906 |
| Docket Number | 14,304 |
| Citation | 107 N.W. 790,76 Neb. 621 |
| Parties | MODERN WOODMEN OF AMERICA v. MAGGIE TALBOT |
| Court | Nebraska Supreme Court |
ERROR to the district court for Polk county: ARTHUR J. EVANS JUDGE. Reversed.
REVERSED.
B. D Smith and Talbot & Allen, for plaintiff in error.
E. E Stanton, contra.
DUFFIE, C., not sitting.
On January 24, 1900, the Modern Woodmen of America issued to Charles F. Talbot a benefit certificate containing a contract for life insurance payable to Maggie Talbot, mother of the insured. One of the conditions of the certificate was: "If said member shall enter upon or follow any of the employments or occupations mentioned in section 14 of the by-laws of this society now in force, or as hereafter amended, this certificate shall, so far as the same is intended to provide for the payment of benefits, become ipso facto null and void as to any claim growing out of or made on account of the death of said member by accident, directly traceable to employment in such hazardous occupation, or from any disease directly traceable thereto." Among the prohibited occupations mentioned in section 14 of the by-laws of the society is that of railroad brakeman on all trains, except passenger trains using air brakes only. Talbot died on the 7th day of June, 1903, and prior to his death had made payment of all dues and assessments maturing during his lifetime. His mother, as beneficiary, brought suit on the policy, and recovered judgment for the amount of insurance contracted for, with interest and costs, and the society has instituted this proceeding to reverse the judgment so obtained.
The defense interposed by the society is that the insured came to his death by accident while employed as brakeman on a construction train, and that his death was directly traceable to such employment. The case was tried upon a stipulation of facts, from which it appears that at the time the certificate was issued the insured was employed as a common laborer; that he came to his death at Promontory Point, Utah, on the line of the Southern Pacific Railroad Company, by being crushed between the bumpers of two freight cars which he was attempting to couple, and that he was at that time engaged in performing his duties as a railway brakeman on a construction train; that his death was directly traceable to his employment as such brakeman, and the fact that he was so employed was known to the clerk of the camp to which the insured belonged, and while so employed the clerk, knowing the character of his employment, accepted from the insured dues and assessments payable under the provisions of the policy. The correctness of the judgment depends upon the construction to be placed upon the contract of insurance. As we view the contract, it did not become void by reason of the insured being engaged in the prohibited employment. It was in full force and effect as to all risk which the society assumed by its contract of insurance, and had the insured met his death while so engaged, on account of any cause within the terms of the contract, the contract would have been enforceable, notwithstanding his employment as a...
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