Simmons v. Western Travelers Accident Association

• Citation: 112 N.W. 365,79 Neb. 20
• Decision Date: 10 May 1907
• Docket Number: 14,784
• Parties: HATTIE V. SIMMONS, APPELLEE, v. WESTERN TRAVELERS ACCIDENT ASSOCIATION, APPELLANT
• Court: Nebraska Supreme Court

112 N.W. 365

79 Neb. 20

HATTIE V. SIMMONS, APPELLEE, v. WESTERN TRAVELERS ACCIDENT ASSOCIATION, APPELLANT

No. 14,784

Supreme Court of Nebraska

May 10, 1907

APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Affirmed.

AFFIRMED.

Brome & Burnett, for appellant.

Kennedy & Learned, contra.

OLDHAM C. AMES and EPPERSON, CC., concur.

OPINION

OLDHAM, C.

This was an action instituted by the plaintiff as widow and beneficiary named in a membership certificate issued by the defendant to one Harry A. Simmons, to recover the sum of $ 5,000, the amount provided for in the certificate on the death of a member resulting from external, violent and accidental means. The petition alleged in substance, that Harry A. Simmons, deceased, was a member in good standing of the defendant order, and had paid all assessments and dues arising under the constitution and by-laws of the order, and that on the 24th day of June, 1903, he was bitten by a rattlesnake in Live Oak county, Texas, and death resulted from this violent and accidental means on the day following the injury; that notice of the death was served upon the defendant within 15 days thereof; that proofs of death were subsequently furnished in compliance with the constitution and laws of the order. Defendant's answer admitted the issue and delivery of the certificate of membership to Harry A. Simmons, deceased, and that plaintiff was the widow and beneficiary named in such certificate, admitted that notice of death was received by the defendant within 15 days of the death of Harry A. Simmons, and that he was a member in good standing in the order at that time. The answer then set up a provision of the constitution and by-laws of the order forfeiting the policy unless proofs of death are filed within 30 days of the demise of a member. It also pleaded an article of the constitution of the order providing, in substance, that, if a member should change his occupation to one classed by the executive board as more hazardous than that stated in his original application for membership, he should only be entitled to such benefits as might be fixed by the executive board for such increased hazard of occupation. It further alleged that at the time of his death Harry A. Simmons had changed his occupation from that of traveling salesman, and was engaged in the business and occupation "of ranch foreman, supervising stock farming, and supervising and superintending a ranch in the state of Texas, and was so engaged at the time of the alleged injuries and death." The answer then averred that under the by-laws of the order the amount of recovery for the death of a member engaged in the more hazardous occupation described was limited to $ 2,000. Plaintiff, by way of reply, alleged that within 15 days of the death of her husband she had procured notice to be served upon the defendant of such fact; that she had no knowledge or information of any by-law requiring proofs of death to be filed within 30 days; that in the notice of death she requested the defendant to send such blank proofs of death as were required; that no answer was received to this communication from the defendant until the 28th day of July, when the 30 days had elapsed; that upon the receipt of defendant's letter containing a copy of the constitution and by-laws requiring proof of death, such proof was immediately procured and forwarded to the defendant and retained by it. The reply denied specifically that deceased had changed his occupation of traveling salesman, or was engaged in any other business at the time of his death, but alleged that in the fall of 1901 the deceased had lost his position as traveling salesman, and that by invitation of his father he had come to temporarily reside on his father's ranch in Texas until he could secure further employment as traveling salesman; that he corresponded with different firms seeking employment, and that at the time of his death he had procured a contract for employment as traveling salesman with a drug company in Chicago, and was preparing to leave for the place of his employment at the time his injury occurred. On issues thus joined there was a trial to the court and jury, verdict for the plaintiff for $ 5,000 and interest, and judgment on the verdict. To reverse this judgment defendant appeals.

We shall discuss the allegations of error relied upon in the brief of the appellant in the order in which counsel have presented them. The first contention urged is that the court erred in submitting to the jury the question of the deceased's alleged change of occupation, and should have declared as a matter of law that such change had been established by the evidence, and that, consequently plaintiff's recovery in any event should be limited to $ 2,000. It is without dispute that at the time the indemnity certificate was issued the deceased was engaged as a traveling salesman for a wholesale medicine and drug company in St. Louis, Missouri, and that he resided in that city with his wife and family; that in the fall of 1901 he lost his position with this firm; that in the preceding year his father, Dr. Simmons, purchased about 60,000 acres of land in Live Oak county, Texas, and engaged in the cattle business; that the tract of land owned and controlled by the father contained three ranches with ranch houses thereon, one known as the "Beall Ranch" on which the father resided, another known as the "Quartetez Ranch," and another known as the "Big Tank Ranch"; that after the deceased lost his position his father invited him to come and remain with him until he could obtain further employment. In response to this invitation the son came, and at first resided with his father on the Beall ranch. Later the wife and children of the deceased arrived with the household furniture, and moved into the house on the Quartetez ranch, about 15 miles from the father's home. They lived there nearly a year, when they removed to the Big Tank ranch, about five miles nearer to the home ranch. During the time the deceased resided on these different ranches, he was never employed for any purpose by his father, and came and went at his own will, and put in most of his time hunting or visiting from one place to the other. Six of the employees on these premises testified, without contradiction, that the deceased was never either foreman or superintendent of any of these ranches, never employed or discharged any of the hands, nor did anything else connected with the management thereof, except communicate orders or directions from his father to the employees from time to time. When the accident occurred, deceased had started on horseback to one of the ranches for the purpose of gathering up some of his effects preparatory to leaving the place. His father had requested him to stop and examine the windmills at two of...