Smith v. Highlanders

• Decision Date: 26 September 1914
• Docket Number: 17,726
• Citation: 148 N.W. 952,96 Neb. 790
• Parties: SARAH A. SMITH, APPELLEE, v. ROYAL HIGHLANDERS, APPELLANT
• Court: Nebraska Supreme Court

148 N.W. 952

96 Neb. 790

SARAH A. SMITH, APPELLEE, v. ROYAL HIGHLANDERS, APPELLANT

No. 17,726

Supreme Court of Nebraska

September 26, 1914

APPEAL from the district court for Webster county: ERNEST B. PERRY JUDGE. Affirmed.

AFFIRMED.

Hainer & Craft, for appellant.

Bernard McNeny, contra.

HAMER J. BARNES, ROSE and SEDGWICK, JJ., not sitting.

OPINION

HAMER, J.

The plaintiff, Sarah A. Smith, brought an action in the district court for Webster county against the defendant, the Royal Highlanders, upon a beneficiary certificate issued by the defendant to Rufus B. Smith. The plaintiff recovered a judgment against the defendant for $ 1,578.45. It is claimed by the appellant that the certificate provided: "In case of death occurring after becoming a member and remaining in good standing for three years or over, the sum of $ 3,000 will be paid to Sarah A. Smith, bearing the relation of wife upon satisfactory proof of death, together with the surrender of this certificate. * * * Provided, further, that in the case of suicide of the member, either sane or insane, the amount of all contributions of the member to the fidelity fund of the fraternity, only, shall be paid to the beneficiary named in this certificate."

It is set up by way of defense that the certificate provided that there should be no recovery in case the holder should commit suicide. It is strenuously contended that Rufus B. Smith, the insured and the husband of the plaintiff, committed suicide, and therefore that the plaintiff is entitled to recover nothing except the money paid in to the association, being $ 66. It is claimed that the proof shows that the said Rufus B. Smith died of carbolic acid poisoning at his home near Filley, "from drinking carbolic acid with suicidal intent."

It is the contention of Mrs. Smith, the plaintiff, that Mr. Smith did not commit suicide. There is a long correspondence between counsel touching the merits of the case, which we do not deem it necessary to consider, especially as it would prolong the opinion to an unusual length if we copied it or any considerable part of it. We will examine the evidence. The testimony for the plaintiff tends to show that the insured died on February 5, 1911, at his home near Filley, Nebraska. He had been at home all day, and about 7 o'clock in the evening took off his coat and shoes in the sitting room, where he had been conversing with the family. He said he was going to bed, and smiling he went out of the room. He had eaten that day. Apparently he was well.

An argument is made that a person could not take a quantity of carbolic acid without knowing the fact, and therefore it is claimed that it could not have been taken without the intent to commit suicide. At the close of the plaintiff's testimony the defendant moved the court as follows: "The defendant, upon the evidence, admissions and allegations of the pleadings in reference to the proofs of death, moves the court to instruct a verdict in favor of the defendant, for the reason that it appears thereby, and is not disputed, that the plaintiff has made and admitted certain proofs of death which are in evidence; that the plaintiff has never asked that the same be withdrawn, reformed, changed, or corrected, nor offered other or different proofs of death or the manner thereof; that the proofs in evidence are the only ones upon which the defendant society has had opportunity or been called upon to act; that no proofs of death have been submitted to the defendant making it prima facie liable, and no furnishing of proofs has been waived by the defendant; in this condition of the record the defendant cannot be liable for more than the $ 66 admitted in its answer." The motion was overruled, and the defendant excepted.

We think we should examine the evidence with a view to ascertaining whether there is evidence to sustain a verdict for the plaintiff. The defendant is a fraternal beneficiary order similar in character to the Workmen or Woodmen. It is said by the plaintiff that quite a competition has existed between the different fraternities; that the Workmen initiated the practice by which in case of the death of a member the local lodge is to take care of the proofs of death; that the other orders have followed this example and that quite a competition has existed between different fraternities; that the local lodges become the agents of the supreme lodge to procure new members; that it is of the greatest importance to demonstrate that losses are promptly paid and with the least possible delay or attention on the part of the beneficiaries who are assured by the officers of the local lodge that their interests will be looked after, and without any action on their part. In this case it seems that one J. F. Boggs was the local secretary and treasurer of the lodge at Filley, and he assured the son of the plaintiff that he would do the acts required to secure the insurance without any action on the part of the plaintiff.

We copy from the bill of exceptions: "Q. After your father's death, what, if anything, did you do about the sending in of proofs of death to the insurance company? A. Well, one day Mr. Boggs 'phoned over for me to come over. Q. Which Boggs? A. J. F. Boggs. And so I went over; and my mother said 'you had better go over,' and he said that he would fix up the death proof and send it in; he and the lodge would attend to that; that that was his business, and that he would see to it, and that we did not have to worry or do anything about it, and that was his business. Q. You say your mother told you to see Boggs? A. Yes, sir." Cross-examination by Mr. Hainer: "Q. You say that your mother told you to see about getting the proofs in? A. I said that J. F. Boggs 'phoned over, and she said for me to go over and see what he wanted; and Mr. Boggs said he would see after the death proofs, and he and the lodge would go and send it in. Q. So that was the arrangement that was made with him? A. He said he was the fellow to look after it. * * * Q. You didn't take any further steps at all? A. No, sir; he said she would get her money in a few days. Q. I am asking about sending in the proofs, you know he was going to send in the proofs? A. He said he would. Q. You let it go at that? A. Yes, sir. * * * Q. And you informed your mother of what had passed between you and Mr. Boggs? A. What words were said I told her. Q. On both sides? A. Yes, sir."

The witness, the son of the plaintiff, testified that the carbolic acid had been on the shelf about two months; that he got it for a horse "to take the poisoning out of her foot." He was also asked if there was a medicine there on the shelf that was a dark medicine which he sometimes took for stomach trouble. He answered that there was; he also answered that there was only a little difference in the color of that medicine and the carbolic acid.

The letter of the chief secretary, F. J. Sharp, to the secretary-treasurer, J. F. Boggs, is dated March 23, 1911. It says: "Nowhere in the proofs is a detailed statement as to the cause of his death, and, as it is stated he died from an overdose of carbolic acid, we will have to know how he happened to take this poison."

March 25, 1911, J. F. Boggs, secretary-treasurer, wrote F. J. Sharp, secretary, at Aurora, that he had been unable to find any clippings from a newspaper. March 28, 1911, F. J. Sharp, chief secretary, wrote J. F. Boggs, secretary-treasurer at Filley, Neb. "Valiant Clansman: I am just in receipt of your favor of the 25th inst." April 17, 1911, J. F. Boggs, secretary-treasurer, wrote F. J. Sharp, chief secretary, saying: "Inclosed please find copy of Beatrice Express and Sun, each of which contains account of death of Clansman Rufus B. Smith. There was no coroner's inquest held on body of Rufus B. Smith." The date of the Sun clipping is February 7, 1911. The date of the other is not given, except that a little letter concerning the matter is published in the other paper, dated February 6.

February 6, 1911, J. F. Boggs wrote a letter to "F. J. Sharp, Clansman, Aurora. Sir: This is to notify you of the death of Clansman R. B. Smith who passed away about 9 o'clock last night." February 15, 1911, J. F. Boggs, secretary, Dunkirk Castle, wrote F. J. Sharp, secretary, Aurora, asking for papers necessary for death proofs. February 25, 1911, F. J. Sharp wrote J. F. Boggs, saying that he inclosed "additional proof of death, which kindly get fully and properly executed." February 23, 1911, A. C. Tilton, illustrious protector, and J. F. Boggs, secretary-treasurer, sent in what is termed an official notice of the death of Rufus B. Smith. March 14, 1911, C. S. Boggs, appeared before the clerk of the district court and signed a certificate saying that the cause of the death was carbolic acid poisoning; that the deceased was sick about 45 minutes. There is also the statement of a friend, J. F. Boggs, made on the 21st of March. He says the cause of the death was carbolic acid poisoning. On the 21st of March, 1911, A. C. Tilton, illustrious protector, and J. F. Boggs, secretary-treasurer, make a statement which is designated proof of death. On the 27th of March, 1911, F. J. Sharp, chief secretary, makes a certificate to the effect that all payments were made, and that Rufus B. Smith was in good standing. On the 27th of June, 1911, the executive committee make a certificate that there is $ 66 due to Sarah A. Smith, upon surrender of the beneficiary certificate.

It will be noticed that the plaintiff does not sign any of these papers, that whatever is done is done by some officer of the lodge. She could not be bound without voluntary action upon her part. It does not affirmatively appear that it was necessary that she should see these papers. We think it may be...