Urick v. W. Travelers' Acc. Ass'n
Decision Date | 10 April 1908 |
Docket Number | No. 15,086.,15,086. |
Citation | 116 N.W. 48,81 Neb. 327 |
Parties | URICK v. WESTERN TRAVELERS' ACC. ASS'N. |
Court | Nebraska Supreme Court |
Section 6638, Cobbey's Ann. St. 1903, relative to mutual accident insurance companies, providing that any member shall have the right at any time with the consent of such corporation to designate a new and different beneficiary, held to require the consent of such corporation, notwithstanding the by-laws of the company provide that a beneficiary may be changed upon the written application of the member to the secretary.
A member of a mutual accident insurance association wrote a letter to the association requesting the substitution of a different beneficiary. In reply thereto the association wrote to him, requesting him to fill out the blank on the policy intended for use in designating a change of beneficiaries. Thereafter the assured made no move in the matter. Held insufficient to bring about a change of beneficiaries.
The declaration of the officers of a mutual insurance company fixing the amount of benefits less than that provided by the contract and by-laws cannot become a part of the contract, unless it was made known to the assured when he became a member, or was legally adopted thereafter.
Commissioners' Opinion. Department No. 1. Appeal from District Court, Douglas County; Sears, Judge.
Action by Agnes Urick against the Western Travelers' Accident Association. Judgment for plaintiff, and defendant appeals. Affirmed.Brome Burnett, for appellant.
J. Fawcett and A. W. Thurman, for appellee.
November 14, 1903, defendant, a mutual insurance company, issued to Ray P. Brock the following contract or policy of insurance: The provisions upon the back of said contract, which are relevant to the present inquiry, are the following: Said Brock while a member in good standing of the defendant company, and on August 17, 1904, received accidental injuries from which he died the next day. Plaintiff, who was the wife of assured, and was named as beneficiary in the application for membership and in the indorsement made upon the contract, sued for and recovered judgment for the full amount named in said contract of insurance. Defendant admits a liability of $1,000 only under the contract, and further denies the plaintiff's right to recover any sum, alleging that the son of assured and plaintiff had been substituted as beneficiary. The defendant company operates under the provisions of section 6631, Cobbey's Ann. St. 1903. Section 6638 provides: The by-laws adopted by the defendant company contain the following provisions: “The beneficiary under any certificate may be changed upon application of member, in writing, to the secretary.” No change was ever made in the certificate of insurance, but on July 25, 1904, the assured addressed a letter to the defendant herein, which is as follows: Upon receipt of the above letter, and on July 27, 1904, the defendant company, acting through an employé, wrote to the assured as follows: The above correspondence is all the evidence pertaining to the alleged change of the beneficiary. The certificate was found among Brock's papers after his death. Upon the conclusion of the trial the defendant requested the court to direct the jury to return a verdict in its favor. This request was refused, and the court's ruling thereon is the first assignment of error presented for our determination.
In the construction of contracts of insurance made by mutual insurance companies, it is a well-established rule that the statutes under which the company is organized, its constitution and by-laws, and the application for membership are to be considered as a part of the contract. It is apparent from the reading of the statute above quoted that the change of the beneficiaries is not left entirely with the assured, but the insurance company is concerned in the changing of the beneficiaries, and that it must consent before the change becomes a part of the contract for insurance. It was apparently the intention of the Legislature that the assured should have the power in the first instance to name, and thereafter the right to change, the beneficiary of his contract to any one included within the several classes prescribed by the statute, and undoubtedly the insurance company would have no right to refuse to grant a request unequivocally made in accordance with the statute and the rules of the company, so long as such rules are not contrary to or inconsistent with the statute which in all instances must prevail. Upon reading the statute and the by-laws of the defendant company, the conclusion is irresistible that, to effectually substitute one beneficiary for another, an application must be made therefor by the member in writing, and, if approved by the company, they should consent thereto, and thereby complete a change of the contract by the substitution of a different beneficiary. The association, regardless of the provisions of its by-laws quoted, would have the right to refuse its consent to the substitution of a beneficiary not dependent upon or related to the assured. It would have the right to require the application for change to be sufficiently authenticated, that the genuineness thereof should appear reasonably certain. That its consent should be obtained is a reasonable provision, and necessary for its own protection, for otherwise it would probably be subjected to numerous suits by adversary claimants. It is true that a beneficiary has no vested interest in a mutual policy of insurance, and is not a party to the contract, and cannot legally prevent a substitution of another. But neither has the substituted beneficiary a vested interest, and a contemplated beneficiary has not even a contingent interest, until substituted or named in some contract made by the insurer and the assured. Brock's letter to the company was an application for the substitution of his son, instead of his wife, as beneficiary. There is no evidence that the defendant ever consented thereto. Their answer to his letter must be taken as a refusal to consent to the change until he should comply with the suggestion there made.
In Counsman v. Modern Woodmen of America, 69 Neb. 710, 96 N. W. 672, 98 N. W. 414, the court had before it an attempted change of the beneficiaries under an insurance policy. The contract in that case, as it was found to exist, provided that “no change in the beneficiary shall be of effect until the delivery of the new certificate and until then the old certificate shall be held in force.” There an application for a change was made in the manner provided, but it was not approved until after the death of the assured. As will be observed from the reading of the opinion in that case, two beneficiaries were named in the certificate. The assured desired to change both. Under the contract or rules of the company one of the changes was prohibited. For that reason the insurance company refused to make any change whatever. The litigation was in fact between the parties not affected by the attempted illegal change, but who were interested in the other fund. In the opinion it is said: In Freund v. Freund, 218 Ill. 189, 75 N. E. 925, 109 Am. St. Rep. 283, it was held: “A New York statute (Laws 1892, p. 2015, c. 690, § 211) requiring the consent of the insurance company to a...
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