White v. Bhd. of Locomotive Firemen

• Decision Date: 24 April 1917
• Citation: 162 N.W. 441,165 Wis. 418
• Parties: WHITE ET AL. v. BROTHERHOOD OF LOCOMOTIVE FIREMEN.
• Court: Wisconsin Supreme Court

165 Wis. 418

162 N.W. 441

WHITE ET AL.

v.BROTHERHOOD OF LOCOMOTIVE FIREMEN.

Supreme Court of Wisconsin.

April 24, 1917.

Appeal from Circuit Court, Sauk County; James O'Neill, Judge.

Action by Hannah White and another as administrators of the estate of Ellen White, deceased, against the Brotherhood of Locomotive Firemen, a fraternal beneficiary association. Judgment for plaintiffs, and defendant appeals. Affirmed, with costs.

This is an action to recover upon a certificate of insurance issued by appellant to one T. J. White, the respondents being the sisters and alleged heirs of said T. J. White. The case was tried by the court, and the following findings made: That T. J. White never married and made his home with his mother at Winona, Minn.; that he was sober and industrious, lived on affectionate terms with the family, wrote to his parents and sisters on an average of once in six weeks or two months, saved considerable money, and provided for the support of his parents, and when he left for North Dakota in 1900 he had $1,500 in the bank at Winona, upon which he gave his mother permission to draw; that he was last heard from in Vale, Iowa, in 1901, when his brother-in-law received a letter from him, and that his sister sent him at Vale, Iowa, a letter from a contractor in Montana who sought to employ him in some railroad construction work in Montana; that on February 18, 1901, while T. J. White was absent in Vale, Iowa, the certificate of 1895 was surrendered by Hannah White, a sister, and the policy of January, 1901, was delivered to her in lieu thereof; that Ellen White, the beneficiary, died July 18, 1904, at Winona, Minn., leaving as her only heir at law her daughter Hannah White and Margaret Nichols, who were appointed as administrators of her estate by the Winona county court March 10, 1915; that T. J. White died in the year 1901, three years prior to the death of his mother, Ellen White; that the mother and sister made and accused inquiries to be made, and caused the notice to be inserted in a magazine published by defendant company in 1903, and in 1905 and 1908, to discover if he was living, and discovered nothing by reason thereof; that witness Snyder was secretary of the lodge at Waseca at the time of White's disappearance, and up to the time of trial and the disappearance and absence without tidings were known to said Snyder and to other members of Waseca Lodge from date of disappearance, and at the request of Hannah White the facts and circumstances of his disappearance were laid before Mr. Carter, a general officer of the order at Milwaukee convention in 1906; that defendant has demanded and collected from Ellen White and her heirs the assessments which fell due upon the policies up to September, 1915, with full knowledge of the facts and without objection; that it was the duty of the local lodge when the death of a member came to the attention of its secretary to make proof of claim, but that Snyder as such secretary, with knowledge of his disappearance, failed to do so, but advised Hannah White in 1906 and two years ago to keep on paying the assessments, and because of such advice the assessments were paid; that it was unnecessary for Ellen White or her heirs to give notice to Snyder of the facts surrounding the disappearance of White, because such facts were known to Snyder at the time of the disappearance; that a claim for payment was made by the attorneys for Hannah White and Margaret Nichols, and was finally rejected November 19, 1914; that after the appointment of plaintiffs as administrators of Ellen White's estate, it was unnecessary to present further claim; that the amendment to section 76 of the constitution and by-laws of 1907 was legally adopted by defendant company, and became effective January 1, 1907, but it in no wise affected plaintiff's claim because of the death of White in 1901; that the plaintiff should recover $41.80 dues paid by Ellen White between dates of death of T. J. White and Ellen White.

The court concluded that plaintiffs are entitled to recover $1,500, amount of the certificate, and $41.80 assessments, and interest thereon; that the cause of action is not barred by either of the statutes of limitations pleaded by the defendant as a defense; that the action is not barred by any limitation provided by the constitution and by-laws of the defendant organization or by any certificate issued to T. J. White; that defendant has at all times since May 6, 1901, treated the contract as being in full force and effect, and demanded and accepted all dues and assessments, and is estopped from setting up a defense of the statute of limitations and the limitations providing for the furnishing of proof and the commencement of the action; that the defendant finally rejected the claim November 19, 1914, and refused to pay anything on account of the death of insured when proof of death was based upon the presumption arising from absence without tidings, and it was unnecessary for plaintiffs to make proof of death or formally present a claim.

Judgment was rendered in favor of the plaintiffs, with costs, from which this appeal was taken.Bentley, Kelley & Hill, of Baraboo, for appellant.

...