Zimmerman v. Masonic Aid Ass'n of Dakota

• Decision Date: 29 June 1896
• Docket Number: 264.
• Citation: 75 F. 236
• Parties: ZIMMERMAN v. MASONIC AID ASS'N OF DAKOTA.
• Court: U.S. District Court — District of Nebraska

75 F. 236

ZIMMERMAN v. MASONIC AID ASS'N OF DAKOTA.

No. 264.

United States Circuit Court, D. Nebraska.

June 29, 1896

J. W West and Charles Ogden, for plaintiff.

Hall McCulloch & Clarkson, for defendant.

SHIRAS District Judge.

This case was tried to the court, a jury trial being waived by the parties, and the facts were found in writing. The action is based upon two certificates of membership in the defendant company issued to Gottlob Zimmerman; the same being, in effect, policies of insurance upon the life of said Zimmerman, payable to his wife. The evidence proved that Zimmerman took his own life; in other words, killed himself by a pistol shot intentionally fired with the purpose of ending his life. In the application signed by the deceased it is expressly provided that, 'if death shall result from suicide,' the agreement of insurance shall be and become null and void. In the certificate of membership issued to the applicant it is provided as follows:

'That the Masonic Aid Association of Dakota in consideration of the representations and agreements made in the application for membership, bearing even number herewith, * * * doth issue this certificate and constitute Gottlob Zimmerman, of Omaha county of Douglas, state of Nebraska, a member of division A of said association with all the rights, privileges, and benefits of the same, upon the conditions contained in the application for membership, and the by-laws of the association, which constitute a part of this contract, in the same manner and extent as if they were printed in the body of this certificate.'

From the evidence submitted on the trial, the court found that the by-laws of the defendant company contained the following section:

'If a member of this association shall commit suicide, whether at the time he be sane or insane, then his certificate shall become null and void, and of no effect, except that in every such case there shall be payable to the beneficiary of said member a sum equal to the amount he had paid to the association; but the board of directors may, at their option, waive this section, and pay the claim in full.'

As the fact appeared that Zimmerman had intentionally taken his own life, the court held that this provision of the by-laws of the defendant association defeated all right of recovery on the certificates of membership issued to him, except for the sum paid by him to the association.

In support of the motion for a new trial, it is urged that there was not sufficient or competent evidence offered by defendant of the adoption or existence of the by-laws of the association, and that the court erred in admitting in evidence a printed copy of the by-laws; it being claimed that the original record on the books of the association should have been produced. It will be remembered that the contracts of insurance sued upon by plaintiff expressly make the by-laws of the association part thereof, and they form therefore, part of the contracts which the plaintiff introduced in evidence, and upon which she relied as the basis of her claims. The testimony of the secretary of the defendant association proved that the printed copy of the by-laws offered in evidence was a correct copy, and that these printed copies were furnished to the parties taking insurance in the defendant association. The evidence showed that the home office of the defendant was at Sioux Falls, in South Dakota, at which place the books of the association were kept. As Sioux Falls is distant more than 100 miles from Omaha, the place of trial, the defendant could have taken the testimony of the secretary by deposition at Sioux Falls, where he resides, and could have called upon the secretary to attach to his deposition a copy of the by-laws. Instead of so doing, the secretary was brought to Omaha as a witness before the court, and he produced a printed copy of the by-laws, which he testified was a correct copy thereof. His testimony to the accuracy of the copy was certainly competent and sufficient, and the question is therefore narrowed down to the proposition that a proved copy could not be used in evidence, but that it was incumbent upon the defendant to produce the original books, wherein the record of the by-laws is kept; the same forming part of the records kept at the home office. If it be the rule, as is claimed on behalf of plaintiff, that the original record or the original by-laws themselves must always be produced at the place of trial, then it might be placed beyond the power of the defendant to furnish the evidence. It cannot be possible that a corporation can be required to produce its original books or records at every time and place when and...