46 Minn. 61 | Minn. | 1891
Plaintiffs, as the heirs of Alfred Backdahl, deceased, brought this action to recover the amount of $2,000 upon a beneficiary certificate issued by defendant to him. The answer denied that plaintiffs were the heirs, and alleged two defences, — the first, that Backdahl had been suspended for non-payment of an assessment; second, that he had been suspended for non-payment of dues. When the trial commenced, plaintiffs moved that defendant be required to elect between these two defences relating to non-payment, on the ground that they were inconsistent. The test of consistency in two defences is, can the facts pleaded in both be true? If so, then although, either being proved, proof of the other may be unnecessary, they are not inconsistent. As the two suspensions alleged in the answer were at different times, for different causes, effected
1. To prove that plaintiffs were sole heirs of Backdahl, they offered in evidence the decree of the probate court distributing his estate. This was properly excluded, for while binding, as to the matters adjudicated, upon the parties to the administration proceedings, it was no evidence of the facts on which it was based against a stranger to such proceedings, as was this defendant. To prove they were such heirs, plaintiffs further- offered, and the court admitted, the testimony of a witness whose only knowledge in reference to the subject had been derived from his acquaintance with the family and with Backdahl, the witness and the latter residing in this country, the plaintiffs in Sweden. Although that sort of evidence is in the nature of hearsay, is based on hearsay, it is admissible from necessity, because many times in no other way could relationship be shown but by proof that relationship in and to a particular family was recognized by the members of the family. 1 Greenl. Ev. 106. When such testimony is introduced, it is for the jury to determine, from the extent of the witness’s acquaintanceship with the family and his opportunities for knowing that its members recognized the particular person as a member, what weight to give it. In this instance, at least, the testimony of the witness made a prima facie case for the plaintiffs on the question of kinship.
2. There was a contest on the evidence as to the making and notice to Backdahl of the assessment for non-payment of which the suspension set out as a first defence was alleged. It appears from the -constitution of defendant that, when a member entitled to participate in the beneficiary fund dies, the subordinate lodge to which he be
3. And so was the testimony as to the sending of notice to Backdahl. The financier, whose duty it is to forward notices, could not and would not testify positively and specifically that he mailed a
4. But there was not sufficient evidence to go to the jury as to the suspension for non-payment of dues, alleged in the second defence, and the court erred in refusing an instruction requested by the plaintiffs that the second defence had not been made out. In Scheufler v. Grand Lodge, 45 Minn. 256, (47 N. W. Rep. 799,) we had for consideration those provisions of defendant’s constitution which provide for suspension for non-payment of assessments and suspension for non-payment of dues. It was held that the former operate ipso facto upon default of the member, and without any action on the part of the lodge or of any officer thereof, while the latter require the action and determination of the lodge or an officer thereof. In other words, that a failure to pay an assessment, of itself and without further ceremony, suspends the member, while a failure to pay dues gave cause for suspension only, and, as suspension for non-payment of dues is in the nature of a forfeiture, the lodge cannot, under its constitution, declare it without notice to the member, giving him an opportunity to be heard in opposition. There was no testimony tending to show such notice or opportunity.
5. It was claimed upon the trial of the case, as well as upon the argument of this appeal, that Backdahl had voluntarily withdrawn, had discontinued his connection with the subordinate lodge. The evidence produced in support of this claim was abundant, but such a defence was not alleged in the answer, and there is nothing in the settled case indicating that plaintiffs consented to try such defence, although not pleaded. However, all of the testimony which was received bearing upon the question was admissible and pertinent upon the defence of suspension for non-payment of the assessment, alleged in the first defence.
Order reversed.
Vanderburgh, X, absent because of sickness, took no part in this case. Mitchell, X, being absent when this decision was made and filed, did not participate in it.