148 Minn. 150 | Minn. | 1921
Action to recover upon a beneficiary certificate issued by defendant to G- L. Boynton, with plaintiff as beneficiary. Plaintiff had a verdict and defendant appealed from an order denying its alternative motion for judgment or a new trial. The appeal presents several questions which will be considered in their order.
The certificate of insurance was issued to Boynton on May 8, 1898, and was payable on his death to his widow, plaintiff in the action. The complaint alleges'that Boynton died prior to the commencement of the action, due proof whereof was given'to defendant, and that defendant refused payment. The alleged death of Boynton was put in issue by the answer. There was no direct proof on the trial of his death; plaintiff relied to establish that fact upon the rule of the common law that an inference thereof arises in such eases from a showing of an unexplained absence or disappearance without tidings for a period of seven years or longer. It was shown that Boynton disappeared on August 21, 1910, and it was plaintiff’s claim that, although search and inquiry had been made to ascertain his whereabouts, nothing was heard of him after that date. Evidence tending to support that claim was presented and thereon the verdict of the jury was predicated.
It is contended by defendant in support of the appeal: (1) That the evidence does not bring the case within the rule relied upon, in that no sufficient search and inquiry were made to learn whether Boynton was dead or alive, and further, that he was in fact heard from through a letter written by him to a relative within the seven-year period of claimed disappearance, or on a date some four years prior to the commeneement of the action; (2) that the rule of the common law referred to is rendered inapplicable to the ease by force of a by-law of defendant association, which defendant claims forms part of the insur
The same contentions were made in the court below, the first and third of which were submitted to the jury, and upon the second the court ruled that the by-law relied upon by defendant as abrogating the rule of the common law in such cases, having been enacted some ten years subsequent to the date on which Boynton became a member of the association, was, as to his membership, unreasonable and void.
The only item of evidence found in the record, tending in any substantial way in rebuttal of the inference of death, is presented by that given by a sister of Boynton, who testified that she received a letter from him about four years before the trial of the action, in which he made some suggestions about the entry of her sons into the war with Germany. But, after full consideration of the matter, we conclude that the verity of the evidence was for the jury and trial court, with whose conclusion thereon we find no sufficient reason for interference. And,
Boynton disappeared suddenly, dropped out of sight, in August, 1910, and without apparent cause. Prior to that time he had carried on a somewhat regular correspondence with another sister, who for a time resided with the father in Minneapolis. He had also made frequent contributions of money to this sister and to the father for aid in their support. Subsequent to the disappearance no word came from him to either, and no contributions were thereafter .made to them. But.it is undisputed that no other member of the Boynton family, save the sister who received the letter referred to, heard from or of him in any form after the date stated. . He had not regularly corresponded with the particular sister, and, though having knowledge and good reason for the belief that other members of the family had not heard from him in many years, and were solicitous as to his welfare, the jury .were fully justified in finding that she made no reference to the letter to any of them; she testified that she thought she had mentioned it to one of her sisters some two years after it was received; she was clear on the question. Plaintiff, the wife, had no tidings of any kind after the date of disappearance, though she made due search and inquiry. In this state of evidence we conclude that the verity of this letter was one of fact for the jury, and that their conclusion thereon is not opposed to the weight of the evidence taken, as a whole.
We concur in the ruling of the learned trial court that the new bylaw substantially changed the contract between the parties and is unreasonable and void. That view is supported by the general trend of our decisions in similar cases. Flakne v. Minn. F. Mut. Ins. Co. 105 Minn. 479, 117 N. W. 785; Thibert v. Supreme Lodge K. of H. 78 Minn. 448, 81 N. W. 220, 47 L.R.A. 136, 79 Am. St. 412; Tebo v. Supreme Council of Royal Arcanum, 89 Minn. 3, 93 N. W. 513; Olson v. Court of Honor, 100 Minn. 117, 110 N. W. 374, 8 L.R.A.(N.S.) 521, 117 Am. St. 676, 10 Ann. Cas. 622; Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170, 65 N. W. 351, 30 L.R.A. 586, 56 Am. St. 464. And supported' also by the prevailing judicial opinion in other jurisdictions. Haines v. Modern Woodmen of America, 189 Iowa, —, 178 N. W. 1010, involved the same by-law and upon facts similar to those here presented it was held unreasonable and void. There as here the by-law was enacted by the association long subsequent to the time when the insured became a member of the association and received his benefit certificate, but a year or so before his disappearance. The same situation was also presented in Sweet v. Modern Woodmen, 169 Wis. 462, 172 N. W. 143; Garrison v. Modern Woodmen of America, 105 Neb. —, 178 N. W. 842; Gaffney v. Royal Neighbors, 31 Idaho, 549, 174 Pac. 1014; Samberg v. Knights of Modern Maccabees, 158 Mich. 568, 123 N. W. 25, 133 Am. St. 396; and in Hannon v. Grand Lodge, 99 Kan. 734, 163 Pac. 169, L.R.A. 1917C, 1029. See, also, 19 R. C. L. 1204, and collection of citations in note to Samberg v. Knights of Modern Maccabees, supra, in 133 Am. St. 396.
At the time the insurance contract in the case at bar was entered into, it was settled law that an unexplained absence of seven years was competent evidence of death, and sufficient to justify a recovery thereon by the beneficiary. The amended by-law not only abrogates that rule of evidence, and that method of proof of death, in which the insured perhaps can have no vested right, but materially changes the contract in point of substance by imposing upon the beneficiary the burden of continuing the payment of dues and assessments for a long period of time
This covers the ease and all that need be said in disposing of the appeal. All the assignments of error have been fully considered, with the result that no reversible" error appears in the rulings on the admission or exclusion of evidence or in the instructions to the jury. The charge of the learned trial court taken as a whole was a clear and concise presentation of the law of the case, and free from error.
Order affirmed.
