84 Neb. 834 | Neb. | 1909
On June 5, 1897, Robert N. Briggs, whom we will hereinafter designate as the assured, became a member of a local castle of defendant society, and under that date received from defendant a benefit certificate upon his life in the sum of $3,000, payable at his death to his wife (plaintiff) and son. In April, 1905, the assured, for the sole purpose of changing his beneficiary, surrendered his certificate of June 5, 1897, and received from defendant, as a substitute therefor, the benefit certificate in suit. Defendant wrote on the face of such later certificate the words: “The date of certificate No. 1,741 (the former certificate) shall be the date on which the settlement of this certificate shall be based.” In its answer defendant admits that the later certificate “was issued in lieu of said first-named certificate.”
The defense pleaded is suicide. It is conceded that, at the time the assured became a member of defendant society and obtained his original certificate, there was noth
The motion for a new trial in the court below is as follows: “(1) That the findings of the court are not sustained by the evidence in the case, but are contrary to the manifest weight thereof. (2) The findings and judgment of the court are contrary to the law of the case.
Some point is made by defendant that the amendment of its edicts and laws in 1901 was prior tt> the issuance of the certificate in' suit, and that the issuance and acceptance of such certificate was subject to the edicts as so amended. This contention is without merit. The mere substitution of the certificate in suit for the one first issued, for the sole purpose of changing the beneficiary, did not constitute such certificate a new and independent contract. We think it is clear that the certificate in suit must be considered, so far as its date and the rights and liabilities of the respective parties are concerned, as if it had been issued upon’the date of the issue of said first certificate, viz., the date of assured’s admission into the society.
That the alleged change in tbe edicts and laws of defendant by its convention of June, 1901, was ineffectual and void has already been determined by this court, in Lange v. Royal Highlanders (this same defendant), 75 Neb. 188. The opinion in that case so fully and fairly sets out the history of defendant from its organization down to and including its convention of June, 1901, and its attempted amendment of its edicts and by-laws at that convention, that it need not be restated here. The defense in that case, as in this, was suicide. We there held that defendant down to and including its convention of June, 1901, had not adopted a representative form of government and that its attempted change of the by-laws at that convention was therefore null and void. Down to that time, therefore, the rights of the parties in this case must be considered as having been determined by our decision in that case.
The laws of the order provide: “The edicts of the Royal Highlanders shall not be altered or amended except when two-thirds of all the members of the executive castle favor such changes.” Section 203, Edicts of 1901. This language-is plain and unambiguous, and prohibits any change of the edicts of the society except when two-thirds of all its members favor such change. Under the wording of this section of the edicts, any member of the executive castle who refrained from voting on any proposed change of the edicts would thereby in effect vote against it. It is conceded that there were 48 members of that executive castle, viz., 25 delegates, 13 officers, and 10 committeemen. The executive castle being composed of that many members, its edicts could not be changed unless 36 of those members voted for such change. The fact therefore that the- president might request the 10 committeemen to refrain from voting, or that the 10 committeemen and the 13 officers should all refrain from voting, would not add to the powers of the regularly elected delegates to amend any of the edicts of the society. If we exclude the committeemen, the result is the same. It is not claimed that the 13 officers elected by the conven
It is insisted by defendant that the convention of September, 1905, amended section 9 of its laws and edicts by adding the words, “Provided, however, only elected officers and the accredited delegates from representative castles shall be entitled to vote,” and that by such amendment appointive officers and committeemen would not thereafter be entitled to that right. If this change in section 9 would have the effect of subsequently giving defendant a representative form of government, which we do not decide, it cannot avail defendant in this case, for two reasons: (a) The statute under which defendant is operating provides: “Every such society shall fiie with the auditor of public accounts a copy of its constitution and bylaws duly certified to by the secretary or corresponding officer, and before any amendment, change or alteration
It seems useless to pursue this matter further. Viewed from any standpoint, the executive castle, as it existed in September, 1905, was not a representative body, and as so constituted the defendant did not have a representative form of government. It follows, therefore, that the attempted change of the by-laws in September, 1905, was as ineffectual as the attempted change thereof in June, 1901. There being nothing in the certificate of membership issued to the assured, or in the edicts and by-laws of the defendant as they existed at the time he was admitted into membership and received his certificate, which exempted the defendant from liability in the event of suicide, we must hold that the judgment of the district court was right, and it is
Affirmed.