76 Neb. 783 | Neb. | 1906
This is an action upon a certificate of membership issued to one Cornelius R. Healy in the insurance organization known as the “Burlington Relief Department.” The per
The contract of membership between the deceased and the plaintiff in error provides that all rights of recovery thereunder shall he forfeited and shall cease and determine “if any suit shall he brought against said' (railroad) company, or any other (ampiaay associated, therewith as aforesaid, for damages arising out of injury or death occurring to me,” the insured. There can be no doubt that the present case falls within the letter of the clause just quoted. But in Chicago, B. & Q. R. Co. v. Olsen, 70 Neb. 559, this court, in discussing a contract identical Avith this, say that it “provides for the application of the well-settled rules of laAv in regard to election of remedies,” and counsel for the defendant in error herein con fend that her unsuccessful action against the railroad company was not an irrevocable election Avith in the meaning of those rules. We doubt if the language just quoted Avas intended to he taken in its AA’bolly unqualified sense. It Avas, Are presume, used with reference to the circumstances then under discussion. In that case the plaintiff had, after his injury, accepted relief department benefits, and it Avas held that by so doing he had made an irrevocable election AA’hich barred him of a remedy against the company to recover damages for a
This conclusion is, as we understand, justified solely upon tbe ground, above stated, that tbe administrator and beneficiary are tbe same person, and that her official character does not deprive her of tbe discretion, reserved in tbe contract, of choosing to which of two several remedies she will resort for compensation in damages for tbe act complained of. Or, perhaps, more correctly speaking, tbe beneficiary, upon her appointment and qualification as administratrix, succeeds to and becomes vested with tbe right and power of election of remedies which tbe deceased would have enjoyed bad be survived tbe injury. From this premise it follows, of course, that if she does not receive or accept of such appointment she never occupies a position in which her rights can be impaired or affected by such an election or in which she can be required or entitled to make one; and, conversely, her prosecution of tbe contract obligation of tbe company to herself cannot impair or
We conclude therefore that the case is substantially identical in principle with the former decisions of this court above cited, and recommend that the judgment of the district court be reversed and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and the cause remanded for further proceedings..
REVERSED.
The following opinion on rehearing was filed April 4, 1907. Former judgment vacated and judgment of district court affirmed:
The questions presented on this motion for rehearing have been thoroughly briefed and carefully presented.. We have reexamined the decisions of this court construing contracts relating to membership in the defendant’s relief department. In the former opinion in this case, ante,
In the case at bar the plaintiff as administratrix of the estate of the deceased represented her several minor children as well as herself. Her husband was killed while in the employ of the defendant company. She had good reason to believe, and she testified she did believe, that his death was caused by the negligence pf the defendant. If it was so caused, it was her duty as administratrix to recover damages from the defendant in behalf of her minor children. This duty she attempted to perform. In an early case in this court it was determined that the widow, by accepting benefits from the relief department under a contract like the one in question, settled and barred her claim against the company for damages, but it was also held that such action on her part would not defeat the rights of her minor children. After having received benefits herself from the relief department, she might as administratrix prosecute an action for damages against the company in behalf of her minor children. Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645. Speaking of that case, this court in Chicago, B. & Q. R. Co. v. Bell, 44 Neb. 44, said: “In that case Wymore was a member of the relief department, and was killed through the negligence of the railroad company. After his death his widow accepted from the funds of the relief department the death benefit to which she was entitled by virtue of being Wymore’s widow and his membership in the relief department. She then brought a suit as administratrix against the railroad company for damages for negligently killing her husband. This suit was brought under chapter 21 of the Compiled Statutes, 1893; and we held that the right of action conferred by
In actions of this kind there is especial reason for adhering to the earlier decisions of the court. Contracts of employment and of membership in the relief department are being continually made, and it is of highest importance that the contracting parties shall so far as possible understand their respective rights and duties when entering upon such contracts. If the two cases last referred to are to be regarded as a correct exposition of the law, we suppose that from the language quoted it would follow that, if this plaintiff had prosecuted her action as administra-trix for the benefit of the children alone, such action would not have been a bar to her claim upon the relief fund. She, however, made no such distinction in the action which she brought. She' sought to recover damages for herself as well as for her children. If therefore she had collected and received such damages in that action it would, we suppose, under the principles announced in the cases referred to, have barred all her claims against the relief fund. She began her action for damages and recovered a substantial verdict against the defendant in the trial court. The judgment of the trial court was reversed upon proceedings in error in this court upon the ground that the evidence showed contributory negligence on the part of the deceased. The evidence showing such contributory negligence was the testimony of one of the employees of the defendant, who testified that the deceased was warned of
When the judgment for damages had been reversed by this court, the plaintiff at once dismissed her case without prejudice, and brought this action to recover under the benefit certificate. The question presented is whether the terms of the benefit certificate and the rules of the company, which were made a part of the contract, will under these circumstances prevent her recovery from the relief fund. That part of the contract relied upon for this purpose is in these words: “If any suit shall be brought against said company, or any other company associated therewith as aforesaid, for damages arising from or growing out of injury or death occurring to me, the benefits otherwise payable, and all obligations of said relief department and of said company created by my membership in said relief fund, shall thereupon be forfeited without any declaration or other act by said relief department or said company.” It is contended that the construction of this language is that, if any suit for damages is brought by any party, the benefits payable to the beneficiary in the relief department are forfeited, whether such beneficiary participates in the action for damages or not; but this is not the meaning of the language used. The provision is that the person who brings the suit for damages against the company shall forfeit the right to the relief fund. Can the forfeiture provided for in this contract be enforced? The benefit provided for in the relief certificate did not depend upon the negligence of the company in causing the accident, nor upon the question of contributory negligence of the deceased. Even his gross negligence or his criminal
The former judgment entered in this cause is vacated and the judgment of the district court is affirmed.
Judgment accordingly.