83 Neb. 423 | Neb. | 1909
Lead Opinion
November 14, 1902, William F. Hart became a member of a subordinate lodge of Maccabees, known as the “Hooper Tent, No. 75,” and on that date there was issued' to him the beneficial certificate sued on in this action. In its answer the defendant alleges that at the time of securing admission into the Maccabees section 430 of its laws was in force, and is as follows: “Section 430. No .benefit shall be paid on account of the death or disability
It is insisted by the defendant that as proofs of death made by the plaintiff show that Hart was killed while engaged in an altercation, and that his killing was justified by the circumstances, the evidence which established his death also established that his death occurred under such circumstances as exempted the defendant from any liability on account thereof, and that the defendant’s motion for an instructed verdict in its favor should have been sustained.
Relating to the proof of death, it is clearly shown that it was prepared by the officers of Hooper Tent, No. 75, and that Mrs. Hart, who signed it, had little or no knowledge
Tbe defect in tbe defendant’s evidence to sustain its defense lies back of this, and arises from its failure to show that tbe by-laws of tbe order, relied on as a forfeiture of tbe certificate issued to tbe deceased, were in force in tbis state. Section 6656, Ann. St. 1907, is in tbe following words: “Every sucb society shall file with tbe auditor of public accounts a copy of its constitution and by-laws duly certified to by tbe secretary or corresponding officer, and before any amendment, change or alteration thereof shall take effect or be in force a copy of sucb amendment, change or alteration, duly certified to by its secretary or corresponding officer, shall be filed with tbe auditor of public accounts.” It appears from tbe deposition of John L. Pierce, deputy auditor of tbe insurance department of tbis state, that copies of tbe laws of the Maccabees, revised and amended July, 1904, were filed in tbe office of tbe auditor of state December 16, 1904. The certificate of tbe supreme record keeper of tbe Knights of tbe Maccabees is a printed form, and tbe signature of tbe grand record keeper is not in bis own bandwriting, but is also printed. Tbe certificate bears tbe impression of tbe seal of tbe order, but contains no venue, which may not be a fatal defect; but as we construe it, tbe statute above copied requires tbe certificate to be under tbe band of tbe secretary, as well as under tbe seal of tbe order. Attached to tbe deposition of tbe supreme recorder of tbe order, which was read in evidence by tbe defendant, was a printed book, entitled, “Revised Laws of tbe Knights of tbe Maccabees of tbe World, Edition of 1901,” and tbe grand record keeper testifies that said pamphlet contains a true copy of tbe laws of tbe order in force November 8, 1902,. when Hart was admitted to membership. There is no evidence coming from tbe grand record keeper, or from the office of the auditor of state, or from any other source, that these laws were ever filed in tbe office of tbe auditor of state,
It is familiar law that no presumption will be indulged in favor of a forfeiture, and the burden of proof, where the society seeks to escape liability on that ground, is upon the society. An allegation in the petition that all the conditions in the contract were fulfilled by the assured, even when denied by the answer, does not impose on the plaintiff the burden of proving that each condition was fulfilled; but, when the breach of any particular condition is relied on as a defense, the burden of proving it is upon the society. 29 Cyc. 232. The certificate issued to the deceased contained no condition upon which a forfeiture may be declared, and the conditions relied on by the defendant to establish a forfeiture are set out only in the laws of the order. It was necessary, therefore, in order to establish its defense, that the laws of the society should be introduced in evidence, and to further show that they were in force in this state. As we have seen, none of these laws or regulations were in force in this state, because no copy of such laws were on file with the auditor of state in 1902, when the deceased became a member, and the revised laws of 1904, which were, filed with the auditor, were not properly certified. This was fatal' to the defense offered. Knights of the Maccabees of the World v. Nitsch, 69 Neb. 372.
On the record before us, the judgment appealed from is the only one which the district court was authorized to enter, and we recommend its affirmance.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.
Concurrence Opinion
concurring.
Payment of the death claim in this case was resisted on the ground that the assured came to his death while en
The commissioner in his opinion correctly interprets and applies the statute.