120 Neb. 333 | Neb. | 1930
This action was instituted by Arthur J. Kernan, hereinafter called appellee, against Stewart F. Kernan, appellant, and the Modern Woodmen of America, appellee, hereinafter referred to as insurer, to recover the sum of $1,000 on a certain fraternal benefit certificate of insurance issued by such insurer on the life of the father of the above named
On submission of these issues the trial court found generally in favor of the appellee, except that out of the $1,000 paid into court the sum of $45.68 was ordered paid to appellant for dues anil' assessments advanced by him on the two certificates over and above his rightful share, and so entered decree. To reverse this judgment appeal is had.
From an examination of the record, we find the following pertinent facts reflected: On August 26, 1896, the father procured to be issued and delivered to him by the insurer (a fraternal beneficiary association of Illinois, ’and doing business in this state) a benefit certificate of insurance on his life for the sum of $2,000 payable at his death to his then wife. He complied with all the conditions of such insurance contract on his part until in February, 1911, when, he and his wife having separated, he surrendered such certificate and procured another to be issued and de
The first certificate being only incidentally involved, was not introduced in evidence. However, we' have before us the second and the third.
It will be noticed from the statement of the issues that it is admitted that the certificate made payable to the two sons was canceled by the insurer at the request of the insured, and that the certificate made payable to the appellant alone was issued and delivered to insured in lieu thereof. However, in order to avoid the force and effect of this last certificate, the appellee urges that it was fraudulently procured by Stewart. The burden of proof of this fraud is carried by the appellee at all times. In the course of the opinion in Goodrich v. Equitable Life Assurance Society, 111 Neb. 616, 621, it is stated: “In the absence of proof, the court will not presume bad motives or bad faith.” We held in Hampton v. Webster, 56 Neb. 628: “Fraud is never presumed, but must be established by the party alleging it by clear and satisfactory evidence.” This the appellee has wholly failed to do.
Section 7920, Comp. St. 1922, provides: “No contract between a member and his beneficiary that the beneficiary or any person for him shall pay such member’s assessment and dues, or either of them, shall deprive the members of the right to change the name of the beneficiary.” This section was in full force and effect at the dates involved herein. There being nothing in the pleadings or the proof indicating that the laws of Illinois or South Dakota, if pertinent, are, or were, other than those existent in this state, it is conclusively presumed that the aforesaid section 7920 entered into and became a part of the respective insurance contracts involved in this instant case, and is controlling herein. The fact that the original beneficiary paid any or all of the dues and assessments prior to the change of beneficiary does not modify or avoid the above quoted statutory
In Fisher v. Donovan, 57 Neb. 361, we held: “A certificate in a fraternal beneficiary society is a mere expectancy, and the beneficiary has no vested right therein.” And in Ogden v. Sovereign Camp, W. O. W., 78 Neb. 804, it was held: “Where the members of a fraternal beneficiary association have the right to designate and change the beneficiary, the beneficiary is not a party to the contract and acquires no vested right therein during the life of the assured.”
The case of Supreme Council of the Royal Arcanum v. Behrend, 247 U. S. 394, as reported in 1 A. L. R. 966, will be found instructive as to the matters involved herein, as well as to the legal difference between ordinary life insurance and that furnished by the fraternal benefit societies.
The insured father was clearly within the law,.as well as within his contract of insurance, in procuring the first and second certificates, respectively, to be canceled and the third certificate issued and delivered to him. Thus, the appellee is without just cause for complaint.
The judgment of the trial' court is reversed and the cause remanded, with directions to enter judgment in favor of the appellant and against the appellee, Arthur J. Ker-' nan, for the $1,000 paid into court by the insurer, and to order that each party pay his own costs, including those of this court.
Reversed.