95 Neb. 428 | Neb. | 1914
Lead Opinion
Plaintiff was beneficiary in a membership certificate issued by defendant on the life of her husband. After his death she brought this action in the district court for Douglas county, and from a judgment in her favor for the amount of such certificate defendant appeals.
At the close of the trial each party moved for a directed verdict. Under such circumstances the finding of the court takes the place of a verdict of the jury, and should not be set aside unless upon the whole record it appears to be clearly wrong.
The principal contention of the defendant is that decedent was not eligible to membership, and that bis membership certificate was procured by fraud and is therefore void. Under the constitution and rules of the order a saloon-keeper or bartender was not eligible to membership. In the application the decedent stated that his occupation was a “can maker.” The evidence is clear that this answer was knowingly and wilfully false, and that at the time of giving this answer and signing the application the applicant was a saloon-keeper, or a bartender in a saloon. In stating his occupation, in his medical examination, there is written “sal.” These letters were crossed out and the words “can maker” written in. A sister of the decedent was at the time secretary of the local
It is too evident for serious thought to the contrary that the examining physician started to give decendent’s true occupation of saloon-keeper; that after writing the first three letters it either dawned upon him or was suggested by the applicant that if that occupation were given he could not be admitted as a member of the order, and so the change was made. It is claimed that the medical examiner was the agent of the supreme lodge. This contention is not sound. He was not appointed examiner by the supreme lodge, but was selected by the local lodge, of which
The language of Barnes, J., in Wilhelm v. Order of Columbian Knights, 149 Wis. 585, 588, is very appropriate to this case: “We have here a case where the agent of the defendant, and the insured and the beneficiary, his wife, entered into a conspiracy to defraud the defendant by securing a policy of insurance by means of false representar tions, a policy which they knew could not be obtained if the truth were disclosed. If we were without precedent for our guidance, we would have little inclination to make the court the fourth member of that conspiracy by assisting in the consummation of the fraud, but we are not. This case comes squarely within the decision in Hanf v. Northwestern Masonic Aid Ass’n, 76 Wis. 450, and it would be superfluous to say anything more about this branch of it.” If we were to substitute the doctor and decedent’s sister for the beneficiary in the case at bar, we
But, it is said that for about ten years after the decedent’s sister ceased to be secretary of the local lodge Krecek regularly paid his assessments, which were received and forwarded to defendant; that during that time there were various secretaries and other officers of the local lodge who did not participate in the fraud, but who knew of the disqualification of the insured, and who received the money from time to time and forwarded it; and that, under numerous decisions of this court, defendant cannot now assert the fraud practiced upon it in gaining admission to membership as a defense to this action. But none of the authorities cited sustains such a contention. They are all cases where, at the time of becoming a member, the applicant was eligible to membership, but by reason of some act of his after gaining admission his right to remain a member became forfeited; as in Modern Woodmen of America v. Colman, 64 Neb. 162, and, on rehearing, 68 Neb. 660; also, Pringle v. Modern Woodmen of America, 76 Neb. 384, and, on rehearing, 388. In those cases it is held that a subordinate lodge of a mutual benefit society and its clerk or secretary, who is designated by the supreme lodge to receive and forward dues and assessments, are agents of the supreme lodge, and that the collection of dues and assessments from a member of the order by
The defendant by its answer concedes the right of the plaintiff to recover the amount of the assessments paid into the society by the decedent during his lifetime. These amounts, together with interest, are all that plaintiff is entitled to recover. The judgment of the district court is therefore reversed and the cause remanded, with directions to ascertain the amounts paid in by the decedent in his lifetime as assessments upon his certificate of membership, and to render judgment therefor in favor of plaintiff, together with interest on the sums so paid, from the dates when such payments were made to the time of the original trial of this action in that court, defendant to recover its costs since the filing of its answer in the court below.
Reversed.
Dissenting Opinion
dissenting.
I cannot concur in the opinion of the majority in this case, because it is not in harmony with the former decisions of this court, and makes the rights of the beneficiaries and policy-holders in these fraternal benevolent associations absolutely uncertain in a most important and vital matter. The majority opinion says: “When the constitution of one of those societies provides in unmistakable terms that a person engaged in a certain business cannot become a member of the society, and that if, after becoming a member, he enters upon such prohibited occupation, the doing so ‘shall ipso facto forfeit all rights as a member of this order,■’ and that his certificate shall thereby become absolutely null , and void without any action on the part of his local or supreme lodge, and that the payment by him of any dues and assessments thereafter shall not have the effect of waiving such forfeiture or reinstating such certificate-holder to any rights, benefits or privileges as a member, the society cannot be made liable by estoppel or waiver, for the reason that he could not be admitted to membership, or permitted to remain a member, by the most solemn affirmative action on the part of either the
In this case, a very few months after Mr. Krecek had been admitted to membership in the local lodge through the fraudulent conduct of the officers of that lodge, those officers who participated in that fraud ceased to hold their official positions, and other members of the lodge who had nothing to do with assisting Krecek to become a member became the officers of the lodge. For the 10 years following, the officers of the lodge were disinterested, and were, so far as this evidence shows, constantly endeavoring to do their duty as such officers. They received the dues from Mr. Krecek regularly and remitted them to the supreme lodge, and so, if we say that the admission of Mr. Krecek into the lodge was in its inception fraudulent, the question is as to the right of the association to receive his clues, recognizing him as a full member of the lodge for 10 successive years, knowing his occupation, and then upon his death refuse further to recognize his beneficiary. During these 10 years he was following the prohibited occupation; Such conduct on his part ipso facto forfeited his rights under his contract. The majority opinion says that he could not be “permitted to remain a member, by the most solemn affirmative action on the part of either the supreme officers or the local lodge of the society.” This is in direct conflict with the holding in Pringle v.
The object is to prevent convicts and saloon-keepers from being members, because the risk is supposed to be greater, and the limitation expressly applies alike to those who are trying to get in and to those who are trying to remain in. A saloon-keeper or convict cannot become a member. If a member becomes a convict or saloon-keeper, his membership “ipso facto” ceases. Our former decisions are that knowledge on the part of the local officers, who receive and forward dues, that the applicant is, or that the member has become, a saloon-keeper or convict is through such local officers notice to the supreme officers, and through the supreme officers notice to all whom they
I am not now attempting to discuss the question whether it would be more reasonable and logical to hold that such forfeitures cannot be waived than to hold that they can be so waived. Undoubtedly substantial reasons can be urged for either position. Until the present case, the theory has been that public policy favored the view that, they can be waived. The constitutions and by-laws of such associations are generally quite formidable documents, and, together with the certificate of membership, contain a multitude of provisions and requirements that are well understood by the promoters of the association and its supreme officers, but not always fully comprehended by those who accept such insurance and pay the dues. The dues paid by the insured benefit all policyholders, and the policy-holders select the supreme officers to represent and act for them. It is conceded that the supreme officers ai’e bound by notice to the local officers who receive and forward the money paid by the certificate holder. The majority opinion says that notice to the local officers is notice to the supreme officers who receive the money from them, and there is some reason to conclude that the general policy-holders, who benefit by the receipt
On the other hand, it may well be suggested that, the association being mutual, and each policy-holder being in a sense a partner with all others, their solemn agreement among themselves that they shall not be liable to contribute to the beneficiary of a convict in the penitentiary or the keeper of a public saloon should be respected, and ought not to be considered waived by receiving and appropriating dues paid by the insured, when their contract expressly provides that the receipt of such dues shall not constitute such waiver.
But there should be certainty in the law, and one position or the other should be adopted and adhered to, so that all parties may know, or be advised, as to their rights. The law, which heretofore was supposed to be definite, is now most unfortunately rendered wholly uncertain.