109 Neb. 199 | Neb. | 1922
This- is an action on a fraternal beneficiary certificate to recover life insurance in the sum of $1,000. The certificate was issued by defendant, a fraternal beneficiary association, to Frederick W. Miller, insured, January 11, 1902, who died August 30, 1920, when his insurance was in force. His wife was named in the certificate as beneficiary and she is plaintiff. The defense iras suicide, but
Defendant invokes a by-law providing that the insurer is liable only for the amount contributed to the benefit fund by a member who commits suicide. This by-law was passed long after defendant issued insured’s certificate. The. insurance1 contract when executed limited the liability of the insurer to one-fifth of the maximum risk in the event of suicide within two years. Insured became a member under an agreement to comply with existing and subsequently enacted by-laws. It is insisted by defendant that the by-law in controversy is a valid enactment binding on the beneficiary. While, there1 is a diversity of judicial opinion in different jurisdictions, this court seems to have expressed the view- that such a by-law is reasonable and valid and that it applies to a preexisting certificate. Lange v. Royal Highlanders, 75 Neb. 188.
The sufficiency of the evidence1 to sustain the judgment is the remaining question. From the standpoint that the by-law is valid, the directing of the verdict in favor of plaintiff necessarily included a finding in her favor on the issue of suicide. Is that finding clearly wrong when considered on appeal? On this issue plaintiff adduced no evidence. The testimony of defendant’s witnesses‘is uncontradicted. Insured at the time of his death was 67 years of age. He had lived at Guide Rock, but had left his wife there and remained away about two years, returning to that village a few months before his death. After his return he lamented the loss of his home. In conversation with neighbors he implied a purpose to take his own .life.
' In the argument of plaintiff on the sufficiency of the evidence to sustain the finding in her favor, reference is made to the instinct of self-preservation; to death by accident or homicide while insured was preparing for a bath; to failure of searchers to find a firearm in the river beneath the bridge; to the inference that the note was written 10 years prior to the death of insured.
Any presumption arising from the instinct of self preservation was overthrown by undisputed evidence of circumstances indicating suicide». There was nothing to prove accidental death or the violence of any person other than insured. The search for a revolver lasted 20 minutes only in a limited area and was made under difficulties in more than three feet of water while the river was rising. It required a protracted search of the river for half a mile to find insured's body. The search for a firearm was insufficient to show that one had not fallen into the river with
The judgment is therefore reversed, Avith directions to the district court to enter a judgment in favor of plaintiff at her costs for the amount contributed by insured to the benefit fund, according to the terms of the certificate, the by-laAvs, and the admission of defendant.
Reversed.