100 Neb. 820 | Neb. | 1917
This action was begun by plaintiff against defendant, Walter Berry, guardian, in tbe district court for Seward
At the close of the testimony both parties moved for a directed verdict. Plaintiff’s motion was overruled. Defendant’s motion was sustained. For the purpose of review, the action is thus brought within the rule which provides that, where at the close of a trial in a law action both parties move for a directed verdict, and the motion of either party is sustained, the findings of the court in such case upon questions of fact have the same force and effect that the verdict of a jury would have on like questions, and will be so regarded upon appeal to this court. Dorsey v. Wellman, 85 Neb. 262; Martin v. Harvey, 89 Neb. 173; Krecek v. Supreme Lodge, F. U. A., 95 Neb. 428. The pertinent facts upon which plaintiff relies for reversal appear in the discussion following.
Zack Berry, the insured, became a member "of the plaintiff society in February, 1899, while engaged in the occu
Zack Berry’s application for membership, the by-laws of the society, and the beneficiary certificate or policy that was issued to him, together form the contract that is the basis of this suit. The application that is in evidence, among other things, provides that the applicant will conform to the by-laws then in existence oh that
Section 5 of the beneficiary certificate in evidence provides: “If the member holding this certificate shall be expelled from this society or become intemperate in the use of alcoholic drinks, or in the use of drugs, or if he shall be or become engaged in the manufacture or sale of malt, spirituous, or vinous liquors as a beverage, in the capacity of proprietor, stockholder, agent, or servant, * * * then this certificate shall be null and void, and of no effect, and all moneys which have been paid, and all rights and benefits which may have accrued on account of this certificate, shall be absolutely forfeited, and this certificate become null and void.”
The insured was regularly employed as a saloon bartender by Louis Hartwig, beginning in the fall of 1911, and his employment continued until the spring of 1913. And it is clearly in evidence that after he quit work in that capacity he was frequently at the saloon, sometimes as a patron, and when occasion presented sold intoxicants for his former employer over the bar, but he received no compensation for such services as he rendered in the saloon after he quit Mr. Hartwig’s regular employ in the spring of 1913. Plaintiff argues that the fact of the insured having engaged in the prohibited occupation of a saloon bartender either for pay or gratuitously, after he became a member of the society, made his contract of insurance void.
In view of the decisions of this court and those of sister jurisdictions, the contention of plaintiff cannot be sustained. No other decision than that rendered by the trial court would have been right, in view of the record before us and of the authorities herein cited. Plainly
We adhere to the rule announced in Modern Woodmen of America v. Colman, 68 Neb. 660: “A forfeiture incurred by the holder of a life insurance policy or contract is waived, if the company, with knowledge of the facts, subsequently collects premiums, dues or assessments on account of the contract, and retains them without objection until after the death of the insured.
“It is the duty of an agent to malee known to his principal all facts concerning the service in which he is engaged that come to his knowledge in course of his employment, and this duty he is, in a subsequent action between his principal and a third person, conclusively presumed to have performed. This is the foundation of the rule, necessary to the public safety, that notice to an agent in the course of his employment is notice to his principal.”
The following cases in this and other jurisdictions seem fairly to support the rule invoked by defendant:
Stevens v. Modern Woodmen of America, 127 Wis. 606, construes- a by-law having substantially the same prohibitive provision with respect to a saloon bartender that is involved herein. It is there -held that one who occasionally waited on customers in a combination restaurant and saloon and sometimes sold intoxicants as an accommodation to his employer, but without any compensation for the services so rendered in the saloon, is not a saloon bartender, even though his regular duties in and about the saloon were those of a choré boy.
Plaintiff cites Krecek v. Supreme Lodge, F. U. A., 95 Neb. 428: The Krecek case is scarcely applicable to the case at bar for the reason that it therein appears that, “When the applicant for membership conspires with the secretary and others of the subordinate lodge to deceive the company and to withhold from it knowledge of facts disqualifying the applicant for membership, the presumption of knowledge of such facts on the part of the company is overcome.” In the Krecek case the membership certificate of the applicant had been procured by the fraud of Krecek and the secretary of the local lodge who conspired together to deceive the lodge, and
There is some conflict in the testimony, but the facts in dispute were passed on by the trial court, and there being sufficient testimony to support the judgment it will therefore not be disturbed. The judgment of the district court is right, and is
Affirmed.