62 Neb. 89 | Neb. | 1901
This action was brought upon two benefit certificates issued to William A. Lane, husband of the plaintiff. Upon trial to the court, a jury being waived, the plaintiff, as beneficiary, recovered upon the certificate set up in her second cause of action, and judgment was rendered for the defendant upon the other. The cause is here on error to review the judgment for the plaintiff upon the second cause of action.
The trial court made very full and clear findings of fact and conclusions of law, and we have been furnished with unusually careful and elaborate briefs in which a number of points arising thereon are exhaustively discussed. But we find ourselves unable to review a great number of questions suggested, by reason of failure to assign them specifically in the petition in error. There are eight separate findings of fact .and three of law, and we are asked to review each of the latter specifically, upon an assignment in the petition in error that “the judgment is contrary to law and is not sustained by sufficient evidence.” As we shall show presently, the findings of fact are sustained by the evidence. But we need not pass upon the effect of the joint assignment of error under such circumstances for the reason that, even if the assignment that the judgment is contrary to law stood alone, it would not suffice to call for a specific
Another assignment of error, however, properly challenges the sufficiency of the evidence upon the 7th finding of fact, which is also complained of in the brief. In that finding, the court finds that after the certificate recovered upon was issued no dues or assessments became payable or were levied; that prior to such time, Lane had been in arrears for dues, but that the defendant Avitli notice and knowledge of that fact accepted a surrender of the prior certificate, and accepted and retained a fee for issuing, and issued the certificate in question. Several objections are made to this finding. It is said, first, that the clerk of the local camp, who received the money and sent it in witli the old certificate for cancellation and the application for the new one, while he knew that the
The defendant contends that the objections just con-sidered are tenable because there would be no waiver by reason of the acts of the local and head clerks in the absence of further facts and circumstances sufficient to create an estoppel, or unless they intended by what they did to waive the requirements and conditions in' question. • We can not agree to either proposition. * It is well settled in this state that estoppel is not the basis of the rules of law as to waiver of forfeitures. Home Fire Ins. Co. v. Kuhlman, 58 Nebr., 488. In that case Sullivan, J., says: “The contention that a waiver must have the elements of an estoppel in cases of this kind cannot be sustained. ‘It is,’ says Sutherland, J., in People v. Manhattan Co., 9 Wend. [N. Y.], 351, ‘a technical doctrine introduced and applied by courts for the purpose of defeating forfeitures.’ In Titus v. Glens Falls Ins. Co., 81 N. Y., 410, it was held that an effective waiver need not be based on either a new agreement or an estoppel. Substantially the same holding was made-in Hollis v. State Ins. Co., 65 Ia., 454; and such is now the settled doctrine of this court.” * A benevolent association which issues benefit certificates to its members payable from a fund maintained by assessments upon the certificate holders is in effect a mutual life insurance company, and is governed by the general rules of law applicable to such companies. Supreme Lodge Knights of Honor v. Davis, 26 Colo., 252, 58 Pac. Rep., 595. ’As to life insurance companies, the principle that waiver is not a matter of new agreement or estoppel, but is a legal consequence flowing from recognition of continued validity of the policy after facts amounting to forfeitures, is well settled. Mee v. Bankers Life Ass’n, 69 Minn., 210, 72 N. W. Rep., 74. ’Asa consequence, it would seem clear that so long as the officers of defendant knew the facts and knew what they were doing, an undisclosed intention to rely upon a forfeiture which their acts ig
For the foregoing reasons, we think the defendant can not insist that Lane was not in good standing when the change of beneficiary was made. Nor do we think that it may now urge that at the time it accepted his money and made the change Lane was not in good health. It is true that Lane was sick at the time and died shortly after the new certificate issued. But his condition was well known to the clerk of the local camp who took the money, canceled the old certificate and sent for the new (me, and the head clerk, whose records showed that Lane was under suspension and could not make such change without a physician’s certificate of good health, made no objection and issued the new certificate.' The knowledge of the local clerk was probably chargeable to the defendant (Order of Foresters v. Schweitzer, 171 Ill., 325, 19 N. E. Rep., 506), but the records of the head clerk’s office disclosed enough so that we need not pass upon that question. The acts of the two clerks taken together certainly waived all requirements as to good health or proof thereof at the time the change was made.* Supreme Lodge Knights of Honor v. Davis, supra; Order of Foresters
It is recommended that the judgment be affirmed.
Por the reasons stated in the foregoing opinion the judgment of the district court is
Affirmed.