78 Neb. 804 | Neb. | 1907
Lead Opinion
Tbe plaintiff bad judgment for tbe amount of a beneficiary certificate covering tbe life of her deceased bus-band. Tbe society, a fraternal beneficiary association, defended on tbe ground that at tbe time of tbe death of the assured be was not in good standing, having been suspended for nonpayment of assessments. It appears without dispute that in 1902 the deceased had been suspended, but was reinstated under the laws of tbe association upon a certificate of good health and payment of certain assessments and dues. Tbe controversy over the good standing of tbe assured arises over a dispute as to whether tbe reinstatement occurred in tbe month of December or in November, 1902. If be was in fact rein
In the rejection of this evidence we think the court
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed.
Rehearing
The following opinion on rehearing was filed October 16, 1907. Former judgment of reversal adhered to:
The former opinion in this case is reported ante, p. 804. It contains a sufficient statement of the facts, and will he referred to without recapitulating them here. The former decision reversed the judgment of the district court for error in excluding testimony offered as to the admission made by the assured shortly before his death. A rehearing having been ordered, the case has again been argued and submitted. Upon the rehearing the defendant very earnestly renews its contention- that the trial court erred in refusing to direct a verdict for the defendant upon the ground that the evidence received at the trial was such that the court should have determined as a matter of law that the assured was suspended for the nonpayment of the December assessment at the time of his death, and consequently that no recovery could be had upon the certificate in suit, and complains that this question was not discussed nor determined in the original opinion. . The plaintiff now concedes the correctness .of the opinion in so far as it determines that admissions which would he relevant against the personal representative of the assured are admissible against the beneficiary, where the naming of the beneficiary is under the control of the assured up to the time of his death, but contends that the testimony offered by the defendant, and excluded upon the plaintiff’s objection, does not suggest any inference as to any fact in issue inconsistent with the claim of the plaintiff.
1. Where the facts are disputed, it is solely the province of the jury to determine the same: And whether the facts be disputed or undisputed, if different minds might honestly draw different conclusions from them, the case is • properly left to the jury. Atchison & N. R. Co. v. Bailey, 11 Neb. 332; Rosewater v. Hoffman, 24 Neb. 222; Habig
2. Whether the court erred in the rejection of the offer to prove the admission of the assured, made a few days before his death, was at the first hearing argued, and by the court determined, as a question of whether the admis
3. The plaintiff argues that the payment of the assessments made by the assured after his reinstatement in 1902, and prior to the December, 1903, assessment, was proof that he did not know or understand that he had the, amount of this one assessment to his credit, and that the evidence offered was therefore cumulative, and its rejection not reversible error. We do not understand this evidence to have been cumulative within the meaning of the rule which permits a trial judge to limit the intro duction of such testimony. If the fact offered had already been testified to by other witnesses, then the testimony offered would have been cumulative, and the. court might, in the exercise of its discretion to limit the number of witnesses, have excluded the evidence upon that ground. We do not understand the rule to be that evidence of a relevant fact can be excluded upon the ground that other
We therefore recommend that the former judgment of this court be adhered to, the judgment of the district court reversed, and the cause remanded for further proceedings.
By the Court: For the reasons stated in the foregoing opinion, the former judgment of this court is adhered to, the judgment of the district'court reversed, and the cause remanded for further proceedings.
Reversed.