84 Neb. 666 | Neb. | 1909
Defendant is a fraternal beneficiary association, and this is a suit to recover the amount due on a certificate issued by it to Charles Ogden. Plaintiff was Ogden’s wife and was designated by him as beneficiary. The certificate was issued May 9, 1899, and Ogden died January 25, 1904. Under the laws of the association delinquency in the payment of an assessment suspended membership and forfeited assured’s beneficial interests. In the court below defendant denied liability on the ground that Ogden did not pay his assessment for December, 1903. The trial court was of the opinion there was no evidence for the consideration of the jury in disproof of the defense stated, and directed a verdict in favor of defendant. From a judgment of dismissal plaintiff appeals. The facts relating to this litigation are more fully detailed in three
Plaintiff frankly admits that Ogden, during the month of December, 1903, did not pay his assessment for that month. She insists, however, that he was in arrears during the previous year; that in reinstating himself in the association in December, 1902, he made a payment of $12.50, which included among other items five assessments; that under the laws of the association only four of the assessments were appropriated by it at that time, and that the fifth assessment remained a continuing credit in his favor and should be applied to the assessment for December, 1903, since all intervening assessments were paid. It is argued that forfeiture was thus averted. The merit of this contention on the part of plaintiff depends on the date of Ogden’s reinstatement in 1902. Plaintiff says it occurred in December, and defendant’s proof shows the disputed date was November 25, 1902. If plaintiff is correct in her position, Ogden had the amount of one assessment to his credit at the time of his alleged delinquency in December, 1903; but, if he paid his arrearages during November, he was not entitled to the credit claimed by plaintiff. The record shows that in November, 1902, Ogden was in arrears for the July, August, September and October assessments. Under a law of the association “four monthly payments of assessments” were essential to his reinstatement, and of these three were to be sent to the sovereign clerk and the fourth placed to Ogden’s credit as an advance payment for the “current month.” He paid his assessments from January, 1903, to November, 1903. It is therefore clear that if he was reinstated in the “current month” of November, 1902, by making five payments November 25, which aggregated $12.50, and the association was required to credit his fourth payment to the assessment for that month, the five payments must necessarily have been applied as follows: First payment to August assessment; second to September; third to
In reviewing a former record containing the reminder described, this court referred to an inconsistency between its date and the dates in the books kept by the clerk of the camp, observed there was no attempt to explain the discrepancy, and held that the question as to the date of payment was properly submitted to the jury for determination. Ogden v. Sovereign Camp. W. O. W., 78 Neb. 804, 806. In the record now presented defendant explained the discrepancy in dates by uncontradicted evidence. E. R. Stiles, an auditor in the sovereign clerk’s office, testified, in sdbstance, that he prepared the reminder November 25, 1902, at the request of Philip Miller, an officer who solicited members; that he used a blank which had been printed for distribution among local camps before the end of November and dated December 1, 1902, and that he wrote on the instrument the name of John N.
The witness Miller further testified that he received from Ogden at the time $12.50, immediately paid the physician $1, and the same day turned over to Crawford, camp clerk, the remainder of $11.50. Crawford testified Miller handed him that amount November 25, and told him it was from Ogden; that he entered the payment on his books, and made a remittance to the sovereign camp; that he received the physician’s certificate from Miller November 25, and filed it with the sovereign clerk; that he filled out and signed the certificate following that of the physician, and filed the document with the sovereign clerk; that he remembered Ogden was reinstated at the time, though he,'could find no record of his reinstatement in the records of the meetings of the camp. A page of the clerk’s cash book was introduced in evidence, and shows payment of $11.50, November 26, on account of the five assessments for August, September, October, November and December. In addition, R. L. Forgan, an assistant clerk charged with the duty of making collections from delinquent members, testified in effect that in January, 1904, he had a conversation with Ogden respecting the payment of the assessments for December, 1903, and January, 1904, and told him, in substance, that he was under suspension for nonpayment of the December assessment, and suggested payment for the months of December and January, and that Ogden expressed a purpose to drop out of the order and said he did not wish to be reinstated.
The oral and documentary evidence adduced by defendant at the last trial of this case in the district court destroyed the probative force of plaintiff’s reminder as evidence that Ogden paid five assessments in December, 1902, and that he was reinstated. during that month. On that issue the document introduced by plaintiff, when explained and disproved by other evidence, was insufficient to sustain a judgment in her favor, and the trial court
Affirmed.