91 Neb. 106 | Neb. | 1912
Tins is an action to recover f1,000 on a fraternal beneficiary certificate issued by defendant to Charles S. Quick, May 20, 1908. Assured died November 14, 1908. Plaintiffs are named in the certificate as beneficiaries. Prom a judgment in their favor defendant has appealed.
It was pleaded as a defense that assured’s application for membership and the by-laws of the fraternity were parts of the insurance contract; that assured in his application stated he was. a painter, and paid assessments at the agreed rate for that occupation; that lie afterward entered the hazardous occupation of locomotive fireman without paying the increase for the extra, hazard, and without complying with sections 16 and 17 of the by-laws which required him to procure from defendant a certificate covering the new risk; that he was killed while engaged in the performance of the duties of his new employment, and that on the facts stated defendant was, by contractual terms fully pleaded, not liable for the payment
Plaintiffs, in attempting to prove that sections 16 and 17 of the by-laws, which, if binding on assured, released defendant from the increased hazard of the changed occupation of locomotive fireman, if he engaged therein without paying the increased rate and without procuring a certificate covering the new risk, offered in evidence the following entries from the record of a meeting of the head camp, or defendant’s legislative body, which convened in June, 1908, the action having been taken in considering the report of the law committee: “Reading Clerk: Section 16, beginning on page 17, is stricken out. There is a new section 16, or almost new, substituted for it. The question is now upon the adoption of section 16 as amended. All those in favor of the adoption of this section will vote aye, those opposed, no, and the section is
It is contended by plaintiffs that sections 16 and 17 were repealed before assured was killed, and that therefore his beneficiaries did not lose their insurance, even if there was a violation of those by-laws. Plaintiffs’ failure to prove that the original provisions relating to the increased hazard did not remain in the new enactments is a sufficient answer to this argument. The by-laws pleaded and proved by defendant were parts of the original contract' of insurance and were made so by the terms of the contract itself. Having alleged in the reply that section 16 had been repealed and that the contract liad been thus changed, the burden was on plaintiffs to prove facts showing that the original provisions relating to the hazardous occupation of locomotive firemen were not carried into the amendments. The simultaneous repeal and re-enactment of parts of a law, in terms or in substance, preserve without interruption the re-enacted provisions. State v. McColl, 9 Neb. 203; State v. Bemis, 45 Neb. 724; Stenberg v. State, 50 Neb. 127. Within the meaning of this rule, that part of the proceedings of the head camp introduced in evidence does not show that the provisions relating to the hazardous occupation of locomotive fireman were not continued without interruption in the amendments of sections 16 and 17. There is no other proof to show that those sections were unconditionally repealed in a form which eliminated the provisions relied upon by defendant. The amendments of 1908, however, are in the record, and it is unnecessary to determine whether they should be considered; but, if it were proper to resort to them to see what was in fact done by the head camp, they would show that the changes did not eliminate the provisions pleaded by defendant as a defense.
To make available to defendant the terms of its contract, as shown by the pleading and proof already outlined, the foregoing instruction, or one of similar import, was necessary. The failure to give it was prejudicial error for which the judgment in favor of plaintiffs must be reversed.
Other errors of which complaint is made will not likely recur in the further proceedings, in view of the discussion of the principal assignment, and will not be con
Reversed and remanded.