79 Neb. 20 | Neb. | 1907
This was an action instituted by the plaintiff as widow and beneficiary named in a membership certificate issued by the defendant to one Harry A. Simmons, to recover the sum of $5,000, the amount provided for in the certificate on the death of a member resulting from external, violent and accidental means. The petition alleged in substance, that Harry A. Simmons, deceased, was a member in good standing of the defendant order, and had paid all assessments and dues arising under the constitution and by-laws of the order, and that on the 24th day of June, 1903, he was bitten by a rattlesnake in Live Oak
We shall discuss the allegations of error relied' upon in the brief of the appellant in the order in which counsel have presented them. The first contention urged is that the court erred in submitting to the jury the question of the deceased’s alleged change of occupation, and should have declared as a matter of law that such change had been established by the evidence, and that, consequently, plaintiff’s recovery in any event should be limited to $2,000. It is without dispute that at the time the indemnity certificate was issued the deceased was engaged x as a traveling salesman for a wholesale medicine and drug company in St. Louis, Missouri, and that he resided in that city with his wife and family; that in the fall of 1901 he lost his position with this firm; that in the preceding
The condition of the constitution relied upon is thát, “if any member of the association shall, after becoming such, change his occupation to one classed by the executive board as more hazardous than that stated in his original application for membership, he shall be entitled to such benefits only as may be fixed by the executive board
The next question urged in the brief is as to the action of the trial court in submitting to the jury the question of plaintiff’s compliance with the constitution and by-laws in furnishing final proofs of death; This question was submitted under the doctrine announced by this court in Woodmen Accident Ass’n v. Pratt, 62 Neb. 673, and adhered to in Western T. A. Ass’n v. Holbrook, 65 Neb. 469, and Western T. A. Ass’n v. Tomson, 72 Neb. 674. The instruction complained of told the jury, in substance, that the by-law requiring proof of death to be filed in the office of the association within 30 days from the death of the member is a part of the contract of insurance, but that a strict and literal compliance with such a provision is not in every instance necessary in order to entitle a party to recover, and that, if the jury found from a preponderance of the evidence that the delay in the proof of death was occasioned by circumstances not attributable to the neglect or bad faith of the plaintiff or her attorney, and that the proofs were filed within a reasonable time under all the circumstances surrounding the case, the plaintiff would be excused from not making proof sooner, and would be deemed in law to have complied with the contract of insurance. The principle declared in this instruction is supported by the authorities above cited, so the question to be determined is whether or not the evidence in this case warranted it. The only indorsement on the certificate in the hands of the plaintiff or her attorney with reference to notice of the injury was the following: “No claim under this certificate will be valid unless notice of the injury with respect to' which claim is made is received at the office of the association within 15 days of the date of such injury.” In conformity with this indorsement, plaintiff did, in less than 15 days, furnish defendant with a notice of the injury and all its surroundings, and in
The third and last objection is as to the action of the trial court in the admission of evidence. The first assignment under this head is that the court erred in permitting witness Brown to testify that he had seen the contract which deceased had entered into with the Chicago drug-firm just before his death. The contract complained of related to the employment of the deceased as a traveling salesman. This testimony, however, was elicited in the first instance by the defendant on the cross-examination of the witness, and on re-examination plaintiff was permitted to show that the witness had seen the contract and letter relative to this employment on the day that deceased w'as bitten by the snake. The testimony shows that the letter and contract were burned with the clothing of the deceased after his death. Consequently, .there is no merit in this contention: The next, objection is as to the action of the trial court in admitting in evidence the correspondence between Dr. Simmons and the defendant with reference to the proof of death. These letters were all re
Finding no reversible error in the record Ave recommend that the judgment of the district court be affirmed.
By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is
AFFIRMED.