88 Neb. 399 | Neb. | 1911
From a judgment in plaintiff’s favor for the death by accident of her husband, defendant appeals.
A concise statement of the accident is given in Western Travelers Accident Ass’n v. Tomson, 72 Neb. 661. A sufficient statement of the issues will appear in the discussion of the different assignments hereinafter considered.
We find at the very threshold of the case an objection to the jurisdiction of the court. Two reasons are assigned in support of this objection: (a) That no summons was ever served upon defendant, or upon any authorized agent of defendant; (b) that defendant was not at the time of the service of the summons, and in fact has never been, engaged in business in Nebraska. It appears that summons was served upon one Charles E. Latshaw, who was a Nebraska member of the defendant association, and who at the request of the defendant had solicited business for it, in one instance taking the application, collecting the admission fee and transmitting the application and fee to defendant company at its office in Des Moines, upon which application a certificate of membership was issued. The secretary of defendant testified: “Q. What is your process of getting new members in Nebraska? A. Our process of getting new members in Nebraska is by correspondence, requesting our membership to send us new members. Q. That is, in your notice of assessment? A. In our assess
In the affidavit of Mr. Latshaw, introduced upon the hearing of the motion to quasli the service and return of summons, he testified that with each notice of assessment he received from defendant a blank application for membership and a request, from the home office that he obtain new members in said company; that this has been the invariable rule of the company since lie has been a member; that he has known of a great many new members being obtained by old members through this method; that between the 20th of March and the 20th of April, 1904, lie received from the company such a blank application and request, and acting thereon he solicited one Louis Klein to become a member of defendant company; that he took the blank which had been sent him, filled it out, and obtained Mr. Klein’s signature thereto; that Mr. Klein gave him an order upon his employer for the $4 membership fee; that he took the order to Mr. Klein’s employer, who gave him a check for the amount; that he collected the amount of the check, remitted the amount, together with application, to defendant at Bes Moines, and that defendant issued to Mr. Klein a certificate of membership on that application. We think this constituted Mr. Latshaw an agent of defendant upon whom service of summons could be made. The fact that he received no compensation from defendant for soliciting business for it is immaterial. In Taylor v. Illinois Commercial Men’s Ass’n, 84 Neb. 799, we sustained a service of summons under very similar conditions. See, also, State v. Northwestern Endowment & Legacy Ass’n, 62 Wis. 174; State v. United States Mutual Accident Ass’n, 67 Wis. 624; and Sadler v. Mobile Life Ins. Co., 60 Miss. 391, in which the Mississippi court say that “an insurance company is not bound * * * by acts of a volunteer, Avliom it disoAvns, and whose services it declines, but is bound if it accepts the
The second contention of defendant, that the company was not doing business in Nebraska, is equally untenable. Among the exhibits introduced in evidence upon the hearing of the objection to jurisdiction were the 23d and 24th annual reports of defendant company. The former shows that during the year from December 6, 1902, to December 5,1903, the defendant paid accident claims to 50 Nebraska certificate holders, and the latter shows that for the next year it paid accident claims to an additional 50 residents of Nebraska. If the company were doing so fortunate a business that the assessments upon each member amounted to only $9 a year, as stated in their numerous circulars introduced in evidence, and they paid 100 accident claims in two years, it is quite apparent that it must have a large membership in this state; for it is a matter of common knowledge that only a small percentage of persons carrying accident insurance are ever so unfortunate as to be called upon to present claims against the companies in which they are insured.- In the light of this record, we think it is a juggling of terms to claim that the company is not doing business in Nebraska, simply
It is next insisted that no facts are averred in the petition of a contract upon the part of the defendant to pay plaintiff $5,000, or any other sum, on account of death. The petition is not as full and explicit as it might or probably should have been. Had it been assailed by motion or demurrer, plaintiff would doubtless have been compelled to supply the defects, and, as the judgment must be reversed upon another point and the case remanded for further proceedings, they doubtless will be supplied.
It is next objected that plaintiff, as administratrix, is not the real party in interest; that the agreement of the company was to pay in case of accidental death to the beneficiary named in the application, if any, and, if none, then to the heirs of the member. The certificate of membership, which was the only document in plaintiff’s possession at the time of the commencement of the action, did not disclose the beneficiary. The application, which she had never seen, was in the custody of defendant. The heirs of Mr. Tomson at the time of his decease were plaintiff herself and a son. It appears from the application of Mr. Tomson that plaintiff was named therein as beneficiary, and it is argued that for that reason she could only maintain an action in her individual name. If she had not been named in the application as beneficiary, then the certificate would have been payable to the heirs of the deceased, which in this case would have been the son. By
It is next objected that the court erred in permitting plaintiff to offer segregated portions of defendant’s bylaws and refusing to permit defendant to introduce the other portions. When plaintiff attempted to introduce segregated portions of a single section of the by-laws — section 2 of article 6 — by putting them together, with the intervening words omitted, the court very properly sustained defendant’s objection thereto. No attempt was made to otherwise prove the fact sought to be established by the evidence thus offered and excluded. Tins left plaintiff without evidence to establish a material ae in the case — the amount payable under the certificate or policy in suit. It follows that the verdict must fail for want of sufficient evidence to support it. In refusing to
It is next contended that plaintiff cannot recover by reason of a failure to give notice within 15 days after the happening of .the accident or the death of the assured. The reply alleges and the proof shows that on and after February 22, 1902, which was four days after the happening of the alleged accident, the deceased was totally disabled, mentally and physically, was helpless and nearly blind and confined to his bed, and was not in a condition to notify defendant of the accident; but in about two months thereafter the wife of the deceased wrote to defendant in relation to the matter. By this letter defendant was clearly apprised of the fact that the deceased was claiming a liability against it by reason of the alleged accident of February 18. In the twenty-fourth annual report of the defendant hereinbefore referred to, we find, in
It is next contended that plaintiff is barred by the statute of limitations for the reason that her amended petition, upon which the case went to trial, was not filed until May 8, 1909, which was more than five years after the death of said Hays B. Tomson. In the trial of the case counsel for defendant offered in evidence, as exhibit 0, the original petition filed in this case, for the purpose, as stated by him, of showing “that the cause of action in exhibit O was an entirely separate and distinct cause of action, a claim for total disability, and not for death. We offer it in evidence in support of the plea of the statute of limitations interposed in this case.” The original petition thus offered is essentially an exact copy of the amended petition upon which the trial was had. It sets out the appointment of plaintiff as administratrix, the incorporation of defendant, the certificate in full, the payment of premiums upon the certificate, the accident of February 18, 1902, the death of Hays B. Tomson in Sep-' tember, 1903, and adds: “Plaintiff further alleges that tlie said deceased was on the said 18th and 22d day of February, 1902, permanently and totally disabled by said accident, and never recovered therefrom and died from the effects thereof, and at the date of said accident there were more than 16,000 members of said association which, under an assessment under the by-laws of said association of an amount exceeding less than $2 per member at the date of said accident, would amount to the sum of $2,500. Wherefore plaintiff prays judgment against the defendant for $2,500, together with interest thereon at the rate of 7 per cent, per annum from the 18th day of February, 1902, and costs of this action.” We think the amended petition does not state a new or separate and distinct cause of ac
Finally, it is objected that the verdict is not sustained by the evidence. A recovery in favor of this same plaintiff against the Western Travelers Accident Association (72 Neb. 661), for the same accident upon which she seeks recovery in this case, was sustained by this court. The evidence as to the accident will be found fully reviewed in that case and it would serve no good purpose to repeat it here. We are satisfied with the conclusion there reached, and, if the amount payable under the certificate had been shown in this case, the evidence would have been sufficient to take the case to the jury.
In the light of the conclusion we have reached, it will not be necessary to consider the alleged errors in giving and refusing instructions. The trial court in charging the jury proceeded upon the theory that the evidence before them was sufficient to sustain a verdict either way. That theory being found to be wrong, it is needless to say that the court erred in its instructions given and refused upon such theory.
For the failure of proof upon a material issue, as above noted, the judgment of the district court is reversed and the cause remanded for further proceedings in harmony with this opinion.
Reversed.