96 Neb. 730 | Neb. | 1914
Annie Yonda on January 24, 1910, applied for insurance in tbe defendant, a fraternal beneficiary insurance asso
The record convinces us that Mrs. Yonda apparently, and so far as she knew, was of “sound body, mind and health and free from disease or injury” on January 24,1910, at the time she was examined. There is no proof that she had ever consulted a physician within seven years for a personal ailment, except that, several years before, a doctor had prescribed for a swollen breast while she was nursing a child, and that in April, 1909, when a doctor had been called to the home for her children he, at the sugges
The second defense depends upon certain provisions which are alleged to be contained in the by-laws of defendant. We find it unnecessary to consider this defense,, for the reason that there is no competent eAddence in the record as to the existence of any such by-laws. The deposition of the supreme recorder of defendant Avas offered in evidence. After testifying that she was the custodian and keeper of the records of the order, and of its by-laws,, and had been such since the 5th of July, 1911, she was asked: “Q. Are you the custodian of the by-laws of the Royal Neighbors of America that were in force during: the year 1910? A. I am. Q. Will you produce the bylaws that were in force throughout the year 1910 up to and including the 18th day of November, 1910, mark same ‘Defendant’s Exhibit A,’ and hand them to the notary noAV taking your deposition, to be attached thereto as a part thereof? A. I will, and herewith hand to the notary, now
At the trial the plaintiff objected to the exhibit purporting to be the by-laws as “incompetent, immaterial and irrelevant, and there is no proper foundation laid for the exhibit, and for the further reason that the said exhibit shows upon its face that it is not what the witness testifies it to be, but that said exhibit shows that it is a purported publication or printed copy of some purported by-laws of the Royal Neighbors of America alleged to have been adopted May 12, 1908, with no certificate of any officer of the organization showing that it is the official by-laws of the organization; that the witness shows that she was not the recorder and keeper of the records of said society during the period of time in controversy in the action herein, but has become such officer since the plaintiff’s cause of action accrued, and no foundation is laid for the offer of the purported by-laws in evidence.” The objection was overruled.
A fraternal beneficiary association is a private corporation, and its organization, books and records must be proved in the same manner as those of other private corporations. As against a general denial of such an allegation in an answer, the best evidence as to the adoption or existence of by-laws by a private corporation is the production of the original record duly authenticated by the testimony of the proper custodian. If it is shown that the books themselves should not, for any good reason, or cannot conveniently, be attached to the bill of exceptions, then a printed copy duly authenticated by the testimony of one who has compared it with the original may be received and attached thereto. The mere production of a printed pamphlet which shows upon its face that it is not the original record, and as to which there is no testimony that it has been compared or examined with the original record, is not sufficient. It is obvious that the pamphlet produced is not an
Defendant relies upon certain language used in the opinion in Supreme Lodge Knights of Pythias v. Robbins, 70 Ark. 364, 67 S. W. 759, in which the printed pamphlet offered was subject to like infirmities. In that case the court said: “This pamphlet is not such a publication as proved itself. Its correctness must be established by evidence, and, instead of so much circumlocution, the witness should have stated that he had compared it with the record of these laws, and that it was a true copy of the same.” This is the correct rule,, and confirms our holding in this case. The court, however, proceeds to indicate in a tentative manner, as follows: “If he had. stated that he was the keeper of these records, and knew their contents,
Defendant insists that this error cannot avail the plaintiff, for the reason that, if the court erred in admitting the by-laws as evidence this of itself would require the reversal of the case, and the cause should be remanded ■for another trial. We do not take this view. The plaintiff' has established his right to recover unless the defendant has proved by competent evidence the existence of certain by-laws. The question now presented to this court is. whether in the conduct of the trial errors occurred which were prejudicial to the substantial rights of defendant. If we find the judgment was warranted by the law and the facts, irrespective of the error committed which gave the defendant the privilege of introducing evidence to which it was not entitled, the judgment should be affirmed. A reviewing court does not sit for the mere purpose of determining whether every rule has been strictly followed, but its proper function is to protect the substantial rights of the parties to the suit. Moreover, a party cannot complain of errors made which are to his advantage.
Complaint is made of instructions given by the court. Those bearing upon the first defense are in conformity with the rule in Royal Neighbors of America v. Wallace, 66 Neb. 543, 73 Neb. 409, and Modern Woodmen of America v.
Finding no error in the record prejudicial to defendant, .the judgment of the district court is
Affirmed.