Ogden v. Camp

111 N.W. 797, 78 Neb. 804, 1907 Neb. LEXIS 243

• Court: Nebraska Supreme Court
• Decided: April 18, 1907
• Docket: No. 15,008
• Status: Published

Opinions

Jackson, C.

Tbe plaintiff bad judgment for tbe amount of a beneficiary certificate covering tbe life of her deceased bus-band. Tbe society, a fraternal beneficiary association, defended on tbe ground that at tbe time of tbe death of the assured be was not in good standing, having been suspended for nonpayment of assessments. It appears without dispute that in 1902 the deceased had been suspended, but was reinstated under the laws of tbe association upon a certificate of good health and payment of certain assessments and dues. Tbe controversy over the good standing of tbe assured arises over a dispute as to whether tbe reinstatement occurred in tbe month of December or in November, 1902. If be was in fact reinstated in the month of December, then, by a proper application of the amount paid by him at that time, and subsequent payments, he Avas in good standing at the time of his death. If the reinstatement occurred in the month of November he Avas in arrears, and the beneficiary could not recover. The payment made by the deceased at the time of his reinstatement Avas credited on the books of the local camp on the 25th day of November. The clerk of the camp identified a statement of the amount required of the insured to secure his reinstatement, Avhich he says was given to the insured by his authority. It is headed “December, 1902. Reminder to pay within the month, Sovereign Jurisdiction, Woodmen of the World. Assessment No. 147. To Chas. Ogden: Yon are hereby reminded that there is due on the first day of December, 1902, and payable to the clerk of your camp, assessment No. 147, emergency fund, dues and Sovereign Camp and camp dues, as stated below, which must be paid on or before January 1, 1908.” He testified that the reminder was on a regular form provided by the Sovereign Camp, and was sent out on the 1st of the month, or soon after the 1st of the month, during which payment would be required, and that the reminder Avas probably sent after December 1. The contention of the society that the payment and reinstatement occurred in November is supported by the health certificate dated November 25. The defendant undertook to supplement this evidence by an offer to prove by the assistant in the camp clerk’s office that in the month of January, 1904, a few days prior to the death of the insured, he called at his office and advised him that he had become suspended on the 1st of January for the nonpayment of the December assessment, and informed him of the amount necessary for him to pay to reinstate; that the insured told him at thaj time he did not have the money to make the. payment, and thought possibly he would drop the insurance. This offer, on objection, was denied by the trial court, and is assigned as error on appeal.

In the rejection of this evidence we think the court erred. We do not overlook the rule that in ordinary life insurance, where a vested interest passes to the beneficiary and the assured ceases to be a party in interest, it is generally held that the admissions or statements of the assured are not admissible as against the beneficiary; but where, as in this case, the contract is between the society and a member, and where the naming of the beneficiary is always under the control of the assured up to the time of his death, a contrary rule prevails. Van Frank v. United States M. B. Ass’n, 158 Ill. 560; Hansen v. Supreme Lodge, 140 Ill. 301; Life Association v. Winn, 96 Tenn. 224. The facts which the defendant sought to prove were important as tending to show the understanding of the deceased as to his standing in the order.

1. Trial: Question for Jury. Where the facts are disputed, it is solely the province of the jury to determine the same; and, whether the facts be disputed or undisputed, if different minds might honestly draw different conclusions from them, the case is properly left to the jury. 2. Evidence: Statements: Relevancy. A statement made by a party or his privy, suggesting any inference as to any fact in issue, or relevant fact unfavorable to the conclusion contended for by such party, is relevant, and should be permitted to go to the jury. '3. -: Cumulative Evidence. Testimony tending to establish a relevant fact may not be excluded as cumulative because similar, but independent, facts are already in evidence.

For the error of the trial court in rejecting the evidence offered, it is recommended that the judgment be reversed and the cause remanded for further proceedings.

Duffie and Albert, CC., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed.