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PATERSON, J.-Julia King died in the city and county of San Francisco on the 8th of April, 1883. The defendant Roach, public administrator, obtained letters of administration on her estate.
The deceased left some money deposited in the Hibernia Savings Bank in her own name; the amount dors
The plaintiff claims that at least a thousand dollars of this money belongs to him. On the 18th of May, 1883, he presented his claim in due form, and duly verified, to the defendant, as administrator, for allowance; but the defendant refused to allow the same, or any part thereof.
At the trial plaintiff expected to be a witness, and was called by his counsel to testify to the material facts going to establish his claim. Under the provision of section 1880 of the Code of Civil Procedure, his proposed testiinony was rejected. This ruling of the court is not assigned in the statement as error, and cannot be considered.
Appellant now claims that, “having relied on his right to testify in the cause, he made no provision to sustain his case by other evidence. The fault, he claims, was that of his attorney, in not advising him of the statute prohibiting him from testifying; and he did not know of this prohibition till too late to find other testimony. The attorney believed that in such a cause of action he could testify. Haying been denied this privilege, he was thrown, as it were, hors de combat, and the newly discovered evidence entitled the plaintiff to a new trial.”
The discovery which plaintiff and his counsel made seems to have been one of law rather than one of factor evidence.
It is sufficient to say, furthermore, that there is nothing in the record to identify any affidavits used on motion for a new trial.
The findings of the court attacked by the appellant are fully warranted by the evidence. Assuming it to be true,
as stated by appellant, that "the evidence shows that the defendant's intestate received from the plaintiff, or for his use, or on his account, at least $250, and which sum the decedent deposited in her own name in the Hibernia Savirgs Society, there is nothing to show when such deposit was made, or at least nothing to show how much, if any portion of the money which was deposited, remained in the bank at the time of her death. It devolved upon the plaintiff to prove to the satisfaction of the court, not only that money had been deposited in her name, which belonged to him, but that it remained on deposit, and how much remained on deposit. This he failed to do, evidently through mistake of law respecting his right to testify in the case. It was not error to exclude the bank book offered in evidence. This book, if adınitted, would have shown simply that the deceased had deposited money at some time in her own name. This proposition was not controverted, --in fact, was not denied in the answer. There is no direct proof that any money of the plaintiff was ever deposited in the name of Julia King, but the fact, if it be a fact, that Julia King deposited in her own name, and mingled with her own money, the money of plaintiff, several years or months, or even several weeks, before her death, raises no presumption that the money on deposit, or any part of it, at the time of her death, is the money of the plaintiff. At least, the court below was not bound to infer or presume one fact from the existence of the other. The court was not satisfied. “That evidence is deemed satisfactory which ordinarily produces moral certainty or conviction in an unprejudiced mind. Such evi. dence alone will justify a verdict.” (Code Civ. Proc., sec. 1835.)
Judgment and order affirmed.
SKARIS, C. J., and McKINSTRY, J., concurred.
(No. 9999. Department One.—May 7, 1888.) CATHARINE HOGINS, APPELLANT, SUPREME
COUNCIL OF THE CHAMPIONS OF THE RED CROSS, RESPONDENT.
LIFE INSURANCE-TEMPERANCE ASSOCIATION--FORFEITURE OF POLICY BY
INTEMPERANCE.—A certificate of life insurance issued by a beneficial temperance association upon the life of a member, on the express condition that the insured, while a member of the association, should in every particular comply with the laws, rules, and requirements of the association, becomes forfeited if the insured, after its Issuance, uses liquors as a beverage, in violation of a requirement of
the association. 10.-SUSPENSION OB EXPULSION NOT NECESSARY TO FOBFEITURE.—The
fact that a by-law of the association made a breach of such requirement punishable by suspension or expulsion does not render suspension or expulsion necessary in order to work a forfeiture of the policy.
APPEAL from a judgment of the Superior Court of the city and county of San Francisco.
The facts are stated in the opinion of the court.
To forfeit the policy, there must have been a legal suspension, upon due notice. (Knights of Honor v. Johnson, 78 Ind. 111; Supreme Lodge Knights of Pythias v. Schmidt, 14 Ins. Law J. 127; Carlson v. Mutual Ben. Ass'n, 5 West Coast Rep. 459.)
The declarations in the policy forbidding the doing of an act without affixing the penalty of forfeiture, do not avoid the policy in case of breach. (Marcus v. St. Louis M. L. 1. Co., 4 Ins. Law J. 186; Sanford v. California F. M. F. 1. Ass'n, 63 Cal. 549.)
Arthur Rodgers, for Respondent.
PATERSON, J.-This is an action to recover from the defendant the amount of one thousand dollars on a beneficiary certificate issued by the Grand Encampment of the Champions of the Red Cross of California, upon the life of appellant's husband. The defense is breach of the conditions of the contract of insurance. Judgment
was rendered in the court below in favor of the defendant.
The Champions of the Red Cross is a temperance order, or fraternity. The order originally consisted in this state of a supreme council, a grand encampment, and subordinate encampments. The insurance system was under the supervision of the grand encampment, which issued the certificates. On October 20, 1881, the grand encampment went out of existence, and defendants assumed payment of all policies then in force. The system of insurance is called the mutual life benefit system, and every full member who had taken the three degrees of a subordinate encampment, and had complied in every particular with all the laws, rules, and requirements of the order, was entitled to participate in this insurance from one thousand dollars upward, according to the number of members.
On September 26, 1879, Daniel Hogins, a member in good standing of Castle Encampinent No. 68, San Francisco, made application in writing for a certificate payable at his death to his wife, appellant herein, and said certificate was regularly issued on October 2, 1879, and after having been regularly countersigned as required by the laws of the order, was, on October 10, 1879, delivered to him, and by him thereupon delivered to appellant. The court found that “on July 9, 1883, the said Daniel Hogins commenced drinking spirituous liquors as a beverage, and did thereafter continue upon a drinking spree, and use whisky, brandy, and other alcoholic stimulants as a beverage, and on Friday, July 13, 1883, at about seven o'clock, P. M., he died, his death being hastened by the excessive use of such liquor.” After the issuance of the policy, and until his death, no charges were preferred against Hogins; his monthly dues and assessments on his certificate were paid as fast as they became due. In his written application for a certificate Hogins agreed “that a compliance with all the laws, regulations, and requirements which now
or hereafter may be enacted by our said order is the express condition upon which I am to be entitled to participate in the mutual benefit life system.”
The certificate itself contained this clause: "This certificate is issued upon the express condition that said Daniel Hogins shall in every particular, while a member of our said order, comply with all the laws, rules, and requirements thereof."
The controlling and distinguishing feature of this order is its requirement of daily abstinence from the use of liquors as a beverage by its members. It is the fundamental principle in every degree.
In order to become a member of the order, or entitled to a beneficiary certificate, the applicant was required to take all the degrees, and pledge himself upon taking each one that, so long as he was a member of the order, he would wholly abstain from the use of all alcoholic liquors as a beverage. Violations of this pledge were punished by suspension. The system of insurance is clearly intended to be confined exclusively to temperance people. The applicant, Hogins, so understood it. In his application he expressly agreed that he should not be entitled to the benefits of the system unless he complied with all the laws, regulations, and requirements of the order. The .clause quoted from the certificate does not, perhaps literally express the meaning intended, but it is quite clear what was meant and intended by the parties. It does not say that payment is contingent upon the express condition, but such was clearly the intent. Appellant claims that the condition is for the issuance mere ly, but the conditions are in their nature matters to occur in the future. “That said Daniel Hogins shall in every particular, while a member of our said order, comply with all the laws, rules, and requirements thereof,” shows beyond controversy that his conduct after the issuance of the certificate was to be the condition of payment. His applica