vener). (No. 18716.) (Supreme Court of Nebraska. July 3, 1917.) (Syllabus by the Court.) 1. INSURANCE 770 FRATERNAL BENEFICIARY INSURANCE-DEPENDENT-CONSTRUCTION OF STATUTE. The statute should be liberally construed in determining whether the beneficiary named by the insured in a fraternal beneficiary association is a "dependent" within the meaning of the statute. had with decedent concerning the alleged gift of the land to defendant. The evidence so KOENIGSTEIN v. FINKE (LINDSAY, Intergiven was material and corroborated and supported the defense. The objection to the testimony was that the witness was disqualified under section 8378, G. S. 1913, from giving in evidence conversations with her father prior to his death. There was no error in admitting the evidence. The witness had no such interest in the result of the action, direct or indirect, as to render her an incompetent witness under the statute. The property was by the will of decedent devised to plaintiff; under the gift it belonged solely to defendant. The witness therefore had no interest in the controversy between those parties, for whatever the result she would neither thereby gain nor lose. Nelson v. Olson, 108 Minn. 109, 121 N. W. 609; Bowers v. Schuler, 54 Minn. 99, 55 N. W. 817; 3 Notes to Minnesota Cases, 993; Alexander v. Ransom, 16 S. D. 302, 92 N. W. 418. [3] 4. The wife of defendant was a witness in his behalf and was permitted to testify to conversations had with decedent as to the gift of the land to defendant. The only objection to this testimony was that since witness was the wife of defendant "her testimony is incompetent under the statute." If it be conceded that the objection sufficiently directed attention to the real ground thereof, namely, that the wife, having a direct interest in a part of the land, that portion constituting the homestead, was disqualified from giving in evidence a conversation with decedent in his lifetime (Mousseau v. Mous seau, 42 Minn. 212, 44 N. W. 193) we are satisfied that there should not be a reversal, even though the witness was erroneously permitted to testify. The evidence so given by her was in line with that given by several other witnesses, was a mere fragment of the whole, and we are clear that no prejudice resulted therefrom. If the whole thereof be excluded there is an abundance of what is left, if worthy of belief, to sustain the verdict. There was no prejudice to the substantial rights of plaintiff. Crowley v. Burns Mfg. Co., 100 Minn. 178, 110 N. W. 969; Madson v. Christenson, 128 Minn. 17, 150 N. W. 213, L. R. A. 1916C, 1214, Ann. Cas. 1916D, 1011; 4 Dunnell's Dig. 7180. 5. We discover no error in any of the other rulings complained of, nor in the instructions of the court to the jury. The remarks of the court in respect to the conduct of the attorneys in discussing the law of the case to the jury, if error at all, was not excepted to at the trial, the remarks applied equally to both parties, and we are clear that neither was in any way prejudiced thereby. 6. This covers all that need be said. We have fully considered all the points made, and the evidence has been carefully gone over, with the result stated. Order affirmed. [Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1933, 1937.] 2. INSURANCE 769 FRATERNAL BENEFI- Cent. Dig. §§ 1932, 1937, 1938. For other definitions, see Words and Phrases, If the insured in pursuance of such agreement makes her the beneficiary in his will, and the company has notice of that fact, and of the reason for so doing, and does not object, but allows all parties to believe that such beneficiary will be recognized as such by the company, and afterwards, in an action upon the certificate by such beneficiary and the administrator of the estate of the insured, pays the money into court and makes no defense, this will be a sufficient change of beneficiaries in favor of the person so named by the insured. Cent. Dig. § 1953.] Appeal from District Court, Madison County; Welch, Judge. Action by Arthur J. Koenigstein, as executor of the last will and testament of Friedrich Finke, deceased, against Albert Finke, substituted as defendant in lieu of the Grand Lodge of the Order of Herman Sons of the State of Nebraska, in which Hattie Lindsay intervened. Judgment for defendant, and plaintiff and intervener appeal. Reversed and remanded, with instructions that the district court pay the money to the intervener. Allen & Dowling, of Madison, for appellants. Arthur C. Mayer, of Grand Island, for appellee. HAMER, J. Arthur J. Koenigstein, as executor of the last will and testament of Friedrich Finke, deceased, brought this action as plaintiff in the district court for Madison county against the Grand Lodge of the Order of the Herman Sons of Nebraska and Albert Finke, defendants. Hattie Lindsay became intervener. The action is brought upon a beneficiary certificate for $500 issued by a fraternal Insurance company to Fried For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes rich Finke. Albert Finke is the brother of mania Lodge No. 1 of Norfolk, Neb., which Friedrich Finke. The intervener, Hattie is a part of defendant's organization, by and Lindsay, filed an amended petition of inter- through its officers, assented to said subvention. After the filing of the petition the stitution of the petitioner as the beneficiary fraternal association paid the money into of said benefit certificate or policy of insurcourt where it awaits the rendition of a prop-ance, and that said defendant never protester judgment. Albert Finke demurred to the ed against or warned the petitioner that her plaintiff's petition and the petition in inter- claim to said benefit certificate or policy of vention as amended, as not stating "a cause insurance would be contested or objected to of action in favor of the plaintiff and against on its part, whereby the intervening petithe defendant Grand Lodge of the Herman tioner avers that the defendant waived any Sons, or against this demurring defendant," | right it might have in the premises to proand judgment was entered in his favor from test against or object to the substitution of which the administrator and the intervener the petitioner as the beneficiary of said benefit appeal. The intervener assigns the follow-certificate or policy of insurance, and is esing errors: (1) The district court erred in topped to deny the petitioner's right to resustaining the demurrer of Albert Finke; (2) cover herein; that by reason of the insurthe association has paid the money into court, ance of said beneficiary certificate and the and therefore waives any right it may have assigning thereof and the death of said Friedin the premises and declines to become a liti- rich Finke said sum of $500 became due gant in the case. This leaves the sole ques- and owing to the intervener with 7 per cent. tion to be determined whether Mrs. Lind- interest thereon from May 4, 1912. say's petition of intervention states a cause of action on her account against the fund in court. She alleges the existence of the company at the time the benefit certificate was issued to Friedrich Finke and its existence now, also that he was eligible to insurance in the association, and was insured for $500 in the event of his death, and that he died in good standing in the order May 4, 1912, having complied with all the requirements of said beneficiary certificate and with the by-laws of the defendant, and that said certificate then became due and payable; that said Friedrich Finke had no friends or relatives living in the United States, and for a long time prior to his death was greatly afflicted with tuberculosis, and was thereby so incapacitated as to require the constant attendance of a nurse; that many months prior to his death said Friedrich Finke orally contracted with the petitioner, who was not related to him by blood or marriage; that in consideration that she would take him into her home and would nurse and would care for him, and furnish him with food, raiment, shelter, medicine, and medical attendance, and such things as his condition required until his death, that he would assign and transfer to her said beneficiary certificate or policy of insurance, and would make her the beneficiary thereof, and would make and sign an instrument in writing, which he did April 11, 1912, purporting to be his last will and testament, and would thereby assign and transfer to her said beneficiary certificate, and make her the beneficiary thereof; that in pursuance thereof said Hattie Lindsay did all that she had agreed to do; that said Germania Lodge, well knowing of the performance on the part of the petitioner of her part of said contract, and upon the strength thereof, relying upon the fact that she was to be considered and treated by the said Friedrich Finke as the beneficiary of said benefit cer [1, 2] The fund is in the custody of the law. It is a fund in the hands of the court. The contract made and the work which Mrs. Lindsay was doing for the testator were known to the Grand Lodge of the Order of the Herman Sons of the State of Nebraska, and it made no protest or opposition thereto. It seemingly acquiesced in all that was done. By its silence it became estopped to deny the validity of the contract and its performance by the intervener. Did Friedrich Finke exercise his right to substitute a new beneficiary? The beneficiary certificate contained the clause: "At the time of admission every brother has to state in his application the person or persons money after his death. who are to be the beneficiary of the insurance However, the brother may at any time withdraw these names and make any other person the beneficiary of the insurance money, providing, however, that the To make such a transfer binding, he must hand Grand Lodge received a written notice thereof. in such a request to the Grand Secretary which will be certified by the secretary of his lodge, with the lodge seal. The fee for this is fifty cents, which the brother has to pay. As receivers of the insurance sum, only the wife, children, or other blood relatives, also foster parents or other legally recognized representatives, may be designated.' It would seem that there was an earnest purpose on the part of the order of the Sons of Herman to pay the sum of $500 upon the decease of a brother in good standing to the person who might be the beneficiary. The first section of article 1, relating to the objects of the order, contemplates that: "Widows and orphans and other survivors from want at the time when help is most needmay be supported properly and kept ed, that is, when the support has been taken away from them." * * * It will be seen that it need not be a widow or an orphan; it may be "other survivors." Should it apply to one situated as the intervener is here? Mrs. Lindsay was taking care of the insured, who was sick unto death, and was giving him food and medicine and menial capacity. This and other similar allegations are sufficient, in the absence of any motion to make the pleading more definite and certain, to admit proof that she needed the support which this policy would give her, and that she depended upon it for the comforts and necessaries of life. If he did not take care of her, no one else would. He had nothing with which to reward her except this insurance policy, but he had promised to use that, and that was as substantial as if he had money in his pocketbook, or other property in his possession, which he might have given this woman. When she had labored to the end and death had laid its cold hand upon the man who was to provide for her, had she nothing to expect from the Grand Lodge of Sons of Herman? It was not objecting. It seems to have consented to it. The principal ground for supporting the trial court in sustaining the demurrer to the intervener's petition was that the statute provides that benefits shall not be paid except to certain relatives named or to dependents. It would seem that the provision of the statute relates to the contract to pay, and to its binding force upon the company. In any event it does not relate to the right to make voluntary settlements in accordance with the strongest kind of moral obligations. If, therefore, every person interested in any manner in this company had formally expressed his consent to pay this insurance to this woman, the statute would not be a bar to their doing So. Some courts have held that the local lodge cannot consent for the members, but we have uniformly held that notice to the local authorities, who should be the ones to consent to a transfer of beneficiary, is notice to all the persons interested in the company. But we do not need to put our decision upon that ground. First, was the contract of the deceased followed up by his will and the performance on the part of this woman a sufficient designation of the beneficiary under the circumstances, there being no objection on the part of the company? Second, was this woman a dependent under the allegations of these pleadings, within the meaning of the statute? [3] In 1 Bacon, Benefit Societies and Life Insurance (2d Ed.) § 308, the Supreme Court of Texas is quoted as saying, in Splawn v. Chew, 60 Tex. 532: "The right to change the disposition of money being established in the member, the next ques. in which such change can be effected? The right to make the change is given by a different section of the by-laws, and exists in the insured as long as he remains a member of the order. A method by which he may accomplish it to the satisfaction of the order is pointed out in the section last recited, but we do not consider this as exclusive of all other ways of effecting the same object. The design of this section is to protect the interests of the corporation. The company are entitled to know who are the parties entitled to the benefit money, and this is an effectual and certain means of giving that information. But, like all such provisions in the by-laws of private corporations, it may be waived at the option of the corporation, being for its benefit alone. This has been held in reference to such provisions when prescribed in mandatory terms. If they can be waived in such cases, much stronger would seem to be the reason why this can be done when the course to be pursued is directed, as in this instance, in perof the order this provision entered into the unmissive language alone. * As a by-law derstanding between the company and the member effecting the insurance, and the rights of interested parties are not strengthened by the fact that the same provision is found in the certificate. It is still a condition for the benefit of the company, to be insisted upon or waived according to their election." In Goff v. Supreme Lodge, Royal Achates, 90 Neb. 578, 134 N. W. 239, 37 L. R. A. (N. s.) 1191, it was held as stated in the syllabus: "Where a woman who is without means in good faith leaves her own home and work and assumes and for years faithfully performs the duties of a housekeeper for a member of a fraby consanguinity, under an agreement that in ternal beneficiary association, not related to her consideration for such services he will support her and at his death leave her his estate, and no evidence is offered showing any improper relations between them, held that she thereby becomes a dependent upon such member, and as such is eligible as a beneficiary in a certificate of membership issued to him by the association of which he is a member." In Keener v. Grand Lodge, A. O. U. W., 38 Mo. App. 543, it is said: "I would not restrict dependents to those whom one may be legally bound to support, nor yet to those to whom he may be morally bound, but the term should be restricted to those whom it is not unlawful for him to support." We think, if the insured is under an obligation to help a person in her manner of living, she is a dependent, within the meaning of the statute, and we ought not to seek for a more technical definition of a dependent in order to defeat her claim. In fact this court has already so decided. In the Goff Case, above cited, it was said: will ever be decided, holding that a woman who "No case has been cited, nor do we think one without means in good faith leaves her own home and work and assumes and for years faithfully performs the duties of housekeeper for a man who agrees, in consideration therefor, to support her and at his death leave her his estate, does not thereby become a dependent upon him, and especially so where there is an entire absence of evidence to show any improper relations between them." tion is: How is it to be exercised? It is con tended by appellees that it can be exercised only in the manner pointed out in the third section of the third by-law, which reads as follows: Members may at any time, when in good standing, surrender their certificate, and have a new one issued, payable to such beneficiary or bene ficiaries dependent upon them as they may direct, upon payment of a certificate fee of fifty cents.' This section is in further recognition of the right to make the alteration, and it If this woman had means of her own so seems to be admitted that a surrender of the old that she did not depend upon the promise certificate and the issuance of a new one under this section would effect a change in the bene- to reimburse her, and so that she could ficiaries of the policy. But is this the only way abundantly afford to support him in his last day as an act of charity, that fact does not other parties with reference to the purchase appear in the pleadings demurred to, and of another lot. She also offered to accept. no such presumption ought to be indulged. $250 and reconvey the 5-foot strip. The The sister of the deceased, one of the orig-testimony tends to prove that defendant said inal beneficiaries, made no claim to the money. It is said that the sister is dead, but of course this does not appear in the pleading, and it is not shown of course by the demurrer of the brother, Albert Finke. she could not return the money and take the lot back because she had sent the money away. She declined to pay $250 for the strip. Plaintiff then proceeded with the construction of her house. She attempted to purchase a 5-foot strip on the other side of the lot for a driveway, but the owner asked $400 for it, and she did not purchase. Defendant has retained the full amount of the purchase money, and has never tendered or offered to pay or return to plaintiff any money from the time of the purchase until the present time. Plaintiff brought this action in ejectment to recover possession of the 5-foot strip. It was disclosed at the trial that plaintiff was in possession of all the strip except that occupied by the encroachment of the dwelling. The cause was tried without the intervention of a jury. The court found that the building and eaves projected 4 feet 5 inches into plaintiff's lot, and that the plaintiff had sustained nominal damages of one cent and rendered judgment of ouster. Defendant appeals. The petition was the ordinary form in ejectment. The answer set up that the plain tiff knew of the encroachment when she purchased the lot, and agreed that it might remain there, but there is absolutely no proof to support these allegations. The only assignment of error is that the judgment of the district court is contrary to law. Under this assignment two propositions are ad Appeal from District Court, Red Willow vanced: First, that it is essential to the acCounty; Perry, Judge. Action by Jeannette McDivitt against Marie E. Bronson. From a judgment for plaintiff, defendant appeals. Affirmed. Eldred, Cordeal & McCarl, of McCook, for appellant. J. L. Rice, of McCook, for appel lee. tion that plaintiff show that he has been ousted by the defendant; second, that ejectment will not lie for a portion of a building if the building will be so destroyed as to lose its identity. In Dale v. Hunneman, 12 Neb. 221, 10 N. W. 711, the question whether it was necessary to prove ouster before an action of ejectment could be maintained LETTON, J. Defendant was the owner of was considered, and it was held that while two lots in the city of McCook upon one of this was essential at common law it was unwhich her dwelling stood. She sold the other necessary in a modern action under the to plaintiff, who was intending to build. Code, and that all that is necessary to entitle Plaintiff procured plans for the erection of the plaintiff to the action is that he has a a dwelling on the lot she purchased and let legal estate in the premises, is entitled to the contract for the erection of the house. possession of the same, and that the defendShe had the lot surveyed before beginning ant unlawfully keeps him out of possession. excavation for the foundation. It was then Bridenbaugh v. Bryant, 79 Neb. 329, 112 N. ascertained that a bay of defendant's house W. 571. As to the second point, only a small projected over and into the lot plaintiff had portion of defendant's dwelling projects into purchased. The portion which encroached plaintiff's lot, which can be cut off and the was about 12 or 14 feet long and a little main building left. The rule is that where over 2 feet wide, exclusive of the eaves one encroaches by a building upon the land which projected about 22 feet further. of another, ejectment is the proper remedy. Plaintiff desired to use the strip upon which Butler v. Frontier Telephone Co., 186 N. Y. the house encroached as a driveway. She 486, 79 N. E. 716, 11 L. R. A. (N. S.) 920, 116 proposed to defendant that she (plaintiff) re Am. St. Rep. 563, 9 Ann. Cas. 858; Wachstein convey the lot and have a return of the pur- v. Christopher, 128 Ga. 229, 57 S. E. 511, 11 chase money. Plaintiff also negotiated with L. R. A. (N. S.) 917, 119 Am. St. Rep. 381; A section of hose extends from the pump, by which gasoline is delivered to auto drivers who drive up to the curb, or perhaps it were better to say to the place where a curb ought to be. On the same street, but a block and a half distant from plaintiff's place of business, a competitor, with the sanction of the village board, installed and maintains similar apparatus in a like position. The village board adopted a resolution directing plaintiff to remove his tank and pump, whereupon he sued out a writ of injunction, which, after hearing, was made perpetual by the district court, from which order the village prosecutes this appeal. Johnson v. Minnesota Tribune Co., 91 Minn. [ a row of thrifty trees, and the pump was 476, 98 N. W. 321; Cromwell v. Hughes, set in line with and between these trees. 144 Mich. 3, 107 N. W. 323. If it were not so the adverse possession of the wrongdoer would ripen into a perfect title as against the owner. The finding of the court upon the facts in such an action is entitled to the same weight as the verdict of a jury. Defendant contends that plaintiff has mistaken her remedy which is in equity, Plaintiff offered to rescind if defendant would return the money, but this offer was refused. She also offered to reconvey the strip to defendant for $250, which seems fair and reasonable when the evidence shows that a like strip on the other side of the lot would have cost her $400. It would seem, therefore, that plaintiff has offered to do equity. Defendant has not pleaded an equitable defense, but has set up a legal defense, which there is absolutely no evidence to sustain, and plaintiff is therefore entitled to judgment. It is unfortunate that this condition exists, but defendant seems to have brought it largely upon herself by her refusal to return the purchase money. It is to be hoped that even now an equitable adjustment can be made between these neighbors. The judgment of the district court is affirmed. KENNEY V. VILLAGE OF DORCHESTER et al. (No. 19509.) Five assignments of error are set out, one of which is "that the decree of the court is contrary to law and the evidence." Appellant's brief says: "The errors relied upon are so closely and intimately connected and interwoven that we deem it best to consider them as a whole rather than to discuss each separately." We will do likewise, as the assignment quoted covers the whole matter. Copious excerpts from the statutes are set out in the brief to show that the village authorities have control and jurisdiction of the streets of the village, with the right to remove obstructions from the sidewalks, curbstones, gutters, and crosswalks, to require and regulate the placing and protection of trees, and (Supreme Court of Nebraska. July 3, 1917.) in fact to maintain general supervision of (Syllabus by the Court.) MUNICIPAL CORPORATIONS 665-USE OF STREET-POWER OF MUNICIPAL AUTHORI TIES. The right of a private party to occupy part of a public street in front of his place of business must yield to public necessity or convenience, and ordinarily the question of public necessity or convenience is for the governing body of the municipality; but such body cannot act arbitrarily, and deny to one citizen privileges which it grants to another under like conditions. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1441.] Appeal from District Court, Saline County; Hurd, Judge. Action for injunction by Frank J. Kenney against the Village of Dorchester and others. Injunction made perpetual, and defendants appeal. Affirmed. Hastings & Ireland, of Crete, for appellants. T. J. Doyle, of Lincoln, for appellee. MORRISSEY, C. J. Plaintiff, the owner of two business lots located on the main the streets. Of course, there is no room for question as to these general provisions, but in the instant case the record discloses that Dorchester is a village of about 600 population; that the main street, where the pump and tank are situated, is 100 feet wide. There is no congestion of the street, or any necessity shown for the removal of the tank and pump. The sidewalk extends 8 feet from the lot line, and the distance from the outer edge of the sidewalk to the graded part of the street, or the point where a gutter may be built, is 4 feet. The row of trees heretofore mentioned is growing in the intervening space. The pump complained of is between the trees, and the village is not using, has not used, and, so far as the record shows, has no intention of using, this space. It is not disputed that the equipment is of the very latest and best pattern, and such as is in use in other cities in the state; that it serves the convenience of a great number of persons living within the village; and that it is not dangerous or unsightly. In Chapman v. City of Lincoln, 84 Neb. 534, 121 N. W. 596, 25 L. R. A. (N. S.) 400, it is held: street of the village of Dorchester, installed modern gasoline apparatus, consisting of a "It is no defense to a party who is being protank, buried beneath the surface of the ceeded against by a city for unlawfully obground, and a pump connected therewith, instructing a sidewalk that others are obstructing the space between the sidewalk and the grad- the walks in like manner." ed part of the street, in front of his place of business. Growing in the park space is There the plaintiffs were occupying a side walk space in direct violation of an ordi For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |