47 Ill. App. 616 | Ill. App. Ct. | 1893
This was an action of assumpsit to recover the amount of a beneficiary certificate, issued by appellant to one Orson F. Cressey.
The by-laws provided that, by the fact of non-payment of an assessment, a member should stand suspended. Cressey failed to pay assessments and thereby stood suspended. He went to California, and from that place applied for reinstatement. Whether he then stood properly and lawfully suspended, we do not think it necessary now to discuss. By his application for reinstatement, he conceded that such was his position, and as his assessments had not then been paid up, and he then offered to pay them, it is manifest he must have had notice that he was delinquent as to them.
The by-laws as to the reinstatement were as follows:
“ Sec. 10. Any beneficiary certificate suspended by reason of non-payment of assessments thereon, may be renewed, if the member be living, at any time within a period of three months from the date of said suspension, upon the following conditions, and none other; that is to say:
1. All assessments that have been made during the time of suspension shall be paid, including the pending assessments.
2. After thirty days, a certificate of good health shall be furnished by the applicant for reinstatement at the time the assessments are paid, in the manner and upon the blank appended to this section.
3. The financier shall report the same to the lodge at its next regular meeting; a vote of the lodge shall be taken, and if a majority of the votes cast be in favor of reinstatement, the member shall be reinstated. When all these conditions have been complied with, the beneficiary certificate shall be held as renewed and in full force, and not before, and the record of the reinstatement shall be made upon the minutes of the lodge at its next meeting.”
Gressey wrote about June 20, .1888, to a fellow-member of his lodge, one Elmslie, expressing his desire to be reinstated, and stated in his letter that he was feeling first-rate since he went to San Biego, California, and never felt better in Ms life.
Elmslie thereupon signed Cressey’s name to the following certificate of good health :
CERTIFICATE.
To the Grand Lodge of Illinois, A. O. II. W.:
June 27, 1888.
I, O. F. Gressey, to whom beneficiary certificate No.was issued in Victor Lodge, No. 311, A. O. U. W., of the State of Illinois, having been suspended from all the rights, benefits and privileges of the order, and having forfeited all my rights as a member of the order by reason of the nonpayment of assessment No. 154, which suspension and forfeiture occurred within a period of three months prior to the date of this certificate, and desiring to be reinstated in said order, as provided by the laws thereof, do hereby cer tify that I am at this date in sound bodily health, and that I agree that the reinstatement of myself as a member of the order, based upon this certificate, shall be valid and binding only upon the condition that the statement herein contained relating to my bodily health, is true in every respect, upon the day and date recorded on this certificate.
O. F. Cresset.
Thereupon Cressey was reinstated, paying up his back assessments; thereafter his lodge paid his- assessments for him, to the Grand Lodge.
Cressey died at San Diego, August 30, 1888.
Upon the trial it appeared that in July, 1888, he was examined at San Diego, by a physician, who testified that he found his lungs in bad condition with quick consumption; that he was then in the last stage of consumption.
As soon as the Grand Lodge received notice of the death of Cressey, it instructed the lodge of which he had been a member to set aside the reinstatement and' to refund the money that had been paid for him, which was done.
Upon the trial, the court gave to the jury the following instructions:
“ If the jury believe from the evidence that Orson F. Cressey, deceased, was sick at the time the application for his restoration to Victor Lodge, ¡No. 311, of the Ancient Order of United Workmen, was signed, still, if the jury further believe from the evidence that said lodge soon thereafter had notice of the deceased’s sickness, and sent him money, known as sick benefits, then the jury are instructed that defendant waived any and all right to question the validity of such restoration on the ground that deceased was sick at the time said application was made for such restoration.
If the jury believe from the evidence that Orson F. Cressey, deceased, was in his lifetime a member of Victor Lodge, ¡No. 311, of the Ancient Order of United Workmen, and was, in the month of April, A. D. 1888, suspended therefrom, and that afterward, in the month of June, A. D. 1888, was restored to membership in said lodge, on the application made by one Elmslie, and from the time of such restoration until his death was recognized as a member of said lodge, in good standing, and if the jury further believe from the evidence that after such restoration the said lodge paid to, or on behalf of said Cressey, sick benefits, and afterward and after the death of said Cressey, instructed the Point Loma Lodge in San Diego to bury said Cressey, and send bill therefor to said Victor Lodge, then the court instructs the jury that the defendant waived any irregularity or defect, if the jury believe from the evidence there was any irregularity or defect in the proceedings to restore said Cressey to membership of said Victor Lodge, and that the defendant is estopped from questioning the validity of such restoration, and plaintiff is entitled to recover in this action.”
These instructions took from the jury the question of whether the certificate of good health, upon which Cressey obtained his reinstatement, was true.
There was no evidence that the lodge knew that he was then sick, and it appears that it acted upon such certificate; if this was false and fraudulent, as the evidence tended to show, the lodge properly set aside the order of reinstatement. There was no evidence that the Grand Lodge ever, until it received the notice of death, had any reason for believing that the certificate upon which Cressey had been reinstated was false; and whatever knowledge the subordinate lodge may have had of his subsequent illness, its action in paying his assessments for him, or allowing to him sick benefits, can not conclude the Grand Lodge, or make valid a reinstatement obtained by false representations.
The contract of insurance is essentially one of good faith. A reinstatement obtained upon false and fraudulent representations will not be binding upon the insurer. Supreme Council of the Royal Arcanum v. Lund, 25 Ill. App. 492; Connecticut Life Ins. Co. v. Rogers, 119 Ill. 474.
The judgment of the Circuit Court will be reversed and the cause remanded.
Reversed and remcmded.
