120 Minn. 36 | Minn. | 1912
The defendant is a so-called fraternal insurance association, and plaintiff sues to recover on the policy or membership certificate of insurance issued by defendant to her deceased husband, whereby defendant, in case of his death, agreed to pay her $2,000. The case was tried to the court, and findings made directing judgment in favor of plaintiff. From the judgment thereupon entered, defendant appeals.
The defense was that plaintiff’s husband, the insured, had entered a prohibited occupation — that of selling intoxicating liquors at retail — which ipso facto annulled the insurance contract. Plaintiff pleaded in reply, and the court found, that defendant waived the forfeiture by accepting and retaining an assessment on the policy with knowledge that the insured was engaged in the prohibited occupation, and also that after the death of the insured, and after being informed that he had been so employed, defendant again waived the forfeiture by requesting plaintiff to furnish additional proof of death, which she did, at some expense and trouble.
The defendant challenges the waiver found, and the consequent conclusion of law that the policy sued on is a subsisting contract, entitling plaintiff to judgment.
If there be any uncertainty in the wording of a contract which attempts such dire consequences to the insured, courts construe it so as to avoid a forfeiture.
One definition given by the lexicographers of the word “occupation” is: “That to which one’s time and attention are habitually devoted.” The court found'that the insured was a common laborer, who for five or six weeks prior to his last illness had found temporary employment to tend bar in a saloon while the regular bartender went out to operate a threshing engine. Whenever the latter returned, the insured was to quit. The bartender returned, and the insured left the employment the day before he was taken ill. No claim is made that his illness or death two days thereafter was in any measure due to his previous employment in the saloon. There are those whose regular employment is that of selling intoxicating drinks at retail for others, ordinarily called bartenders, and probably it is a fair construction of the by-law referred to to say that it was intended to ex-
Courts rightly construe the language of an insurance contract of even a fraternal organization most favorably to the insured, when the writing is susceptible of two constructions, one of which results in a forfeiture, and the other in the enforcement of the policy. Finch v. Grand Grove U. A. O. D. 60 Minn. 308, 62 N. W. 384. And this principle is again announced and exemplified in the facts upon which the decision in Cook v. Modern Brotherhood of America, 114 Minn. 299, 131 N. W. 334, is based.
We shall not, however, place our decision of this case upon the ground that the work which the deceased took up temporarily in the saloon was not a violation of defendant’s by-law which forfeited his membership, because no claim was made by plaintiff in this case that the insured’s occupation was not prohibited. What has been said above as to the doubtful effect of the insured’s employment may be sufficient to indicate that neither he nor any one of those who acted for defendant with knowledge of the true situation is to be charged with an attempt to defraud, either in the payment or acceptance of the assessment. We then come to the evidence, viewed in the light
It is settled law that forfeiture of an insurance policy or contract may be waived. Mee v. Bankers Life Assn. 69 Minn. 210, 72 N. W. 74, and eases there cited. And this is so, notwithstanding provisions to the contrary in the contract, as in the case here. Andrus v. Maryland Casualty Co. 91 Minn. 358, 98 N. W. 200. Waiver is defined as an intentional relinquishment of a known right. Therefore there can be no waiver here, unless' knowledge that the insured had entered upon the prohibited occupation was brought home to defendant, or to those who, in a legal sense, represent it, and, possessing such knowledge, an act was done, or a position assumed, which indicates an intention to consider the contract of insurance as still in force. Parsons, Rich & Co. v. Lane, 97 Minn. 98, 106 N. W. 485, 7 An. Cas. 1144.
The defendant is a corporation, and hence must of necessity act through officers or agents. That the local lodge is agent of defendant, in the matter of collecting and remitting assessments, so that if such lodge knew of the work the insured was engaged in, and, so knowing, received and remitted the September assessment, waiver would have resulted, cannot be successfully controverted. Leland v. Modern Samaritans, 111 Minn. 207, 126 N. W. 728. We do not, however, regard knowledge or inaction of some, or even a majority, perhaps, of the members of the local lodge as important, or such as would affect defendant, inasmuch as no duty to enforce discipline or collect assessments is imposed on the individual members. But the local lodge, to the knowledge of defendant, acts through its officers, so that such lodge, and through it defendant, may be bound by the knowledge and conduct of such officers acting in the discharge of their duties.
The defendant relies on Graves v. Modern Woodmen of America, 85 Minn. 396, 89 N. W. 6, for the rule that an officer of a local lodge cannot, by any act of his, waive a right of the grand lodge. When that decision, as well as that of Elder v. Grand Lodge A. O. U. W. 79 Minn. 468, 82 N. W. 987, also cited, is examined in the light of the facts therein, we do not think there is any departure from the
In this case the only one ordained to receive the assessments was the financier, and the master workman was the officer whose duty it was to take care that payment of the sums collected was promptly remitted to the grand lodge. It would seem that these officers, in accepting the assessments from the insured and remitting to defendant, are not mere machines, but do their work with reference to the rights and duties, not only of the members, but of defendant and the local lodge, to which they report in detail; and knowledge obtained in the performance of these duties is the knowledge of the local lodge and defendant.
To hold otherwise would be to relieve the officers and agents of an association like defendant, and defendant also, of all responsibility, and throw it on its members. The officers of the local lodge are elected by the members because of confidence in their ability and integrity to represent the lodge and act for it in the discharge of their several duties. Such is the holding of the courts in Pringle v. Modern Woodmen of America, 76 Neb. 384, 107 N. W. 756, 113 N. W. 231, Collver v. Modern Woodmen of America (Iowa) 135 N. W. 67, Supreme Court of Honor v. Sullivan, 26 Ind. App. 60, 59 N.
The financier of the local lodge of the insured in the case at bar was charged with the duty of collecting and remitting to defendant the assessments against members. In the middle of September, 1910, when the insured was employed, as stated, in a saloon, he paid the last assessment (none other came due prior to his death). Owing to a change previously made by him in the amount of insurance and beneficiary, the financier could not then determine the exact amount, but received more than sufficient to cover it, and returned the surplus, together with a proper receipt, to the insured October 4, 1910.
The insured resided, as did also the financier and master workman of the local lodge, at Hancock, Minnesota, which is a small village of some 500 inhabitants. One-half of the members of the local lodge resided in the village, and the other half in the adjoining farming district. The financier of this local lodge was employed in the bank, situate where the two principal streets of the village intersect, and the saloon in which the insured worked was less than a block away on one of these streets. It was admitted that the financier would testify that he did not know that the insured was so employed till after his death; but we cannot say that the trial court was bound to accept this as true, in view of the situation and other evidence in the case. The master workman of the local lodge was in the saloon, and saw that the insured worked therein about two weeks prior to his death, but did not suggest to him that his membership in the order was annulled or imperiled by the employment.
One duty of the master workman of the local lodge is to “take care that all beneficiary funds, the per capita tax, and all claims of the grand lodge upon the said subordinate lodge are forwarded, as required by the provisions of this constitution, .or paid promptly, as the case may be.” The financier is required to collect all assessments and dues, and keep accurate account with each individual member, report to the lodge, and pay these over to the receiver. If, then, the master workman performed his duty in taking care that all
In addition, another circumstance supports the finding of waiver. It appears that in each local lodge there is an officer known as “District Deputy Grand Master Workman,” appointed by the master workman of the grand lodge from among those members in the local lodge who have attained the rank of past master workman. This officer shall be, as far as his authority extends, a representative of the grand master workman in the local lodge. He “shall promptly report to the grand master workman any violation of their duties by the officers” of the local lodge, or any illegal action by the lodge itself. This district deputy grand master of the local lodge well knew the insured, who worked for him prior to the employment in the saloon, and knew that he was so engaged temporarily while the regular bartender was out threshing. This officer did not discuss the bearing the insured’s employment had upon his membership, because it was so short and temporary that he considered it had no effect thereon. Failure of these officials, representing the defendant, to appreciate that a forfeiture of insured’s, membership had occurred, if it ever did, when the assessment was accepted and retained, would none the less constitute waiver, if he knew the true facts. Their misapprehension of the legal result would not prevent their acts, with full knowledge of the actual situation, from constituting a waiver, if otherwise such were the consequences.
The court also found a waiver in that, after knowledge of the facts constituting the alleged forfeiture, defendant required additional proof of death at expense and trouble to plaintiff. Defendant contends that this finding is unsupported by the evidence. The facts
The contention of defendant is reasonable that, where an answer called for by a question in a proof of loss or death is indefinite, so that it is left in doubt whether the contract under which a claim is made is forfeited or not, the insurer, by calling for additional and definite proof in that respect, does not in any sense waive a forfeiture. And if the proof furnished had contained only plaintiff’s answer touching the insured’s occupation, or if the additional proof called for had related to that feature alone, we should hold unhesitatingly that no waiver followed a demand and compliance therewith. But here the certificate of the officers of the lodge, a part of the proof, clearly showed that, if the employment of the insured did forfeit
Although the law abhors forfeitures, and is eager to lay hold of a reason to avoid so declaring, we confess to a reluctance in holding that, after loss, an insignificant outlay and effort imposed by the insurer upon the beneficiary is a waiver of the forfeiture. But if it be imposed with knowledge of the facts establishing the forfeiture, the conduct is inconsistent with any other position than a waiver, and a recognition of the subsistence of the contract, and such waiver becomes binding when the beneficiary complies with the condition imposed. We cannot say that there is no evidence to sustain the finding that, by calling for and obtaining the additional proof of burial after full knowledge that the forfeiture now claimed existed, the defendant has waived such forfeiture.
The judgment must be affirmed.
Reported in 139 N. W. 946.