Jones v. Modern Brotherhood of America

153 Wis. 223 | Wis. | 1913

Winslow, C. J.

It is admitted by the appellant that the certificate was rendered void when the deceased became a paid fireman, but it is claimed that the defendant has prevented itself from setting up this defense by acts constituting waiver or estoppel. These acts are (1) the acceptance and retention of the monthly assessments paid by the plaintiff from November, 1909, until the death of Burke, with knowledge of. the fact that he was a paid fireman, and (2) the sending by~ the defendant to the plaintiff, after knowledge of the facts avoiding the certificate, of blank proofs of loss, and the making out of such proofs at an expense of one dollar.

The difficulty with the first proposition is that there is no proof that the supreme lodge or its officers ever had knowledge of the fact that the deceased had engaged in a prohibited occupation. The plaintiff testifies that she.told Finn, the secretary of the local lodge, of the fact, and that he promised to write to the supreme lodge and find out what the effect would be, and that a month later Finn told her that he had written and received no reply, and that it must he all right. Finn was not called as a witness. The statement of the plaintiff that Finn told her he had written to the supreme lodge was the merest hearsay and proves nothing. The notice to Finn himself was not notice to the supreme lodge, because the parties contracted by sec. 177 of the by-laws that the secretary of the subordinate lodge is not to be considered the agent of the supreme lodge. No reason is perceived why the parties could not make a binding contract of this kind. So far as the evidence shows, the first knowledge that the supreme lodge had that Burke had engaged in a prohibited occupation was when the notice of death was sent to it by the local lodge. It appearing that the defendant seasonably after acquiring such knowledge offered to return the assessments received, neither waiver nor estoppel can be successfully urged.

As to the second proposition, it appears by sec. ISO of the by-laws that the parties, contracted that the furnishing of blank proofs of loss should not be considered as a waiver of a forfeiture, and that it should be the duty of the claimant to furnish the proofs in any event.

' By the Court — Judgment affirmed.