Lathrop v. Modern Woodmen of America

106 P. 328 | Or. | 1910

Lead Opinion

Mr. Justice McBride

delivered the opinion of the court.

1. The evidence proffered by the defendant and excluded by the court below tended to show that the benefit certificate was forwarded to the Clerk of the local Camp of Woodmen, and that deceased, after having obtained knowledge of that fact, postponed accepting it, and that it remained in the custody of the Clerk, pending delivery, until he was mortally injured, and then it was delivered to his son. We are of the opinion that the rejection of this testimony was error. As will be seen from the foregoing statement, the by-laws of defendant are a part of the contract of insurance, being expressly referred to and practically made a part of the application of deceased. Section 30 of .said by-laws provides, among other things, that the benefit certificate “shall not become effective until delivered, by the Camp Clerk, to the applicant while in good health.” This is what the parties agreed should be a good, effective delivery. To say that the certificate became effective as soon as it reached the Camp Clerk is to say that a delivery by the head office to the Camp Clerk is a delivery by the Camp Clerk to the applicant, which is a perversion of plain language, which wipes Section 30 of the by-laws out of existence. There are many authorities to the effect that the issuing and mailing of a policy by a life insurance company to its local agent with the intent that it shall be unconditionally delivered to the insured constitutes a delivery of the policy: New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273: 42 L. R. A. 88: 69 Am. St. Rep. 134); Kilborn v. Prudential Ins. Co. (Minn.), 108 N. W. 861; Yonge v. Equitable Life Assurance Society, 30 Fed. 902. Such has been the holding of this court in Francis v. Mutual Life Ins. Co. 55 Or. 280 (106 Pac. 323). But these cases turn upon the theory of the intent that the policy shall be unconditionally delivered, and that the parties have not stipulated for anything else as a condition precedent to the policy taking effect, and are readily distinguishable from a case of this kind, where the contract in its inception states just what shall be done and how the policy shall be delivered in order to make it binding and effective. So it has been held with practical unanimity that, in policies issued by fraternal beneficiary societies, requirements of the character above indicated are conditions precedent and a part of the contract of insurance and will be enforced accordingly: Niblack, Ins., § 139; McLendon v. Woodmen of the World, 106 Tenn. 695 (64 S. W. 36: 52 L. R. A. 444); Kohen v. Mutual Reserve Fund Life Ass’n (C. C.) 28 Fed. 705; Michigan Mutual Life Ins. Co. v. Thompson (Ind. App.) 86 N. E. 503; Wilcox v. Sovereign Camp W. O. W., 76 Mo. App. 573. Nor can the officers of the local Camp waive the conditions imposed by the by-laws: Borgraefe v. Knights & Ladies of Honor, 22 Mo. App. 127; Loyd v. Modern Woodmen of America, 113 Mo. App. 19 (87 S. W. 530); Sterling v. Head Camp W. O. W., 28 Utah 505 (80 Pac. 375).

2. Sections 40 and 260 of the by-laws of the defendant society expressly provide that no local Camp, nor any officer thereof, shall be permitted to waive any of the provisions of the by-laws of the society. While we greatly regret that the delay of deceased, as indicated by the evidence proffered, may have been the cause of depriving his widow of a sum of money which a delivery of his certificate would have assured her, we cannot allow our sympathy for her to induce us to ignore the express conditions of the contract upon which the certificate, under which plaintiff claims, was to become effective.

The judgment is reversed, and a new trial ordered.

Reversed.

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Rehearing

Decided June 7, 1910.

On Petition foe Rehearing.

[109 Pac. 81.]

Mr. Justice King

delivered the-opinion of the court.

3. After a careful re-examination of the points involved, we are unable to reach a conclusion different from that announced in the former opinion. Although the reasons there given are sustained by eminent authority', the writer does not fully concur therewith, but is in accord with the views announced in Wagner v. Knights of Honor, 128 Mich. 660, 668 (87 N. W. 903) in which it is held that a manual delivery of the policy is not a condition precedent to its enforcement, and that the failure of the adoption of the applicant into the order prior to the accident, being a mere formal matter, is waived by the issuance of the policy and remission thereof to the local clerk. Holding to the same effect are Lorscher v. Knights of Honor, 72 Mich. 316, 328 (40 N. W. 545: 2 L. R. A. 206); Pledger v. Woodmen of the World, 17 Tex. Civ. App. 18 (42 S. W. 653); Sovereign Camp W. O. W. v. Dees, 45 Tex. Civ. App. 318 (100 S. W. 866); Sovereign Camp W. O. W. v. Brown, 88 S. W. 372; O’Neal v. Sovereign, Camp W. O. W., 130 Ky. 68 (113 S. W. 52); Tracy v. Supreme Court of Honor, 4 Neb. (Unof.) 189, (93 N. W. 702.)

■ The failure, however, on the part of the applicant to comply with the rules of the order, in not paying, while in good health and prior to his accident, the assessments and dues, is fatal to plaintiff’s right to recover. The payment thereof to the local clerk after the casualty in no way bound the Head Camp, without a showing first being made to the effect that it had knowledge thereof and acquiesced therein. It is settled in this State, as well as in most jurisdictions, that, in the absence of some showing of ratification by the principal, it is only when an agent acts therefor, and within the scope of such authority, that his acts may affect or bind such principal. Whigham v. Independent Foresters, 44 Or. 543 (75 Pac. 1067); 51 Or. 489 (94 Pac. 968); Miller v. Head Camp, 45 Or. 193 (77 Pac. 83.) The receipt by the local clerk, or agent, of the» policy, cannot be held to be an unconditional delivery to the applicant; for, in addition to the requirement that he be adopted into the order, it was further required that he pay his dues and assessments. Had these payment been made prior to the accident, then, under the authorities above cited, the Camp would, in the opinion of the writer, have been liable. But that it may not be responsible, under the circumstances presented by the rejected testimony, is fully sustained by the United States Circuit Court of Appeals in Modern Woodmen of America v. Tevis, 54 C. C. A. 293 (117 Fed. 369.) That case was previously before the court, and the views there announced were substantially in accord with plaintiff’s contention herein. See Modern Woodmen of America v. Tevis, 49 C. C. A. 256 (111 Fed. 113.) On petition for rehearing, however, the result there declared, in an able and exhaustive opinion by Judges Sanborn and Thayer, was reversed, in the outset of which it is remarked that the first opinion was based on the conclusion reached in Knights of Pythias v. Withers, 177 U. S. 260 (20 Sup. Ct. 611: 44 L. Ed. 762), but that a rehearing was granted on the strength of the holding in Northern Assurance Co. v. Grand View Bldg. Ass’n, 183 U. S. 308 (22 Sup. Ct. 133: 46 L. Ed. 213), and after a careful review of the principles involved, including numerous authorities bearing thereon, held as above indicated— that the beneficiary of the insured could not recover.

While the result in the case at hand may not be in harmony with the assumed benevolent objects of the order, plaintiff’s position, under the evidence offered and law applicable thereto, is untenable; and it being our official function to interpret laws, and not to make them, it follows that the petition for rehearing must be denied, and it is so ordered.

Reversed: Rehearing Denied.