Patterson v. United Artisans, 72 P. 1095

72 P. 1095 | Or. | 1903

Mr. Justice Bean

delivered the opinion.

The plaintiff, by his guardian, brought an action in the court below against the United Artisans, upon a certificate issued to his father, a member of one of its subordinate assemblies, by which it agreed to pay plaintiff the sum of $1,900 in case of the death of his father. The sole defense is that the insured committed suicide, which released the society from liability. The jury found against the defendant upon this question, and from the judgment entered it appeals.

The only assignment of error is the ruling of the court in admitting in evidence a certificate or statement of the officers of the subordinate assembly to which deceased belonged, which accompanied and was a part of the proof of death submitted to the supreme assembly. The death of the insured is admitted by the pleadings, and it is also admitted that due proof thereof was made as required by the rules of the society. The position of the defendant is that the evidence referred to is incompetent, because there was no issue to yffiich it was applicable, and for the further reason that the statement of opinions therein contained is not binding upon it. Section 41 of the by-laws of the defendant provides:

“Proof of Death. Upon the receipt of the notice of death of a beneficiary member, the supreme secretary shall forward to the secretary of the assembly of which the deceased was a member duplicate blank forms for proof of death, together with blank claimant’s Affidavits, which must be filled out and sworn to by the beneficiary or beneficiaries, or, if the beneficiary be a minor child, by a guardian duly appointed by the proper legal officer, and witnessed and certified by the master artisan, under seal of the assembly of which the decedent was a member. The proof must show that the deceased ivas a member in good standing at the time of his death; name in full, date of joining the society, date and cause of death, and the name of the person or persons and their relationship to deceased to whom the benefits are to be paid; a part of which proofs shall be affidavits of the master artisan and secretary as to the record of the member, also the affidavit of the attending physician or physicians, if any, stating the disease of which the member died, duration of illness and date of death; also the affidavit of the undertaker in charge or the clergyman officiating at the funeral, if any, together with such other sworn testimony as may be required by the board of directors to fully establish the death and identity of such deceased member. Upon the receipt of such proof, the same shall be laid before the board of directors, who shall approve or disapprove the same, and if approved by them an order for the payment of the amount to which the beneficiary is entitled shall be drawn upon the supreme treasurer, which order shall be signed by the supreme secretary and countersigned by the supreme master artisan, and be made payable to the order of the beneficiary designated in the certificate issued to decedent or the duly qualified guardian of said beneficiary; provided that sixty days from the date of the receipt of such proofs by the supreme secretary shall be allowed for the approval or disapproval of such claim by the board of directors, and that sixty days shall be allowed after the approval of the claim in which to make payments.”

The forms of proof promulgated by the supreme assembly, and which its secretary, in compliance with the bylaw quoted, forwarded to the officers of the subordinate assembly of which the deceased had been a member, comprised a certificate or statement to be filled out and verified by the directors of the local assembly, in which they were required to certify to certain facts concerning the deceased and the rights of the claimant. In the certificate to which objection was made in this case the officers of the local assembly certified as to the date and cause of the death of the insured ; the time when he joined the order ; the date to which his last assessment was paid, the date of his beneficiary certificate ; his occupation ; that he was a member in good standing ; that they had seen the benefit certificate and believed that plaintiff was legally entitled to recovery thereon ; that they had carefully examined the records of their assembly, and that no material fact had been concealed ; that they had examined the proofs of death attached to their certificate, knew the contents thereof, and verily believed the statements and allegations therein contained and set forth were true; that they knew of no reason why the plaintiff’s claim should not be paid, and recommended its allowance by the board of directors of the supreme assembly. The by-laws of the defendant society, and the form for proof of death provided by it, imposed upon the officers of the assembly of which the deceased was a member the duty of preparing, certifying to, and forwarding to the head office proof of death, and their opinion as to the validity of the claim, using blank forms furnished for that purpose by the supreme secretary. They were thereby made the agents of the society for the purposes stated, and their acts and declarations in the discharge of the duty thus imposed were the acts and declarations of the defendant, and not the insured : Cox v. Royal Tribe, 42 Or. 365 (71 Pac. 73, 76, 60 L. R. A. 620); Anderson v. Supreme Council of Chosen Friends, 135 N. Y. 107 (31 N. E. 1092); Supreme Council of Benev. Legion v. Boyle, 10 Ind. App. 301 (37 N. E. 1105). Any statements or admissions made by such officers in the discharge of their duties and as part of such proof, if adverse to the defendant, may, we think, he properly treated as admissions against its interest, and competent evidence as such for whatever they may be'worth : 2 Bacon, Benefit Soc. § 471 ; Mechem, Agency., § 714; Insurance Co. v. Newton, 89 U. S. (22 Wall.) 32; North Pac. Lum. Co. v. Willamette Mill Co. 29 Or. 219 (44 Pac. 286); Wicktorwitz v. Farmer’s Ins. Co. 31 Or. 569 (51 Pac. 75). There was therefore no error in the admission of the testimony.

There was error, however, in the amount of the judgment. The plaintiff claimed only $56.85, in his cost bill, but the amount thereof was erroneously entered in the judgment at $71.10. The attention of the court below was not called to this error, and it was not discovered by the plaintiff until after the appeal was taken. He thereupon offered in his brief to make the necessary reduction, and, upon his filing a remittitur of the excess, the judgment will be affirmed, with costs. Affirmed.