76 Neb. 384 | Neb. | 1906
Lead Opinion
There is no conflict in the evidence with respect to the facts essential to the determination of the rights of the parties to this action which was tried by the court alone, a jury having been waived.
Frank W. Pringle was a member of the defendant society holding a beneficiary certificate in favor of his mother, the plaintiff, which contained a clause to the effect that it shall become null and void if, while such a 'member, he should become convicted of a felony. While such member he was' convicted of a felony, in consequence of which he was sentenced to serve a term in the Nebraska state penitentiary, where he died about six months afterwards. After Pringle had been arrested for the offense of which he was subsequently convicted, but before his trial, he deposited with the clerk of the local camp a sum of money sufficient to pay his dues and assessments, thereafter to accrue, for the term of four months, and directed the clerk so to apply it as such obligations should mature. This direction the clerk obeyed by remitting the required sums monthly to the head camp; such.remittances being made all, or nearly all, of them after the conviction and with the knowledge by the clerk of that fact. After the fund had become exhausted, the plaintiff paid to the clerk two successive instalments which were received and trans
In our opinion, the case is ruled by Modern Woodmen of America v. Colman, 64 Neb. 162. It was there held, and it was twice reaffirmed in the same case, that “it is a settled law of this state that if a beneficiary insurance association, like the plaintiff in error in this action, continues to collect dues and mortuary assessments from a member who has forfeited his beneficiary certificate, after knowledge of such forfeiture by its officers or agents intrusted with the duty of making assessments, it shall be held to have waived such forfeiture, without regard to any restrictions or limitations incorporated in its certificates of membership or by-laws with respect to the power or authority of such persons to malee such waivers.” And it is said in the opinion: “It cannot be regarded as material upon what ground or for what reason such forfeiture was incurred.” Field v. National Council, K. L. S., 64 Neb. 226, and Royal Highlanders v. Scovill, 66 Neb. 213, both cited and chiefly relied upon by the plaintiff in error herein, are not in conflict with the principles above quoted. In the former of these cases the officer of the local body, charged with collection of dues and mortuary assessments, had undertaken by agreement with the insured to extend the time within which payment of them
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.
REVERSED.
The following opinion on rehearing was filed July 12, 1907. Judgment of reversal adhered to:
For a full statement of the facts involved in this controversy, see our former opinion, ante, p. '384, where we held that the forfeiture relied on to defeat a recovery on the benefit certificate in suit was waived. A rehearing was allowed, and it is now strenuously contended that the
It appears that Frank W. Pringle became a member of the defendant association in May, 1900, and the benefit certificate in question was issued and delivered to him on the 30th day of June, of that year. He paid all of his dues and assessments up to and including the 15th day of April, 1901, when he was convicted of a felony. He was, up to that time, a member of the association in good standing, and, desiring to continue so and keep his certificate in force for the benefit of his mother, he, together with the clerk of his local camp, examined the by-laws of the order for the year of 1897, which were then in the hands of that officer and were the only by-laws to which they had access, but found nothing therein to prevent him from keeping up his payments and retaining his' membership. He thereupon deposited with the clerk a sum of money sufficient to pay his dues and assessments for some months, with instructions to forward the same to the head camp as required. When the money so left with the clerk was exhausted, the beneficiary was notified of that fact, and she thereafter continued to malee the necessary payments until after Pringle’s death, which occurred on the 6th day of September, 1901. It further appears that he was buried under the auspices of the order by the local camp, with full knowledge on the part of the members thereof of the foregoing facts. Thereafter proofs of death were forwarded to the head camp, with a demand for the payment of the benefit certificate, which was refused, for the reason that the deceased was not a member of the order
That the clerk of the local camp who, as shown by the record, was authorized to collect dues,. and assessments and forward them to the head camp was the agent, of the association is too well settled by authority to be now an open question. Bragaw v. Supreme Lodge, K. L. H., 128 N. Car. 354, 54 L. R. A. 602; Trotter v. Grand Lodge of Iowa, L. H., 132 Ia. 513; Coverdale v. Royal Arcanum, 193 Ill. 91; Supreme Tent, K. M. W., v. Volkert, 25 Ind. App. 627; Wagner v. Supreme Lodge, K. L. H., 128 Mich. 660; Stylow v. Wisconsin O. F. M. L. Ins. Co., 69 Wis. 224; Knights of Pythias v. Kalinski, 163 U. S. 289. It is also well settled that such local camp or lodge of such an organization is the agent of its governing body. Coverdale v. Royal Arcanum, supra. The local camp and its clerk being the agents of the association, the conclusive'presumption, in the absence of fraud, is that they seasonably communicated the fact of Pringle’s conviction to the head camp. Indeed, the clerk testified that the governing body knew of that fact, and his statement stands unchallenged, except by the evidence of one C. W. Hawes, the head clerk of the association. A like state of facts has often been held to amount to a waiver of a similar forfeiture clause. In Supreme Lodge, K. H., v. Davis, 26 Colo. 252, it was held that a benevolent association which issues a benefit-certificate to a member on condition that he is under a certain age waives the right to make an objection on this point by acceptance of assessments after knowledge that the member was above the age stated when the certificate was issued; that subordinate lodges and their officers who collect assessments for, and which are accepted by, the supreme lodge are agents of such governing body, and notice to such agents will be deemed notice to their principals.
Supreme Tent, K. M. W., v. Volkert, supra, was a case
In Alexander v. Grand Lodge, A. O. U. W., 119 Ia., 519, it was said: “One asserting the right to pay under a valid certificate, and allowed to do so by the officer having authority to determine whether or not such payments should be received, is certainly justified in relying on the statement of such officer, and the association is estopped from insisting by way of defense on any fact which would have been a proper ground for refusing, when the dues are offered, to recognize the certificate as valid, provided such fact is known to the association through such officer, or there is such notice of the fact as to charge the association or its officers with knowledge thereof.”
In Trotter v. Grand Lodge of Iowa, L. H., supra, it was held that the rule that courts will give effect to any act or circumstance from which it may fairly be argued that the insurer has waived the right to strict and literal performance by the insured, or upon which an estoppel against forfeiture may be founded, applies to fraternal or lodge insurance. And whether a waiver of forfeiture of a certificate of insurance will be found in any particular case depends not on the intention of the insurer against whom it is asserted, but on the effect which its conduct or course
In Modern Woodmen of America v. Colman, 68 Neb. 660, we held that a forfeiture incurred by the holder of a life insurance policy or contract is waived, if the company, with knowledge of the facts, subsequently collects premiums, dues or assessments on account of the contract, and retains them, without objection, until after the death of the insured; that it is the duty of the agent to make known to his principal all facts concerning the service in which he is engaged that come to his knowledge in the course of his employment, and this duty he is, in a subsequent action between his principal and a third person, conclusively presumed to have performed. This is the foundation of the rule, necessary to public safety, that notice to an agent in the course of his employment is notice to his principal.
It is contended, however, that, Pringle’s membership having terminated by reason of his conviction and the forfeiture clause contained in the by-laws of the association, the clerk of the local camp was not, as to him, the agent of the head camp, and had no authority to receive dues from him after the date of his conviction. It appears, however, that the head camp had failed to furnish the clerk with the by-laws of the order adopted in 1899, or thereafter, which contained the forfeiture clause in question. So, when the deceased applied to the agent of the association to ascertain whether he could pay his dues and assessments, and keep his benefit certificate in force, it was found, on examination of the by-laws, that he could do so. Again, Prin-gle’s conviction did not have the effect of removing the clerk of the local camp from office, and he was as much the agent of the association thereafter as he was before that event took place. He was required to collect all dues and assessments from members of the local camp and forward them to the association, and, finding nothing in the by-laws furnished him by that body which prohibited it, he decided, in good faith, that he was required to receive the
So, we are of opinion that our former judgment was right, and it is adhered to.
REVERSED.
Dissenting Opinion
dissenting.
Frank W. Pringle became a member of the order upon June 23,1900. At the time he became a member he agreed “to conform in all respects to the rules, laws and usages of the society noiv in force or which may hereafter be enacted and adopted by the same, and that this application and the laws of this society shall form the sole basis of my admission to membership therein and of the benefit certificate to be issued me.” There was a further agreement that if he should be expelled from the order he should forfeit his rights under the certificate. In his application he states: “I fully understand the object, organization, mode of action and laws of this society, and particularly that part of the laws defining the qualifications for and the restrictions upon its membership. * * * I further understand and agree that the laws of this society now in force enter into and become a part of every contract of indemnity by and between the members of the society and govern all rights thereunder.” These statements were a
1. In the absence of any evidence to contradict Prin-gle’s statement that he knew Avhat the by-laws were in 1900 when he joined the order, I do not think the testimony of the clerk that, about the time of the conviction he examined his 1897 copy of the by-laws and found nothing to prevent him from accepting the dues, is of much importance. Both he and Pringle evidently had some rea
The by-laAV is salutary, is in the interests of the whole membership of the association, and should be enforced, unless waiver by the principal is shown.