Somers v. Kansas Protective Union

42 Kan. 619 | Kan. | 1889

Opinion by

Clogston, C.:

The defendant resists the payment of this claim upon the sole ground that the application for membership was not signed by the applicant, but by her husband, the plaintiff, and rests its defense upon the language of its by-laws, and a clause in said application for membership. At the bottom of the application, and just above the blank for signature of the applicant, appears in the original certificate, in small type, the following:

“Signature of the applicant. The applicant must personally sign or the certificate if issued shall be invalid.”

Section 2 of the by-laws is as follows:

“Before a certificate of membership shall be issued, an application therefor made upon a blank furnished by the Union, must be filed in the home office, signed by the applicant by himself or herself, and subject to the approval of the medical director and the president or secretary of the Union. No certificate shall be granted to a person of unsound mind.”

■ It is shown by the evidence in this case, in addition to the facts already stated, that the agent who took this application had full knowledge of all the facts in relation to the signing of the application, and that it was signed by the plaintiff upon his (the agent’s) solicitation and request, with the assurance that it was all right, and that he (the agent) would guarantee it to be all right. It is also shown that Martha Somers desired to take an insurance, and had so informed the agent of the company. This information was obtained some time before this application was made, at her residence, in the presence of her husband and the agent, at a time when her husband made an application for membership in the company. It is also shown that before this application was made by the husband, she requested her husband to make this application, or directed him to do so, although not personally present when it was made; and afterward, and after the application had been so signed by the husband, he informed her of his action, and she said it was all right. There was also evidence offered to show that the agent who took this application was a general agent of the company. The plaintiff testified that he held himself out to be the general agent of. the company; that he took applications; received membership fees; and collected assessments. It is also shown that he employed sub-agents to take applications, which were returned to him when made, and that he was recognized by the sub-agents as a general agent. The secretary, however, testified that he was only authorized to accept applications and membership fees, and had no authority to collect assessments. However, it is shown that he did collect assessments and transmitted money to the company, and that the company duly receipted to the persons for such payments. Under this state of facts it is perhaps not necessary to determine whether or not the agent was a general agent of the company or not. He had authority to take applications and receive membership fees, and under the scope of this authority what knowledge he had in relation to the applications was notice to his principal, the Kansas Protective Union, and it must take knowledge of every fact that came to him within the scope of his authority.

Again, while the by-laws expressly provided that the application should be signed by himself or herself, yet these bylaws were not intended and calculated to bind persons not members of the company. They were made to govern the officers of the company more than to govern persons about to become members and who had no knowledge of such by-laws. (Titsworth v. Titsworth, 40 Kas. 571.) Again, the application required the applicant to sign in person, and if not so signed the certificate would be void if issued. The plaintiff testified that this was in small type, and the application was taken after night, and while he read the application yet he did not notice or read those words. It will not be contended, we think, that if Martha Somers had been present and had there directed her husband to sign her name, that this would not be such a signing as was contemplated by the application; and if she could do this, might she not direct, although not present, that her husband should sign the application? — and might she not, even if she had no knowledge before the signing, upon being informed of the fact accept and ratify it ? We think she might do both. She directed the making of the application, and she ratified it after it was so made. There is no pretense here that any fraud was perpetrated upon the company, or that any of the questions contained in the application were not correctly answered, and as correctly and truthfully as though made by her in person.

We therefore think that the court committed error in directing a verdict for the defendant, and it is recommended that the judgment of the court below be reversed, and the cause remanded for a new trial. *

By the Court: It is so ordered.

All the Justices concurring.