136 P. 1189 | Or. | 1913
delivered the opinion of the court.
A diagnosis of plaintiff’s primary pleading in the former action will disclose the true situation.
Plaintiff in his initial complaint took the position that at the time of the purchase of the policies and business of the Order of Washington by defendant it covenanted to assume all the policies issued by the Order of Washington, including the plaintiff’s, and that defendant agreed to pay the policy according to the terms contained therein. In fine, plaintiff founded his right to recover upon the contract had between the Order of Washington and defendant. In his amended complaint, plaintiff declares that defendant represented to him in writing that his benefit certificate had been transferred to defendant, and that it would assume all the obligations imposed thereunder ; that if plaintiff would pay defendant the same premium which he was obliged to pay the Order of Washington, defendant “would step into the shoes” of that order, and perform all the terms and conditions of the policy required to be performed by the Order of Washington; that defendant further represented to plaintiff that by the terms of its contract of purchase with the Order of Washington, defendant was bounden to perform all the obligations of the Order of Washington required to be done under plaintiff’s benefit certificate; that, acting upon such advice,
Plaintiff erected his case upon the following correspondence and documents, outside‘of the benefit certificate, which is omitted for the sake of brevity:
“Geo. M. Moulton, President.
“The Order of Washington Department. “Western Life Indemnity Co., Masonic Temple,
Chicago.
“Chicago, February 22, 1908.
“To the Comrades of the Order of-Washington:
“You have already been officially advised by your Supreme President and Supreme Secretary that by the unanimous action of the Supreme Union of your order, and with the approval of the Insurance Department of Washington, the insurance on your life in the Order of Washington has been lawfully transferred to the Western Life Indemnity Company of Chicago. In behalf of this company I extend to you a fraternal greeting with the glad hand of fellowship, and a cordial welcome into the bosom of our organization. By the payment to our company of the next monthly payment due by the terms of your present Life Benefit Certificate you thereby become one of us and one with us,*182 I trust until death do us part. Immediately upon our receipt of such payment a formal agreement or guaranty will he. transmitted to you for attachment to your present life benefit certificate, which will bind our company to fulfill all the obligations heretofore imposed upon the Order of Washington, under such certificate, until such time as a policy for an equivalent amount can be issued oh our forms, and at our premium rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and this company. Continue the monthly payments on your present certificate as heretofore in the same amount and in the same way. By so doing you may rest assured that your rights thereunder will be fully safeguarded and adequately protected. Come with us — live with us — die with us. You will never regret either.
‘ ‘ Faithfully yours,
“Geo. M. Moulton, President.”
“Geo. M. Moulton, President.
“The Order of Washington Department. “Western Life Indemnity Co., Masonic Temple,
Chicago.
“March 5, 1908.
“Esteemed Comrade:
“You will hereafter remit your regular assessment and quarterly dues direct to the Western Life Indemnity Company, Masonic Temple, Chicago, Illinois, making all remittances payable to said company. Immediately upon receipt of your first remittance this company will send you a ‘Guaranty Slip’ which you will attach to your Order of Washington contract. This ‘Guaranty Slip’ will be countersigned by General Geo. M. Moulton, President Western Life Indemnity Company, and it agrees to fulfill all the conditions of your present certificate for one year, upon your paying your regular dues and assessments. This arrangement gives you double protection without addi*183 tional cost. A little later you will'be sent a list of the several kinds of insurance certificates issued by the Western Life Indemnity Company, and then, if you wish, you may exchange your present certificate for any certificate issued by the Western Life Indemnity Company within the year. Upon receipt of your first remittance you will be mailed an official receipt, as well as a ‘Guaranty Certificate.’ Make your remittance by post office money order, bank draft or express money order. Do not delay sending in your remittance so that the ‘Guaranty Certificate’ may be sent you for your own benefit.
“Faithfully yours for safe protection,
“J. L. Mitchell,
“Manager Order of Washington Dept. Western Life Indemnity Company.
“J. L. M. G. O. S.”
“Sam. H. Nichols, Insurance Commissioner.
“J. H. Schively, Deputy Commissioner.
“The State of Washington, Department of Insurance,
Olympia.
“March 5, 1908.
“Mr. J. L. Mitchell, c/o Western Life Indemnity Co., Chicago, 111.
“Dear Sir: Now that arrangements have been completed and all papers signed between the Order of Washington and the Western Life. Indemnity Company of Chicago, I wish to express my most hearty appreciation and approval of the transfer. I know of no movement in insurance circles which will prove of greater benefit to the interested parties than this reinsurance. The Order of Washington, through the stress of financial times and the absorptio’n of certain other fraternal companies, had reached the point where it could no longer fully discharge its increasing liabilities, the only wise solution of the problem being its reinsurance in some substantial and reliable company. That you have made so satisfactory an ar*184 rangement with the Western Life Indemnity Company is a matter concerning which the members of the Order of Washington should congratulate themselves: first, because every policy of the Order of Washington immediately becomes worth one hundred cents on the dollar, and secondly, because I have personally looked into the affairs of the Western Life Indemnity Company through the Insurance Department of Illinois and other sources, and I believe it to be a thoroughly reliable and safe company, and in good financial condition. So far as it lies in my power I shall be glad to assist you in convincing the members of the Order of Washington that this change is in the line of good judgment and of their own best personal interests.
“Very truly yours,
“J. H. Schxvely,
“Deputy Insurance Commissioner.”
“Geo. M. Moulton, President.
“The Order of Washington Department. “Western Life Indemnity Company, Masonic Temple,
Chicago.
“March 25, 1908.
“H. A. L. Spande, Astoria, Ore.
“Dear Comrade: Inclosed herewith please find receipts covering the amount of your remittance, and also you will find inclosed Guaranty Certificate to be attached to your Order of Washington certificate as per agreement entered into by and between the Order of Washington and the Western Life Indemnity Company. Kindly send' your next assessment direct to this office to keep your protection well secured. The reinsurance contract is going forward successfully in every degree and every comrade’s certificate is now worth 100 cents on the dollar. We all have much cause for rejoicing over this change.
“Fraternally yours,
“J. L. Mitchell,
“Mgr. The Order of Washington Dept., Western Life Indemnity Company.
“J. L. M. A. L. H. Enc.”
*185 “Western Life Indemnity Co., Chicago.
“Kindly attach the inclosed rider agreement to your life benefit certificate as evidence that this company has assumed liability under said certificate pursuant to the terms of the reinsurance contract entered into between this company and the Order of Washington.
“Faithfully yours,
“Geo. M. Moulton,
“President.
“Western Life Indemnity Co.,
“Geo. M. Moulton, President.
“Home Office, Masonic Temple, Chicago.
“This certifies, that all the covenants and obligations heretofore imposed and undertaken by the Order of Washington under and by virtue of a certain life benefit certificate No. 245, issued by said the Order of Washington on the life of H. A. L. Spande are hereby assumed by the Western Life Indemnity Company to the extent and in the manner as set forth in a certain contract of reinsurance made and entered into by and between the Order of Washington, of Portland, Oregon, and the Western Life Indemnity Company, of Chicago, Illinois, on the 15th day of February, A. D. 1908. Executed and delivered at the home office of the Western Life Indemnity Company in Chicago, Illinois, this 21st day of March, 1908.
“Western Life Indemnity Company,
“By Geo. M. Moulton,
“President.”
“Geo. M. Moulton, President.
“The Order of Washington Department “Western Life Indemnity Co., Masonic Temple,
Chicago.
“May 14, 1908.
“H. A. L. Spande, Astoria, Ore.
“Esteemed Comrade: Please find receipt for assessment No. 5. It affords the writer pleasure and much satisfaction to report the successful and eminently satisfactory examination of this company by*186 the Insurance Department of the State of Washington. This company has likewise been examined during the year by the Insurance Departments of Illinois and Indiana and each examination has shown the company to be in excellent condition, with a very promising outlook for the future, all of which we know will be gratifying to our membership.
“Fraternally yours,
“J. L. Mitchell,
“Mgr. the Order of Washington Dept. Western Life Indemnity Company.
“J. L. M. C. D. K., Ene.”
Plaintiff also offered certain receipts for moneys paid by plaintiff, all of which are identical with the one here given, to wit:
“Secretary's Official Receipt for Membership at
Large.
“The Order of Washington.
“Chicago, 111., 5/12, 1906. Received of Comrade H. A. L. Spande — life
benefit fund, assessment No. 5, for 1908.... $1 60
Sick and accident fund, assessment No.-, for
1908 ..................................
Annual dues, general fund, to-, 1908.......
Total............ $1 60
“Western Life Indemnity Company,
“By J. L. B.”
Stamped on receipt:
‘ ‘ This premium is paid and received under the terms of the reinsurance contract dated February 15, 1908, between the Western Life Indemnity Company and the Order of Washington. Any unearned portion of this premium on February 15, 1909, will be credited upon the first premium of the policy to be substituted under said contract.”
“To the President of Any Subordinate Union, O. W.:
“If the holder of this receipt visits your union, and be without the password for the current term, you will appoint an investigating committee, and if they can satisfy themselves that the holder hereof is a member in good standing, and his receipt is for the last assessment due, then you may communicate the term password and admit the member to a seat in your union. Patriotism. Purity. Prudence.”
In the first letter from the president of the defendant company, plaintiff was told that the insurance on his life in the Order of Washington had been “lawfully transferred to defendant,” and that by the payment of his next month’s dues in accordance with the provisions of his benefit certificate, he would become ‘ ‘ one of us, and one with us, until death do us part,” and that immediately upon receipt of the payment, a formal agreement or guaranty would be submitted for attachment to the benefit certificate, which would bind defendant to fulfill all the obligations theretofore imposed upon the Order of Washington until such a time as a policy would be issued on defendant’s forms, and at premium rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and defendant, and that by so doing plaintiff was assured that his rights would be fully “safeguarded and adequately protected.” In this letter plaintiff was apprised of the warmth of the reception that awaited him as indicated from the following excerpt: “In behalf of this company I extend to you a fraternal greeting with the glad hand of fellowship and a cordial welcome into the bosom of our organization. ’ ’ Having extended the ‘ ‘ glad hand of fellowship,” defendant should not be permitted to withdraw that hand upon any subterfuge or refined legal construction so as to defeat plaintiff’s right to
Illumining the documents by these canbns of construction, and it is manifest that plaintiff had a contract of insurance with defendant encompassing all the components required in a definition of that term. No error was committed by the court in overruling defendant’s motion for an order of nonsuit with respect to .the point just discussed.
After a careful consideration of this case, we conclude that the plaintiff made a case sufficient to entitle him to the benefit of the judgment, and that no prejudicial errors appear in the record, and therefore an affirmance is ordered. Affirmed.