(after stating the facts).
*663 “ Each applicant must undergo a medical examination made by a commissioned medical examiner, when, after said examination has been approved by' the supreme medical examiner, and the applicant has paid the requisite initial assessment and certificate fee, and has been initiated into the lodge, then such person shall be entitled to any benefits that may be due in the event of death under the terms of the relief fund certificate issued. * * * The subordinate lodge shall, upon receiving notice of approval' from the supreme medical examiner, and after tho initiation of the applicant, forward the application to the supreme secretary, with the prescribed fee for the relief fund certificate. * * *
“Seo. 4. The liability of the order to pay benefits, and the liability of the members to pay assessments, shall take effect at the time of the approval of the supreme medical examiner: Provided, that the liability of the order to pay benefits, and of applicants for membership to pay assessments, shall date even with the initiation of the applicant: And provided, also, that no liability ' shall exist on the part of the order to pay benefits until the initial assessment and certificate fee are paid.”
The charter contains no such provision. If, as defendant’s counsel insist, the initiation was by these by-laws made a condition precedent to the issue of the certificate, yet this condition might be waived. When, in the absence of fraud, a policy of insurance is issued in violation of such provisions of the by-laws, those provisions are waived, and the policy is valid. This appears to be the well-settled rule. Davidson v. Benefit Society, 39 Minn. 303 (39 N. W. 803, 1 L. R. A. 482); Morrison v. Insurance Co., 59 Wis. 162 (18 N. W. 13); Fitzgerald v. Life Ass’n, 3 N. Y. Supp. 214; Union Mut. Fire Ins. Co. v. Keyser, 32 N. H. 313 (64 Am. Dec. 375); Perine v. Grand Lodge A. O. U. W., 48 Minn. 82 (50 N. W. 1022); Nibl. Acc. Ins. & Ben. Soc. § 147. The issue of a certificate is evidence that prior conditions have been complied with, or, if not complied with, that they have been waived; and, in the absence of fraud, it is proof of the member’s good standing. High Court I. O. F. v. Zak, 136 Ill. 185 (26 N. E. 593; 29 Am. St. Rep. 318); Tits-
“I know that I signed a beneficiary certificate received from'the grand lodge, issued to Mary Wagner. When I received the certificate I signed it, and gave it, with the other certificates,,'to our recording secretary’s wife, Mrs. Herrick. It was at her residence that I signed them.”
The force of this testimony was weakened by the cross-examination, but not to the extent of wholly destroying its value. On redirect examination he testified:
“I can’t say whether Mary Wagner’s name appeared as the insured in that certificate, but her name was there, and she was insured.”
This witness was the first presiding officer of the local lodge, had been re-elected, and was such officer at the time
Mr. Herrick, the recording secretary, testified that there was a certificate issued to Mary Wagner; that it came in the first batch of certificates received from the grand lodge; that he left it in a drawer in his possession, in the lodge room; that it disappeared from there; that he did not know what became of it; that it was issued to Mary Wagner. Witness was then shown William Wagner’s certificate, and he said, that it was the same in form as the one issued to Mary Wagner. On cross-examination he testified:
“ There was no name in the body of her certificate other than her own and her husband’s. I can’t answer positively which one came first, but I can tell which appeared first on the outside. The names were placed on the outside by my wife. Mary Wagner’s certificate • was for $1,000, and William Wagner’s certificate was for $1,000. William Wagner’s certificate was delivered to' him all right. It came at the same time that Mary Wagner’s did, and I signed it at the same time.”
On recross he said:
“I wish to say that I am very sure that I saw ‘Mary Wagner’ on the outside; but on the inside, I will not state positively whether it was as member or beneficiary on the inside.”
Mr. Hess was recalled, was shown William Wagner’s certificate, and testified:
“Mary Wagner’s name appeared in her certificate in , precisely the same place where William Wagner’s name appears, and reads just as her certificate read, with her name in it:
“ ‘ This certificate, issued by the Supreme Lodge of Knights and Ladies of Honor, witnesseth, that Mary Wagner, a member of Bishop Lodge, No. 2,026, of said order, located at Detroit, in the State of Michigan, is entitled to all the rights and privileges of membership in this order of Knights and Ladies of Honor, and to participate in the relief fund of the order to an amount of $1,000.’
*666 “Any name might be placed in there, and I could read the certificate in the same way. I can swear that her name appeared there.”
Emma Kramer, another charter member, testified that she looked over these certificates at Mrs. Herrick’s house after the lodge had been instituted; that she saw Mr. Wagner’s and Mrs. Wagner’s certificates, — -read them through; and that William Wagner was the beneficiary in Mrs. Wagner’s certificate. On cross-examination she testified: “Mary Wagner’s certificate came back with the first batch, I am almost positive.”
The evidence on the part of the defendaht showed that the name of Mrs. Wagner did not appear as a beneficiary member upon the records of the grand lodge, and that there was upon their books no record of anjr fees or assessments received from her to constitute her such a member. The evidence is very strong, but is not of that character that justifies a court in saying that it is unimpeachable. We cannot say that it was impossible for the officers of the grand lodge to make a mistake. It is not the province of a court to say that the testimony of these three witnesses that they saw the certificate is false. If their testimony be true, a certificate was issued. In addition to this is the evidence of ■ her application and the certificate of the medical examiner, showing that she had taken steps to become a beneficiary member. We think there was a clear conflict of evidence, and that this question was properly left to the jury.
“In receiving money from members in payment of relief fund assessments, and in all acts performed in complying with the relief fund laws of the order, the subordinate lodge and its officers are the agents of the members, and not the agents of the supreme lodge.”
It is now urged that plaintiff cannot recover, because Mrs. Wagner’s agent, the local lodge, neglected to remit her dues to the grand lodge. This is, in effect, saying to the members of the defendant: “The local lodge is
“To invest him [the secretary] with the duties of an agent, and to deny his agency, is a mere juggling with words. Defendant cannot thus play fast and loose with its own subordinates. Upon its theory the policy holders had absolutely no protection. They were bound to make their monthly payments to the secretary of the section, who was bound to remit them to the board of control; but they could not compel him to remit, and were thus completely at his mercy. If he chose to play into the hands of the company, it was possible, for him, by delaying his remittance until after the end of the month, to cause a suspension of every certificate within his jurisdiction.”
“Mr. Hutton, so far as your duties are concerned, and so far as you have come in contact with the*records in any office of this association, what have you to say as to*668 whether Mary Wagner was ever a'member of defendant organization ? ”
Counsel insist that it is permissible to show, by a witness who has examined a record, the absence of entries thereon'; citing Maxwell v. Paine, 53 Mich. 30 (18 N. W. 546); Hoffman v. Pack, Woods & Co., 114 Mich. 1 (71 N. W. 1095). The above question is not within those authorities. The question did not ask whether he had examined the records, and whether her name appeared there. It asked for witness’ opinion, to be gathered from his duties and from his contact with the records, whether she was ever a member.
“If Mrs. Wagner paid her dues and fulfilled the other requirements, she would have been a member of the order, even though the certificate was not issued.”
The charge is not susceptible of this construction. In discussing the question of the fact of the certificate, the court said:
“If she had paid her dues and fulfilled the other requirements, perhaps, even though the certificate was not issued, she would have been a member. ”
The judgment is affirmed.