Miller v. Head Camp

• Decision Date: 20 June 1904
• Citation: 77 P. 83,45 Or. 192
• Parties: MILLER v. HEAD CAMP.
• Court: Oregon Supreme Court

77 P. 83

45 Or. 192

MILLER v. HEAD CAMP.

Supreme Court of Oregon

June 20, 1904

Appeal from Circuit Court, Harney County; M.D. Clifford, Judge.

Action by Sarah C. Miller against the Head Camp, Pacific Jurisdiction, Woodmen of the World. Judgment for plaintiff and defendant appeals. Reversed.

This is an action by Sarah C. Miller against the Head Camp, Pacific Jurisdiction, Woodmen of the World--a corporation organized on the lodge plan, as a benefit society, under the laws of Colorado--to recover the sum of $1,000 on a certificate of mutual life insurance issued by it to her son F.T. Miller and in which she is named as the beneficiary. Miller died January 18, 1899, having been a member of Harney Valley Camp No. 381, a subordinate lodge at Burns, Or.; and, the defendant refusing to pay any part of the sum specified in the certificate, this action was instituted, the complaint being in the usual form. The defense is based on the ground that Miller died suspended from the order. The reply having alleged that a forfeiture of his membership was waived by the defendant, a trial was had by the court, without the intervention of a jury, and findings of fact and conclusions of law were made, upon which judgment was entered for the plaintiff in the sum demanded, and the defendant appeals.

A.D Stillman (C.M. Campbell, of counsel), for appellant.

Dalton Biggs, for respondent.

MOORE C.J. (after stating the facts).

There being no bill of exceptions, the only question involved is whether the findings of fact support the judgment. Noland v. Bull. 24 Or. 479, 33 P. 983; Allen v Leavens, 26 Or. 164, 37 P. 488, 26 L.R.A. 620, 46 Am.St.Rep. 613; Richardson v. Dunlap, 26 Or. 270, 38 P. 1. The court found, in effect, that the defendant is a corporation, as alleged; that it issued to F.T. Miller a certificate in which its by-laws were referred to as a part thereof; that in October and November, 1898, the defendant duly declared assessments on all its members on account of death losses, which were payable during the month next following such levy; that these assessments were never paid by Miller, who became ill with la grippe January 10, 1899, which four days thereafter developed into polioencephalitis, followed by mental confusion, delirium, and coma, resulting in his death on the 18th of that month; that two days prior thereto one J.J. Tupker, who was then clerk of Harney Valley Camp, No. 381, issued receipts for such assessments, dating them as of the 5th of that month, and at the same time sent to the defendant the sums due therefor, which were received by it without Miller's having certified that he was in good health; that, though proof of Miller's death was submitted to the defendant April 5, 1899, it did not return the money so received until July 21st of that year; that Tupker was the duly authorized agent of the plaintiff and of the defendant; that he never made any misrepresentations to it; that the defendant accepted the payment of such assessments without any conditions or qualifications; that its officers had a right to waive, and, by the retention of the money paid by Tupker, did waive, a forfeiture, and treated Miller as in good standing at the time the remittance was made; and that Tupker did not then know of Miller's serious illness. Based on such findings the court concluded, as a matter of law, that the defendant waived a forfeiture of Miller's certificate; that Miller was a member in good standing in the defendant's order at the time of his death; and that plaintiff, as his beneficiary, was entitled to a judgment against the defendant for the sum of $1,000. In addition to the findings made by the court, the pleadings admit that Miller's certificate provided that it should not be in force at any time when he should be suspended from the order; that, if he should not pay any assessment levied against him within the time prescribed, his certificate would become void, and so continue until he should be duly reinstated; that a suspended member, within three months after his suspension, might be...