Morrison v. Wis. Odd Fellows' Mut. Life Ins. Co.

• Decision Date: 08 January 1884
• Parties: MORRISON v. WISCONSIN ODD FELLOWS' MUT. LIFE INS. CO.
• Court: Wisconsin Supreme Court

59 Wis. 162

18 N.W. 13

MORRISON

v.WISCONSIN ODD FELLOWS' MUT. LIFE INS. CO.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from Walworth county circuit court.

The action is to recover on a certificate of membership issued by the defendant company which insures the life of the plaintiff's husband, William Morrison; the amount of the insurance being payable, by the terms of the contract, to the plaintiff. Under its by-laws the company issued certificates of membership in several distinct classes, and the deceased held such certificates in three of those classes, designated respectively classes “A,” “E,” and “D.” On the death of each member of any class his representative became entitled to receive of the company $1,000 or less, according to the number of members in that class. The money was usually raised by an assessment of one dollar on each member of the particular class of which deceased was a member, but was sometimes paid out of the general fund of the company. Any Odd Fellow, if qualified by the rules of the company, might become a member of any or all of the classes. Mr. Morrison died January 9, 1882, and the company paid the plaintiff the sum pertaining to his membership in classes “A” and “D,” but refused to pay the sum pertaining to his membership in class “E.” This action was brought to recover the same. Class “E” was authorized by the defendant's board of directors, November 10, 1875, by the adoption of the following resolution: “Resolved, that class ‘E,’ which was ordered to be opened by the president be approved, except that the age of the applicant be limited to 50 years.” In December of that year Mr. Morrison made application to be admitted as a member of class “E,” and a certificate of membership therein was duly issued to him. Such application was a printed blank, filled in by the secretary of “Trojan Lodge, No. 55,” of East Troy, of which lodge Mr. Morrison was a member, and was signed by Mr. Morrison. It contains the following clauses: “My age is 46 years”; “I am, so far as I know, in sound health.” In his first application for membership in defendant company, made in May, 1872, Mr. Morrison stated his age to be 53 years; and in his application for membership in class “D,” made in September, 1880, he represented his age to be 62 years. The company resisted payment of the claim on the ground that the representations in the application for membership in class “E” were false and fraudulent in respect to the age and health of Mr. Morrison. It also answered in abatement that under the regulations of the company the claim is not due. This answer in abatement was overruled and disregarded by the circuit court. On the trial, after the testimony was closed, the circuit judge directed the jury to find for the plaintiff for the amount claimed, which they accordingly did. A motion for a new trial was denied, and judgment for the plaintiff entered pursuant to the verdict. A further statement of the testimony and rulings of the court is contained in the opinion. The defendant appeals from the judgment.E. Merton and J. T. Fish, for respondent, Matilda Morrison.

F. W. & G. W. Bird, for appellant, the Wisconsin Odd Fellows' Mut. Life Ins. Co.

LYON, J.

1. The answer in abatement of the action, which was overruled by the circuit court, will first be considered. In the charter of the company (P. & L. Laws 1869, c. 43, § 7) it is provided that the insurance shall be payable within 60 days after notice of the death of a member shall be communicated to the secretary of the company by the proper officer of the lodge of which the deceased was a member. At the time the certificate of insurance in suit was issued, in 1875, a by-law of the defendant company was attached thereto, to the effect, as provided in the charter, that a loss should be payable 60 days after due notice to the secretary of the company of the death of the insured member. In 1880 a new regulation was adopted by the company, which provides that a loss shall be payable 90 days after date of the notice of an assessment to pay such loss. The answer in abatement is based upon this regulation. The company utterly refuses to give notice of an assessment to pay the loss, and then pleads that the loss is not due until such notice is given. We need not determine whether the regulation is reasonable and therefore valid, because we are of the opinion that it does not affect a contract of insurance made before it was adopted. We think it indisputable that the above provision of the charter and original by-law is a part of the contract of insurance, and cannot be changed at the will of the company without the consent of the insured. Due notice of the death of Mr. Morrison having been given to the secretary of the defendant more than 60 days before this action was commenced, if the company is not released on other grounds the loss was due and payable when the suit was brought. Hence, the court below properly overruled the answer in abatement.

The defenses to this action on the merits are that Mr. Morrison fraudulently misrepresented both his age and condition of health in his application for membership in class “E” of the defendant company. There was sufficient testimony to support a finding by a jury that he did misreprsent his age--stating it to be 46 years, when in fact he was 10 years older--and was then ineligible to membership in class “E.” In determining whether the court properly directed a verdict for the plaintiff, every fact adverse to the plaintiff's right to recover, which the testimony tends to prove, must be taken as proved. Hence, it must be assumed that Mr. Morrison misrepresented his age in such application. Assuming this, any rulings of the court on objections to testimony offered on the subject cease to be of any importance and will not be further noticed.

The learned counsel for the defendant maintains that the effect of such fraudulent misrepresentation of age is to forfeit the contract of insurance and relieve the defendant from liability upon it. Whether or not this is a correct proposition is a vital question in the case. It is understood that the circuit court held the negative of the proposition, on the ground that the undisputed evidence showed conduct on the part of defendant in respect to the insurance which was a waiver of any forfeiture. The facts established by the evidence are briefly these: Mr. Morrison became a member of class “A” in 1872. In his application for such membership he dates his age at 53 years. He paid an admission fee of five dollars. In 1880 he became a member of class “D,” and in his application for such membership he gave his age at 62 years. In his application for such membership in class “E,” Mr. Morrison stated that he was a member of class “A,” and in his last application he stated his membership in classes “A” and “E.” On becoming a member of classes “E” and “D,” he paid an admission fee of but one dollar in each class. The amount required to be paid on his first admission is fixed by section 2 of the charter at five dollars. The admission fee to any additional class is fixed by the company at one dollar. It is understood that a member of one class cannot be admitted to another unless he has paid all assessments against him in that class. After Mr. Morrison became a member of class “E,” he paid 40 assessments made against him in that class by the...