Perine v. Grand Lodge A. O. U. W.

• Decision Date: 18 January 1892
• Citation: 48 Minn. 82
• Parties: LOUISA PERINE, as Guardian of Edward G. Perine, <I>vs.</I> GRAND LODGE OF ANCIENT ORDER UNITED WORKMEN.
• Court: Minnesota Supreme Court

48 Minn. 82

LOUISA PERINE, as Guardian of Edward G. Perine, vs. GRAND LODGE OF ANCIENT ORDER UNITED WORKMEN.

Supreme Court of Minnesota.

Argued December 11, 1891.

Decided January 18, 1892.

Appeal by defendant from an order of the district court of Hennepin county, Canty, J., made July 17, 1891, refusing a new trial.

The action was brought by Louisa Perine, as general guardian of Edward G. Perine, an infant, against the Grand Lodge of the Ancient Order United Workmen, State of Minnesota, to recover $2,000 and interest on account of the death, on August 15, 1886, of his father, Sullivan C. Perine, while a member of Calhoun lodge No. 92, Minneapolis. This lodge was first instituted June 30, 1886, by a deputy grand master workman, who was authorized to institute lodges pursuant to defendant's constitution. Sullivan C. Perine was at that time one of the members who formed this new lodge. Irregularities occurred in its organization, and another deputy was sent by the grand master workman to investigate and correct any errors. The lodge was by him instituted again on July 21, 1886, under the same name, and with nearly the same members who participated in the first institution. A charter and certificates were thereupon issued to the lodge, but Sullivan C. Perine was absent when the new institution occurred, and did not participate, nor was any certificate issued to him. He had on June 30, 1886, paid in his initiation fee, $6.66, and certificate fee, $3, and for the beneficiary fund, $1, which sums were accepted, entered in the books of the order, and retained. His name was entered in the roll book of members, and remained there until after his death.

On April 26, 1879, there was filed for record, in the office of the secretary of state, articles of incorporation of the Grand Lodge of the Ancient Order United Workmen, State of Minnesota, purporting to be made pursuant to 1878 G. S. ch. 34, § 205; but such articles were not recorded in the office of the register of deeds of Ramsey county, in which county the grand lodge was by those articles located. It was proved on the trial that defendant had, in its answer in another suit by Mason against it, admitted it was incorporated and had contracted in that name. Defendant order is a fraternal and beneficiary association, one of its objects being to provide, by assessments upon the members, a fund to be paid, at the death of a member in good standing, to his family or such one as he has designated. A prerequisite to admission to membership is a satisfactory medical examination and personal and family history. Each applicant is required to give a written answer to certain questions submitted to him. S. C. Perine made such application in which the questions were answered. Several of these answers were found to be untrue. The following are some of the questions and answers:

"Question. Is your father living? If not living, at what age and of what disease did he die?

"Answer. No. 26. Bronchitis.

"Q. Is your mother living? If not living, at what age and of what disease did she die?

"A. No. 25. Applicant, when very young, (two years,) was taken among strangers, and don't know of what disease she died.

"Q. Have you ever been predisposed to or had any of the following named diseases: Bronchitis, chronic cough, consumption, disease of the lungs, spitting of blood?

"A. No. I hereby certify that the above answers are correct."

The trial took place April 23, 1891. William B. St. Cyr was called by the defendant as a witness, and stated that he had a conversation in May, 1886, with Sullivan C. Perine about his health and physical condition. The witness was at the time of the trial a member of the order, and of Calhoun Lodge No. 92, but was not a member when the conversation took place or when Perine died. Defendant offered to show by the witness that in the conversation Perine stated that his mother died of consumption, and that he had consumption, and expected to die of it, and came west for his health, and on that account. This evidence was excluded on the ground that the witness was incompetent, under 1878 G. S. ch. 73, § 8, in that he was interested in the event of the action. No evidence of his incompetency was given, except the constitution of the grand lodge, and his statement that he was at the date of the trial a member of the order of Calhoun Lodge No. 92.

Defendant by its answer denied that Sullivan C. Perine was ever a member of the Order of United Workmen or of Calhoun Lodge No. 92, and denied that said lodge existed prior to July 21, 1886. It alleged that on June 8, 1886, Perine made application to enter the order, and was required to answer the foregoing questions. That his answers were false, and were fraudulently made, with intent to deceive and defraud defendant, and thereby gain admission to the order and receive its benefits. The answer did not admit that defendant made any contract with deceased, or allege that the questions and answers formed a part of such contract, and were warranties.

Defendant, by its 4th, 5th, and 6th requests, asked the judge to charge the jury that it was a sufficient defense for it to show that the answer to any one of the above questions was false; and, if the answer to any one of them was not true, the plaintiff could not recover, no matter whether such untruthfulness was caused by design on the part of Sullivan C. Perine to defraud the defendant, or from accident or mistake on his part. This the judge refused, but charged that if Perine made those representations knowing them to be false, or if he did not in good faith believe them to be true, or if he was mistaken or misinformed by reason of his own negligence or carelessness, plaintiff could not recover. The jury returned a verdict for plaintiff, and assessed the damages at $2,602.74.

The defendant moved for a new trial, and, being denied, appealed from the order.

Adams & Pattee, E. Southworth, and Jos. A. Eckstein, for appellant.

Merrick & Merrick, for respondent.

MITCHELL, J.

This action was brought by and in the name of Louisa Perine, probate guardian of the person and estate of Edward G. Perine, a minor, to recover on a cause of action in favor of her ward, as beneficiary of a contract of insurance upon the life of his father, alleged to have been made by defendant with the father as a member of a subordinate lodge of the order. The action should have been brought in the name of the minor. The rule at common law and in equity was that an infant had to sue in his own name, but by his guardian or next friend, and this has not been changed by statute. The infant is the real party in interest, and the general statutory rule is that every action must be prosecuted in the name of the real party in interest. 1878 G. S. ch. 66, § 28, provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted. But a guardian appointed by the probate court is not a trustee of an express trust, but an officer of the court. There would seem to be no good reason why the statute should not have placed a guardian, as respects his capacity to sue, upon the same footing as an executor or administrator, but it has not done so in any case, unless, possibly, under 1878 G. S. ch. 66, §§ 33, 34, in the case of the seduction or injury of the ward, — a question which we have no occasion to consider here. Section one hundred and forty-eight (148) of the Probate Code (Laws 1889, ch. 46) provides that every guardian shall demand, sue for, and receive all debts due his ward. The same provision was found in 1878 G. S. ch. 59, § 29. But this was merely a re-enactment of the common-law rule that a suit by an infant must be brought by his guardian. The statute does not say that the guardian shall bring the suit in his own name. But while this action should have been brought in the name of the ward, yet the guardian is a proper party to the record. He is really the active party who institutes the suit, and has the entire control of its prosecution. In such a case we have no doubt of the power of the court, either before or after judgment, in furtherance of justice, to amend by inserting the name of the ward as plaintiff. 1878 G. S. ch. 66, § 124. The only person who has any control over the action is already in court and a party to the record. The only object of inserting the name of the infant as plaintiff is that the judgment in the action may be a bar to any subsequent action by him or in his name.

2. The defendant held itself out, and assumed to do the business in hand, as an association or organization under the name by which it is sued, and hence, so far as plaintiff's right of recovery is concerned, it is wholly immaterial whether it was a corporation de jure, a corporation de facto, or a mere voluntary...