Ridgeway v. The Modern Woodmen of America

• Decision Date: 10 June 1916
• Docket Number: 19,994
• Citation: 157 P. 1191,98 Kan. 240
• Parties: BELLE RIDGEWAY, Appellee, v. THE MODERN WOODMEN OF AMERICA, Appellant
• Court: Kansas Supreme Court

157 P. 1191

98 Kan. 240

BELLE RIDGEWAY, Appellee, v. THE MODERN WOODMEN OF AMERICA, Appellant

No. 19,994

Supreme Court of Kansas

June 10, 1916

Decided, January, 1916.

Appeal from Saline district court; DALLAS GROVER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. FRATERNAL INSURANCE -- By-laws -- "Dangerous Occupation" -- Acceptance of Dues--No Waiver. Where the by-laws of a fraternal beneficiary society provide that the engaging by a member in a specified dangerous occupation shall exempt it from liability on account of his death directly traceable thereto, the acceptance of dues from a member after he has engaged in such occupation, with knowledge of the fact, does not constitute a waiver of the exemption referred to.

2. SAME--Death through Engaging in Dangerous Occupation--Proofs of Death--Furnishing Blanks Therefor--No Waiver. No waiver results in that situation from the fact that the society, after learning that a member has lost his life through engaging in the prohibited occupation, at the request of the beneficiary furnishes blanks upon which to make proofs of death, without giving notice of an intention to resist payment, otherwise than by a general statement that the supplying or use of the blanks should waive no right to deny liability.

Truman Plantz, George G. Perrin, both of Rock Island, Ill., and L. W. Hamner of Salina, for the appellant.

Z. C. Millikin, of Salina, for the appellee.

OPINION

MASON, J.:

William H. Strohm obtained a beneficiary certificate in the Modern Woodmen of America. Thereafter he became a lineman for an electric-light company, and met his death through contact with a live wire while in that employment. The by-laws contained a provision that engaging in such an occupation by a member should exempt the society from liability on account of his death directly traceable thereto. His mother, the beneficiary, brought an action upon the certificate. The society defended upon the ground that it was released from liability by the fact that his death was due to his engaging in the hazardous occupation referred to. The plaintiff relied upon a waiver of the right to defend upon that ground. She recovered a judgment and the defendant appeals.

1. It is argued that a waiver resulted from the receipt of dues with knowledge of the fact that the member had entered the dangerous employment. Inasmuch as his engaging in a hazardous occupation relieved the company from liability only in case the member came to his death by reason of it, he had a motive in keeping up his dues as a protection to the beneficiary in the event of his dying from some other cause, and their receipt by the society with knowledge of his change of employment could not result in a waiver of any of its rights. (Note, 27 L. R. A., n. s., 446; Modern Woodmen of America v. Weekley, 42 Okla. 25, 139 P. 1138.)

2. The verdict was obviously based on the theory that a waiver resulted from the conduct of the society after the member's death. The head clerk sent to the local clerk blank forms for use in presenting a claim against the society, which were delivered to the attorney of the beneficiary and used for that purpose. The jury found specifically that at the time they were sent the society knew the cause of the death. This finding was based on the testimony of the local clerk that he made a written report to the head clerk in which he "supposed" he stated that Strohm had been killed by coming in contact with a live wire while working as a lineman for the electric-light company. Notice to produce the report was served upon the society, but was responded to by a statement that it had no such paper, excepting an official report by the local clerk which was produced, and which appears not to have been the one referred to. The jury also found that the blanks were not delivered upon the request of the plaintiff's attorney, but upon that of the head clerk. The evidence was that the attorney asked the local clerk for them. It is argued in support of the finding that the delivery was made by request of the head clerk that a by-law prescribed this procedure. The by-law referred to, however, concludes with the sentence: "The only duty to be performed by the Camp Clerk under this section is to deliver said blank forms for proofs of the death of the member to said beneficiary or beneficiaries at the request thereof." However, we do not regard it as material whether or not the blanks were delivered in response to a request for them. In either event they were, of course, furnished with the expectation and understanding that they were to be used. No demand or request for their execution was made by the society. There was evidence that the plaintiff incurred the expense of an...