Robinson v. Brotherhood of Locomotive Firemen and Engineers
| Decision Date | 12 January 1916 |
| Docket Number | 380. |
| Citation | 87 S.E. 537,170 N.C. 545 |
| Parties | ROBINSON v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEERS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Lyon, Judge.
Action by Mrs. Amanda Robinson against the Brotherhood of Locomotive Firemen and Engineers. Judgment for plaintiff, and defendant excepted and appealed. New trial.
There could be no waiver or estoppel as to limitations of agent's authority as to one knowing thereof.
Insurer issuing policy with knowledge of facts and misstatements is ordinarily estopped from insisting on forfeiture.
On the trial, it was made to appear that, in November, 1911 Adolphus Robinson died, being a member of defendant order and holding a policy of insurance therein or a beneficiary certificate for $2,000, of date 1907, plaintiff being the beneficiary, and that proper proof of such contract and death had been duly made; that payment of said certificate was refused by defendant on the ground, established by the verdict that said Adolphus Robinson, in making the application in 1907, on which he had obtained the certificate, falsely represented himself to be 35 years of age when he was, at the time, 50 years old or more. The constitution and by-laws of defendant were put in evidence containing a provision that persons over 45 years of age could not participate in the beneficiary department, and the depositions of A. H. Hawley, general secretary and treasurer of the order, and of W. B. Cary, grand medical examiner, the officers having charge and control of this insurance department, were also introduced, containing testimony to the effect that they had issued the policy or certificate in question on the statements in the application at the time same was issued; that they had no knowledge that deceased was over 45 years of age, and that they would not have issued the policy or certificate if this had been known to them. It further appears that, when the application of the deceased was forwarded to the grand lodge, the questions touching the age of the applicant, his occupation, etc., were unanswered that the secretary and medical examiner, having perceived this omission, returned the application to the medical examiner of the local lodge, who, by the laws of the order was to fill out the answers, as directed by the applicant, and attention was called to the omitted answers by an index hand, pointing to each, on the margin of the application and, on the return of the application properly filled and giving the age of the applicant as 35, the policy was issued. The local examiner testified that he filled the omitted and other answers just as directed by the applicant. And, in support of the testimony of these parties, the original application was produced, showing an entry stamped thereon and attached thereto and giving indication that it had been returned for correction as testified by the witnesses. It was proved further by defendant's witnesses that before or at the time of refusing payment, the defendant had made proper tender of repayment of the fees and dues which had been paid on the certificate during the membership of the deceased. In reply to this there was evidence on the part of plaintiff tending to show that the medical examiner of the local lodge could or should have seen from the appearance of the applicant that he was over 45 years of age at the time of application made, and, furthermore, that in the same application, containing the statement that the deceased was 35 years of age, deceased had, in answer to another question, stated that he had formerly been a member of the order, from lodge No. 457, and that his membership had lapsed in 1893, and that pursuant to notice in the present cause, duly issued, defendant had produced from the files of the grand lodge the application made by deceased at the time of his former admission to the order, and in that his age had been truly stated, the application having been made in 1891 and his age then given as 34 years. It was shown further that deceased, holding the certificate, had continued to pay the regular dues and otherwise act as a member of the order, holding his said certificate from his last admission in 1907 till his death in November, 1911. On this evidence for and against the claim and appropriate pleadings in affirmance and denial of liability, the following issues were submitted and responded to by the jury:
"(1) Did the defendant issue to Adolphus Robinson its beneficiary certificate in the sum of $2,000 as alleged in the complaint? Answer: Yes.
(2) Is plaintiff the widow of the said Adolphus Robinson and the beneficiary in the said certificate? Answer: Yes.
(3) Was the insured, Adolphus Robinson, above 45 years of age at the time of making application for the beneficiary certificate sued on? Answer: Yes.
(4) Were the representations as to the age of insured fraudulently made by said Adolphus Robinson, with the intention to deceive the defendant, and was the defendant thereby deceived? Answer: No.
(5) If Adolphus Robinson was above 45 years of age at the time of filing the application, did the defendant at the time of filing said application or of the issuance of the certificate thereon, or at the time of the receipt of the last premium, know that the said Adolphus Robinson was above 45 years of age when the application was filed? Answer: Yes.
(6) Under the rules and regulations of the defendant was the said Adolphus Robinson ineligible for membership in the beneficiary department of the defendant? Answer: Yes.
(7) If so, did the defendant waive such rules and regulations? Answer: Yes.
(8) If the said Adolphus Robinson was ineligible for membership in the beneficiary department of the defendant, is the defendant estopped to set up his ineligibility therein? Answer: Yes.
(9) What amount, if any, is plaintiff entitled to recover of the defendant on account of said beneficiary certificate? Answer: $2,000 and interest from November 15, 1911, to date."
There was judgment for plaintiff, and defendant excepted and appealed.
J. I. Scales, of Greensboro, for appellant.
Brooks, Sapp & Williams, of Greensboro, for appellee.
HOKE, J. (after stating the facts as above).
There being evidence tending to show that the policy or certificate sued on was issued contrary to the rules and regulations of defendant company as contained in its constitution and by-laws, the same cannot be recovered on unless this defect has been in some way waived or the company is estopped from insisting on a forfeiture.
Speaking then to the facts as established by the verdict, it is the recognized position in this state that, in one of these fraternal organizations having an insurance department as one of its features, a member holding a policy of insurance or benefit certificate occupies a double relationship towards the company. As a member, he is bound by the rules and proceedings of the order, regularly taken, but as a holder of one of the...
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