Tessmann v. Supreme Commandery of United Friends

• Decision Date: 18 December 1894
• Citation: 103 Mich. 185,61 N.W. 261
• Court: Michigan Supreme Court
• Parties: TESSMANN v. SUPREME COMMANDERY OF THE UNITED FRIENDS OF MICHIGAN.

61 N.W. 261

103 Mich. 185

TESSMANN v. SUPREME COMMANDERY OF THE UNITED FRIENDS OF MICHIGAN.

Supreme Court of Michigan

December 18, 1894

Error to circuit court, Wayne county; George S. Hosmer, Judge.

Action by Mary A. Tessmann against the Supreme Commandery of the United Friends of Michigan on a benefit certificate. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Thomas Hislop, for appellant.

William Look and Harry F. Chipman, for appellee.

MONTGOMERY J.

This action is brought upon a relief-fund certificate issued by the defendant society to Josephine Eichstadt, by the terms of which a sum not exceeding $1,000 is made payable, in case of death, to the plaintiff, who is the daughter of Mrs Eichstadt. The plaintiff recovered a judgment for the amount named, with interest.

The defenses interposed were, first, that proper proofs of loss were not furnished, the claim being that, after the proofs were furnished, a demand for further proofs upon the subject of the birth of the deceased was made by the company. The second defense was that the deceased, in her application stated her age to be 51 years, when in fact it was 58 years.

1. It is not claimed but that full proofs of loss were furnished, but the constitution contained the provision that "further proof may be required if deemed necessary by the supreme commander. He may prescribe a form therefor." After the proofs of loss were furnished, the plaintiff's counsel received from the supreme commander a communication as follows: "Your communication, in regard to the claim of your client on policy in the United Friends of Michigan, has been referred to C. Uelsmann, 138 Randolph street, your city, supreme treasurer of our order. Respectfully yours, W. H. Andrews, Supreme Commander." Uelsmann testified that he demanded further proofs of the plaintiff, but it does not appear that the supreme commander who was the only person vested with the power to demand further proofs of loss after proofs which would otherwise be sufficient in law had been furnished, ever personally acted upon the subject, and the constitution only justified defendant in demanding further proof when deemed necessary by the supreme commander. This discretion is one which, under the laws of the order, so far as appears, could not be transferred by the supreme commander or vested in another.

2. There is no doubt that the circuit judge correctly submitted to the jury the question of fact as to whether the age of Mrs. Eichstadt was correctly stated in the application. But it is insisted that error was committed in excluding certain testimony offered by the defendant bearing upon this question. The defendant offered in evidence a certificate of baptism of the person claimed to have been Mrs. Eichstadt and also a certificate of baptism of a daughter claimed to have been born to her in 1860, and a certificate of marriage between Julius Alexander Eichstadt and one Josephine Kaczor. The first of these certificates was in the following form: "Upon the basis of the registry of baptisms at this place, it is certified that Catharina, married to Kaczor, born Wolsczcon, during her marriage with the peasant Christian Kaczor, at Kl. Starsin, in the district of Putzig, West Prussia, on the 25th day of February, 1831, gave birth to a daughter, who in holy baptism on the 10th of March, of the same year, received the name of Josephine. Gr. Starsin, the 5th of July, 1892. The Catholic Parish, Ryczynski, Priest." The other certificates were in material respects the same, being in form an assertion or certificate that a certain fact was shown by the register of the parish. Attached to these certificates was a certificate of the consular agent to the genuineness of the signature of the priest. ...