Wagner v. Supreme Lodge Knights and Ladies of Honor
| Decision Date | 12 November 1901 |
| Citation | 87 N.W. 903,128 Mich. 660 |
| Court | Michigan Supreme Court |
| Parties | WAGNER v. SUPREME LODGE KNIGHTS AND LADIES OF HONOR. |
Error to circuit court, Wayne county; Byron S. Waite, Judge.
Action in assumpsit by William Wagner against the Supreme Lodge Knights and Ladies of Honor on a policy issued by it. From a judgment in favor of plaintiff, defendant brings error. Affirmed.
The defendant is a mutual benefit association, having a system of lodges. Its principal office is at Indianapolis, Ind. Its members are of two classes,--social and beneficiary. One Barbara Bishop received a commission, as deputy supreme protector of the Knights and Ladies of Honor, to organize lodges in Michigan. In July, 1897, she organized a lodge in Detroit known as the 'Bishop Lodge.' Plaintiff was both a social and beneficiary member, and signed the original petition. His wife also became a social member. Whether she became a beneficiary member is the chief subject of controversy. July 6th she applied for examination by the medical examiner, was then examined, and her examination approved by him on July 26th, in the following language indorsed on the back of the application: These documents were introduced in evidence. In this application the following question and answer appear: On July 15th she paid Mrs. Bishop $1 for charter fee, and an assessment of 60 cents. These were the fees required of a beneficiary applicant. An assessment of 60 cents was due the 1st of September. Plaintiff tendered the amount to the financial secretary of the local lodge,--the proper officer to receive it,--but he declined to receive it on account of Mrs. Wagner's sickness, and because he had heard from some of the members of the lodge that she never was a member, having never been initiated and never entered the lodge room. He took the 60 cents under protest, and forwarded it to the supreme lodge, which declined to accept it, asserting that she was not a member. Another asessment became due the 1st of October. Mr. Wagner testified that he offered to pay it, but the officer declined to receive it. Mrs. Wagner died November 24, 1897. Defendant declined to recognize that she had ever been a beneficiary member, and refused payment. Thereupon this suit was instituted resulting in a verdict and judgment for plaintiff.
Hall & Brockway, for appellant.
Bacon & Yerkes and Jonathan Palmer, Jr., for appellee.
GRANT J. (after stating the facts).
1. Mrs. Wagner was not initiated. The provisions of the laws of the association in regard to initiation are as follows: The charter contains no such provision. If, as defendant's counsel insist, the initiation was by these by-laws made a condition precedent to the issue of the certificate, yet this condition might be waived. When, in the absence of fraud, a policy of insurance is issued in violation of such provisions of the by-laws, those provisions are waived, and the policy is valid. This appears to be the well-settled rule. Davidson v. Society, 39 Minn. 303, 39 N.W. 803, 1 L. R. A. 482; Morrison v. Insurance Co., 59 Wis. 162, 18 N.W. 13; Fitzgerald v. Association (City Ct. N. Y.) 3 N.Y. Supp. 214; Insurance Co. v. Keyser, 32 N.H. 313, 64 Am. Dec. 375; Perine v. Grand Lodge, 48 Minn. 82, 50 N.W. 1022; Nibl. Mut. Ben. Soc.� 147. The issue of a certificate is evidence that prior conditions have been complied with, or, if not complied with, that they have been waived; and, in the absence of fraud, it is proof of the member's good standing. High Court v. Zak, 136 Ill. 186, 26 N.E. 593; Titsworth v. Titsworth, 40 Kan. 571, 20 P. 213; To view preceding link please click here Mulroy v. Supreme Lodge, 28 Mo.App. 463; Supreme Lodge v. Johnson, 78 Ind. 110; Kumle v. Grand Lodge, 110 Cal. 204, 42 P. 634.
2. The main defense is one of fact, viz. that no certificate was ever issued. Defendant's counsel insist that under the evidence the court should have directed a verdict for it. In order to sustain this contention, it must be found that there was no substantial evidence that a certificate was issued. The undisputed facts are that Mrs. Wagner signed the original petition for a charter for the Bishop Lodge; that she made application for medical examination; that in that application reference was made for application to relief fund membership that she paid to the proper officer of defendant the dues necessary to become a beneficiary member; that she was examined and approved by the medical examiner, and that she tendered the first assessment that was made after the date of her alleged certificate; and that this was received under protest. The declaration alleges that the certificate was lost. In addition to the above conceded facts, plaintiff testified that his wife made application as a relief fund member at the same time that he did. One Hess, the protector or presiding officer of Bishop Lodge, testified: The force of this testimony was weakened by the cross-examination, but not to the extent of wholly destroying its value. On redirect examination he testified: 'I can't say whether Mary Wagner's name appeared as the insured in that certificate, but her name was there, and she was insured.' This witness was the first presiding officer of the local lodge, had been re-elected, and was such officer at the time of the trial. The weight to be given his testimony belonged to the jury, who heard him testify. There is nothing in the record to indicate any desire or intention on his part to be untruthful. Mr. Herrick, the recording secretary, testified that there was a certificate issued to Mary Wagner; that it came in the first batch of certificates received from the grand lodge; that he left it in the drawer in his possession, in the lodge room;...
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