Whigham v. Supreme Court I.O.F.

• Decision Date: 28 March 1904
• Citation: 75 P. 1067,44 Or. 543
• Parties: WHIGHAM v. SUPREME COURT I.O.F.
• Court: Oregon Supreme Court

75 P. 1067

44 Or. 543

WHIGHAM v. SUPREME COURT I.O.F.

Supreme Court of Oregon

March 28, 1904

Appeal from Circuit Court, Multnomah County; A.L. Frazer, Judge.

Action by Marie Stewart Whigham against the Supreme Court of the Independent Order of Foresters. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The Supreme Court of the Independent Order of Foresters is a fraternal and beneficial society organized and incorporated under the laws of the Dominion of Canada, and having its head office in the city of Toronto. It may and does establish subordinate courts or lodges elsewhere; such local courts being the means by which the society secures its members, and collects the dues, fines, and assessments upon which it relies to pay death claims and expenses. One of its principal purposes is to establish a benefit fund by periodical assessments upon its members, from which, upon satisfactory proof of the death of a member, who has complied with its rules and regulations, a sum not exceeding $3,000 shall be paid to the widow or other beneficiary whom the member may designate. By the rules of the order it is provided that any eligible person desiring to become a member of an existing court must make an application for membership on a form provided by the supreme court, and that the application shall be referred to a committee consisting of three members of the local court, whose duty it shall be to investigate as to the character and habits and health of the applicant, and report their findings to the local court. Section 133 of the constitution and laws of the order provides that all applicants for membership, in addition to the other requirements, shall "not be of bad character, nor lead a dissolute life, nor have been convicted of felony, nor be a frequenter of bad company, nor addicted to intoxication, nor of quarrelsome behavior, and must be in good, sound mental and bodily health." Section 180 provides that "any member who shall obtain membership or try to obtain any benefits by false representation in his application, or medical examination, or by other fraudulent means, or by concealing his true age, or by concealing any mental or physical infirmity, or by not disclosing any material fact relating to himself or his family, shall ipso facto forfeit all payments he may have made and all benefits whatsoever that he or his heirs or his representatives or his beneficiaries would otherwise have been entitled to receive." The rules further provide that all applicants for beneficial certificates shall submit to a medical examination, which shall consist of: "(a) The full explicit and correct answers, in writing, by the applicant to all the questions regarding his personal and family history propounded in the medical examination paper, and the signature of the applicant, in the presence of the examining physician, to the agreement and warranty contained in the said medical examination paper. (b) The physical examination of the applicant by the court physician or other duly authorized examining physician, and the physician's confidential report of the physical condition of the applicant on form No. 3, signed by such physician. (c) The review of such medical examination by and the action thereon of the medical board through its secretary or by a duly authorized assistant secretary." The medical board referred to consists of three physicians, to be elected at each regular session of the supreme court. Section 218 provides that, should the death of a member be caused by or be due, directly or indirectly, to intemperance or immoral conduct, all claims of whatsoever nature he or his beneficiaries might otherwise have had upon the supreme court shall ipso facto lapse and become null and void, and his beneficiary or beneficiaries shall not be entitled to receive and shall not be paid any benefit whatever by the supreme court, or by any other court of the order.

In June, 1898, William Whigham, the plaintiff's husband made application for membership to a local court of the defendant at Portland, and in his application agreed and warranted that "all the statements and representations in this application and in my medical examination paper whether written by me or by another, or by the examining physician, and being material to the contract, are each and every one full, complete and true, and that I have not withheld any circumstance or information material to the contract concerning the past or present state of my health habits of life, or medical treatment; I agree that the said statements and representations and this warranty shall form the basis of the contract between the Supreme Court of the Independent Order of Foresters and myself and of my membership in the said order; I agree that if I have made any concealment, misrepresentation or untrue statement, or if I shall become suspended or voluntarily sever my connection with the said order, that the benefit certificate issued on this application and my membership in the order shall be null and void, and all moneys paid thereon shall be forfeited to the said the supreme court." On June 28th the committee on character appointed by the local court reported favorably and on June 30th Whigham was examined by the court physician. His examination was reduced to writing and signed by him, and contains the statement that his answers to each and all the questions contained therein, and also those made to the medical examiner, are true and correct, and "that no intentional omission, concealment, or mental reservation has been made of any material fact or circumstances relating to my past or present health, habits, or condition, or to my family history, and I agree that the questions and answers herein contained shall form a part of my contract with the Supreme Court of the Independent Order of Foresters." In the paper as so reduced to writing and signed by Whigham appear the following questions and answers: "Q. For what diseases have you consulted or been attended by a physician during the past five years? A. None. Q. If you have had any of the above, or any other disease, give full particulars as to character, date, duration, and whether you have fully recovered, and the name of the physician who attended you. A. Never been sick. Do you drink wine? A. No. Q. Do you drink spirits? A. No. Q. Do you drink malt liquors? A. No. Q. State the daily average amount. A. Don't use it. Q. Have you been intoxicated within the past five years? A. No. Q. How often within the last year? A. Not at all. Q. What has been your habit in this respect during life? A. Temperate." The medical examination paper was forwarded to the head office of the defendant, at Toronto, and there approved by the medical board on July 5th. On July 26th Whigham was regularly initiated into the local court at Portland, and on August 26th a beneficiary certificate, signed by the head officers of the defendant, was issued, by which the defendant agreed to pay to plaintiff, on the death of Whigham being established to the satisfaction of the executive council, the sum of $2,000, "in consideration of the application for membership and of the agreements and statements therein contained, and of the statements, representations and declarations contained in the medical examination paper (in so far as the said agreements, statements, representations and declarations are material to the contract); and in consideration also of the warranty of the applicant that the same, being material to the risks, are in all respects true and correct; and in consideration also of the provisions of the constitutions and laws enacted by the Supreme Court of the Independent Order of Foresters, and of any and of all amendments thereto adopted from time to time by the said the Supreme Court,...