X THE LAW of VOLUNTARY SOCIETIES, MUTUAL BENEFIT INSURANCE AND ACCIDENT INSURANCE. BY WILLIAM C. NLBLACK, OF THE CHICAGO BAH. CBICAGO : Callagiian & Company, L894. r M57I8 IB?4 V Entered according to act of Congress, in the year 1S88, By Callaghan PREFACE. The growth of the law of mutual benefit insurance during the six years which have elapsed since the publication of the first edition of this work has been very great. A glance at a monthly or an annual digest will show that quite as many cases relating to mutual benefit insurance as to ordinary life insur- ance are now decided by the courts. The law of voluntary societies does not develop so rapidly, but the civil and property rights of the members of such societies are of great impor- tance. The first edition was hurriedly prepared, and much of it was written after the work of printing had begun. While it was necessarily imperfect in many respects, its general out- lines have been followed. The arrangement of the parts of the work, the subjects of the chapters, and the headings of the sections are such as to indicate where any point discussed may be found. In treating of incorporated voluntar}'' societies, it is difficult to determine how much of the general law of corporations should be included, and, in considering the contract of mutual benefit insurance, the temptation is great to discuss many interesting subjects which are applicable to life insurance gen- erally. But it is of prime importance that the elements of the contract of mutual benefit insurance should be considered separately, and that, in treating of it, the contract of ordinary life insurance should be mentioned only to show the distinc- tions and differences between the two systems of insurance. It has, therefore, seemed to be the wisest course to exclude any general treatment of the law of corporations or of insur- (iii) ^Qete; IV PREFACE. ance, and to confine this work strictly to the scope indicated b}^ its title. Such subjects as are fully considered in standard text books on corporations or life insurance are omitted from this work, or are merely mentioned incidentally. The law of accident insurance has been added to the work, and it is earnestly hoped that the chapters relating to this subject may not be found to be without value. The writer has, for the most part, avoided theories and dis- cussions, and has endeavored to present a complete and con- cise statement of the present state of the law. He is under obligations to E. Allen Frost, Esq., of the Chicago Bar, for his kind assistance in the publication of this work. William C. Niblack. Chicago, December 1, 1894. TABLE OF CONTENTS. PART I. CHAPTER I. MUTUAL BENEFIT SOCIETIES. Generally § 1, 2 The object is insurance 3 Plans of organization 4 Mutual assessment companies 5 Rights of members of mutual benefit societies 6 CHAPTER II. CHARTER AND CONSTITUTION. Of charters in general ( § 7 The object of a society must be authorized by its organic law 8 The plan of doing business must be authorized by the organic law 9 Manner of doing business set forth in certificate of incorporation. . 10 The object of a society must be legal 11 When corporate existence may not be attacked 12 Ultra vires 13 Constitution of a society 14 Incorporation of unincorporated societies 15 CHAPTER III. BY-LAWS. Inherent power of societies to pass by-laws § 16 Generally 17 "When by-laws are binding on members 18 By-laws must be legal 19 By-laws must be consistent with the charter • 20 By-laws of unincorporated society must be consistent with its consti- tution 21 By-laws of unincorporated society must not be illegal 22 By-laws of an incorporated society must be reasonable and neces- sary 23 Alteration, amendment and suspension 24, 25, 26, 27 Repeal of by-laws 28 CHAPTER IV. MEMBERSHIP. — PART I. Admission into incorporated societies § 29 Admission into unincorporated societies 30 Election to membership 31 yi TABLE OF CONTENTS. Who are members of a mutual benefit society § 32 Membership in religious corporations 33 Expulsion, amotion, suspension 34 Power of amotion in incorporated societies 35 Power of incorporated societies to expel members 36 Modern doctrine of expulsion 37 Power of expulsion conferred by the charter 38 Breaches of corporate duty ■ 39 Expulsion from religious corporations 40 Surrender of right to expel members 41 Double sentence of society _ 42 Statute of limitations 43 Eight to trial by jury 44 Eegularity of proceedings 45 Record of proceedings 46 MEMBERSHIP.— PART II. Reinstatement of member; remedies hi society must be exhausted. § 47 Jurisdiction of appellate tribunal when appeal is irregular 48 Subordinate society refusing to obey order < >f superior body 48a "When decision of appellate tribunal is final 49 Death pending appeal to courts of the society 50 Injunction to restrain illegal expulsion 51 Action for benefits where expulsion of the member is inquired into 52 Action for damages for unlawful expulsion 53 Injunction to reinstate expelled member 54 Reinstatement by courts of justice 55 Mandamus the proper remedy 56 Mandamus a discretionary writ r >^ Delay in applying for restoration 58 MEMBERSHIP. — PART III. Return to writ of mandamus §59 Charges preferred against a member 60 Notice of charges, notice of meeting 61 When notice need not be given 62 Sufficiency of notice 63 Service and proof of notice 64 Waiver of notice 65 Answering charges immediately when presented 66 Tribunal of society expelling a member 67 Good faith hi proceedings in expulsion 68 Decree of court reinstating member must be presented to the so- ciety 69 MEMBERSHIP. — PART IV. Inherent power of unincorporated society to expel members § 70 Right of such society to pass by-laws providing for expelling its members 71 Power of expulsion from usage 72 Expulsion agreed upon in articles of association 73 Charges against a member of such a society 74 TABLK OF CONTEXTS. Vll Reinstatement in unincorporated society § 75 Proper remedy of expelled member 76 CHAPTER V. LIABILITY OF MEMBERS. For debts of incorporated society §77 Where attempted incorporation is valid 78 For debts of an unincorporated society 79, 80 Liability of person incurring the debt 81 Where debt is incurred, payable out of special fund 82 Notice of creditors of withdrawal from society 83 Actions for libel and slander 84 Actions between members 85 Liability of members in Pennsylvania 86 Liability of members hi New York 87 CHAPTER VI. SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. Proper parties to an action § 88 Actions by society or a member to recover property 89 Right of society 'to exclusive use of its name 90 Injunction restraining libel on society 91 Judgment against an unincorporated society 92 CHAPTER Vn. OFFICERS. Election of officers § 93, 94 Powers and duties 95, 96, 97, 98 Salaries, fees, commissions 99 Liabilities of officers 100 Official bonds, rights and liabilities of sureties 101 Liability of new sureties 102 Liability on a bond to a state 103 CHAPTER VIII. MEETINGS. Notice of meetings § 104 Rules governing future meetings 105 Duty of members present to vote 106 Presumption that a quorum was present 107 When corporate acts are binding 108 Meetings on Sunday 109 CHAPTER IX. JURISDICTION OF COURTS OVER SOCIETIES.— PART I. Visitorial power of courts § 110 Courts of society must first be resorted to Ill Courts may not be ousted of jurisdiction 112 When courts will not take jurisdiction 113, 114 Vlll TABLE OF CONTENTS. Injunction to restrain illegal act § 115 Injunction to restrain society from doing business on erroneous plan 116 Status of incorporated societies 117 Dissolution of an unincorporated society 118 Dissolution of an incorporated society 119 When a society is dissolved by its own act or neglect 120 JURISDICTION OF COURTS OVER SOCIETIES.— PART II. Dissolution, trust funds, distribution of property § 121-125 Trust funds of a society 126 Eights of contributors to funds 127 Rights of members in property and funds 128 Revocation of social and fraternal character 129 Mutual benefit society is not a public charity; taxation 130 JURISDICTION OF COURTS OVER SOCIETIES. — PART III. Religious societies § 131 Ecclesiastical jurisdiction — Civil rights -. 132 Secession in religious society — Division of property 133 .Property and trusts of religious societies 134 Trustees and officers of religious societies 135 PART II. CHAPTER X. CERTIFICATE OF MEMBERSHIP. Generally § 136, 137 When the contract is complete; delivery of certificate 138, 139, 140 Where executed 141 Delay of society in accepting application 142 Construction of the contract 143, 144 Construction given to the contract by the society 145 Construction of application and certificate 146 Where terms of a certificate are inconsistent with a by-law 147 By whom certificate must be signed 148 Delivery of certificate to beneficiary not necessary 149 Contract must be accepted in its entirety 150 Certificates are valued policies of insurance 151 Reformation of certificate 152 Reformation; inserting name of beneficiary 153 Novation of the contract 154 In good standing 155 Suicide 156 Known violation of law 157 ■ CHAPTER XI. WHO MAY BE A BENEFICIARY — INSURABLE INTEREST. — PART I. Classes of beneficiaries specified in the charter § 158, 159 TABLE OF CONTEXTS. IX i The terms of the charter are io be liberally construed § 160 Any person belonging to a specified class may be the beneficiary..- 161 Effect of amendment of the organic law of a society 162 When an unincorporated lodge may be the beneficiary 163 When a divorced wife may be the beneficiary 164 WHO MAY BE BENEFICIARY— ASSIGNEE OF CONTRACT. — PART II. When the contract of mutual benefit insurance is assignable. ... § 165, 166 Equitable assignment 167 Limitation on the right to assign 168 The consent and approval of the society may be required 169 Eights of the assignee of a certificate 170 Assignment after death of the member 171 Assignment by the beneficiary ,. 172 Designation of new beneficiary is not an assignment of the certifi- cate 173 Law governing the validity of an assignment 174 CHAPTER XII. CONSTRUCTION OF THE DESIGNATION OF THE BENEFICIARY. Rules of construction § 175 Provisions of the charter designating beneficiaries 176 Beneficiaries designated by the by-laws or certificate 177 Devisees; as designated in last will 178 Wife, widow 179-183 Fund payable to wife for the benefit of herself and children 184 Wife and children 185 Child 186 Children born after issue of certificate 187 Child, grandchild 188 Heirs, heirs at law, legal hens 189-192 Orphans 193 Family 194 Dependents 195 Relations, relatives 196 Legal representatives 197 The assured 198 "Guardian" of member 199 CHAPTER XIII. CONCERNING BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. Estate of the member as a beneficiary § 200 When the member becomes a beneficiary by inheritance 201 Death of beneficiary during life of member 202 Death of one of two named beneficiaries; survivorship 203 Interest of beneficiary vests on death of member 204. SOS Death in common disaster; survivorship; presumption 206 Death of member and beneficiary at same instant 207 Agreement between member and beneficiary as to disposition of fund » 208 X TABLE OF CONTENTS. When beneficiaries take equally § 209 In what proportions heirs take the fund 210 CHAPTER XIV. CHANGE OF BENEFICIARY. Rights of beneficiary in ordinary contract of insurance' § 211 Beneficiary has no vested rights in contract of mutual benefit in- surance 212, 213 Where no manner of changing beneficiaries has been agreed upon. 214 Provisions of the charter concerning changes of beneficiaries 2ir> A change may not be made when the charter forbids it 216 Where terms of by-laws or certificate pi'ohibit a change 217 When mode of changing is prescribed, it must be substantially fol- lowed 218, 219 Authorities holding prescribed modes of changing beneficiaries to be mandatory and exclusive 220 Authorities holding such provisions to be directory merely 221 Change of beneficiary; general observations 222 When the change is perfected 223 CHAPTER XV. CHANGE OF BENEFICIARY. Consent of society to the change § 224 When society is estopped to question the change 22') A beneficiary may be estopped to assert that a change was not properly made 226 Delivery or gift of certificate to the beneficiary; effect on the right to change beneficiaries 227 Effect of an agreement between two members that each shall pro- cure a certificate for the benefit of the survivor 228 A delivery of the certificate to the beneficiary is not necessary 229 Who may be designated as a new beneficiary 230 Does an inoperative change of beneficiaries revoke the original designation ? v . 231 Incomplete designation; failure to exercise the power of appoint- ment 232 Change of beneficiary by suspended member in application for reinstatement 233 Right of a member to change his beneficiary when the certificate is payable to his legal representatives 234 Fraudulent change of beneficiary 234a CHAPTER XVI. DESIGNATION AND CHANGE OF BENEFICIARY. Designation by last will; where the right to devise the fund is con- veyed by charter § 235 Designation of a new beneficiary or disposition of the fund by last will 236 When a designation or disposition by will is invalid 237 TABLE OF CONTENTS. XI When a disposition by will is invalid; power of appointment reserved to the member § 238, 239 Where the designation of a beneficiary is tbe execution of a power of appointment, it must be made according to the laws of the society 240 Designation by special appointment 241 A designation is not necessarily revoked by the subsequent mar- riage of the member 242 When the power to designate or change the beneficiary is ex- hausted 243 Time within which the power of appointment or the right to designate a new beneficiary may be exercised 244 CHAPTER XVII. MEMBERSHIP FEE. Note given for membership fee § 245 Gash payment of fee 246 Recovery of membership fee from society 247 CHAPTER XVIII. ASSESSMENTS. Generally § 24*. 249 Assessments must be properly levied and for proper purposes 251). 251 The act of levying an assessment is ministerial 252 Custom in levying assessments 253 Assessment for reserve fund 254 Assessment in anticipation of losses 255 Effect of the levy of an assessment 256 Notice of assessment 257-259 Notice by mail 260, 261 Date of notice given by mail 262 Date of assessment, date of notice 263 Notice by publication 264 Notice of date of payment 265 Service of notice 266 Agreement of society to give notice to the beneficiary 267 Insufficient notice of assessment 268. 209 CHAPTER XIX. ASSESSMENTS. Payment of assessment § 270 Payment out of funds in the hands of the society 271 By whom payment of an assessment may be made 272 When payment must be made during the lifetime of the member. . 273 Death within thirty days after notice 274 Payment of an assessment after the death of the member; days of grace 275 Payment to subordinate lodge: agency of lodges 276 Authority of agents to collect assessments 277 A receipt for an assessment may be contradicted 278 XII TABLE OF CONTENTS. Tender of an assessment § 279 Refusal to accept assessments; remedy of member 280 Effect of the return of assessments once paid 281 Recovery of assessments paid by a member 282 Promise of the society to receive a past due assessment 283 Reimbursement of one who has paid assessments for another 284 CHAPTER XX. ASSESSMENTS. Forfeiture for non-payment of an assessment § 285, 286 When an affirmative act of the society declaring the forfeiture is necessary 287, 288 When an affirmative act of the society declaring the forfeiture is not necessary 289, 290 Restoration after suspension or forfeiture for non-payment 291-294 Excuse for non-payment, insanity, act of God 295 Excuse for non-payment, Sunday, holiday 296 CHAPTER XXI. ASSESSMENTS. Waiver of forfeiture, agreement of officers, printed prospectus § 297 Waiver of forfeiture, custom of society 298, 299 Waiver of forfeiture, receipt of assessments, estoppel in pais 300, 301 Waiver of forfeiture, assessments retained by the society 302 Waiver of forfeiture, conditional acceptance of past due assess- ments 303, 304 Waiver of forfeiture, the levy of an assessment on a delinquent member 305, 306 Waiver of forfeiture, attempt to collect assessments 307 CHAPTER XXII. ASSESSMENTS. Property of society in assessments levied, or to be levied — Are un- paid assessments assets of the society ? — Can payment of them be enforced? § 308 Interest of the society in the fund collected by assessments 309 CHAPTER XXIII. ACTION ON THE CONTRACT OF THE SOCIETY. An action may be maintained on the contract of a society to pay benefits § 310 The right of a society to provide methods for the settlement of claims against it 311, 312 When the courts of a society must be resorted to 313, 314 A strict construction must be given to provisions abridging a com- mon right 315 Authorities holding that the society may make the decision of its tribunal final 316 TABLE OF CONTENTS. Xlll Authorities holding that a society may not make the decision of its tribunal final ' § 317 Arbitration clauses 317a Actions on by-laws for benefits 318 Effect of expulsion on the claim of the expelled member for bene- fits 319 CHAPTER XXIV. ACTION ON THE CONTRACT OP THE SOCIETY. Limitation as to the time when an action may be brought § 320 Limitation as to the place where an action may be brought 321 Pleading and evidence 322, 323 Competency of witnesses 324 Admissibility of the declarations of a member 325 Proofs of death 326 Attachment of benefit fund, garnishment 327 When fund may or may not be attached 328 CHAPTER XXV. ACTION ON THE CONTRACT OF THE SOCIETY. Plans and schemes of mutual benefit insurance § 329 Mandamus as a remedy 330 Remedy in equity 331 Contract to resort to equity 332 An action at law is a proper remedy 333 Pleading, breach of promise to pay 334 Pleading, evidence, breach of promise to pay 335 Averment of a demand for an assessment 336 Plea or answer setting up that no fund has been raised by assess- ment 337 Evidence, effect of the collection of an assessment by the society 338 Evidence of the amount which might have been realized by an as- sessment 339 Burden of proof 340 Nominal damages in an action at law 341 Substantial damages in an action at law 342 Burden of proof and measure of damages discussed 343 Measure of damages in certain cases 344 Measure of damages for change of the plan of insurance 345 CHAPTER XXVI. PAYMENT OF THE BENEFIT FUND. Payment is not a gift § 346 Payment of the benefit fund, rights of parties 347, 348 To whom the money is payable when the contract is for the benefit of a creditor of the member 349 -351 Payment from reserve fund 352 XIV TABLE OF CONTENTS. Contract to surrender the certificate when the fund is paid by the society § 353 Payment of the fund into court, interpleader by the society 354 Payment of a less amount than is due, receipt in full 355 Settlement procured by the fraud of the society 35G A member may not enjoin payment 357 Payment procured by fraud 358 Right to double payment 359 Interest on the amount of the benefit fund 360 Proceedings to obtain payment of judgment 361 Restricting the operation of the judgment against a society 362 PAET III. CHAPTER XXVII. ACCIDENT INSURANCE. Generally § 363 What is an accident ? 364 Negligence on the part of the insured contributing to the injury. . . 365 Due diligence for personal safety and protection 368 Voluntary exposure to unnecessary danger; obvious risk 367-372 External, violent and accidental means 373-378 External and visible sign 379 The nature, cause or manner of death unknown, or incapable of direct and positive proof; burden of proof 380, 381 CHAPTER XXVIII. ACCIDENT INSURANCE. Accidents while traveling by public or private conveyance § 382, 385 While traveling in compliance with all rules and regulations of common carriers; violation of rules of employment 386 Walking on railway track 387 Intentional injuries inflicted by the insured or any other person. . . 388 Intoxication; under the influence of liquor 389, 390 Fits, vertigo, fainting 391 Drowning 392 CHAPTER XXIX. ACCIDENT INSURANCE. Poison : § 393 Inhaling gas 394 Death or disability caused by any surgical operation or medical or mechanical treatment for disease 395 Hernia, erysipelas 396 Proximate cause of the death of the insured 397, 398 Bodily infirmity 399 Loss of foot, eye or hand 400 TABLE OF CONTENTS. XV Permanent or total disability § 401-405 A company may be liable for sick benefits, thougb not liable for the death of the insured 406 CHAPTER XXX. ACCIDENT INSURANCE. Occupation of the insured § 407. 408 Change of occupation 409. 4H» Change of occupation; classified risks 411 414 N< itice of injury or death 415-41* Waiver of notice 419 Payment of claim from a special fund or in a special manner 420 TABLE OF CASES. [the references are to sections.] Abbott v. Cobb, 85. Abe Lincoln Society v. Miller, 285, 333. Abels v. McKeen, 106, 127. Accident Ins. Co. v. Bennett, 156, 157, 377, 380, 388. Adams v. Otterback, 298. Addison v. Association, 146, 191. Adkins v. Ins. Co., 156. Adm'rs of Stone v. Casualty Co., 144, 366, 409, 413. Adriance v. Roome, 18. ^Etna Life v. Brodie, 152. Ins. Co. v . Brown, 35G. v. France, 300, 322. Life v. Hanna, 3(10. Ins. Co. v. Maguire, 300. Agnew v. A. O. U. W., 250, 257. Ahlborn v. Wolff, 152. Aid Society v. Lewis, 212. Aiken v. Association, 165, 169, 171, 205. Alabama Ins. Co. v. Garmany, 298. v. Herron, 139. v. Ins. Co., 300. v. Mayes, 140, 142. Albert v. Order Chosen Friends, 315, 318, 402. Aldrich v. Accident Association, 411. Alexander v. Association, 189, 190. v. Bailey, 364. v. Parker, 158, 195. Allcmania Ins. Co. v. Little, 320. Allen v. Hovt, 209, 210. Allis v. Ware. 211. Allnut v. High Court, 19, 39, 67. Alsatian Ben. Society. 29. Altaian v. Benz, 128. American Ace. Co. v. Norment, 401, 406, 415. 416, 419. American Accident Co. v. Reigart, 373. American Ins. Co. v. Crawford, 358. v. Day. 326. American Life v. Robertshaw, 348, 350. American Mutual v. Helburn, 252, v. Quire, 257, 290. (XV American Order v. Merrill, 15. Amesbury v. Bowditch Mutual, 17. Amick v. Butler, 348, 349, 350, 351. Anacosta Tribe v. Murbach, 49, 316 319. Ancient Order v. Moore, 259, 271. Anders v. Supreme Lodge, 183. Anderson's Appeal, 201. Anderson i\ Fitzgerald, 183, v. Ins. Co., 397. v. Supreme Council, 276, 313,326. Andes Ins. Co. v. Fish, 320. Andrews and Alexander's Case, 80. v. Portland, 99. Anthony v. Association, 196. Appeal of Beatty, 227. Appeal of Brown, 186. Appleton Bank v. McGiloray, 346. Armstrong v. Ins. Co., 142. v. Mutual Life, 322. Arnet v. Milwaukee Mutual, 321. Artharsv. Baird, 176, 231. Arthur v. Association, 177, 218, 237, 238. v. Ins. Co., 320. Ash v. Guie, 79, 92, 117. Ashley v. Ashley, 165. Aspinwall V. Sacchi, 78. Assurance Society v. Clements, 141. Co. v. Connor, 136. Atkinson v. Ins. Co., 142. Atlantic Mutual v. Moody, 250. V. Saunders, 17, 250, 269. Attorney General v. Bank, 119. v. Moore, 134. Aurora Ins. Co. v. Johnson, 365. Austin v. Holland, 261. v. Searing, 23, 49, 112, 129, 317. Avery v. Baker, 134. Avcson v. Lord Kinnard, 325. Ayer v. New Eng. Mutual, 408. 1'. Bachman r. Arbeiter Bund, 52, 58 319. Bachman v. Supreme Lodge, 7. XV111 TABLE OF CASES. [the references are to sections.] Bachmeyer v. Association, 322, 326. Backdahl v. Grand Lodge, 262, 260, 287, 289. Bacon v. Accident Ass'n, 393. v. Brotherhood, 163. Badenfeld v. Association, 380, 361. Badger v. Ins. Co., 140, 148. Bagg's Case. 29, 37. Bagley v. Grand Lodge, 252. Bailey v. Association, 302, 331, 334. v. Cummings. 194. v. Lewis, 100, 115, 126, 134. v. New England Ins. Co., 347. Bain v. Case, 360, Baker V. Benefit Association, 272, 307. v. Benefit Society, 275. 308. v. Citizens Mutual, 268, 288. V. Ducker. 134. v. Fales, 133. v. Ins. Co., 139, 270, 278, 416. v. Johnson Co.. 176. v. N. Y. St. Mutual. 274, 286. Baldwin V. Fraternity, 136. Baley v. Ins. Co., 393. Ball v. Association, 300. 340. Ballou v. Gile, 143, 176, 195, 212, 222. 354. B. & O. Ass'n v. Post, 277, 318, 323, 402. B. & O. R. R. Co. v. Association. 122. V. Reamy. 397. Bancroft v. H. B. Association. 399. v. Russell. 200. Bane r. Ins. Co.. 270. Bangor v. Masonic Lodge, 130. Bangs v. Mcintosh, 258. Bank v. Bank, 123. V. Hoeber, 356. v. Ins. Co., 156, 232. v. Mathews, 15. Banks v. Phelan, 134. Banker's Association v. Stapp, 32, 246. 272, 274. 275. 305. Barbaro v. Occidental Grove, 3, 92, 276. Barber v. Ins. Co., 320. Barron v. Burnside, 49, 317. Barrows r. Society, 39. Barry v. Accident Association, 364. 379, 397. Barry v. Nuckolls, 80. Barteau v. Ins. Co. , 300. Bartholomew v. Ins. Co, 152. Bartlett v. Union Mutual, 321. Barton v. Provident Mutual, 159, 219, 243. Baskin*s Appeal, 210. Bassell v. Ins. ^o., 144. Bassett v. Parsons, 327. Basye r. Adams. 158, 159, 161, 165, 200, 215. Bates v. Association,257, 285, 330, 333. Bates v. Detroit Mutual, 268. v. Forcht, 324. Bauer v. Samson Lodge, 18, 130, 136, 150, 313, 317, 323. Baxter v . Board of Trade, 54. V. Ins. Co., 97, 270. Bay less v. Ins. Co., 374, 393, 395. Bean v. Assurance Co., 366, 367, 368. v. Ins. Co., 401,414. Bear v. Bromley, 117. Beasley v. Allyn, 128. Beatty v. Supreme Commandery, 243. Beaumont v. Meredith. 88, 117. Becker v. Farmers* Mutual, 19, 136. V. Societv. 24. Belleville Mutual v. Van Winkle, 96. Belton v. Hatch, 19. Benedict v. Grand Lodge, 257, 259, 260. 261. Beneficial Ass'n of Unity, 38. Society v. White. 318, 322. Benefit Association v. Conway. 246. v. Grauman, 398. Society v. Flietsam, 329, 339. Benevolent Societv v. Baldwin, 39. Benj. Franklin Ins. Co. v. Gillett, 152. Bennett v. Ins. Co., 416. r. Van Riper, 160, 196. Bentley v. Ins. Co., 142. Benton y. Brotherhood, 27, 212. Bentz v. N. W. Association, 326, 333, 340. 344. Bergman v. St. Paul Mutual, 7. Bergson v. Ins. Co., 278, Berlin Beneficial Society v. March, 177. Bernays v. Association, 379, 393, 396. Berry v. Indemnity Co., 3. Bersch v. Ins. Co., 251. Berwick r. Johnson, 19. Bessinger i\ Dickerson, 102. Bevin v. Ins. Co., 195. Bewley v. Equitable Society, 331. Bickerton v. Jaccpies. 202, 211. Bigelow v. Assqciation, 270. Bi^elow v. Libby, 308. Bigelow v. Ins. Co., 156, 378. Billings v. Ins. Co., 156. Bird v. St. Marks Church, 132. Birmingham v. Gallagher, 100. Birnbaum v. Passenger Conductor's, 337 Bish v. Ins. Co.. 320. Bisbee v. Ham. 356. Bishop. Admx v. Grand Lodge, 176, 189, 190. 197. v. Young, 327. Black & White Societv V. Vandyke, 55, 310, 316. 319. Rabbit Associations. Munday, 15, 90. TABLE OF CASES. XIX [the references are to sections.] Blackstone v. Ins. Co., 378, 388, 397. Blackwell v. Broughton, 19 l 4. Blaeser v. Ins. Co., 157. Bloggs v. Miles, 238. Blakely v. Bennecke, 81. Block v. Valley Mutual, 213. Bloom v. Franklin Life, 157. Bloomington Mutual v. Blue, 13, 159, 160, 166, 178. Blumenfeldt v. Korschuck, 53. Blumenthal v. Chamber of Com- merce. 39, 53, 55, 64. Boasburg v. Cronan, 208. Bock v. United Workmen, 256, 301, 338, 353, 359. Boehen v. Ins. Co. , 270. Boiler Co. v . Garden, 381. Bolt v. Keyhoe, 328. Bolton v. Bolton, 3, 179, 204, 348. Bomberger v. Society, 348. Bon v. Assurance Co., 366, 367, 383, 386. Borden v. Borden, 353. Borgards v. Ins. Co., 137. Borgraefe v. Supreme Lodge, 32, 276, 290, 301, 307. Borradaile v. Hunter, 156. Bostwick v. Fire Dept., 58. Bosworth v. Western Mutual, 289, 298. Bouten v. American Mutual, 301, 307. Bonton v. Ins. Co., 270, 298, 299, 304. Bowden v. McLeod, 133, 135. Bowen v. Matheson, 19. Bowie v. Grand Lodge, 25, 27. Bowman v. Moore, 219. Bown v. Catholic Mutual, 237, 241. Boy den v. Ins. Co., 200. Boyles v. McCoy, 77. Boynton v. Ins. Co., 317, 321. Bradfield v. Union Mutual, 6, 136. Bradley v. Mutual, 157. Brad well v. Ins. Co., 299. Brady v . Coachmans 1 Association, 23 271. Braunstein v. Ins. Co., 295, 326. Bray v. Farwell, 14. Breasted v. Ins. Co., 143, 156. Breckel r. Imperial Council, 328. Breneman v. Association, 23, 313. Brew v. Clement, 202. Brewer V. Dver, 15. v. Ins. Co., 97. Bridge v. Ins. Co., 360. Briggs v. Earle, 20, 158, 165, 171. v. Hervey, 261. Brigham v. Ins. Co. , 327. Brink v. Accident Association, 399, 408, 419. British Equitable v. Ins. Co., 138. Britt v. Ins. Co., 322. Britton v. Supreme Council, 158, 162, 177, 183, 189, 194, 231, 331, 353, 360. Brockhaus v. Kemna, 211. Brockway v. Ins. Co., 198. Bromley v. Williams, 88. Brooke v. Shacklett, 133. Brooklyn Association v. Hanson, 194, 204. Brooklyn Life v. Bledsoe, 186, 204, 321. Brown v. Association, 178. v. Assurance Co., 360, 384. v. Balfour, 328. v. Dale, 117, 128. v. Freeman, 350. v. Grand Lodge, 212, 227, 234a. v. GrifFen, 100. v. Ins. Co., 270, 356, 365. v. Mansur, 167, 169, 197, 214, 219,231. v. N. W. Legion, 301. v. Stoerkel, 89, 117. Bruce v. Garden, 348, 350. Brunnenmeyer v. Buhne, 135. Bruton v. Ins. Co., 144. Bucklee v. Ins. Co., 304. Buckley u. Ins. Co., 266. Buckofzer v. Grand Lodge, 315. Buffalo & A. R. Co. v. Cary. 78. Buffalo Trust Co« v. Aid Association, 326. Buffum v. Ins. Co., 270. Bulger v. Ins. Co., 270. Bur bank v. Association, 32, 55, 97, 300. Burd Orphan Asylum v. School Dis- trict, 130. Burdine v. Grand Lodge, 130. Burdon v. Association, 123, 248, 308, 309, 331. Burkhart v. Ins. Co., 143, 369, 382, 387. Burland v. Association, 330, 333, 342. Burleigh v. Clough, 238. Burlington Relief v. White, 138, 279 Burls v. Smith, 79. Burmer v. Storm, 209. Burns v. Grand Lodge, 15, 154, 158, 176, 231. Burns v. Union, 313. Burroughs v. Assurance Co., 347. Burroughs v. Statt Mutual, 197. Burt v. Grand Lodge, 29, 76. Burt v. Lathrop, 79, bO, 117. Burt v. Oneida Community, 128. Burton v. Eyden, 144. v. Society, 60. Bush v. Sherman, 100. Bushaw v. Accident Co., 414, XX TABLE OF CASES. [the references are to sections.] Butchers' Association, 38. Butler v. Ins. Co., 270. Butterfield v. Beardsley, 117. Byrne v. Casey, 136, 213, 219, 227. C Cables v. Prescott, 347. Caldicottv. Griffiths, 85, 117. Calkins V. Cheney. 40, 134. Calvin v. Association, 270, 293. Cammack v. Le%vis, 165, 348. 350. Canimeyer v. Church, 33, 135. Campbell v. Ins. Co., 300, 303, 326, 347. Campbell v. International Life, 296. Campbell v. Rawdon, 204. v. Society. 279. Canfield v. Great Camp, 49, 316. Canning v. Farquar. 138. Carew v. Rutherford, 19. Carlen v. Drury, 47, 314. Carlock v. Ins. Co. , 270. Cariuichael v. Association, 160, 194, 195. Carmon v. Exchange, 63. Carpenter v. Association, 295. Carr v. Thompson, 320. Carraher v. Insurance Co., 199. Carrigan v. Ins. Co., 301. Carroll v. Ins. Co., 317a, 419. Cartan v. Fr. Mattfew Society, 310. v. Society, 23. Carter v. Ins. Co. , 270. Cartwright v. Vaudry, 179. Gary Library v. Bliss, 100, 126. Case v. Avers, 101. Castner v. Farmers' Ins. Co., 257. v. Farmers' Mutual, 64, 260. Catholic Association v. Priest, 212. Catholic Knights v. Franke, 136. v. Kuhn, 213, 236. Catholic Order of Foresters v. Calla- han, 230. Catland v. Hovt. 208. Catoir v. American Life. 301 , 307. Cawley v. Association, 397. Central Bank v. Hume, 211. Central City v. Walker, 79. Chalfant v. Pay ton, 11. Chamberlain v. Lincoln, 14, 111, 313. Chambers v. Calhoun, 85, 88. Champlain v. Assurance Co., 365, 383. 384 Chandler v. Ins. Co., 320, 365. Chapin v. Fellows, 211. Chapman v. Mclnwrath. 167. Charter Oak v. Brant, 211. Cbartrandr. Brace. 3, 201, 205. Chase v. Ch -nev, 43, 55, 63, 67, 74, 132. 133^ 291. Chasmar v. Bucken, 204. Chicago Life v. Warner, 307. Chicago Mutual v. Hunt, 9, 32, 93, 98, 119, 144, 248. Chickering v. Ins. Co., 270. Child v. Society, 79. Chisholm v. Ins. Co.. 151. Chowne r. Baylis. 173. Chrisholm v. National Ins. Co., 195. Chubb v. Upton, 78. Church v. Seibert, 133. v. Witherell, 133. Churchill v. Churchill, 188. Cincinnati Lodge v. Littlebury, 49, 316. Citizens Ins. Co. v. Marsh, 365. v. Sortwell, 252. City v. Ins. Co., 365. City of Indianapolis v. The Grand Master, etc., 130. Clancev v. Salt Co., 11, 19. Clark v. Aid Union, 302. v. Allen, 165. 351. v. Durand, 211. v. Roots, 152. Clevenger v. Mutual Life, 17. ('lift v. Schwabe, 156. Clinton v. Ins. Co., 200. Cluff v. Ins. Co., 157, 368. Coates v. Mayor, 23. Cobb v. Ins. Co.. 3 17a. Coburn v. Ins. Co., 322, 381. Cockburn v. Thompson, 88, 117. Cockerel] v. Ancompte, 79. Codman v. Krell, 189. Cohen r. N. Y. Mutual, 331. Cohn H. Borst, 80. Colby v. Life Indemnity Co., 251, 297. Cole v. Ins. Co., 393. Coleman v. Coleman, 78. V. Knights of Honor, 23, . 158, 168, 215, 218, 219. Coles v. Iowa Mutual, 18. Collier v. Association, 123. Collins v. Hoxie, 179, 209. Coltr. Ins. Co., 393. Columbia Ins. Co. v. Kingon, 342. Columbian Ins. Co. v. Lawrence, 365. Combs v. Ins. Co., 169, 171, 270. Commercial Insurance Co. v. Huck- berger, 326. Commercial Ins. Co. V. Spankneble, 300. Commercial League v. People, 9. Commonwealth v. Association, 39. v. Beneficial Institu- tion, 287. v. Binghurst, 93. v. Cain, 20. v. German Society, 55, 67. v. Green, 106. TABLE OF CASES. XXI [the rkferexces are to sections.] Commonwealth v. Guardians of the Poor, 45, 55, 60, 104. v. Hunt, 19. V. Institution, 64, 65. v. Ins. Co., 122. v. Mayor of Lancas- ter. 28, 105. v. Pa. Ben. Societv, 55. v. St. Patrick's So- cietv. 39, 55. v. Societv, 23, 59, 60. v. Volz. 86. v. Wetherbee, 8, 161. v. Woelper, 94, 107. v. Worchester,17, 23. Comstock v . Grand Rapids, 99. Connaughton v. Sands, 194. Connecticut Mutual v. Baldwin, 186, 187, 209, 211. V. Burroughs, 167, 188. V. Groom, 156. v. Luchs, 198. v. Pyle. 143. v. Schaefer, 164, 322, 351. v. Schwenk, 300. v. Westervelt, 174. Connelly v. Association, 29, 32, 50, 55, 132, 291. Continental Life v. Hamilton, 297. v. Lippold, 416. v. Palmer, 186, 188, 201, 202, 209. V. Rogers, 322. v. Webb, 140, 141, 148, 188. 205. v. Willetts, 270. Conway v. Ins. Co., 304. Cookr. Ins. Co., 390. Coolidger. Ins. Co., 300. ( loopei v. Association, 320. v. Ins. Co.. 138, 139, 140, 152, 156. 223. v. Shaeffer, 349. Co-operative Association v. McCon- nieo, 297. Cornish v. Ins. Co., 366, 367, 368, 387. ( iorrigaoD r. Society. 63. Corson's Appeal, 351 . Coster v. Butler. 11*7. Cotten v. Fidelity Co., 270, 300, 302, 370. 399. 408. Conadeau v. Accident Co., 389. County of St. Clair r. The People. 880. Courtney r. Association. 136, 357, 860. Covenant Mutual v. Hoffman, 185, 190, 197, 201. 204, 333, 340. Covenant Mutual v. Sears, 143, 178. 331. v. Spies, 257, 279, 326. Coventry Mutual v. Evans, 415. Cowman v. Rogers, 206. Cox v. Curwen, 197. v. Stafford. 194. Coyle v. Societv. 24. 357, 268. Cragin v. Cragin, 209, 210, 347. Craig v. Church. 93. Cram v. Association. 340. Cramer v. Masonic Life, 32, 323. Crandall v. Ins. Co., 378. Crawford's Appeal, 167. Crawford County Mutual v. Cochran. 306. Crittenden v. Ins. Co., 138, 211, 223. Crockett v. Crockett, 209, 210. Crokatt v. Ford, 353. Cromer v. Pinknev. 179. Cronkhite v. Ins. Co., 156, 377, 380, 381. Crosby v. Stephan, 328. Crossman v. Mass. Mutual. 25, 113, 254, 298, 299. 352. Cullen v. Duke of Queensbury , 81, 88. Cumberland Mutual v. Douglas, 365. Cummings v. Webster, 17. Cummins v. Monteith, 152. Card v. Wallace, 133. Currier v. Ins. Co., 270. Curtis v. Ins. Co., 170, 329. 333, 334. 335, 340. Cushman v. Societv, 339, 340. Cutter v. Doughty^ 188. J) Dailey r. Preferred Masonic, 138, 408. Dails v. Lloyd, 346. Dall.y v. Ins. Co., 164 351. Damont v. R. R. Co., 383. Dane v. Young, 220. Daniels v. Pratt, 158, 200, 224, 237. Daniher v. Grand Lodge, 300, 315. 317. Harrow v. Society, 156, 157, 333. Davidson v. Old People's Society. 136, 147.293. v. Supreme Lodge, 143. 333, 270. 323. v. Young, 300. Davies r. Bailey, ]!)<;. v. Davies, 197. Davis r. Davis. 415. Dawkins r. Antrobus, 70, 71, 73, 75. Dawson r. Ins. ( o.. 401. Day, Guardian, v. Case, 182, 190, 354. Day v. Ins. Co., 138, 275, 280, 300. 327. Dayton Ins. Co. v. Kelley, 270. xxu TABLE OF CASES. [the references are to sections ] De Frece v. Ins. Co., 301. De Graw v. Accident Society, 388. De Jonge v. Goldsmith, 167. Deaderick v. Sampson, 133. Deady v. Association, 213, 243. Dean v. Bennett, 63. v. Ins. Co., 156. Deardortf v. Association, 334, 340. Deginther's Appeal, 201. Delacy v. Company, 61. Delanney v. Strickland, 79. Delaware Institute v. Delaware Co., 130. Dennings v. Supreme Lodge, 250. Den v. Bolton, 133. Dennett v. Kirk, 218, 237. Dennis v. Association 292, 295, 381. v. Ins. Co., 322. v. Kennedy, 88. De Senaucour v. Societe La Prevoy- ance, 84. Detroit Schuetzen v. Verein, 11. Derricks Ins. Co., 320. Devoss v. Gray, 79. Dexter Savings Bank v. Copeland, 173. Dial v. Valley Mutual, 258, 285. Diboll v. Ins. Co., 138. Dickinson v. Chamber of Commerce, 39. v. Grand Lodge, 298. V. Purvis, 196. Diehlv. Ins. Co., 300, 306. Dietrich V. Madison Relief Ass'n, 13, 79, 165, 212. Diffenbach v. Vogeler, 169. Diligent Fire Co. v. Commonwealth, 20, 29. Dilleber v. Ins. Co., 325, 393. Diocese of East Carolina v. Diocese of North Carolina, 133. District Grand Lodge v. Colin, 14, 17, 41, 70, 73, 268, 285, 302. v. Jedidjah Lodge, 139. Ditch v. Sennott, 237. Dixon v. Sadler, 365. v. The People, 344. Dodds v. Aid Association, 404. Dodge v. Freedman's Co., 294, 325. Doggev. Ins. Co., 169, 171. Dolan v. Court of Good Samaritan, 49, 136, 310, 318. Dolan v. Mayor, 99. Doniol v. Ins. Co., 152. Doremus v. Church, 94a, 119. Dorin v. Dorin, 179. Dorsey v. Smyth, 99. Doty v. Association, 333, 334. Doubleday v. Muskett, 81. Dougherty v. Ins. Co., 326, 387. Douglas v. Ins. Co. , 282. Downing v. Mann, 81. Downing v. Pugar, 79. Downing v. St. Columba's Society, 64, 65. Dows v. Naper, 32. Dowses Case, 15. Doyle v. Benevolent Society, 19. Doyle v. Petroleum Co., 119. Dozier v. Casualty Co., 375. Drabek v. Grand Lodge, 101. Drake v. Pell, 197. Drew v. Wakefield, 196. Dublin Case, 133. Duke v. Fuller, 121. Duncan v. Jones, 84. v. Preferred Association, 364, 366. 368, 369, 386, 387. Dunham v. Griswold. 356. v. Morse. 270. Dunkley V. Harrison, 402. Duran v. Ins. Co., 157. Durham V. Ins. Co.. 152. Durhans r. Corey, 64, 260. Durian v. Central Verein, 3, 147, 183, 212. 213. 230. Duringer v. Moschino, 261. Dutton v. Willner, 167, 348. Duvall v. Goodson, 188, 201, 212, 238. Dwelling House Ins. Co. v. Brodie, 320. Dwight v. Ins. Co., 407. E Eames v. Ins. Co., 140, 414. Earnshaw v. Society, 320, 333, 334, 335, 340. Eastabrook v. Ins. Co., 156. Eastman v. Provident Mutual, 136, 170, 212, 232, 325. Eaton v. Supreme Lodge, 18, 251, 255, 271, 301. Eccleston v. Clipsham, 322. Eckerly v. Alcorn, 261. Eckert v. Society, 159. Eckler v. Terry, 146. Eddington v. Mutual Life, 325. Edwards v. Ins. Co., 156, 317, 416. Eggenberger v. Association, 379, 380, 411. Eggleston v. Association, 332. v. Ins. Co., 399. Eichbaum v. Irons, 79, 81. Eiseman v. Juclah, 238, 244. Eisman ?>. Poindexter, 189. Elkhart Mutual v. Houghton, 3, 49, 143, 159, 317, 322, 333, 334, 340, 344. Ellerbe v. Association, 122. v. Barney, 348. TABLE OF CASES. XX111 [the references are to SECTIONS.] Ellerbe v. Faust, 32, 300. Elliott v. Kennedy, 262. v. Whedbee, 232. Ellis v. Ins. Co.. 320. Ellison v. Bignold, 113, 117, 313. Elmer v. Association, 274, 275, 305, 323. Elsey v. Odd Fellows Ass'n, 143, 220a, 190, 194, 195, 197, 231, 357. Ely's Appeal. 189. Emmeluth v. Association, 322. Employer's Liability Co. v. Merrill, 364. Endie r. Slemmons, 201. Endowment Association r. State, 3. v. Wood, 201. English v. Arbuckle, 356. Eppingeru. Russell. 214. Epstein u. Mutual Aid, 23, 262. 263. Equitable v. McLennon, 20, 39, 288, 289. v. Osborn, 367, 368, 387. Equitable Life v. Hazlewood, 350. v. Paterson. 156, 378, 393. Equitable Mutual v. McCluskey. 375. Equitable Society v. Petersen. 183. Estate of Breitung, Adler v. Stoffel, 141. Erd v. Association. 39. Erdmann v. Ins. Co., 3, 143, 276, 285, 302, 304. 323. Essery v. Court Pride, 111. Fsty v. Clark, 196. Eury v. Ins. Co.. '-'TO. Evangelical Ass'n Appeal, 134. Evans v. Club, 39. v. Ins. Co.. 97. v. Opperman, 1s."j. Evarts v. Association, 251,271, 326. Ewinu; v. Medlock, 88. Excelsior .Mutual \. Kiddle, 330, 333. Ex parte Paine, •-".». Expressman's Aid Society v. Lewis. 202. F Fairchild v. Association, 333, 339, 340. r. Assurance ( !o., 165. Fairlie r. Hastings, 277. Farman v. Farman, 1!)7. Farmer v. State, :'>. Farmers' .Mutual r. Brown, 302. r. Chase. 250. 342. r. Koont/.. 305. v. Mylin, 346. r. Snyder, 144. Fanners' Union v. Wilder, 305. Farnswoi'th v. Storrs, it. 84, Farr v. Grand Lodge, 203. Farrell v. Cook, 73. v. Dalzell, 73. Farrer v. Close, 19. Farrie r. Supreme Council, 257, 270. Faughner v. Ins. Co.. 138. Fawcetl V. Charles. 84. Fayette Mutual v. Fuller, 250. Fehlberg v. Cosine, 152. Feits, Executor, v Vanatta. 188. Felix v. Grand Lodge, 186, 209. Fells v. Read, 128. Fenn v. Lewis, 176. Ferguson v. Mass. Mutual. 351. v. Stuart's Ex'rs, 189. Ferraria v. Yasconcellos, 132, 133, 135. Ferrer v. Ins. Co., 144. Ferris v. Thaw, 79. Firemen's Ins. Co. r. Powell, 365. Fischer v. Raab, 104, 118. v. Ins. Co., 388. Fidelity Co. v. Teter, 385. Fishbeck v. Ins. Co., 399. Fisher v. Andrews. ::u ( J. v. Bishop, 356. V. Board of Trade, 54. v. Keane, 75. 76. v. Schiller Lodge, 276. Fisk v. Aid Union. 14s. 223, 227. Fitch v. Ins. Co., 156, 183, 325. V. Reiner, 111. Fitton r. Ins. Co., 380, 396, 398. Fitzgerald v. Equitable Reserve, 13, 147, 333. Fitzpatrick v. Ins. Co., 183, 269, 299, 300. Flagg v. Swift. 87. Flemyng v. Hector, 79. Flint r. Pierce. 17. Flocton v. Edwin Forrest Lodge, 115. Flynn V. Association. 347. V. Ins. Co.. 407. Fogg v. Supreme Lodge, 10:1. 124. Folic! te v. Association. 399. Fohner's Appeal, 160, 194. Ford v. U. s. Ace. Co., L52, 402. Forse v. Supreme Lodge, 23, 260, 262, 323. Fort Des Moines Lodge V. County of Folk. Dill. Foster r. (rile. 202, 211. v. Moulton, 8, 78. Fowler r. Butterlj . 211. V. Ins. Lo., L52, 297. Fox r. Ins. Co., 252, 349. Frain v. Ins. Co.. 282. Fran.klin r. Commonwealth, 23, 38. Franklin Bank V. ( looper, 101. Franklin Ins. Co. 17. Colt, 138. v. Hazzard, 165. v. Humphrey, 323. v. Marian, 152. XXIV TABLE OF CASES. [the reffrences are to sections.] Franklin Ins. Co. v. Sefton, 165, 301, 307, 322. Franklin Life v. Wallace, 143, 285. Fraternal Guardian's Estate— Shee- ler*s Appeal, 124. Fraternal Mutual v. Applegate, 325. Fredenthal v. Taylor, 81. Frederick v. Henderson, 152. Freeman v. Association. 398. v. Society, 333, 336, 337, 339. v. Ins. Co., 380, 381. Freme v. Brode, 350. French v. Association, 303. Frey v. Fidelity Lodge, 144. v. Ins. Co., 156, 258. v. Wellington Mutual, 269. Fried v. Ins. Co.. 138. 223. Friezen i'. Ins. Co., 320. Fritz v. Muck. 49, 61, 76, 285, 316. Fritzler v. Robinson, 152. Frost v. Saratoga Ins. Co., 300. Fugure v. Society, 24. Fuller v. Association, 23. v. Trustees. 55, 60. Fulnier v. Association, 333. G Gable v. Miller, 135. Gaige v. Grand Lodge, 291. Gaff V. Greer, 133. Galbraith's Admr. v. Ins. Co., 300. Gale v. Association, 379. Gamb-y. Ins. Co., 211. Gamble v. Assurance Co., 418. Gans v. St. Paul Ins. Co., 300. Garbutt v. Association, 260, 303. Gardner v. Freemantle, 63, 68. v. Heyer, 179. Garham v. Society, 124. Gamer v. Ins. Co., 211. Garretson v. Equitable Mutual, 260, 341. Garrick v. Lord Camden, 196. Gary v. Association, 354. Gaterman v. Ins. Co. , 298. Gauch v. Ins. Co., 190. Gay v . Farmers' Mutual, 29, 36. v. Ins. Co., 138. Geiger v. McLinn. 328. Gellatly v. Mutual Benefit, 257. Genest v. L'Union, 318. Gentry v. Supreme Lodge, 159, 212. Georgia Masonic v. Gibson, 136, 302, 324. German Congregation v. Presler, 135. German Ins. Co. v. Ward, 246. Germanialns. Co. v. Boykin, 415, 417. v. Curran, 326, 415. v. Deckard, 416. v. Sherlock, 365. Gibson v. Armstrong, 133. v. Ky. Grangers, 176, 282. v. Society, 158, 284, 348. Giddings v. Ins. Co., 138, 139, 141, 273. Gilbert v. Crystal Lodge, 84. v. Moose, 346, 348, 3.50. Girard Ins. Co. v. Field, 327. Girard Life t>. Mutual Life, 271, 279, 299. Gittings v. McDermott, 189. Given v. Odd Fellows. 177, 202. Gladding v. Gladding, 219, 354. Glanz v. Gloeckler, 201, 211. Glardon v. Supreme Lodge, 47, 58, 294. Globe Ins. Co. v. Boyle, 153, 200, 232. Globe Ins. Co. v. Duffy, 139. Goddard v. Merchant's Exchange, 23. Godsal v. Webb, 350. Goedeckev. Ins. Co., 298. Goetzmann v. Ins. Co., 157. Golden Rule v. People. 3. 9, 19. Goldsmitb v. Ins. Co., 152, 156, 326. Goodman v. Jedidjah Lodge, 100, 112, 115, 121, 126, 129. Goodwin v. Mass. Mutual, 351. Gorman v. O'Connor, 128. v. Russell, 117, 118. Gosling v. Caldwell, 189, 210. Gottlieb v. Cranch, 350. Gould v. Bank, 356. v. Emerson, 209, 347. Gough v. St. John, 101. Governors v. Union, 3, 19. Grace v. N. W. Association, 223. Grand Central Lodge v. Grogan, 315. Grand Lodge V. Brand. 95, 144, 286, 300. v. Child, 219, 223. v. ( ressey, 294. v. Eisner, 136, 179, 195. v. Jesse, 97, 292, 295, 299. v. Noll,' 223. v. Safer, 136, 146, 185, 209, 354. Grand Rapids v. Bulkley, 93. Granite Mutual v. Porter, 3. Grant v. Kline, 349. v. Ins. Co., 170. Grattan v. Ins. Co., 326, 407. Gray v. Bank, 53. Gray v. National Association, 282, 300, 302. v. Pearson, 80. v. Society, 31, 55, 64, 287. v. Supreme Lodge, 152, 286. Gregg v. Society, 39. Greely v. Ins. Co., 23, 262, 263. Green v. Cody, 89. v. Society, 60, 67. TABLE OF CASES. XXV [the references are to sections.] Green v. Watkins, 50. Greene v. Ins. Co.. 171, 277. v. Walton. 200. Greenfield V. Ins. Co.. 185. Greeno v. Greeno, 212, 238. Greenwood v. Holbrook, 197. r. Maddox, 194. Greg? v. So( siety , 51. Greshamv. Ins.' Co.. 157, 388. Griesa v. Association, 303, 304. Grittin ?\ Association, 157. Griswold ?•. Hazard. 152. v. Sawyer, 197. Grit v. Ins. Co., 278. Grossman v. Supreme Lodge, 323, 825. Grosvenor v. Society, 22. 55, 74, 128. Guardian Mutual V. Bogan, 156, 322. Guernsey >'. Ins. Co.. 152. Guldenkirch v. Association. 388. Gundlach r. Association, 13, 19, 24, 136, 213. Gunmakers v. Fell, 19. Gunther v. Association. 260, 269, 290, 299. Gutterson v. Gutterson, 202. Gyllenhammer v. Society, 344. II Habicht v. Pemberton. 88. v. Society. 89. Hadden v. Chorn, 133. Haden 0. Association. 142. Bagerman v. Association. 12. Hainer v. Legion of Honor, 226, 237. Hale v. Everett, 132. 133, 134. v. Ins. Co.. 17, 18. v. Mechanics Mutual, 97. Hall V. Am. .Masonic. 380, 4(>S. /•. Association, 218, 221. 223. v. Merrill, 97. v. People's Mutual, 317, 321. V. Raw Is. 311. v. Supreme Lodge, 47, 2.17, 276, 379, 288. Hallan r. Gardner's Adm'r, 209. Hallock v. In>. Co.. 138, 139, 142. Hallowell v. Phipps. 188. Halsey V. Patterson. 197. Haniill v. Supreme < !ouncil, 108, 324. Hamilton v. Ins. < to.. L39, 317a. v. McQuillan, 236. v. Pitcher, 209. Hamilton Mutual r, Bobart, 15. Bammerstein v. Parsons, L98. Hammond v. American .Mutual, 296. Hani' V. Association. 17. 300. Hankison v. Pago, 328, 383,337, 842. Hattley v. Association, 298, 299. Hannigan v. Ingraham, 214, 232, 236. Hanover Ins. Co. v. Connor. 327. V. Lewis, 360. Bansen v. Supreme Lodge, 268, 271. 289, 294. 325. Bappy v. Morton. 132. 134. Bardie v. Ins. Co., 140. 141, 148. Hardin v. Baptist Church, 40. Harding o. Littlehale, 146, 162, 234, 236. Bari v.Lloyd, 179. Hurl V. Ins". Co.. 330, 340. Barley v. Heist, 201. Harmon v. Dreher, i:!3. v. Lewis, 169. Barp v. Ins. Co., 142. Harper v. Ins. Co., 368. v. Straus, 133. Harpers Adm'r V. Ins. Co., 157. Barriman v. Baptist Church, 13. Harrington r. Association, 47, 111, 313 V. Society, 22, 23, 318. Harris v. Harris. 344. v. Ins. Co., 398. v. Society. 286. Harrison v. Boyle, 133. v. Ins. Co., 152. Hartford Ins. Co. v. Bayden, 301. v. Mathews, 358. Hartman v. Ins. Co., 156, 407. Hart's Case, 15. Bartwell v. Ins. Co., 300. Harvey v.. Grand Lodge, 97, 292, 301. Hascall v. Cox, 189. Haskins v. Ins. Co., 142. v. Kendall, 202. v. Ky. Grangers, 260, 269. Hasselman v. Company, 12. Bassler v. Association, 67, 76. Bastings v. Ins. Co., 95, 260. Batch v. Ins. Co., 157. Bathaway v. Ins. Co., 156. Hawkins V. Rutt. 870. Hawkshaw v. Supreme Lodge, 46, 271, 295. Bavene v. Sackett, 237. Baj r. Ins. Co., 320. Bayden r. Noyes, 19. Bead v. Ins. Co., 8, 215. Bealej v. Ass iciation, 374, 393. Heath v. Goslin, 81. Beaton v. Ins. Co., 270. I [edger v. Rennaker, 27. Bees v. Nellis, 322. Heinian r. Ins. ( 'o., 139. Beisler v. Stose. 860. Befferman v. Supreme Council. 258, 2f>s. :;:lo. I letter V. Calm. 356. Bellenberg /•. District Xo. 1. 136. 2U2. 212. 218, 220, 222a. 224, 238. XXVI TABLE OF CASES. [the references are to sections.] Hembeau v. Great Camp, 316. Henderson v. Ins. Co., 865. Hendrickson v. Decow, 132. Henry v. Dietrich. 15, 90, 134. v. Grand Lodge, 322. Herndon v. The Triple Alliance, 333. Hesinger v. Association, 342, 344, 420. Hess v. Werts, 82. Heyrnan v. Dubois, 327. v. Meyer, 164. Heywood v. Association, 415. v. Buffalo. 51. Hibernia Co. v. Harrison, 250. Hickey v. R. R. Co,, 382. 383. Hicks v. Perry, 214, 231. Higgind v. Hopkins, 82. v. Sargent, 360. High Court v. Zak, 46, 155, 288. Highland v. Highland, 149, 159, 173, 220a, 229, 211, 212. Hill v. Crook. 17','. v. Hart-Davis, 91. v. Ins. Co.. 374, 393. v. Moore, 317. Hillyard V. Ins. Co., 295. 347. Himmelein v. Supreme Council, 323. Hinkley V. Blethen, 128. Hirschl v. Clark, 214, 223. Hitter v. St. Aloysius Society, 155. Hobbs v. Association, 26, 27, 136, 407. Hochreiter's Appeal, 26. Hodgdonv. Ins. Co., 2S(i, 304. Hodge's Appeal, L89, 197. Hoeffner v. Grand Lodge, 45, 55, 66, 294. Hoffman v. Ins. Co., 143, 270. 276. 291, 300. Hogan v. League, 7, 27, 252, 255. Hogins v. Supreme Council, 155, 290. Hogle v. Ins. Co., 198, 347. Holabird v. Ins. Co., 183. Holland v. Chosen Friends, 407. Uolbrook v. Ins. Co., 262, 290. Holland v. Supreme Council, 407. v. Taylor, 130. 213, 218, 220, 222, 222a, 237. 34S. 354. Hollister r. Ins. Co., 268, 270, 271. Hollobough v. Association, 404. Holmes v. Higgins, 85. v. AVillard, 95. Holterhoff v. Ins. Co., 365. Home Benefit v. Sargent, 326. Home Ins. Co. v. Howard, 356. v. Marple, 261. v. Meyer, 320. v. Morse, 49, 317. Homer v. Ins. Co.. 283. Hooker v. Vandewater, 19. Hooper v. Ins. Co., 403. Hope Mutual v. Weed. 308. Hopkins v. Hopkins, 212. Hopkins v. Marquis of Exeter, 68. Horn v. Association, 156. Hotel Men's Mutual v. Brown, 218, 220a, 222, 222a, 224, 237, 354. Houghton v. Kendall, 189. Howard Ins. Co. v. Hocking, 320. Howe v. Society, 405. Howell v. Ins. Co., 272,275, 295, 297. Howiand v. Continental Ins. Co., 296. v. Cuykendall, 308. Hubbard v. Ins. Co., 326. Hughes v. Hughes, 188. Hull v. Accident Association, 366, 383. v. Hull, 186, 188, 202. v. Ins. Co., 285. Humphreys v. Association, 300, 399, 404. v. Company, 89. Hunt v. School District, 104. Hunter v. Scott, 146. Huntley v. Whittier. 261. Hurd v. Masonic Mutual. 323. Hussey V. Gallaher, 25, 104, 127. Huston V. Rentlinger, 19, 51. Hutchcraft v. Ins. Co., 377, 388. Hutchings v. Miner, 212. Hutchinson v. Ainsvvorth. 152. v. Lawrent e, 55, 56, 61. V. Supreme Tent. 27, 137, 402. 404. Hutson r. Merrifleld, 143, 165, 201, 202, 211. Hyatt v. Wait. 308. Hyde i\ Woods, 19. Hysinger v. Supreme Lodge, 3, 96, 186, 144, 158, 213. In re Baldwin, 19. Equitable Reserve, 100, 108, 115, 122, 120, 308. 309. Globe Association. 32, 119, 144. Griests' Estate, 347. Harris, 184. Helping Hand, 11. La Solidarite Association, 144. McKinnev, 327. Mary E. Morgan, 209. In the matter of Morian, 208. In re Mutual Aid. 11. National Indemnity, 9. Newell Smith. 44. Protection Life, 248, 308, 309, 331. Railroad Co., 93. Russell's Policy Trusts. 327. St. Clement's Church, 76. St. James Club, 79, 128. TABLE OF CASES. XXV11 [THE RIFERENCES ARE TO SECTIONS] In re Society. 38. Styan, 173. In the matter of Webb, IT::. 111. Masons v. Baldwin, 3, 290, 298, 301. 307. Illinois Order v. Bcsterfield, 2G2. 275, 389. 111. Ins. Co. v. Stanton, 298, 299. Inderwick v. Snell, 73. Ingersoll r. Kni.ulits. 159, 377. Ingham v. Reform Club, 128. Ingram w. Supreme Council, 292, 295. Inhabitants, etc.. v. Randall, 102. Inman V. Ins. Co.. 416. Innes v. Wylie, 53, 70, 75. Insurance Co. v. Armstrong, 388. v. Beatty, 142. v. Burroughs, 398. v. Boykin. 417. r. Brim. 4 Hi. v. coit. isa V. Crandal. 397. V. Day. 183. v. Edwards, 419. v. Fish, 399. v. Higginbotham, 138. v. Houghton, 342. V. Johnson. 142. Ins. Association V. Kryder, 385. Ins. Co. V. Lindsev, 416. v. McCrea, 399. v. Mahone, 414. v. Martin. 183. Insurance C<>. r . Mowry, 410. Ins. Co. V. Norton. 283. Insurance Co. v. Perrine, 18. Ins. Co. v. Seaver. 157, 397, 398. Inland Co. v. Stauffer, 415. Ins. Co. v. Terry, 156. v. Tomlinson, . Insurance Co. v. Tweed. 397, 398. Ins. Co. v. Wilkinson, 152, 111. v. Young, 138. Ireland y. Ireland. 218, 222. 354. Irish Catholic v. O'Shaugnessy, 318. Irvin's Appeal. 189. Irving v. Ins. Co.. 326. [sgrigg '•. Schooley, 213, 22:!, 220. Isitt v. Assurance <',,.. 397. Jackman v. Nelson, 184, 193, 209, 210. Jackson '■. Association, 50, 260, 292, 295, 305. 333, 334, 340. V. Anderson. 165. r. Staats, 188. Jacob v. Ins. Co., 156. James v. ( lutler, 152. v. Jellison, 1 1. Jamieson v. Association, 189, 190. JeiTries 17. Ins. Co., ?00. Jennings v. Ins. Co., 320. Jewell v. Grand Lodge. 176. 17*. Jinks V. Banner Lodge, 218, 224. John Hancock Ins. Co. 1: Moore, 156, 32(5. Johnson v. Alexander, 190, 350. v. Association. 20, 271. v. Hall. 202, 213. v. Ins. Co., 305, 320. v. Johnson. 344. V. Jones. 94a. v. Knights, 190,354. V. Southern Mutual, 290. V. Stanton. 238. v. Supreme Lodge, 177. 189. V. Van Epps, 202, 212, 234, 351. Johnston Co. v. Meinhardt, 19. Johnston 1?. Jones, 93. Joliffe V. Madison Mutual. 302. Jones v. Association. 95, 319. v. ( lurry, 238. v. Ins. Co.. 419. v. Milton, int. r. Sisson. l»4, 266. Jubber v. Jubber, 184. Judah v. Ins. Co.. 104. Juker v. Commonwealth, 94. K Kaiser?-. Kaiser. 190. 192. 214, 236. Kansas Mutual r. Hill, 130. Kansas Union v. Gardner, 344. r. Wliitt. 245.320.333, 334, 336, 340, 344. Kanz r. Greal Council, 170. 320. Karcher v. Supreme Lodge, 47, 55, 111, 20s. Kantrener *'. Ins. Co., 148. Kaw Life v. Lemke, 103, 322, 333, 339. Bleary v. Mutual Reserve, Keeler v. Association, 95, 267. Keels r. Association. 150. 320. Kc, nr r. Association. 366, 367, 368. Keener v. Grand Lodge, 158, 179, 183, l'.i I. l'.ir,. 354. Kehlenheck r. Bund, is. jj. Keller r. Gaylor, 188, 236. Kdlcv 0. A. o. II.. 1 II. 318, 402. r. Ball, 209. ?•. Railroad. 15, Kellogg v. Railway Company, 397. Kelly ''. Solari, 346. Kelsall v. Tyler, 315. Kelsey v. U. S. Ins. Co.. 325. Kennan v. Rundle, 25 1. Kenney v. Altvater, 261. Kent v. Mining t '<>.. 24 Kentucky Grangers <\ Eowe, 176, 216. XXV111 TABLE OF CASES. [THE RKFERENCF.S ARE TO SECTIONS.] Kentucky Grangers v. McGregor, 158, 176, 282, 284. Kentucky Lodge v. White, 310, 315. Kentucky Masonic v. Miller, 20, 96, 158, 191, 212. Kentucky Mutual v. Jenks, 138, 223, 270. V. Turner, 122, 344, 320. Kenvon v. Association. 95, 267, 299, 300, 304. v. Ins. Co., 407. Kepler v. Supreme Lodge, 219, 225, 237. Kerman v. Howard, 211. Kern v. Zeigler, 353. Kerr v. Association, 157, 342, 344, 420. Kerr v. Trego, 76. Kershaw v. Bailey, 84. Kessler v. Kuhns, 165. Keyser v. Stansifer, 134. Kil'lips v. Ins. Co., 320, 415. Kimball v. Harman, 19. v. Ins. Co., 416. v. Story, 196. King v. Chalke, 39. v. Faversham, 59. v. Mayor, 39, 59, 61. v. Stewart, 17. Kingsley v. Ins. Co., 144. Kington v. Kington, 270. Kinney v. Association, 317a, 411. Kinsey v. Louisa County, 320. Kinskern v. Church, 134. Kirkpatrick v. Eagle Lodge, 84. Klapka i\ Order Germania, 355. Klein v. Ins. Co. . 295. Kline v. Association, 270, 278, 325. Klotz v. Klotz, 159. Knapp v. Association, 402, 408. Knickerbocker Ins. Co. V. Gould. 360. v. Jordan, 156, 377. 380, 392. v. Pendleton, 270. v. Peters, 156. Knickerbocker Life v. Weitz, 201, 347. Knight v. Supreme Council, 257, 271. Knights of Pythias Case, 72. Knights Templar v. Berry, 141. Knights v. Burke, 282. v. Fortson, 322. v. Nairn, 223, 354. v. Supreme Commandery, 251. v. Watson, 212, 219, 231, 243, 354. Knox v. Turner, 350. Koehler v. Brown, 127. v. Centennial Mutual, 185. Koelges v. Ins. Co., 301, 307. Kohen v. Association, 139, 142. Korn v. Society, 137. Kuhl v. Meyer, 80. 89, 104, 118, 124, 126, 127. Kurz v. Eggert, 86. Kynaston v. Mayor, 63, 104. Labouchere v. Earl of Wharncliff, 63, 76. Ladies Benevolent Society v. Society, 128. Lafond v. Deems, 47, 111, 117, 118, 313. Laing v. Colder, 382. LaManna v. Accident Company, 340, 344. Lamb t). Cain, 133. Lambert v. Addison, 73. Lamphere v. United Workmen, 19, 67, 251. Lamont v. Association, 159, 166, 178, 219, 220a. v. Grand Lodge, 159, 178, 212, 354. Landis v. Ins. Co., 270. Landman v. Entwistle, 82. Landrum v. Knowles, 211. Lane v. DeMets, 186, 188. Langdon v. Union Mutual, 165, 322. Lantz v. Ins. Co., 273. 283, 298, 301, 306. Lapierre v. L'Union, 285. Landenschlager v. Association, 214, 322. Lavalle v. Societe, 53. Lawler v. Murphy, 333, 334, 337, 340. Lawrence v. Ins. Co., 156, 391, 397. Lawwill v. Lawwill, 189, 190. Lawyer v. Chipperly, 133. Lazenski v. Supreme Lodge, 72, 258, 279, 287, 294, 323, 325, 326. Leaf v. Leaf, 227. Leavitt v. Dunn, 189, 210. Lee v. Ardy, 174. v. Dill, 197. v. Lee, 209. Leech v. Harris, 39, 51, 60, 70, 76. Leffingwell v. Grand Lodge, 271, 306. Lehman v. I. O. B. B., 291. Leigh v. Ins. Co., 270. Leman v. Ins. Co. , 377. Lemix v. The Harmony Society, 128. Lemon v. Ins. Co., 2il, Leonard v. Ins. Co., 215, 300, 301, 306, 307. Leslie v. Lorrilard, 95. v. Ins. Co., 299. Leuder's Executor v. Ins. Co., 333, 334, 340. TABLE OF CASES. XXIX [the references are to sections.] Levi v. Ins. Co., 365. Levy v. Taylor, 350. Lewis v. Ins. Co., 195, 298, 299, 301, 419. v. Tilton, 79. 81. v. Watson, 133. Liggett v. Ladd, 88, 130. Lindguist v. Glines. 122. Lindsey v. Society, 95, 162a, 300, 303, ' 342. Linnehan v. Sampson* 371. Liosenbigler v. Gourley, 167. Linz v. Ins. Co., 300. Little v. Ins. Co.. 320. Livingston v. Lynch, 124. Livingston V. Trinity Church, 40. Lloyd V. Louring, 88. Lockwood v. Bank. 17, 108. V. Bishop, 185, 284. Lockyear v. Offley, 275. Longheed v. Church, 134. Loos v. bis. Co., 190, 197, 200. Lorcher v. Supreme Lodge, 138. Lord v. Dall, 195. v. Moore, 209. Loring v. Loring. 184. Lothrop V. Ins. Co., 23, 260. 262. Loubat v. LeRoy, 61, 67, 76. v. Union Club, 47. Loughridge v. Association, 95, 297, 298. Louisiana Mutual v. Tweed, 368. Lovejoy V. Ins. Co., 327. Loveland v. Company, 4<)2. Lqvell v. Ins. Co., 238, 366, 368, 387. Lovick r. Association, 293. Low v. Ins. Co., 300. Lucas i: Case, H4. V. Thompson, 318. Ludlam v. Higbee, 127. Ludowiski v. Society. 53. Luhrs v. Luhrs, 223. r. Supreme Lodge, 231. Lumbard v. AJdrich, 17. Luthe«. Ins. Co., 13, 96, 300. Lycoming Ins. Co. v. Barringer, 300. V. .Mitchell. 151. r. Ward. 246. LyOD V. Assurance Co., 402, I L6. v. Ins. Co., 270. r. h'olt'e. 165, 202. Lyon r. Supreme Assembly, !i?. 291, 800, 304, 306. Lyons o, Yerek, 189. Lysaght v. Association, 20, 75. Lyttleton V. Black hum. 68, 70, 73. M McAlees r. Supieine Sitting, 313. McCabe >\ Goodfellow, s ?. v. Society, 24. McCartee v. Chambers, 81. Mc( arthv's Appeal, 99, 128. McCarthy v. Ins. Co., 373, 374, 397. v. Supreme Lodge, 195, 220, 237. McCleave v. Association, 138, 139. McClure v. Johnson, 136, 177, 217,237. McCone v. Coursen, 232. McConnell v. Ins. Co. . 358. McCorkle v. Association. 95, 260, 297. McCoy v. Ins. Co., 13, 17, 97, 300. McCue v. County of Wapello, 99. McCullough v. Association, 144. McCully v. Ins. Co., 140. McDonald v. Ross-Lewin, 39, 249, 289, 308. McDermott v. Centenial Mutual, 179, 185, 186, 201. McDonald v. SneUing, 398. V. Supreme Council, 287, 293, 300. McDonnell v. Carr. 275. Mi 1) .well v. Ackley, 18: McElwee v. Ins. Co., 200. .wcFadden v. Leeka. 79. v. Murphy, 94, 128. McGinnis v. Watson, 133. McGlinchev v. Casualty Co., 133, 374, 379, 393. McGlynn v. Post, 15. 90. McGowan r. Supreme Council, 254, 298, 304. McGuirei'. Trustees. 132. McGunn v. Hamlin. 317. McGurkw. Ins. Co., 407. McKane v. Adams. 30. McKee v. Ins. Co., 164. McKnight v. Association, 362. McLafferty v. Sweeney. <>!). McLaughhn v. Ins. Co., 360. McLean v. Burbank, 382. r. Ins. Co., 356. v. McLean. 241. McLin r. Calvert. 209. McMahon v. Ins. Co., 270. V. Kauhr. 85, 117. v. Supreme Council, 155, 3I3.4(U. McMichael V. Kilmer. 356. McMurray V. Supreme Lodge, 290. McXallv V. Ins. CO., U6, 111*. McQuirk v. Mutual Benefit, 300. Macheii v. Mayor. 63. Mackinnon v. Ins. Co., 274. Mactier v. Frith. L39. Mace r. Cushman, 189, 190. Madeira o. Merchant's Mutual. 285, 290. Magaw v. Field, i s ^. Magee v. Clayton Lodge, 310. Magie v. < !hurch, 185. Maginnis v. Association, 266, 290. XXX TABLE OF CASES. [the references are to sections.] Maguire's Estate, 88 Maguire v. Ins. Co. , 356. Mahaney v. Association, 300. Mahert?. Ins. Co., 152, 326. Mair v. Assurance. Co., 372. Mallory v. Ins. Co., 95, 156, 297, 364, 377. 379. 380, 388, 392, 397. Malone v. Majors, 209. Manby v. Society, 73. Mandegov, Lifa Association, 299, 333. Maneely v. Knights, 160. Manhattan Ins. Co. v, Broughton, 378. Manning v. Ancient Order, 219, 221, 222, 227, 348, 354. V. Hub, 18, 55, 61. Mannix v. Purcell, 133. Manson v. Grand Lodge, 143, 145, 270, 293, 323. Manufacturers' Co. v. Dorgan, 367, i 91, 392, 397, 399. Mapstrick v. Range, 19. Marble v. Worcester. 398. Marblehead Ins. v. Underwood, 250. Marck v. Supreme Lodge, 50, 270, 292. Marcus v. Ins. Co., 167, 169, 214, 224, 301. Markey v. Ins. Co., 138, 142. Marsh v. Burroughs, 252. v. Huron College, 63. v. Ins. Co., 270. v. Lazenby, 194. v. Supreme Council, 159, 162, 194. 105. 223. 226. 230. Marshall v. Accident Co., 294. Marstonr. Ins. Co., 298. Martin v. Mtna Ins. Co., 347. Martin v. Association, 334, 340, 393, 398. v. Indemnity Co., 398. V. Ins. Co., 186, 320, 370, 374, 393. v. Stubbings, 13, 159, 160, 166, 178, 214, 219. Martino v. Ins. Co., 17. Martz v. Ins. Co.. 327. Marvin v. Universal Life, 283. Marx v. Ins. Co., 366, 383, 386. Mary v. Michael, 238. Maryland Societv v. Clendenin, 212, 218, 238. Mason v. Finch. 15, 134. Masons v. Winthrop, 3. Masonic Association v. Bunch, 160, 212, 214, 227, 236. Masonic Ins. Co. v. Miller, 179. Masonic Mutual v. Beck, 300, 302. v. Burkhart. 136, 212. 213, 214. 213, 322. v. McAulev, 181, 176,202. Mass. Forresters v. Callaghan, 159, 162, 242. Mass. Mutual v. Robinson, 198, 347, 360. Massey v. Association, 159. v. Ins. Co., 152. Master Stevedores v. Walsh, 19. Matkin v. Supreme Lodge, 23, 139. Matoon v. Wentworth, 88, 315. Matt v. Society, 13, 155, 282,' 300, 302. v. Association, 321. Matter of Booth. 270. Matthews v. Huntlev, 157. v. Sheehan, 348, 350. V. Supervisors, 99. Maury v. Talmadge, 382 . Mayer v. Attorney General, 122, 123. v. Equitable Reserve. 215, 219, 224. 2.10, 300, 338, 343. v. Ins. Co.. 298, 299. Mayfield v. Moore, 99. Mayor v. Solomon's Lodge, 130. Maynard v. Yanderworker, 227, 325. Mead v. Davison, 152. v. Ins. Co., 152. Meagher v. Union, 326. Medical Society v. Weatherby, 56, 287. Meier v. Meier. 167, 2S4. Mellen v. Ins. Co., 416. Mellows v. Mellows. 218, 220, 222, 222a, 348. 354. Menard v. Hood, 54. r. Society. 301, 302. Menneilev V. Assurance Corporation, 394. Mentz v. Ins. Co., 313. Merrett v. Accident Association, 156, 377. Merrill v. Ins. Co.. 170. Merrill Lodge v. Ellsworth, 129. Merriman v. Association, 257, 260, 261. Merritt v. Earle, 109. v. Ins. Co.. 156. Metallic Compression Casting Co. v. Fitchburg Railroad Co., 398. Methodist Church v. Wood, 133. Metropolitan Association v. Wind- over, 26, 108, 305, 326, 331, 333,334. 340. Metropolitan ( 'lub v. Simmons, 75, 76. Metropolitan Ins. Co. v. McGrath,301. Meurer v. Association. 12. Meyer v. Ins. Co., 279, 298. v. Knickerbocker, 280, 299. v. Krohn, 261. Mevers v. Ass'n, 334. v. Ins. Co., 140. Michigan Mutual v. Custer, 283. v. Nangle, 156, 393. v. Rolfe, 96, 158. TABLE OF CASES. XXXI [the references are to sections.] Middlesex Co. v. Swan. 1 86. Miesell v. Ins. Co., 279, 295, 381. Millard v. Supreme Council, 155, 293, 302, 305, 323. Miller v. Association, 18, 97. 137, 365. v. Assurance Ass'n, 17<>. v. Assurance Co., 136. v. Georgia Masonic, 333. 344. V. Ins. Co., 151, 300, 369, 383, 412, 413. v. Lebanon Lodge, 100. v . Union Central. 306. Mills v. Rebstock, 155,156, 323. Milner v. Bowman, 165, 173.214. Milwaukee R. W. Co. v. Kellogg, 368, 397. Miner v. Association. 268, 285, 361. v. Michigan Mutual, 130, 268. Minneapolis v. Libby, 32. Misselhorn v. Association, 138, 139, 142. Missouri Ins. Co. v. Sturges. 165. Missouri Valley v. Dunklee, 270. Mitchell v. Grand Lodge, 159. v. Lycoming Mutual, 18. Mobile Life v. Morris, 325. Modern Woodman v. Jameson, 292, 300, 305. Mogol v. McGregor, 19. Mohawk Lodge v. Went worth, 49, 316. Moisev. Mutual Reserve, 169. Monmouth Ins. Co. v. Lowell, 250. Montgomery, etc., R. R. Co. v. Bor- ing, 382. Montgomery Ins. Co. v. Milner, 27. Moore v. Bank, 19. More v. Bennett, 19. Morel v. Ins. Co., 365. v. Society, 31,39. Morning Star Lodge I. O. O. F. v. Hayslip, Treasurer, 130. Morris v. Lone Star ( Chapter, 130. v. Piatt, 364. Morris Coal Co. v. Barclay, 19. Morrison v. Odd Fellows. 17. 19. 26. 27,95. 97. 136, 213, 300. v. Ins. Co., 300. Morton r. Smith, 127. Mouler w. bis. Co., 1 43. Movers v. Smedley, 51, Mowatt v. i 'arow,' 188. Mowry v. Ins. Co., 349, 407. Mueller v. Association, 261, 262, 269. Mullally v. Irish So.iety, 318. Muller r. Germania, 326. Mullin v. Ins. Co., 399. Mulling v. Thompson, 178. Mulrov V. Ins. Co., 97. v. Knights, 155, 257. v. Supreme Lodgo,39, 47, 60 294. 323, 353. Munhall V. Daly, 202. Munn v. Burgess, 100. Murphy v. BidweU, 77. v. Harvey. 209. Murray V. Association, 283, 305, 307. v. Buckley. 282. v. N. Y. Life, 157. r. Walker. 79, 85. Mutual Aidf. Miller, 201, 348. v. Paine, 12. Association v. Kayser, 320. v. Tuggle, 334. Benefit v. Bank, 174. v. Coats, 304. v. Daviess, 399. ?'. French, 285. v. Hoyt, 13, 158. v. Marye, 9. v. Newton, 156, 326. v. Ruse, 275, 297, 299. Endowment v. Essender, 268, 333. Ins. Co. v. Bratt, 17. Ins. Co. v. Houghton, 252. V. Miller, 299. v. Paige, 251 . Lifer. Allen. 165, 351. v. Ins. Co.. 298. v. Terry, 378. Protection v. Laury, 306. Relief v. Billan, 269. 281. Reserve v. Hamlin, 262, 285, 294, 325. Myers v. TJ. S., 102. v. Ins. Co., 148. Myres V. Myres, 209. N Nacbtrieb v. The Harmony Settle- ment. 128. Nagelr. Glasburger, 301. Nally r. Nally, 214, 223. 227. Nance v. Bushy. 132. 133. Nash r. Page, 19. National Accident Soc. r. Tavlor, 408, 409. Association r.Granman, 326, 397. v.Heckman,333, 410. v. Jackson. 270. 278-, 370, 408. v. Kirgin, 219, 223. Bank r. Ins. Co.. 113. Ins. Co. V. Crane. 152. V. Ha lev, 211. V. Minch. 346, 358. r. Pin-rev. 354. v. Webster, 365. National Mutual v, Gouser, 158. xxxn TABLE OF CASES. [the refreencfs National Mutual v. Jones, 95, 297, 298, 305. v. Lupoid, 167, 169, 219, 222, 224, 284. V. Millar, 258, 262. 265, 296, 298. Navigation Co. v. Moore, 175. Neafie v. Accident Indemnity Co., 404, 409. Neill v. Ins. Co., 157, 270,368. v. Order of Friends, 403. Nelson v. Davis, 152. v. Ins. Co., 365. Ne,skern v. Association, 144, 329, 339. Newcomb v. Ins. Co., 174. Newell v. Borden, 79. N. E. Ins. Co. v. Robinson, 139. New England Mutual v. Butler, 136. New Era Life v. Rositer, 32. New Home Life Ass'n v. Hagler, 333, 334, 335. Newling v. Francis, 94. Newman v. Association, 153, 178, 300. 331, 334, 341, 342, 360, 390. Newton v. Ins. Co., 156. N. Y. Ace. Co. v. Clayton, 157, 414. N. Y. Ins. Co. v. Insurance Co., 416. N. Y. Life v. Statham, 280. Niagara Ins. Co. v. Seammon, 143. Niccolls v. Rugg. 133. Niven v.Spickerman, 85. Nix v. Donovan, 227, 325. Nolan v. Railway Co. , 366. Norristown v. Ins. Co., 153. N. A. Ins. Co. v. Burroughs, 326. 364, 374, 397, 409, 413, 417. N. A. L. Ins. Co. v. Wilson, 201, 211, 282. Northampton Ins. Co. v. Stewart, 264, 269. Northampton Ins. Co.' v. Tuttle, 139, 141. North Berwick v. Ins. Co. , 300. North Brit. Ins. Co. v. Stewart, 358. Northup v. Assurance Co. , 384. N. W. American v. Amerman, 300. N. W. Association v. Bloom, 146. v. Hall, 322, 333. v. Hand, 146. v. Schauss , 260 , 287, 360. v. Wanner, 26, 27, 136, 331, 333. N. W. Ins. Co. v. Hazlett, 143, 156. Northwestern Masonic v. Jones, 178, 189. N. W. Mutual v. Elliott, 141, 358. v. Roth, 348. Norton v. Ins. Co., 140, 148. Norwich Union v. Girton, 356. ARE TO SECTIONS.] Noyes v. Ins. Co., 148. v. Marsh, 317. Nurney v. Ins. Co., 317a. Nute v. Ins. Co., 317, 321. O Oates v. Supreme Court, 276, 280, 286. O'Brien v. Society, 331, 333, 337, 339, 340, 344, 416. Och v. Ins. Co., 265, 270. Odd Fellows v. Hook, 32, 61, 132. Mutual v. Sweetser, 298. Odiorne v. Insurance Co., 411. O'Donaghue v. McGovern, 84. O'Grady V, Knights, 155, 272. O'Uara v. Stack, 61. Ohning v. City of Evansville, 102. Old Dominion v. McKenna, 19. Old Wavne Ass'n v. Nordbv, 420. Olery v. Brown, 47, 76, 111. Oliver v. Am. Legion of Honor, 138, 140. v. Hopkins, 111. Olmstead v. Farmers' Mutual, 95, 258, 388, 289, 307. Olmstead v. Keys, 35, 165. Olmstead v. Masonic Mutual, 218, 220, 237. O'Neill v. Mass. Association, 326. Order i\ Koster, 164. of Alliance v. State, 3, 119. Mutual Companions v. Griest, 177, 237. 347. Oriental Ins. Co. v. Glancey, 333, 334, 335. Ormond v. Life Association, 139, 246. Osceola Tribe r. Schmidt, 49, 56. 316. Ottei'bein V. Ins. Co., 142. Otto v. Union, 39, 45, 49, 51, 70, 73. Overbeck v. Overbeck, 180. Overton v. Ins. Co., 157. Owen v. Whitaker, 93. Owens v. Company, 23. Pacer. Pace. 141. 200. 211. Pacific Mutual v. Guse, 250, 255. v. Snowden, 370, 408, 414. Pacific Mutual v. Williams, 270. Paden v. Briscoe, 207. Paget'. Burnstine, 348. Paine v. Ins. Co., 140. v. Prentiss, 196. Painter v. Association, 18, 279, 301, 305. Palmer v. Accident Association, 150. v. Horn, 188. v. Merrill, 165, 167, 173. TABLE OF CASES. XXX111 [the references are to SECTIONS ] Palmer v. Phoenix Mutual, 270, 416. v. Welch, 158, 177, 195. Palmetto Lodge v. Hubhell, 34. Park v. Spaukling, 83, 87. v. Welch, 158, 176, 177, 231. Parsons v. Bignold, 152. Partridge v . Badger, 46, 93. Passenger Conductors v. Birnbaum, 250. Patrick v. Ins. Co., 156, 415,416, 419. Patten v. Association, 304 Paul v. Keystone Lodge, 86. v. Travelers' Ins. Co., 364, 374, 379. 393, 394. Payn v. Relief Society, 260, 268. Payne v. Snow, 80. Pearce v. Piper, 88, 116, 117. Pearl v. Harris, 317. Peasley v. McFaddon, 152. Peck v. Accident Association, 333, 380, 388, 397, 398. Peet v. Great Camp, 276, 286. Pellazzinoi'. Society, 24, 144. Pence v. Makepeace, 211. Pendleton v. Ins. Co., 245, 289. Penfield v. Skinner, 100, 115, 126. Penfold v. Ins. Co., 156, 393. Pennington v. Ins. Co., 379, 401. Penn. Mutual v. Keach, 299, 307. v. Wiler, 323. Pennsylvania v. Ins. Co., 264. Pennsylvania R. R. Co. v. White. 382. . Pennvpacker v. Ins, Co.. 416. Pentz v. Ins. Co., 23. People v. American Institute, 45. People v. Association, 44, 63, 65, 257, 261, 330. v. Batchelor, 104. v. Benevolent Society, 56, 61, 155. v. Chicago Board of Trade, 23, 39. 55, 110. v. Club, 63. v. Crossley, 93, v. Dulanv. 330. v. Fire Department, 24. v. Fisher, 19. V. Gas Trust. 11. v. German Church, 40, 76. v. Golden Rule,9. v. Higgins, 85, v. Hosmer, 93. v. Masonic Association, 113, 361. v. Medical Society, 19, 23, 29, 36,55, 56, 60,289. v. Mutual Life. 279. v. N. Y. Association, 39. v. N. Y. Cotton Exchange, 60. V. Protective Union, 47, 63, 64, 65, 287. 8 People v. Railroad Co., 93. v. Richards, 19. v. Runkel. 94. v. Society, 8, 17, 20, 29,45, 55, 59, 61, 109, 285. v. Steele, 135. v. Supreme Council, 56, 257. v. Throop, 17, 23. v. Tu thill, 33. v. Union, 45, 47, 63, 64, 65, 287. People's Ins. Co. v. Allen, 251,252, 342. People's Mutual v. Babbitt, 250. v. Werner, 362. Peoria Ins. Co. v. Lewis. 360. 416. Perine v. Grand Lodge, 302, 360. Perrv v. Provident Life. 275. Perley v. Railroad Co., 397, 398. Perrins v. Society, 407. Perry v. Provident Life, 406. Peter v. Carter, 100, 126. Petty v. Willson, 234, 236. Peyre v. Society, 53. Pfeiffer v. Encampment, 32, 62. Pfeiffer v. Weishaupt, 55, 319. Pfister v. Gerwig, 18. Phadenhauer v. Ins. Co., 156. Phelan v. Ins. Co., 258, 261, 388. Phipps v. Jones, 88. Phillips v. Aurora Lodge, 95. v. Carpenter, 190. v. Ins. Co., 156. 416. Phoenix Ins. Co. v. Baker, 280. Phoenix Ins. Co. v. Dunham, 164. v. Slaughter. 300. Phoenix Mutual v. Bailey, 351. v. Doster, 299. v. Raddin, 300. Pickels v. Ins. Co., 416. Pickett v. Ins. Co., 374, 393. Piedmont Ins. Co. v. Ewing, 138, 332. v. Ray, 270. Pierce v. Ins. Co., 156, 169. p. Wood, 356. Piggott v. Thompson, 1-8. Pilcher v. Ins. Co.. 211. Pingrie r. Jones. 234a. ripe r. Bateman, 88. Piper '■. Ace. Association, 387. Pitcher r. Board of Trade. 54, 55. 67. Planters Ins. Co. r. Bank. 220. r. Rowland, 144. Pollock v. Accident Ass'n, 374, 393. Pomeroy v. Ins. Co.. 141. Porter y. Robinson, 104. Potter v. Ins. Co.. :!.")(). Poultnev v. Bachman, 18, 24. 47, 49. "ill. 313. 317. Powell i: Abbott. 14, 45. XXXI V TABLE OF CASES. [the references are to sections.] Prall v. Society, 140, 148. Prentice v. Ins. Co., 419. Presbvterian Fund v. Allen. 212, 213, 214, 216. Presbyterian Congregation v. John- ston, 134. Preuster v. Supreme Council, 300. Price V. Ins. Co., 34T. Price r. Supreme Lodge, 19, 165, 167. Prickett v. Wells. 132. Primeau V. Association. 270. Pfitchard v. Assurance Society, 273, 275. Pritchett v. Schafer. 86. Procter v. Procter, 184. Protection Life v. Foote, 95, 136, 270. V. Palmer, 258, 262, 263.205.272.274. 275, 286. Provident Life v. Baura, 417. v. Fennell, 278, 407. v. Martin, 364. 365. 367, 407, 409. 416. Prudential Ins. Co. v. Edmunds, 326. Pulford v. Fire Department, 15, 19, 58, 60, 136. 250, 285. Putnam v. Ins. Co., 211. Q Queen Ins. Co. r. Young, 283. R Rabb r. Reed, 117. 126. Raikes r. Ward. 184. Railroad Co. v. Aspell, 382. r. Quigley, 84, Railton v. Mathews, 101. Railwav Association v. Burwell. 381, "416. Pailway Ass'n v. Loomis, 176, 315, 316, 320. v. Robinson, 136, 315, 316, 317. Railway Co. v. Conybeare, 84. Rainsbarger v. Association, 330, 331. Rand V. Association. 20. Rathbun i\ Snow, 95. Raub v. Ins. Co.. 270. v. Relief Association, 168, 235. Rawls v. Ins. Co.. 211, 325, 351. Rawson v. Jones, 197. v. Lyons, 152. v. Rawson, 189, 210. Ray v. Powers, 85. Red Jacket Tribe v. Gibson, 100. Redway v. Sweeting, 80. Reed v. Ins. Co., Ill, 313. Reeve v. Parkins, 116, 117. Refining Co. r. Ins. Co.. 320. Reform Church v. Theological Sem- inary, 133. Regina v. Shepherd, 19. Reichard v. Ins. Co., 317, 321. r ichenbach v. Ellerbe, 260, 324. Reid i\ Ins. Co., 325. Reimsdyk v. Kane, 141. Relief Association v. McAuley. 178, 197. 331. Remington v. Congdon. 84. Renk v. Herman Lodge, 218, 220, 222a, 237. Rensenhouse v. Seeley, 3. Rex v. Ashwell, 23. 28. V. Faversham, 45, 66. V. Liverpool, 104. v. Richardson, 37. v. Sutton, 59. v. Twyning, 344. Reyndes v. French, 356. Reynolds v. Accident Association. 370, 374, 380, 419. v. Ins. Co., 391, 392, 393, 397. Rhodes v. Ins. Co.. 140. 402. Rice v. Society. 304, 305. Richards v. Association, 304. v. Ins. Co.. 364, 381, 388. Richards v. Miller, 189, 210. Richardson U.Hastings, 117. Richardson u, Ins. Co., 394. v. Society. 28, 105, 106. Richard Thompson Co. v. Brook, 99. Richards v. Ins. Co , 298, 380. Richmond v. Johnson, 136, 202,212. V. Ju.lv, 79. 80. Ricker y. Ins. Co., 187, 211. Riddlesbarger v. Ins. Co., 320. Ridgely v. Dobson, 79. Rigbyr. Connol, 19^ 70, 113. Riley v. Ins. Co., 156, 176, 182, 202, p. Rilev. 177. Rindge r. Ins. Co., 13, 96, 158, 176, 347. Ring v. Association, 331. Riplev v. Assurance Co., 364, 375, 384. Rislev's Succession, 169. Rittler v. Smith. 349, 351. Rix v. Ins. Co., 415. Road Co. v. Townsend, 32. Robbins v. Waldo Lodge, 128. Roberts v. Roberts, 161, 184. Robertson v. Ins. Co., 297, 306. Robinson v. Duvall, 188, 197, 201. v. Robinson, 79. v. Supreme Council, 90. v. Society, 313. v. Templar Lodge, 316. v. Yates City Lodge. 45. 247. Robyn r. Supreme Sitting, 344. Rockhold v. Association, 176. v. Society, 13, 151. Rockwell v. Ins. Co., 304. TABLE OF CASES. XXXV [the references are to sections.] Rody v. Ins. Co., 373, 374. Roeding v. Sons of Moses, 279. Roehler v. Society, 60. Roger Williams Ins. Co. v. Carring- ton, 169, 171. Rogers v. Brenton, 19. v. Capitol Life, 272, 274, 275, 286. v. Ins. Co., 138, 385. v. Jones, 17. Rollins v. McHatton, 218." 220a, 223. Ronald v. Association, 3U3. Rood v. Association, 32, 39, 49, 290, 316. Roper v. Burke, 115, 121, 127. v. Sangamon Lodge, 101, 102. Rorke v. Russell. 76, 84. Rosenberger v. Ins. Co., 6, 7, 250, 255. Rosenthal v. Walker, 261. Roshi's Appeal, 118, 133. Ross v. Ins. Co. , 262. Rosswell v. Aid Union, 251, 302, 305, 342. Roszell v. Roszell, 152. Rothchild v. Ins. Co., 157. Rothweiler v. Ryan, 202. Rousseau v. Lambert, 152. Royal Templars v. Curd, 155, 288, 290. Rudolph v. Southern League, 15, 93, 112. Ruse v. Ins. Co., 275, 297, 299. Russell v. Russell, 188. Rutland V. Thrall. 252. Ryan v. Ward, 355. v. World Mutual, 301, 307. S Sabin v. Grand Lodge, Phinney, 159, 212, 227, 228. v. National Union, 156. St. Mary's Ass'n v. Lynch, 100, 104, 118. . Sale v. Baptist Church, 40. Kalentine v. Ins. Co., 156. Salter v. Burt. 296. Saltonstall v. Saunders, 130. Sande v. Grove, 269. Sandford v. Association, 407. r. Ins. Co.. 140. Sands v. Hill, 2:. 1. 357. v. Lyon. 296. Sanford v. Association, 285. v. Ins. Co., 365. Sanger v. Rothschild, 218, 240, 242. v. Upton, 78. Sargeant YVhitakn's Case, 66. r. Supreme Lodge, 158. Sargent v. Webster, 104. Saunders v. Robinson, 398. Saveland v. Fidelity Co., 402. Sawtelle v. Assurance Co., 366, 367> 383. Sawyer v. Baldwin, 133. v. United States Casualty Co., 403. Sayre v. Association, 19. Schassberger v. Staendel, 34. Schetferv. Ins. Co., 156. v. Railroad Co., 368, 397, 398. Scheiderer v. Ins. Co., 417. Schenck v. Ins. Co., 416. Scheu v. Grand Lodge, 276, 288. Scheufler v. Grand Lodge, 12, 286, 287, 289. Schillinger v. Boes, 234a, 328. Schmidt v. Association, 212, 214, 223. v. German Mutual, 257, 264, 269. v. Gunther, 87. v. Lodge, 48a. v. Modern Woodmen, 298, 306. Schneider v. Ins. Co.. 185, 364, 365, 367, 369, 378, 382. Schnook v. Sons of Benjamin. 179. Schonfield v. Turner, 19, 164, 165, 190, 194, 350. Schradi v. Dornfeld, 132, 133. Schweikeru Husser, 132. Schreiner v. High Court, 388. Schryver v. Columbia Lodge, 313. Schultz v. Ins. Co., 156. Schunck v. Fond, 3, 136, 276, 285. Schwartz v. Ins. Co., 138. Schwarz v. Ins. Co., 298. Schwarzbach v. Protective Union, 300, 325, 353. Schweiger v. Society, 39, 59. Scodding v. Lorant, 104. Scott v. Avery, 49, 317. v. Dickson, 167, 173, 229. v. Provident Mutual, 153, 232. v. Scott, 237. Screwmen's Association v. Benson, 111. Scriber y. Rapp, 128. Seamans v. N. W. Mutual, 299. Stitzinger v. New Era Association, 362. Semmes v. Ins. Co., 320. Senser v. Bower. 344. Servatius v. Pichel, 84. Snvoss v. Society, 303. Saving v. Gale, 356. Seyton v. Satterthwaite, 209. Shader v. Assurance Co., 389. Shaferv. Ins. Co.. 399. Shatter r. Ins. Co., :!?2. v. Spangler, :siit. Shamrock Benevolent Society v. Drum, 183. XXXVI TABLE OF CASES. [the referenc es are to sections.] Shank v. Society, 156. Sharler v. Assurance Co. , 389. Shattuck v. Ins. Co., 139. Sharpe v. Association, 399. Shaw v. Robberds, 365. Shay v. Society, 305, 307. v. Association, 176, 251, 260, 302, 304. Sheancn v. Insurance Co., 356, 398, 400, 404. Sheehy v. Blake, 79. Sheldon v. Ins. Co., 139, 140, 270, 278. Sherman v. Commonwealth, 3. v . Sherman, 188. Sherry v. Union, 20, 23, 286, 322. 'Shillings. Ins. Co., 370, 391. ShurtleflE v. Stevens, 84. Sibley v. Carteret, 287. Siebert v. Chosen Friends, 266, 323. Silvers v. Association, .190, 202, 210, 333, 340. Simcoke v. Grand Lodge, 196, 219. Simmons v. Society, 63. Simpson v. Ins. Co., 272, 273, 275. Sims v. Ins. Co., 415. Sinclair v. Assurance Co., 364. v. Ins. Co., 375. Sineral V. Dubuque Mutual, 136. Sizer v. Daniels, 81. Skilbeck v. Garbeck, 260. Skillings v. Association, 162, 195. Skilton v. Webster, 133, 135. Slaughterhouse Cases, 19. Slee v. Bloom, 119. Smith v. Association, 155, 317a, 334, 336. 341. v. Ball, Receiver, 308. v. Bown, 249. v. Campbell, 196. v. Covenant Mutual. 178. v. Ins. Co., 198, 297, 300,358, 398, 416, 419. v. Knights Fr. Mathew, 290. v. Law, 104. v. Lewis, 353. v. National Benefit Society, 227. v. Nelson, 28, 133. v. Pedigo, 133. v. People, 19. v. Pinch, 13, 162, 300. v. Pinney, 100, 348. v. Smith, 120, 128, 353. v. Society, 156, 310, 325. v. Swormstedt, 133. Smyth v. Darley, 104. Snellr. Ins. Co., 152. Snow v. Wheeler, 19, 100. Society v. Backer, 53. v. Commonwealth, 55, 59, 109. v. Fell, 19. v. McVey, 227. Society v. Meyer, 39. v. Weatherly, 104. Somers v. Protective Union, 419. Sooy ads. The State, 101. Sowise v. Marshall, 88. Southard v. Assurance Co., 373, 374, 393, 397. Southern Ins. Co. v. Kempton, 139. Life v. Wilkinson, 300. Mutual v. Montague, 297. S. W. Mutual v. Swenson, 333, 336, 340. Spare v. Ins. Co., 152, 320. Spaulding v. Conant, 152. Spear v. Robinson, 196. Spencer v. Ins. Co. , 326. Sperry's Appeal, 55, 67. Spillman v. Supreme Council, 45, 55. Spitz v. Association, 301, 302. Splawn v. Chew, 136, 143, 212, 219, 220, 221, 222, 222a, 227, 333, 354. Spoeri v. Ins. Co., 272, 286, 298. Springhead v. Reily, 19. Springmeier v. Association, 32, 300. Spry v. Williams, 161, 187. St. Anthony Co. v. Merriman, 152. St. Clair Society v. Flietsam, 144, 173, 214. St. John v. Ins. Co., 167, 351. St. John's Ass'n v. Buckly, 238. St. Louis Ins. Co. v. Glasgow, 365. v. Kyle, 416, 419. St. Mary's Soc. v. Burford, 18, 23. St. Patrick's Society v. McVey, 24. St. Paul Ins. Co. v. McGregor, 320. Stacy v. Randall, 146. Stadler v. District Grand Lodge, 88, 100, 113, 115, 126. Stamm v. Association, 121, 309. Standard Life v. Jones, 386, 389, 411. v. Martin, 183,184,399, 411. V. Thomas, 375, 397, 398. Standen v. Standen, 238. Stanley v. N. W. Association, 263, 285. Stanton v. Allen, 19. State v. Association, Kansas, 3. v. Association, Mo., 3, 8. V. Association, Ohio. 2, 3, 9, 10, 19, 20,32, 99, 119, 128, 158. i\ Bankers' Association, 9. v. Bonnell, 93. v. Brawner, 3. v. Central Mutual, 158. v. Chamber of Commerce, 19, 23, 39, 45, 55, 56, 67, 110. v. Cole, 19. v. Critcliett, 8. V. Crowley, 19. TABLE OF CASES. XXXV 11 [the references are to sections.] State v. Curtis, 17, 20. v. Donaldson, 19. v. Exchange, 23. v. Graham, 3. v. Ins. Co., 3. v. Iowa Association, 3. v. Ga. Med. Society, 23, 56, 60, 73. v. Merchant's Exchange, 19, 39. v. Miller, 19, 67, 251. v. Monitor Association, 309. v. Moore, 3, 9. v. Nichols. 3. v. N. W. Mutual, 3. v. Odd Fellows, 29. v. Overton, 17. v. People's Mutual, 158. v. Pike, 390. v. Portugese Society, 57, 62. v. Root, 3. v. Stevedore's Association, 39. v. Slavonska L pa, 53. v. Societe Republicaine, 119, 120. v. Society, Ga., 55. v. Society, Mo., 3, 8, 57, 62, 301. v. Towle, 11. v. Trustees Salem Church, 330. v. Whitmore, 3. v. Tudor. 93. v. Turnpike Co., 330. v. Verein, 55. 57, 58. v. Western Union Society, 119. v. Williams, 19. Council v. Sharp, 121. Stebbins v. Jennings, 133. Stedwell V. Anderson, 232. Steen v. Ins. Co., 320. Steinee v. Ins. Co.. 152. Steinhausen v. Association, 325. Stephenson v. Ins. Co., 49, 317. v. Stephenson, 218, 220, 222a 237 354. Sterling v. Ins. Co.,'308.' Stevedore's Ass'n r. Waist, 19. Stevens v. Society, 104. r. Warren, 165. Stever r. Association, 100. Stewart v. Association. 100,155, 333. v. Supreme Council, 200, 323. 355. Stiepel v. Association, 306. Stigler v. Stigler, 1 S ">. Stilwell V. Ins. Co.. 211. Stimpson v. Ins. ( o.. 115. Stockdale v. School District, 24, 28. Stoddard v. Onondago Conference, 92. Stoelker v. Thornton, 165, 236, 348. Stohr v. Society, 24, 27. Stokell v. Kimball, 347. Stokes v. Saltonstall, 382. Storer v. Wheatley, 196, Story v. Association, 180. Stow v. Wyse, 104. Stowe v. Phinney, 347. Stowellr. American Association, 147, 356, 360. Strasser v. Staats, 49, 285, 315, 317. Strawn v. Strawn, 194. Streeter v. Society, 156. Streety v. Wood, 84. Strempel v. Rubing, 45, 47, 111. Strickland v. Pritchard, 120. Strong v. Harvey, 80. v. McCagg, 119. Sturges v. Board of Trade, 51. Stylow v. Odd Fellows, 298, 304. Succession of Hearing, 165. Summers v. Ins. Co., 412. Suppiger v. Association, 156, 331, 333, 334, 340. Supplee v. Knights of Birmingham, 179, 348. Supreme Commanderv r. Amsworth, 3, 18, 27, 136, 156. Supreme Conclave v. Cappella, 219, 223, 226. Supreme Council v. Anderson, 333, 335, 340. v. Bennett, 183, 196, 354. v. Boyle, 97, 144, 326, 392a. v. Connema, 291, 292. v. Fairman, 3, 9, 318. v. Firnane, 238. v. Forsinger, 17, 49, 111. 313, 317. v. Franke, 213,360. v. Garrigus, 157, 313, 317, 375. V. Green. 95, 183, 194, 301. v. Larmour, :'>. V. Morrison. 213, 22T. :!2a. v. Perry, 20, 143, 158^ 162. 177, 195. 2:57. V. Priest. ITS, 214, 236, 2;;;. o. Smith, 136, 162, mi. I'M. 195, 21S. 222a. 224. Supreme Lodge v. Abbott, 143, 276, 285, 323. tj.Dalberg, 257, 260. v. Grace, 1 12. v. HutcliiiiM.ii, 183, 195. XXXV111 TABLE OF CASES. [THE REFERENCES ARE TO SECTION'S.] Supreme Lodge v. Johnson, 64, 155, 257, 260, 266, 323. v. Kalinski, 145, 287. v. Keener, 289. v. Knight, 14, 18, 25, 28, 127, 334, 340, 345, 420. v. Martin, 138, 159. v. Nairn, 136, 194, 195, 218, 219, 220a, 222, 222a, 237. v. Owens, 126. v . Schmidt, 49, 317, 323, 325. v. Wickser. 46, 257, 269, 287, 289. V. Zuhlke, 55, 61, 63, 66, 360. Supreme Sitting v. Baker, 124. v. Stein, 111, 313, 314. Susquehanna Mutual v. Gackenbach, 250. 252. v. Swank, 152. Sutherland v. Standard Life, 366. v. Sutherland, 189. Sutter v. Trustees, 135. Sweeney v. Society, 19, 39. Sweet v. Dutton. 189. Sweetser v. Association, 283, 305. Swett v. Society, 15, 97, 256, 277, 300, 309, 338, 343. Swick v. Home Life, 322. Swift v. Association, 167. v. Mass. Mutual, 325. v. San Francisco Board, 3, 200, 237. Symonds v. Ins. Co. , 143, 285. Tafel v . Supreme Commandery, 202. Taggart v. Association, 257. Tailors of Ipswick, 19. Tarleton v. Staniforth, 275. Tartar v. Gibbs, 132. Tateurn v. Ross, 350. Taylor v. Griswold, 93. v. Ins. Co., 122, 139, 141, 293, 296, 298, 331. v. Relief Union, 326, 331, 333, 334, 335. Tennant v. Ins. Co., 375, 380, 391. Tennessee Lodge v. Ladd, 159, 212, 241. Tenney v. Union, 83. Terre Haute R. R. Co. v. Buck, 382, 397. Ter Vree v. Geerlings, 94, 132. Tesson v. Ins. Co., 152. Teutonia Life v. Anderson, 278. Texas Mutual v. Davidge, 270, 300. Theobald v. Assurance Society, 384. Thomas v. Ellmaker, 100, 124, 126. v. Hubbell, 102. v. Leake, 146, 161, 187. v. Thomas, 220a. v. Union, 19, 51. v. Whallon, 250, 255. Thompson v. Garrison, 81. v. Ins. Co., 152, 153, 273, 295, 298, 299, 323. v. Ludington, 188. Thwing v. Ins. Co., 141. Tibbits v. Blood, 87. Tillman v. Davis, 189. Timavenis v. Union Mutual, 326. Tisdaler. Ins. Co., 326. Titcombu Ins. Co., 125. Titsworth v. Titsworth, 219, 220, 222, 222a, 354. Titus v. Ins. Co., 142, 283. Tobin v. Society, 286, 302, 305, 334, 341. Todd v. Emly, 79. Toledo R. W. Co. v. Pindar, 365. Tooley v. Assurance Co., 365, 366, 382, 383. 386. Toram v. Association, 49, 310, 316. Torrey v. Baker, 26. Toronto Ins. Co. v. Sewell, 174. Town of Esbex v. Day, 152. Townsend v. Crowdy, 346. Trask v. Ins. Co., 416. Travelers' Association v. Kelsey, 409. Travelers' Ins. Co. v. Harvey, 390. 398, 419. v. Jones, 366, 368, 387. v. McConkey, 156, 373, 377, 380; 381, 388. v. Mosley, 381. v. Murray, 395. 396, 397, 398. v. Seaver,157, 365, 366, 367, 368. v. Sheppard, 326, 380. Traders' Mutual v. Stone, 12, 250. Treadway v. Hamilton, 18, 136. Treasurer i'. Atwater, 130. Trenton Mutual v. Johnson, 195. Trew v. Assurance Co., 380, 392, 393, 397 Tripp v. Ins'. Co., 298. 322, 417, 419. True v. Association, 95, 257, 280, 299, 307. Trough's Estate, 167. Trustees v. Adams, 100, 126. Tucker v. Life Co., 371, 392, 409. TABLE OF CASES. XXXIX [THE references are to SECTIONS.] Turnbull v. Pavson, 32. Tuston v. Hardy, 322. Tuttlev. Ins. Co., 366, 368, 387, 397. V. Walton. 23. Twiss v. Association, 121. Tyler v. Association. 164, 190, 355. v. Ins. Co., 140. Tyrrell v. Washburn, 30, 85. U Ulrich v. Reinoehl, 349. Underwood v. Ins. Co., 283. v. Iowa Legion, 253, 302. Union Central v. Cheever. 297, 325. v. Pottker, 280. Union Mutual v. Frohard. 331, 334, 340, 343, 344, 408, 413. v. Kevser, 17. v. Miller, 23, 260. V. Montgomery. 201, 205, 212, 243. v. Mowry 136. V. Stevens, 211. v. Wilkinson, 343. United Brethren v. White, 407. United States v. Bovd, 102. U. S. Association v. Barry, 333, 364, 374. 379. v. Millard, 388, 402. United Brethren v. Schwartz. 302. U. S. Association v. Mueller, 262, 269. United States Express Company v. Beabury, 92. U. S. Ins. Co. v. Vocke, Adm'r Kiel- gast, 156. Ins. Co. v. Wright, 282. Mut. Ace. Ass'n v. Newman, 379, 394. Trust Co. v. Ins. Co., 186, 188, 202. Unity Mutual v. Dugan, 167. 347. Unsell v. Ins. Co., 298, 299, 303. Utter r. Ins. Co., 157. 380. Valley Mutual v. Burke, 311, 325. y.Teewalt, 300, 325. Valton v. Association, 183, Vanatta v. [ns. Co., 808, Van Bibber v. Van Bibber, 136, 212. Van Bibber's Adm'r v. Van Bibber, 176. Van Houten v. Pine, 95, 292, 295, 2:i7. Van Poucke v. Society, 23, 49, 316. Van Warl v. Price, 322. Van Wyck v. Aspinwall, 84. A.".i 1 1 Zandl v. Ins. Co., 156. Vasconcellos u. Ferraria, 132, 133. Vass v. Wales, 317. Vaux v. Henderson, 189. Venable v. Coffman, 133. Vestry and Wardens v. Barksdale, 99. Vette v. Ins. Co., 320. Viall v. Genesee Mutual, 300. Viele v. Ins. Co., 283, 300. Yilhon v. Marsonin, 328. Virginia Ins. Co. v. Buck, 407. Vivar v. Supreme Lodge, 32, 39, 45, 48, 50, 180, 183, 275, 279, 300. Vivian v. Otis, 102. Volger v. Ray, 79. Vollman's Appeal, 218, 220, 222, 222a, 354. Voorheis v. Association, 141. Vose v. Ins. Co., 300. W Wabash Union v. James, 344. 356. Wachtel v. Society, 61, 63 64, 260, 266, 285. Wade v.Jones, 194. Wadsworth r. Co., 340, 344. Wahn v. Bank, 17. Waiter. Merrill, 74, 128. Waldheim i\ Ins. Co., 202. Walker v. Cronin, 19. v. Ins. Co., 140, 142. v. Larkui. 284. v. Maitland, 865. v. Wainwright, 55, Wallr. Ins. Co., 301, 307. v. Society, 141. Wallace v. Ins. Co., 315. Walsh v. Ins. Co., 18, 136, 186, 297, 300. v. Walsh, 189, 190. Walter V. Bent-fit Society, 197. Waugelin v. < roe, 54. Want v. Blunt, 272. 27:?. 301. Ward r. Londesborougji, 260. v. Saunders, 189. Wardens 0. Barksdale, 135. Waring v. Medical Society, 55. Warnebold r. Grand Lodge, 95, 300, 301. Warnecke v. Lembea, 197. Warner v. National Life, 258. Warnock c. I (avis, 165, ;!48. Warren v. Mower, 104. Warwicke v. Noakes, 2Ti». Washburn v. Society, 156, 377. Washington Association v. Wood. 179, 202. Washington Life v. Haney, 211, 325. Wasoii r. ( 'ollaini. lit?. 325. Waterhouse 0. Murgatroyd, 118. Waterman v. < lompany, 99. Waters V. Ins. Co., 156, 865. Watkins v. Wilcox, 133, 134. xl TABLE OF CASES. [the references are to sections.] Watson v. Association, 181, 183, 300. v. Avery, 132. v. Jones, 132, 133, 134, 135. Wayne v. Commercial Nat. Bank, 101. Weakly v. N. W. Association, 263. Webb v. Honnor, 238. Weber v. Zimmerman, 63. Weil v. Trafford, 239. Wienfeld v. Association, 139. Weir v. Bush, 94. Weisert v Muehl, 167, 189, 211, 284. Weiss v. Tennant, 144, 270. Welch v. Jugenheimer, 157. Weld v. May, 100. Wells v. Gates, 79. v. Monihan, 89, 129. v. Society, 291, 300, 301 v. Turner, 85. Welsh v. Crater, 189. Wendtv. Iowa Legion, 218. 222,222a, 354. West Branch Ins. Co. v. Helfenstein, 415, 416. Weston v. Richardson, 211. Westro'pp v. Bruce, 300. Wetmoreu Mutual Aid, 258, 264, 265. Wheeler v. Ins. Co., 272, 295. v. Odd Fellows, 150. While v. Damon, 73. Whitakerv. Ins. Co., 139 White v. Ashton, 410. v. Brocaw, 237. v. Browned, 36, 47, 70, 75, 128, 313, 314. v. Ins. Co., 298, 299. v. Lang, 368. v. Ross, 78. v. Union, 11. v. Walker, 410. Whitehead v. Ins. Co., 198. Whitehouse v. Ins. Co., 379, 397. Whitehurst v. Ins. Co., 416. v. Whitehurst, 178. White Lick v. White Lick, 132, 133. 134. Whiteside v. Association, 51. Whiting v. Ins. Co., 138, 272, 273. Whittachv. Co. ,'377. Whitley v. Ins. Co., 138, 270. Whitmore v. Supreme Lodge, 3, 322. Whitney v. Association, 317a. v. Wyman, 15. Wicks v. Monihan, 89, 129. Wiggin v. Knights, 148, 145, 270, 323 Wilberu Torgerson, 122. 124.309, 831. Wilburn v. Wilburn, 190, 209, 210, 211. Wilkinson v. Ins. Co., 320. Willcuts v. Ins. Co., 136, 270, 298. Williams" Appeal, 167, 227. Williams v. Association, 371, 401. Williams v. Bank, 353. v. Ins. Co., 64, 250,252,266, 268, 365. Willis v. Child, 61. Willsonv. Ins. Co., 320. Wilmaser v. Ins. Co., 211. Wilson v. Association, 366, 370, 407, 408. v. Island Church, 135. v. Wright, 101. Wimiesheik Ins. Co. v. Holz, 142. Winebrenner v. Colder, 133. Winespear v. Ins. Co., 391, 392. Winslow v. Goodwin, 188. Winsor v. Odd Fellows, 188. Winspear v. Ins. Co., 393, 397. Winterhalter v. Association, 236, 347. Wist v. Grand Lodge, 27. Witherhead v. Allen, 87. Wolcott v. Association, 403. Wolf v. Schleiffer, 77, 79, 100. Wolff v. Ins. Co., 157. WomersW v. Men-it, 117. Wood v. F.nch, 79. v. Humphrey, 317a. v. Ins. Co., 139. v. Woad, 61, 73, 74. Woodfin v. Ins. Co., 415. Woolsey v. Odd Fellows, 316, 319. Worden v. Ins. Co., 272, 275, 307. Works v. Macalister, 176, 320. Worley v. Association, 178, 232. V. Moore, 356. Adm'r, v N. W. Masonic Aid Ass'n, 178. Wright v. Association, 144. v. Ins. Co., 156, 368, 377, 380, 387, 388. 407, 410. v. Society, 270. v. Supreme Commandery, 274, 275, 305. Wuesthoff v. Germania Co., 326. Wyman v. Ins. Co., 283, 299. Yates v. Houston, 344. Yoe v. Association. 262, 263, 272, 273, 289, 290, 295, 333. Yonge v. Society, 136, 141. York Co. Mutual v. Knight, 64, 266. v. Myers, 250, 355. Young v. Hunter, 299. v. Traveler's Ins. Co. , 403, 415. Young Men's Association v. Pollard, 189, 190, 209, 210. Zalleeu Ins Co., 152. Zeigler v. Ins. Co., 290. PAET I. THE LAW OF VOLUNTARY SOCIETIES. THE LAW OF VOLUNTARY SOCIETIES. CHAPTER I. MUTUAL BENEFIT SOCIETIES. § 1, 2. Generally. 3. The object is insurance. 4. Plans of organization. 5. Mutual assessment companies. 6. Rights of members of mutual benefit societies. § 1. Generally. — From the earliest times men have culti- vated their gregarious and social instincts by the formation of tribes, guilds, fraternities, clubs and societies. They have or- ganized them to resist encroachments on their liberties, to ward off different forms of oppression, to assist each other in times of need, to encourage skill and industry in trades, and for political, religious, commercial and social purposes. As the necessity arose for combining numbers of persons in any of these common objects, associations spread and developed, and when they became useless, they ceased to exist. There were, therefore, times when associations for certain purposes were popular and numerous, and, as interest waned in the cause which brought them into being, the} r were disorganized and abandoned. They were founded on general ideas, and con- ducted by men of little education on a narrow scale, toward the accomplishment of some specific and material object. The development of principles of organization and government was slow, but the experience of many years made possible the re- cent and wonderful growth in voluntary societies. 1 Mutual benefit societies are the outgrowth of the fraternities, clubs and guilds of previous generations, and in them will be found the mature and crystalized ideas of mutual assistance in time 1 See Brentano; History and Development of Guilds; Encyclopaedia Bri- tannica; Article " Guilds." 2 MUTUAL BENEFIT SOCIETIES. of need and sickness, and of the care of the families of deceased members. The great object of such societies is to pay to such families a benefit fund, to enable them to procure the neces- saries of life. § 2. Generally. — Life insurance did not become a busi- ness of importance in England until about the commencement of the present century. In this country, the contract of life insurance met with little favor for many years later. The wonderful development of this business, of which evidences are to be seen on every side, has taken place within forty- five years. Mutual benefit insurance is of even more recent growth. There is probably no mutual benefit society of thirty vears standing in this country; there are a few which have been in existence for fifteen or eighteen years, but by far the greater part of those now in existence have been organized within the past twelve years. But, within these few years, mutual benefit insurance has grown to enormous proportions, and in popular favor, until at the present time many hundred thousands of persons are carrying such insurance for the ben- efit of those for whom it is their duty and their pleasure to provide. The courts of every state are frequently called upon to determine the rights of parties under such contracts of in- surance, and the rights of members and their beneficiaries, under contracts entered into for such worthy and commend- able objects, are entitled to the tender and intelligent consid- eration o* courts. 1 1 In the North American Keview recognized plan of life, as distinct for October, 1890, it is said of mutual f rom investment, insurance is at- benefit insurance: tested by the fact that it paid more "Starting twenty years ago under i n death claims in each of the last the form of fraternal insurance, it has two years than did the level premium developed into a great business, recog- companies. Thirteen millions of peo- nized by the laws of almost every state pie in this country are interested di- as of equal legitimacy with its level rectly in its present and future, premium rival. It has formulated while the whole people have a corn- its methods, corrected its crudities, nion interest in the lessons of thrift and to-day enrolls in its list of policy- which it teaches. It is far from holders more than 2,500,000 citizens, necessarily antagonistic to the level During 1889 it paid over $42,000,000 premium plan. Its true rivalry is to in death claims, swelling the total accomplish better than that plan can amount paid since organization, by the work of life insurance. There is the companies in active existence, to abundant room for both. As com- $300,000,000. That it has become the pared with the level premium method, MUTUAL BENEFIT SOCIETIES. 6 The advocates of mutual benefit insurance claim for their plan many virtues and many advantages over all other modes of life insurance, and, on the other hand, the advocates of or- dinary life insurance are bitter in their denunciations of mu- tual benefit societies. This work has nothing to do with this controversy. It is not the province of the writer on the legal aspect of such societies and their contracts to discuss the mer- its of the different plans of life insurance. It is enough that such societies exist, and are recognized in statutes and courts as a feature of the insurance business of the country. The standing given to these societies by the courts of the land is well expressed in a case where it is said : ' "It does not fall within the province of the court to discuss the relative merits of the different plans of life insurance, as between the old line systems and those formed on the co-operative or mutual assess- ment plan. It is enough to know that the statutes of Ohio authorize each plan, and each, doubtless, has its merits if prop- erly administered, and demerits if not. Whatever be the sys- tem, it is the highest duty of the courts to see that the trust is faithfully administered. This is especially true in the co- operative or mutual assessment plan, where there is no reserve or surplus fund, and where the assessments to pay benefits are collected directly from the members, who generally do not understand the mysteries of life insurance management. These associations doubtless had their origin in the friendly and benevolent organizations and fraternities claiming like affiliation and purpose. These and other organizations, having for their object the mutual aid, benefit and relief of their the assessment plan bases its claims which consists in the obligations of upon the following propositions: policy-holders to pay on account of (a) Equal or greater security, with- future death claims, out resort to excessive charges. (/) Reserve funds available at all (5) Pure life insurance, without times as a conservator of the insur- the concomitant of vast accumula- ance-granting power of the eom- tion, with the resultant dangers of party rather than as a menace to that poor investments and misuse of function, funds. (g) Equal accountability to the (c) A limited, as against an un- state for the proper conduct of limited, expense charged. affairs, and equal recognition under (d) Funds paid for death claim the law of life insurance, purposes held inviolate therefor. 'State v. Association, 38 Oh. St. (e) Equal security for that portion 281. of the resources of the company 4 MUTUAL BENEFIT SOCIETIES. members, or their families or heirs, when honestly and eco- nomically administered as a sacred trust, and not with a view to profit, are worthy the protection of law." ' § 3. The object of a mutual benefit society is insur- ance, not benevolence. — History tells us that the origin of life insurance is traceable to benevolent motives. The object of such insurance was to provide a fund for the widow and or- phans of a person whose income ceased with his life, and such an object was certainly benevolent. But whatever may be the motive underlying the great scheme of life insurance, it is certain that, in its practical application, life insurance is, and must be, founded upon contract. Its benevolence must flow not from mere good will, but from legal obligation. Its ben- efits must not depend upon the continuance of the charitable impulses of those who shall pay, but upon mutual promises. Although the object of the insured in making the contract, and the objects of the organization with which he contracts, are benevolent and not speculative, they have no bearing upon the nature and effect of the business conducted and the con- tract so made. Nor will the character of the contract be changed by the fact that the organization issuing it designates itself as a benevolent or charitable society, instead of an in- surance company. The name of the society will not necessarily fix or establish its real character. The law will, when occasion requires, look behind the names of societies, and pass its judg- ment upon their schemes and modes of business. 2 If the prev- alent purpose and nature of an association, of whatever name, be that of insurance, its legal character will not be changed by the benevolent or charitable results to its beneficiaries. A so- 'A tabulated statement by the nity; that these fifty-six societies in auditor of public accounts of Illinois their general business received from of the condition of life and accident all sources during that year $16,491,- societies doing business in that state 351, and disbursed for losses and ex- on the assessment plan in 1891, penses $15,163,967. On December 31, showed that there were fifty-six soci- 1891, they held assets amounting to eties; that they issued during that $9,215,988, and had actual liabilities year 44,732 certificates, covering amounting to $636,850. The unpaid $140,512,000 of insurance; that 29,765 losses on this date, to pay which the certificates representing $97,890,500 members were assessable, amounted of insurances were surrendered ; that to $3,243,480. there were in force on December 31, 2 Governors v. Union, 7 N. Y. 228; 1891, 123,983 certificates of member- State v. Graham, 66 Iowa, 62. ship, covering $359,299,625 of indem- MUTUAL BENEFIT SOCIETIES. 5 ciety, "which by contract agrees to pay to the beneficiary of a deceased member a sum of money, is a mutual insurance company, whatever ma}^ be the terms of payment of the con- sideration by the member, or the mode of payment of the sum to be paid in the event of his death. 1 In the leading case upon this subject it is said: 2 "A contract of insurance is an agreement, by which one party, for a consideration (which is usually paid in money, either in one sum, or at different times during the continuance of the risk) promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest. In fire insurance and marine insurance, the thing insured is property; in life or accident insurance, it is the life or health of a person. In either case neither the times and amounts of payments by the assured, nor the modes of estimating or securing the payment of the sum to be paid by the insurer, affect the question whether the agreement between them is a contract of insurance. All that is requisite to constitute such a contract is the payment of the consideration by the one, and the promise of the other to pay the amount of the insurance upon the happening of injury to the subject by the contingency contemplated in the contract. The contract made between the Connecticut Mutual Benefit Company and each of its members, by the certificates of mem- bership issued according to its charter, does not differ in any •Commonwealth v. Wetherbee, 103 Sherman v. Commonwealth. 82 Ky. Mass. 161; Granite Mutual v. Porter 102; 5 Ky. L. Rep. 874; State v. Ins. (Vt.), 2NewEng. Rep. 119; State v. Co., 30 Kan. 585; State v. N. \V. Society, 72 Mo. 146; State v. Associa- Mutual, 16 Neb. 540; State v. Asso- tion, 6 Mo. App. 172; State v. Braw- ciation, 18 Neb. 276; State v. Nich- ner,15 Mo. App. 597; Bolton v. Bolton, ols, 66 Iowa, 26; State v. Moore, 38 73 Me. 299; Schunk v. Fund, 44 Wis. Oh. St. 7; Berry v. Indemnity Co., 370; Erdmann v. Order Hermann's 46 Fed. Rep. 439; Chartrand v. Sons, 44 Wis. 376; Dietrich v. Asso- Brair, 16 Colo. 19; 26 Pac. Rep. ciation, 45 Wis. 79; Mason's Benevo- 152; Rensen house v. Seeley, 72 Mich, lent Society v. Winthrop, 85 111. 537; 603; see Commonwealth v. Associa- Illinois Masons v. Baldwin, 86 111. tion, 137 Pa. St. 412; 18 Atl. Rep. 479; Golden Rule v. People. 118 III. 1112; Order v. State (Md.), 26 All. 492, 9 N. East. Rep. 342; 7 West. Rep. 1040; State v. Root (Wis.) 54 X. Rep. 219; Fanner v. State, 69 Texas, W. Rep. 33; Commonwealth v. Weth- 561; 7 S. W. Rep. 220; Supreme erbee. supra. Council v. Larmour, 81 Texas, 71; s Commonwealth v. Wetherbee, 16 S. W. Rep. 633; Supreme Com- supra. inandery v. Ainsworth, 71 Ala. 436; 5 MUTUAL BENEFIT SOCIETIES. essential particular of form or substance from an ordinary policy of mutual life insurance. The subject insured is the life of the member. The risk insured is death from any cause not excepted in the terms of the contract. The assured pays a sum fixed by the directors and not exceeding ten dollars, at the inception of the contract, and assessments of two dollars each annually, and of one dollar each upon the death of any member of the division to which he belongs, during the con- tinuance of the risk. In case of the death of the assured by a peril insured against, the company absolutely promises to pay to his representatives, in sixty days after receiving satisfactory notice and proof of his death, ' as many dollars as there are members in' the same division, the number of which is limited to five thousand. The payment of this sum is subject to no contingency but the insolvency of the corpora- tion. The means of paying it are derived from the assessments collected upon his death from other members; from the monev received upon issuing other certificates of membership, which the by-laws declare may, after payment of expenses, be ' used to cover losses caused by the delinquencies of members,' and from the guaranty fund of one hundred thousand dollars, estab- lished by the corporation under its charter. This is not the less a contract of mutual insurance upon the life of the assured, be- cause the amount to be paid by the corporation is not a gross sum, but a sum graduated by the number of members holding- similar contracts; nor because a portion of the premiums is to be paid upon the uncertain periods of the deaths of such members; nor because, in case of non-payment of assessments by any member, the contract provides no means of enforcing payment thereof, but merely declares the contract to be at an end, and all moneys previously paid by the assured, and all dividends and credits accrued to him, to be forfeited to the company." A corporation with salaried officers, paying commissions on risks obtained, insuring and admitting to membership any one having the requisite conditions of age and health, and re- quiring no other qualification for membership, can not evade the insurance laws by calling itself a benevolent society and obtaining a charter as such. 1 In discussing the subject of mutual benefit insurance, courts 1 State v. Association, 6 Mo. App. 163. MUTUAL BENEFIT SOCIETIES. i have intimated that there is possibly a distinction between a society, the primary object of which is to contract with its members for the insurance of their lives, and a society organ- ized for a social, literary, or benevolent purpose, to which a feature of mutual insurance is added for the purpose of mutual aid. 1 The distinction amounts to this, that while the contract is one of mutual life insurance, the societies having the feat- ure of mutual aid, can not be said to be carrying on a general business of mutual life insurance. There is, however, no case in which it has been held that such a society is not an insur- ance company within the meaning of the statutes regulating insurance companies, except where such society was chartered under special laws providing for the incorporation of such societies. The text books, as well as the opinions of various courts, contain definitions of the contract of insurance, as it is applied to its various subjects; and although differently ex- pressed, they all concur as to its substantive elements, that all which is essential to such a contract is the payment of a con- sideration by one party, and the promise of the other to pay an agreed amount upon the happening of the contingency specified in the contract, it being understood that the former party had an insurable interest in the subject-matter insured. 2 The payment of the benefit fund by a mutual benefit society to the beneficiary, or the payment of a " sick benefit," or ''permanent disability indemnity" by the society to a mem- ber, is not voluntary, and in the nature of a gift, but is the fulfillment of a contract of insurance entered into by the member and the society. 3 A contract by a society to pay, at certain stated periods of time, certain sums of money as endowments to living members, or, in case of their death, to pay certain other sums of money as benefits to their benefici- aries, is life insurance, both as to the endowment and the benefit. 4 A mutual benefit society incorporated under special 'Supreme Council v. Fairman, 10 Elkhart Mutual Aid, etc., v. Hough- Abb. N. C. 162; 62 How. Pr. 386; ton. 98 End. 1 19. Durian v. Verein,7 Daly, 168; Bar- 8 Bolton v. Bolton, 73 Me. 299. baro v. Occidental Grove, 4 Mo. App. * Endowment & Benevolent Asso- 429; State r.r nf. v. lVnetit Asso- ciation v. State, 35 Kan. 253; State ciation, 6 Mo. App. 172; Swift v. v. Mutual Aid Association, 33 Kan. San Francisco Board, 67. 51; 9 Pac. Pep. 900. • Bolton v. Bolton, 73 Me. 299; 8 MUTUAL BENEFIT SOCIETIES. Laws, is governed by the law under which it is incorporated, and by the law relating to corporations, but, in carrying on its business of mutual assessment insurance, it is not subject to the statutes of the state, relating to life insurance and life insurance companies. 1 Mutual benefit societies are subject to the application of those legal principles applicable to other mutual life insurance companies. 2 § 4. The plans upon which such societies are organized; supreme, co-ordinate and subordinate bodies. — The details of the different plans upon which mutual benefit societies are organized are too numerous to mention. The main features of the largest and best known of such organizations, however, are soon told. The supreme or governing body is a corporation chartered under the laws of some state, for the purpose of as- sisting- certain classes of beneficiaries on the death of a mem- ber. It is the legislative and governing body of the society, and is composed of its own officers and representatives from the grand lodges or councils of the different states. Each grand lodge or council is composed of its officers and represen- tatives of the subordinate lodges or councils of the state in which it is located. The subordinate lodges or councils are the local bodies into which the members are received, or through which they are received into the society. The benefit fund is held in, and paid from, the treasury of the supreme body, and is made up of assessments levied on the members of the subor- dinate or local bodies. Certain qualifications for membership are usually prescribed, such as that an applicant shall be be- tween certain ages, of sound health and of good moral char- acter. He is usually required to sign an application for mem- bership, which is in form and effect very similar to an applica- tion for life insurance, and to present himself for examination to the medical examiner of the subordinate body. When the medical examination has been approved by the medical ex- aminer for the grand lodge of the state, or by the medical 'Hysinger v. Supreme Lodge, 42 house v. Seeley, 72 Mich. 603; 40 N. Mo. App. 627; State ex rel. v. The W. Rep. 765; State v. Whitmore, 75 Mutual Protection Association, 26 Wis. 322; 43 N. W. Rep. 1133; Oh. St. 19; State v.Iowa Mutual Aid Whitmore v. Supreme Lodge, 100 Mo. Association, 59 Iowa, 125; 12 N. W. 36: 13 S. W. Rep. 495. Rep. 782; Supreme Council v. Fair- s Erdmann v. Order of Hermann's man, 02 How. Pr. 386; Rensen- Sons, 44 Wis. 376. MUTUAL BENEFIT SOCIETIES. 9 examiner of the supreme body, the applicant is eligible to an election as a member of the subordinate body. The supreme body is usually, if not always, incorporated, but the grand and subordinate bodies may, or may not, be incorporated. In some societies, the grand lodge of each state holds the benefit fund for, and makes assessments on, the members of the local lodges in that state. § 5. Mutual assessment life insurance companies. — There are many mutual insurance societies doing business on the as- sessment plan, which have no social organization. To distin- guish them from mutual benefit societies, they may properly be called " mutual assessment life insurance companies," but the law arising from the contracts of insurance issued by them does not necessarily differ in any particular from contracts of mutual benefit insurance. A company is incorporated under the laws of some state, and a general insurance business is con- ducted under the restrictions imposed by those laws. Among such restrictions may usually be found provisions against oper- ating the company for profit, and against the payment of stated premiums for insurance. The classes of persons who may be beneficiaries of such insurance are often limited, and the contract of the company to pay a sum as a death benefit is usually made dependent upon the realizing of the amount from an assessment on its members. With such and kindred exceptions, these organizations carry on a general insurance business, and the contracts issued by them may be termed mutual assessment insurance policies. But while there may be a distinction between mutual benefit and mutual assessment insurance, there is no practical difference between them. § 6. Rights of members of mutual benefit societies. — The rights of a member of a mutual benefit society are two-fold — those which arise out of the contract of membership, and those which arise under his contract for benefits and insurance. In seeking to determine the rights of a member of such a society, it is necessary, therefore, to determine under which contract they arise. The corporate rights of a member of a mutual benefit society are subject to the control of the corporation ; but his rights as an insured person rest upon his contract with the society. 1 In the first part of this work the rights of a '§136; Bradfieldv. Union Mutual, Rosenberger v. Washington Mutual, 9 Weekly Notes of Cases (Pa.), 436; 87 Pa. St. 207. 10 MUTUAL BENEFIT SOCIETIES. member of a society will be discussed, and, in the second part, the contract of mutual benefit insurance will be treated of. At the present time, the laws of the different states provide for the incorporation of voluntary societies for any lawful pur- pose, not for profit, and almost all societies take upon them- selves the rights and burdens under these laws, and are gov- erned by the general laws relative to corporations. But a large number of societies are unincorporated. It is proposed now to treat of incorporated and unincorporated societies. CHAPTEE II. CHARTER AND CONSTITUTION. § 7. Of charters in general. 8. The object of a society must be authorized by its organic law. 9. The plan of doing business must be authorized by the organic law. 10. Manner of doing business set forth in certificate of incorpo- ration. 11. The object of a society must be legal. 12. When corporate existence may not be attacked. 13. Ultra vires. 14. Constitution of a society. 15. Incorporation of unincorporated societies. § 7. Of charters in general. — Charters are granted by the sovereign power of the state, and a society can not by its own act create, alter or amend its charter. An incorporated society is brought into being by its charter, and derives its powers from it. While such a society may create, amend or abrogate its constitution and by-laws, its charter is in no manner subject to its control. When the authorities speak of a charter, they mean an essentially different thing from a constitution created by the society. The articles of incorpo- ration of a society and the statutes under which they are formed, are its charter and its fundamental law. They fix the rights of its members, and are in the nature of a fundamental contract in form between the corporators, and, in practical effect, between the society and its members, which neither party is at liberty to violate. 1 The society and each member of it are bound by the charter, and neither can do what it does not authorize. 3 A charter granted by the state is subject to the constitu- tion and general laws of that state. As a natural person is 'Bergman v. St. Paul Mutual, 29 2 Rosenberger v. Washington Mu- Minn. 275; Hogan v. League, 99Cal. tual, 87 Pa. St. 207. 248; 33 Pac. Rep. 924. (11) 12 CHARTER AND CONSTITUTION. governed by the laws under which he lives, so a corporation, an artificial person created by the sovereign power of the gov- ernment, must take its rights subject to the general laws. It is well settled that a person who deals with a corporation must, at his peril, take notice of its charter and of all the general laws of the state, affecting the business of corporations. 1 A society organized under an act providing for the incorporation of mutual benefit societies is governed by the law under which it is incorporated and by the law relating to corporations. Where a society, having a charter from one state, after- ward receives from another state a charter differing from the first in some particulars, the effect is not to amend the former charter but to create a distinct corporation. Two states can not, by legislative action, unite to create but one corporation. 2 § 8. The object of a society must foe authorized by its organic law. — The act of incorporation is to a corporation an enabling act; it gives to it all the power it possesses. A cor- poration is the mere creature of the act to which it owes its existence, and may be said to be precisely what the incorporat- ing act has made it, to derive all its powers from the act, and to be capable of exerting its faculties only in the manner which that act authorizes. 3 An act for the incorporation of societies can never be extended by construction to cases not reasonably within its terms. Where an act of the legislature au- thorizes the formation of corporations exclusively for literary, scientific and benevolent purposes, a society organized under it for religious purposes is not legally incorporated, and is usurp- ing functions from which it may be ousted. There is a well- defined distinction between religious purposes and those which are merely literary and scientific, and religious purposes differ also from those of general benevolence. 4 A society, the object of which is to endow the wife of each member, when he shall have married, with a sum of money equal to as many dollars as there are members of the association, to be raised by assess- ment on them, is not a " benevolent society " for the purposes of incorporation under laws relating to incorporation of 'Morawetz on Corp., § 591. 4 People ex rel. v. Benevolent Soci- 4 Bachmann v. Supreme Lodge, 44 ety, 41 Mich. 67; People ex rel. v. 111. App. 188. Benevolent Society, 24 How. Pr. 216. 3 Head v. Ins. Co., 2 Cranch 127; Phillips on Insurance, pg. 9. CHARTER AND CONSTITUTION. 13 benevolent societies. It is clear from the plan of such a soci- ety that it is not intended to bestow any benefit or help with- out what is thought to be an equivalent. The undertaking of the society to pay is not in any sense benevolent, but is a quid pro quo; it is paid for. 1 A society for mutual insurance may not be incorporated under laws providing for the incorpora- tion of benevolent societies. 2 But notwithstanding the fact that societies so organized are not corporations de jure, they must, at least as between their members, be regarded as corpo- rations de facto. 3 A society for pecuniary gain, organized for the purpose of aiding its members by loans or advances of money, is not a " benevolent " or " charitable " society within the meaning of the act of 1848, of New York, providing for the incorporation of benevolent, charitable, scientific and mis- sionary societies.* §9. The plan of doing business must be authorized by the organic law. — The plans of doing business set forth in the charters of societies, while they may and do differ widely in detail, must fall within the statutes under which such cor- porations are organized, and the purposes of the organization must be such as are provided for in those laws. In its articles of incorporation a society declared its object to be, among other things, to assist its members in the struggles incident to life, to secure for them in their old age mutual aid and protection, and to establish a fund for the benefit and relief of widows and orphans of deceased members. It was held that this society, having for its object in part the benefit of its members gen- erally, and not wholly the benefit of the widows, orphans, heirs and devisees of deceased members, was not properly organized under the laws providing for benefits to widows, or- phans, heirs and devisees of deceased members, and was usurp- ing powers not conferred upon it by law. 6 A proceeding in 1 State ex rel. v. Critchett, 37 Minn, wealth v. Weatherbee, 105 Mass. 149. 18; 32 N. W. Rep. 787. 'Foster v. Pray etal., 35 Minn. 458; 'State v. Critchett (Minn.), 32 N. 29 N. W. Rep. 155. W. Rep. 787; Foster v. Pray et al, 85 4 People v. Nelson, 46 N. Y. 477; 60 Minn. 458; 29 N. W. Rep. 155; People Barb. 159. ex rel. v. Nelson, 46 N. Y. 477: Folger 8 The Golden Rule v. People ex rel., J., dissenting; State v. Benevolent 118 111. 492; People v. The Golden Society, 72 Mo. 146; State v. Benefit Rule, 114 111. 34; 28 N. East Rep. 283. Assn., 6 Mo. App. 163; Common- 14 CHARTER AND CONSTITUTION. the nature of a quo warranto was instituted against a society, alleging that it was exercising the powers and functions of an insurance company without having complied with the insur- ance law. It was held that a society issuing policies on the lives of its members, payable in case of death to the widow, orphans, heirs and devisees of the members, and to them alone, and providing in its by-laws that each member may be assessed for the general expense fund in such sums as may be deter- mined upon by the trustees, not to exceed $20 in any one year, is not a life insurance company under the statute which requires a capital of $100,000 in money or securities before transacting its business, and the act amendatory thereof. A clause in the act under which this society was organized provided that no member should receive any money as profit or otherwise. In construing this clause, the court held that it was designed to prevent the corporation from making divi- dends of profits among its members, and that the payment of an officer, who was a member, for services rendered, would not be " receiving money as profit." In discussing the questions involved, the court said : " The appellant was, no doubt, an insurance company in the general and enlarged sense of that term. It issued policies to its members, which were payable upon the death of a member whose life was insured, and did various other acts which are usually done by life insurance companies, but this did not necessarily bring it within the def- inition of a life insurance company, as that term is used in the act" regulating ordinary insurance companies. 1 When the law provides that a society may furnish relief to members on account of sickness, or other physical disability, it is proper for the society to provide in its contract of insurance for relief to members who shall have attained the age of seventy-five years; the attainment of such an age is a " physical dis- ability," within the true intent and meaning of the act. 2 Where the law under which a society is organized provides that the members shall from time to time be assessed specific- ally to pay such losses and expenses as may be incurred, the society may not adopt a plan of insurance by which the mem- bers, upon advance payment of an agreed annual deposit, shall be exempted from liability to assessment to pay losses 1 The Commercial League v. Peo- 5 Supreme Council t. Fairmau, 62 pie ex rel. , 90 111. 166. How. Pr. (N. Y.) 386. CHARTER AND CONSTITUTION. 15 occurring during the year for which such pre-payment was made, and by which a contract of insurance may be declared forfeited for the non-payment in advance of an annual deposit, whether an assessment during such year to pay losses may be necessary or not. Such annual deposit paid in advance, based upon a table of mortality, and without reference to an amount necessary to pay losses which may occur during the year, is, in fact, a premium paid for carrying the risk, and not a spe- cific assessment. 1 Where the law under which a society is organized provides that the " members shall receive no money as profit," any plan or scheme by which profits are made or divided is unauthorized. A plan by which annual deposits are required to be made, and if these annual deposits exceed the necessary expenses and losses during a given year, thev are to be treated as " savings," out of which dividends are to be made to those who may then be members, is contrary to such provision of the law. 2 Where the statute under which a society is incorporated prohibits the payment of any money to a member as profits, and provides that no part of the funds collected for the payment of death benefits shall be applied to any other purpose, it is not lawful for the society to do busi- ness upon a plan by which it agrees that, at the end of ten years, the tontine or guarantee fund, consisting of twenty-five per cent of death assessments collected, will be distributed equally among the surviving members of the tontine class. Such a division of the tontine fund and its accumulation of interest among the surviving members is contrary to the pro- visions of the law. 3 The charter of a society contained this provision : " The object or purpose of this association shall be the creation of a fund, by making mutual pledges and giving valid obligations of its members to and with each other, for their own insurance from loss by death of its members. * * * This association shall have no capital stock; it shall receive no premiums, nor make any dividend." An action of gun warranto was brought. claiming that the society was doing an insurance business not authorized by its charter. The society, by its plan of insur- ' State v. Association, 42 Ohio St. ■ State v. Association, supra; Clii- B55. cago Mutual v. Hunt, 127 111. 207: 20 8 State v. Association, supra. N. East. Rep. 55. 16 CHARTER AND CONSTITUTION. ance, required from a member a deposit "of one dollar for each and every year of his age, counted at his nearest birthday, which deposit shall form a pledge or guaranty for the pay- ment of assessments for death losses and annual dues." In deciding that the society was doing such a business as was au- thorized by its charter, the court said : " But this fund is not a fund for the payment of losses, but a guaranty of the payment of the assessments. Upon the death of a member this guaranty deposit is paid to his beneficiary, and this in addition to and independent of the proceeds of the assessment. Upon a failure to pay his assessments, the deposit is forfeited to the company, and the interest received upon the investment of the deposit belongs to the company, and from these accumulations there may come a fund, out of which the amount which would be due in case of a death can be paid without any assessment, and provision is made for such contingency. But this provis- ion against a large accumulation of funds in no manner changes the character of the association. Its purpose and object is still the collection of assessments from living members, to pay the beneficiary of a deceased member." l The scheme of a corporation was that each applicant for membership should pay $5 for his certificate, $2 a month thereafter to an endowment fund, and fifty cents dues every quarter, the latter to be used in defraying expenses, the endow- ment fund to be deposited and allowed to remain idle in bank; that the certificates should mature and be paid in numerical order, a certificate to mature whenever there is $200 (the amount of the certificate) in the endowment fund, the holder of such certificate being compelled to pay $5 and take a new certificate. Payments of $15 a week for five weeks to sick or injured members was also provided for. It was held that the scheme was only to benefit the officers, and those who should have the lowest numbered certificates, and not all the members alike, and the company was not within the pro- visions of the act providing for " the maintenance of a society for beneficial or protective purposes to its members from funds collected therein," and empowering courts to grant certificates of incorporation to such societies. A court, after having improvidently granted a certificate of incorpora- 1 The State ex rel. v. Bankers' Association, 23 Kan. 499. CHARTER AND CONSTITUTION. 17 tion to such company, may revoke the same, since, hav- ing been granted without authority, it was void ah initio. 1 The statutes of Ohio provide that a society " may be organized for the purpose of mutual protection and relief of its members, and for the payment of stipulated sums of money to the fami- lies or heirs of the deceased members, * * * and such asso- ciation shall not be subject to the preceding sections of this chapter," providing for the furnishing of security for the as- sured. A society, organized under the laws of Pennsylvania, was authorized to engage in the business of " insuring lives on the plan of assessments upon surviving members," without other restrictions than that policy holders should have an in- terest in the lives of members. This society attempted to do business in Ohio, without complying with the general insur- ance law in furnishing security for the assured, but the court held that this exemption was allowed on account of the limited nature of the life insurance which such societies were authorized to assume, being confined to insurance for the benefit of the families and heirs of members, and that the plan under which the Pennsylvania society was authorized to do business did not come within this exemption. The court further held that the law of comity was fully satisfied when foreign companies were permitted to do business in the state upon the terms pre- scribed for domestic companies. 2 An act of Virginia provides that insurance companies on the assessment plan may be licensed to do business without being required to make the deposit of bonds provided for by the general law; and that every such company shall deposit with the auditor a copy of its constitution and by-laws, " which must show that all indemnities to beneficiaries are in the main provided for by assessments upon all surviving members." 1'nder this act, such a company as would be exempt from the general law is one having a mutual system, by which a loss is in the main paid by laying an assessment for the purpose on the members of the company who are living when the loss occurs; but the act does not exempt a company in which ;ill indemnities to beneficiaries are in the main provided by regular assessments, made before the death occurs, instead of by assess- 1 In re National Indemnity and En- ' Statu v. Moore, 38 Oh. St. 7. dowment Co., 142 Pa. St. 450; SI Atl. Rep. 879. 18 CHARTER AND CONSTITUTION. ments made upon all surviving members after the death occurs. The words " surviving members," as used in the act, are the antithesis of deceased, not of lapsed, members; and " assess- ments upon surviving members " are assessments to meet the loss caused by the death of a member, made after his death, upon those members who survive him. 1 § 10. Certificate of incorporation — How the manner of doing business should he set forth. — A substantial com- pliance with all the terms of a general law for the incorpora- tion of societies is a prerequisite" of the right of forming a cor- poration under it. The articles of incorporation must contain everything in substance which is prescribed by the laws under which the corporation is organized. 2 Thus, a certificate of in- corporation setting forth that " the manner of carrying on the business shall be such as the association may, from time to time, prescribe by rules, regulations and by-laws, not incon- sistent with the laws of the state " is not in compliance with the law of the state, which requires the certificate to show " the manner of carrying on the business of said association." ! § 11. The object of a society must be legal. — It is evi- dent that the law will not sanction the incorporation of a so- ciety for an illegal purpose, and will refuse to recognize the legal existence of any such society. The state will not permit those who are subject to its laws as individuals to defy them as mem- bers of a society which has been brought into existence under its laws. Thus, while persons may undoubtedly meet and form societies for the purpose of effecting the modification or repeal of some obnoxious and oppressive law, still, under an act pro- viding for the incorporation of voluntary societies, a corpora- tion may not be formed for the purpose of opposing the en- forcement of other acts, or of agitating for their repeal, or to influence legislation, or to give immunity to convicted parties by paying their fines for them. A society formed to oppose the enforcement of the liquor laws of a state may not be incor- porated. 4 Where the object of an incorporated society was to fix and control the price of salt, and the mode in which this was to be accomplished was by the manufacturers of salt on the 1 Mutual Ben. Life Co. v. Marye, 85 3 State v. Association, 29 Oh. St. 399. Va. 643; 8 S. East. Rep. 481. 4 Detroit Schuetzen Band v. Verein, 2 MorawetzonCorp.,§§27 and 23. 44 Mich. 313. CHARTER AND CONSTITUTION. 19 Syracuse reservation leasing to the corporation the salt blocks owned by them, thus giving control of the quantity and price to the society, it was held that the purposes of the association were in violation of law, and that those concerned in it were guilty of a misdemeanor. 1 The object of a society was declared to be " to unite acceptable young people in such a way as to en- dow each with a sum of money, not to exceed $6,000, to be paid at marriage or endowment, according to the regulations adopted." A certificate of membership in such a society pro- viding " that no member will be entitled to any benefit what- ever, who marries in less time than three months from the date of his certificate," and that " every member who shall have been in good standing for at least three months prior to his marriage shall be entitled to $40 per month upon each $1,000 named in his certificate for each whole month of his membership, provided that the same shall never exceed $3,000, or so much thereof as shall be realized from one marriage assessment of all the members of this class," — is not a marriage brokerage contract, but is void on grounds of public policy, as operating in undue restraint of marriage by offering an inducement for its indefinite postponement. 2 § 12. When corporate existence may not be attacked. — It may be stated as a general rule that the corporate existence of a society may not be attacked in a collateral proceeding. Where an action is brought on a written certificate of mem- bership, sealed with the company's seal, signed by its president, and duly attested by its secretary, the society may not intro- duce evidence showing that the corporation was not fully or- ganized at the time the certificate issued, and it is estopped by its own deed from so doing. 3 § 13. The doctrine of ultra vires. — Cases involving the 1 ( llancey v. Salt Manfg. Co., 62 ton, 91 Ind. 202; James v. Jellison, Barb. 395; see People v. (Jus Trust 94 Ind. 292. Co.. 130 III. 268. 3 Mutual Aid v. Paine. 122 111. 625; ! White v. Equitable Nuptial Ben- 14 N. East. Rep. 42; Hagerman v. efit Union, 76 Ala. 251; see also In Association, 25 Oh. St. 186; Hassel- re Mutual Aid Association for Un- man v. Company, 97 Ind. 365; Meurer married Persons, 15 Phil. Repts. 625; v. Association. 95 Mich. 451; 54 X.W. In re Helping Hand Marriage Asso- Rep. !!~>1: Scheufler v. Qrand Lodge, ciation, 15 Phil. Repts. 644; State v. 45 Minn. 256; 47 N.W. Rep. 799; see Towle, 80 Me. 287; 11 At 1. Rep. 195; Traders' .Mutual v. Stone, 9 Allen 6 N. Eng. Rep. 460; Chalfant v. Pay- 483. 20 CHARTER AND CONSTITUTION. doctrine of ultra vires have arisen and, doubtless, will arise in litigation upon contracts of insurance in mutual benefit so- cieties, and contracts of other voluntary societies, but a full discussion of such a subject is beyond the scope of this treatise. It is sufficient here to say that there are two lines of decisions. The principle laid down in one may be stated as follows : Where it is a simple question of authority to contract, arising either on a question of regularity of organization, or of power conferred by the charter, a party who has had the benefit of the agreement can not be permitted, in an action founded upon it, to question its validity. The usurping or excess of cor- porate power is a matter to be complained of by the govern- ment, and places the society in danger of a judgment of ouster and dissolution. The other line of cases permits either party to the contract to set up the want of power in the incorporated society to enter into such a contract — not that either party stands in a position to take advantage of the want of such powers, but on grounds of public policy; and the defense so set up is regarded as the defense of the public, not that of the contracting party urging it. The authorities in favor of each of these principles might be multiplied almost indefinitely, though the current of the latest decisions is decidedly in favor of the proposition as first above laid down. It is proposed to illustrate the opposing principles by such cases only as have arisen in incorporated voluntary societies. 1 A mutual benefit society can not defend against a suit on one of its contracts of life insurance upon the plea of ultra vires, when it has been receiving the assessments on the certificate of insurance. 8 A societv was organized under the law of Illinois providing for societies " for the purpose of furnishing life indemnity or pecuniary benefits to the widows, orphans, heirs or relatives, by consanguinity or affinity, devisees or legatees of deceased members." It issued a certificate of membership payable to William Blue, who was in no wise related to the member, Wm. R. Bailey. After Bailey's death, Blue brought an action on the certificate, and the society set up, as a defense, its ar- ticles of incorporation under the above law; that plaintiff was not a legatee or devisee of Bailey and not related to him by 1 See §§ 158, 168. s Matt v. Society, 70 Iowa 455 ; CO N» W. Rep. 799. CHARTER AND CONSTITUTION. 21 affinity or consanguinity, etc. In discussing this plea the su- preme court of Illinois said : " It is contended that all persons not named in the act are prohibited from becoming benefi- ciaries. It will be observed that the contract involved is not absolutely prohibited by statute. All that can properly be claimed is that it was not expressly authorized by the statute. The defendant voluntarily issued the policy, it received the premiums, and Bailey fully, so far as appears, performed all that his contract required him to do. So far as he is con- cerned, the contract is an executed one. Now, upon the death of Bailey, when the defendant is called upon to perform its part of the contract, can it refuse, and defeat a recovery, by claiming that the contract is ultra vires f We think the law on this question is well settled that such a defense can not be made availing. Where the contract has been fully performed by the party contracting with the corporation, and the corpo- ration has received the benefit from such contract, it can not invoke the doctrine of ultra vires to defeat an action brouo-ht against it on such contract. 1 ' ' An act authorized the onran- ization of societies for the purpose of securing certain benefits " to the family or heirs of any member upon his death." The contract of insurance showed, in the answers to interrogatories in the application, that the beneficiary named in the. certificate of membership was in no way related to the member, and not in any way a member of his family, and, in the certificate, the beneficiary was described as " friend of " the member. The supreme court of Michigan held that the society might, in an action on the certificate, set up as a de- fense the want of insurable interest in the beneiiciai-y, and said: "The association issued this certificate under circum- stances which most strongly call upon the courts to enforce performance of its agreement, if certain imperative rules of public policy do not forbid. The defense set up in this case must be considered as that of the public, and not that of the defendant, as it stands in no position to interpose such a defense.'" 1 Bloomington Mutual v. Blue, 120 9 Mutual Ben. Ass'n v. Hoyt, 46 III. 121; 11 N. E. Rep. 331; 24 111. Mich. 47:3; 9N. W. Rep. 497. App. 518; Martin v. StubbingB, 126 111. 387; 18 N. East Rep. 657; see § 178, 191. 22 CHARTER AND CONSTITUTION. Although a certificate of membership in a mutual benefit so- ciety contain the name of a creditor of the member as benefi- ciary, in violation of the law authorizing such societies to issue certificates for the benefit of widows, orphans, or dependents of members, yet, where the certificate recognizes that there may be a change or substitution of such beneficiaries, and provides that, in case the member survives all the original or substituted beneficiaries, the insurance shall be for the benefit of the heirs of the insured, the administrator of the insured may maintain an action on such certificate, although the pe- tition avers that the action is for the benefit of the creditor.' The opinion in the case holding this doctrine makes one or two valuable suggestions as to the application of the doctrine of ultra vires to contracts of mutual benefit societies. In this opinion it is said : " The designation of beneficiaries in the policy or certificates of membership is invalid, as the statutes under which the defendant corporation was organized did not authorize it to grant insurance for the benefit of friends. But an invalid designation of beneficiaries does not render the whole contract invalid. The contract in terms recognizes that there may be a change or substitution of beneficiaries, and there is a provision that, if the member shall survive all origi- nal or substituted beneficiaries, then his membership shall be for the benefit of his legal heirs. * * * If there is no other legal designation, this may take effect. The defendant contends that the declaration avers that the action is brought for the benefit of (the creditor named in the certificate), and there- fore that the action can not be maintained. This objection can not be supported. If the plaintiff (the administrator) re- ceives the money, it will be a good discharge to the d Pendant of its liability; and the defendant will not be respom ib'.e for the proper application of the money by the plaintiff. Ic is to be assumed, at this stage of the proceedings, that he will dis- pose of the funds properly; and he may be compelled to do so by judicial proceedings, to which the defendant would not be a necessary party. The averment that the action is brought for the benefit of (the creditor) is unnecessary, and may be dis- regarded. " A society in its charter declared its object to be " for the 1 Rindge v. New England Mut. Aid Soc, 146 Mass. 286; 15 N. E. Rep. 628. CHARTER AND CONSTITUTION. 23 general purpose of improvement and welfare of the members and others, and for the particular object of mutual relief of the members of the association in time of sickness and dis- tress." It was held that under this charter the society might properly carry on a system of mutual benefit insurance, and make the widows of deceased members the beneficiaries of the fund raised by assessment upon its members. 1 A society provided in its charter : " The business of said association shall be to afford relief to the widows and children of its deceased members, and to such business it shall be lim- ited and restricted." A member became insured in the society, designated his wife as his beneficiary, and provided in the designation that his children should take the fund if he should survive his wife. He became indebted to the society in a large amount for money loaned him, and, by agreement between himself and the society, made a new designation "as per assignment attached, and balance, if any, to my wife * * * and, in case she be dead, to my children." The assignment attached was to the society to secure his indebtedness to it. Afterward the member died in good standing as such. The supreme court of Wisconsin held that his children, the wife being dead, were entitled to the whole fund, and that the loan of money by the society was in excess of its corporate powers and void. Ryan, C. J., dissented as to the ground upon which the decision was placed, and, upon the question of the validity of the loan, held that a corporation may employ the corporate property, when it would otherwise be lying idle and profitless, for such purposes as are not alien to its primary business, may rent its waste lands, invest its unemployed capital, and place its money at deposit account, citing Brice on Ultra Vires, 68. He further says: "If the insurance of the husband for the benefit of his wife and children were sub- ject to his control, the corporation could lend its money to him or for his benefit, and take security on the con- tract of insurance. Whether the husband had such control, seems to be the controlling question in this case." * A society organized for the purpose of aiding and assisting the widows, orphans, heirs or devisees of deceased members, 1 Gundlach v. Germania Mechanics 5 Dietrich et al. v. Relief Associa- Ass'n, 49 How. Pr. 190. . tion, 45 Wis. 79. 24 CHARTER AND CONSTITUTION. under a law providing that " the members shall receive no money as profit or otherwise," may not contract with a mem- ber for the payment of a certain sum of money to him upon his arriving at the age of seventy years. Upon this subject the court said : " To permit the society to contract to pay to one of its members upon his arriving at seventy years of age, or after he has been a member in good standing for twenty- five consecutive years, a sum of money as profits upon his in- vestments in the society, would be in fraud of the charter upon which it depends for existence, would virtually nullify and abrogate the wholesome statutes enacted for the purpose of regulating the business of life insurance companies, would set at naught the legislative intent, and be in conflict with the public policy of the state. Appellee is not a stranger to the corporation, but is himself a member of the society, and as such is chargeable with full knowledge and notice of its char- ter powers and of the requirements and prohibitions of the statute under which it is organized." ' Where an incorporated society admits an ineligible person to membership, the corporators are not bound by the illegal act, and the society is not liable to such member for benefits. 2 An incorporated church may not, as a corporation, engage in the sale of tickets to the public for an excursion on board a steamer which the church has chartered for the occasion. Expenses incurred with a view of profit, and profits lost, can not be recovered from the owners of the vessel on their failure to make the stipulated voyage. Excursions as matter of trade 1 Canton Benevolent Soc. v. Eock- by statute. All that can properly be hold, 28 111. App. 141. In this case claimed is, that it was not expressly the court further says : " The present authorized by the statute.' Here, the case is not governed by and is easily charter of the appellant society con- distinguished from the case of Bene- tains an absolute prohibition against fit Association v. Blue, 120 111. 121, the character of benefits sought to relied upon by appellee. There, the be recovered, and the language of statute did not forbid the contract the statute is, ' the members shall re- which was then under consideration ; ceive no money, as profits or other- here, the statute does forbid the wise.' " See Rockhold v. Canton Ma- con tract now in question. There the sonic Mut. Ben. Soc, 128 111. 440; 21 court said: ' It is contended that all N. East. Rep. 794; affirming 26 111. persons not named in the act are pro- App. 141. hibited from becoming beneficiaries. 2 Fitzgerald v. Association, 69 Hun It will be observed, that the contract 532; 23 N. Y. Supp. 647. involved is not absolutely prohibited CHARTEK AND CONSTITUTION. 25 or business with the public are not within the means or ends for which the church was incorporated. The measure of recovery, in a suit by the church against the owners, is the amount which has been paid as hire for the vessel. 1 AVhere the charter of a society restricts its membership to persons under the age of fifty years, the society has no power to authorize the admission of members over that age, and there can be no waiver of this qualification. 2 A Masonic lodge loaned a sum of money, and afterward brought suit to enforce its collection. The court held that there could be no recovery; that where the charter confers upon a society no power to lend money, and the society lends money without authority under its charter and takes a promissory note to secure the repayment, the contract is void. The court said : " Xo action to enforce the contract, whatever form the pleaders skill may ffive it, can be maintained." 3 § 14. The constitution of a society. — The articles of asso- ciation of an unincorporated society bear the same relation to it that a charter bears to an incorporated society. They regulate the duties of its officers, and the duties and obligations of its members among themselves, and define the scope of its busi- ness. 4 These articles of association are commonly called the constitution of the society, and such constitution is its funda- mental law, and must govern its members in all things. All by-laws, rules and regulations must be passed in conformity with its provisions, and must not be in any wise in conflict with them. 5 The constitution adopted by a mutual benefit society lor the government of its subordinate lodges is the fundamen- tal and organic law of each lodge in all its social and fraternal relations, and from it the lodge derives all its powers and rights as a subordinate part of the society. 6 The constitution of an incorporated society is, however, of no greater force or dignity than its by-laws; in fact it is nothing more than a series of 1 Harrinan et al. v. Baptist Church, 4 Bray v. Farwell, 81 N. Y. 600. 63 < ia. 186. 6 Powell v. Abbott, 9 Weekly Notes s Luthe v. Farmer's M. F. Ins. Co., of Cases, 281. 55 Wis. 543: see Smith v. Pinch, 80 8 Chamberlain v. Lincoln, 129 Maes. Mich. 332: Morrison v. Odd Fellows, 70 ; District Grand Lodge v. Cohn, 20 59 Wis. 162; McCoy v. Ins. Co., 152 111. App. 335. Mass. 272: 25 N. East. Rep. 289. 3 Grand Lodge F. & A. M. v. Wad- dill, 36 Ala. 313. 26 CHARTER AND CONSTITUTION. by-laws under another name. Such a society has inherent power to pass laws for its internal government and regulation, and though it may pass two codes of laws, calling one its constitu- tion and one its by-laws, they are the creatures of the same power, brought into being for the same purpose and are essen- tially the same. It may be that, by the provisions of its laws, such a society may give to the code called the constitution, a greater importance in its legislative and administrative affairs than it attaches to its by-laws, but essentially its constitution is not superior to its by-laws. 1 § 15. Concerning the incorporation of an unincorporated society. — "Where an existing unincorporated society is char- tered, and its constitution is expressly recognized by the charter, such constitution thereby becomes practically, by reference, a part of the charter. 2 Where an unincorporated mutual benefit society procures a charter of incorporation, and, by a vote of the incorporated society, all members of the voluntary associa- tion are made members of the incorporated society without new applications, this is a reinsurance of the life of such mem- bers, on their original applications in the incorporated society. It is a mere continuation of the contract of insurance entered into by and between the associates, in which the incorporated society takes the place of the first society. The members so admitted into the new society have no greater rights against it, under their contracts of insurance, than they had against the first society, and any fact which rendered the contract in- valid, as against the first society, furnishes a good defense for the new society to an action upon it. In other words, an in- valid contract with an unincorporated society is not made valid by the incorporation of the members thereof, and the assump- tion by that corporation of the contracts of the unincorporated society. 3 The legislature has no authority to compel any persons or society to become incorporated without its assent. No one can become a member of any private corporation without tak- ing some steps for that purpose, nor does any existing society become absorbed or merged in any new corporation, so as to 'Supreme Lodge v. Knight, 117 3 Swett v. Citizens Mutual Relief So- Ind. 489 ; 20 N. East. Rep. 479. ciety, 78 Me. 541; 7 Atl. Rep. 394. " Pulford v. Fire Department, 31 Mich. 458. CHARTER AND CONSTITUTION. 27 relinquish its former condition, without some action fully authorizing such a result. The membership of a corporation can not be increased by joint accessions without some action denoting unanimous consent; and one member of an unincor- porated society can not be made a corporator in a different so- ciety or corporation by the action of other members not within the terms of their original compact; and a portion of the mem- bers of an unincorporated society can not, therefore, without unanimous consent, or some action of such society, or some provision of its articles, authorizing it, organize a corporation under a statute, which shall swallow up the society and thereby acquire title to its property,' nor can acquiescence in the claim of the corporation, that it is identical with such society, in the absence of any circumstances creating an estoppel, operate to extinguish the separate existence of the latter. Acquiescence by such society or its officers will not bind the members; noth- ing short of a complete cessation of its action will tend to prove acquiescence in a corporate merger. A Masonic lodge which was in existence before the organization, under the statute, of a corporation of the same name, and which had never by any action authorized or recognized the corporation as formed in the same behalf, and where each had been dis- tinct in meetings, officers, property and other incidents, and not even identical in membership, is not merged in the corpo- ration. 2 A dissatisfied minority of an unincorporated society can not, by procuring a charter of incorporation, acquire the right to the management of its property in opposition to the will of the majority of those interested. 3 When an unincorporated society becomes incorporated and the new society assumes and agrees to pay all the obligations and Liabilities of the old association, whether accrued or to accrue, recognizes the members of the old association as its members, and accepts assessments from them, a complete novation of the contracts of the old association is effected, and the new society is primarily liable upon the contracts so 'Mason v. Finch, 28 Mich. 282; 21 Abb. N. C. 99; McGlynnv.Post,21 Henry v. Deitrich, 84 Pa. St. 286. Abb. N. C.(N. Y.) it7: McFadden v. * Mason v. Finch, 28 Mich. 282. Murphy, 149 Mass. 341; 21 N. East. 8 Henry v. Deitrich, 84 Pa. St. 286; Rep. 868; see § 134. Black Rabbit Association v. Munday, 28 CHARTER AND CONSTITUTION. assumed by it. 1 An act of the legislature, by which the mem- bers of several mutual insurance companies are made a new corporation, and which is to take effect "when accepted by the members of said corporations," does not constitute a mem- ber of one of the old companies who does not assent to it, a member of the new corporation, although the act be duly accepted by a majority of the members of each of the old companies. 2 The executive board of an unincorporated society may not convert it into a corporation, unless the power is conferred on it by the constitution and by-laws, or by an ex- press resolution of the society. And it is necessary that a meeting to ratify the action of such a board which has ex- ceeded its powers in incorporating the society, be called by competent authority, and that the members at large be noti- fied of the meeting and its purpose.' Members of an unincor- porated society, who have incorporated themselves under its name without its consent, may be enjoined from using that name/ 1 Burns v. Grand Lodge, 153 Mass. 173; 26 N. East. Rep. 443; Bank v. Mathews. 98 U. S. 621; Whitney v. Wyman, 101 U. S. 392: Kelley v. Rail- road, 141 Mass. 496; 6 N. East. Rep. 745; Hart's Case, 1 Ch. Div. 307-317; Dowse' s Case, 3 Ch. Div. 384; Brewer v. Dyer, 7 Cush. 337. 2 Hamilton Mutual v. Hobart, 2 Gray (Mass.) 543. 3 Rudolph v. Southern Beneficial League. 7 N. Y. Supp. 135. 4 Rudolph v. Southern Beneficial League, supra; Black Rabbit Asso- ciation v. Munday, supra; McGlynn v. Post, supra. Where a number of persons seek to incorporate under an act, they must in good faith comply with its provisions: and where a public officer, whose duty it is to pass upon appli- cations, refuses to issue a certificate of incorporation on the ground that certain requirements of the law have not been fulfilled in good faith, man- damus will not lie to compel him to issue such certificate, since his duties are judicial in their nature. In re Schmitt, 10 N. Y. Supp. 583; People v. Barnes, 114 N. Y. 317; 20 N. East. Rep. 609; 21 N. East. Rep. 739. It was held in Massachusetts that, where it was the duty of the commissioner to pass upon the ques- tion whether a name applied for by persons seeking incorporation was so similar to any corporate name pre- viously in use as to be liable to be mistaken for it, it must be assumed that the commissioner will do his duty and is competent to form a judgment on the question. The court refused to prohibit him by in- junction from issuing a charter to a corporation under a very similar name to that of the corporation applying for the writ. It was also held that private parties could not be prohib- ited from applying to him for incor- poration under a certain name, in the manner expressly authorized by statute. American Order v. Merrill et al., 151 Mass. 558; 24 N.East. Rep. 918; see Gregg v. Society, 111 Mass. CHARTER AND CONSTITUTION. 20 185. The court further held that a corporation is not entitled to have its name protected as a trade mark as against a corporation with a very similar name, organized under the same act, since the degree of pro- tection to which it is entitled is measured by the rights which that act confers upon it, and the limit is marked by the adjudication of the commissioner. See Manfacturing Co. v. Nairn, 7 Ch. Div. 834; In re J. B. Palmer's Trade Mark, 24 Ch. Div. 504. 517, 521; In re Ralph's Trade Mark, 25 Ch. Div. 194, 199; Coats v. Thread Co., 36 Fed. Rep. 324. When there are no statutory provisions as to the choice of names, and parties or- ganize a corporation under general laws, it may be that they choose the name at their peril, and that, if they take one so like that of an existing corporation as to be misleading, and thereby to injure its business, they may be enjoined if there is no lan- guage in the statute to the contrary. Holmes v. Manufacturing Co., 37 Conn. 278; New by v. Railway Co., Deady, 609; Celluloid Manuf'g Co. v. Cellonite Manuf'g Co., 32 Fed. Rep. 94. 97. But these decisions do not ap- ply to a case where the plaintiff and defendant both get their names un- der a statute requiring such an adju- dication by a commissioner. CHAPTEK III. BY-LAWS. § 16. Inherent power of societies to pass by-laws. 17. Generally. 18. When by-laws are binding on members. 19. By-laws must be legal. 20. By-laws must be consistent with the charter. 21. By-laws of unincorporated society must be consistent with its constitution. 22. By-laws of unincorporated society must not be illegal. 23. By-laws of an incorporated society must be reasonable and neces- sary. 24. 25, 26, 27. Alteration, amendment and suspension. 28. Repeal of by-laws. § 16. Inherent power of societies to pass by-laws. — An incorporated society has inherent power to make such by-laws, rules and regulations as may be necessary to carry its charter into effect, and to accomplish the purposes for which it was organized. 1 A grant, in general terms, of the power to make such by-laws is usually contained in the organic law of the so- ciety, or in the charter founded upon it, but it is by no means necessary, and adds nothing to the inherent power of the so- ciety in that regard. 2 An unincorporated society, however, exists by agreement of its members, and a majority has only such powers as are conferred by the articles of association. 1 See § 114. for the better government of thecor- 2 " After a corporation is so formed poration; which are binding upon and named, it acquires many pow- themselves, unless contrary to the ers, rights, capacities and incapaci- laws of the land, and then they are ties, which are next to consider, void. This is also included by law Some of these are necessarily and in- in the very act of incorporation: for, separably incident to every corpora- as natural reason is given to the tion; which incidents, as soon as a natural body for the governing it, corporation is duly erected, are tac- so by-laws or statutes are a sort of itly annexed of course. As, * * * political reason to govern the body to make by-laws or private statutes politic." 1 Blackstone's Com. 475. (30) BY-LAWS. 31 Such a society has no inherent powers. If no provision of the contract of association gives to the majority of the members the right to alter and amend such contract, the majority has no power of legislation over the minority, and changes and additions may be made only by unanimous consent. For this reason the articles of association usually confer upon the ma- jority, or two-thirds of the members, the power to legislate for the general interests of the society, and provide how, and when, the constitution and by-laws may be altered and amended. §17. Generally. — A by-law may be defined to be a rule of a permanent character, adopted by a society for its internal government, and obligatory upon all its members. 1 A reso- lution, which prohibits one particular officer of the society from inspecting its books, can not be called a by-law. 2 A by- law of an incorporated society must be general in its character and apply to all members alike. If it is invalid as to one member, it is invalid as to all. It must stand on its own validity, and it may not be shown, as sustaining its validity, that a dispensation was granted to a member against whom it was invalid, exempting him from its provisions, and that all the other members of the society assent to it, and are willing to be bound by it. A member of such a society can not be subjected to any conditions which do not apply to all alike, and can not be compelled to receive immunity from a by-law, as a matter of grace, when he is not bound by it as a matter of right. Upon the other hand, it is unjust to the other mem- bers that there should be personal exemptions of a general nature from any valid regulations which bind the mass of the corporators. 3 An incorporated mutual benefit society can not ignore its by-laws, and lawfully contract with a particular member for life insurance on a different plan or basis than that which ;i lilies to all other members.* Where a by-law is a mere rule of conduct in its business affairs, imposed on itself by the society for its own benefit and convenience, it may he disregarded by its officers. 6 Where the by-laws declared that 1 Waterman on Corp. § 72; I rrant on 4 Clevenger v. Mutual Life, 2 Dak. Corp. 76. 114. 2 People v. Throop, 12 Wend. 187. 6 Hale v. Ins. Co., 32 N. H. 895; ; People r.r r•_> Ind. 489; 20 N. East. Rep. 479; Poult- Barb. 399; Eaton v. Supreme Lodge, ney v. Bachman, 81 Hun 49; Supreme 22 Cent. Law Jour. 560; Painter v. Commandery v. Ainsworth, 71 Ala. Association, 14 Ins. Law Jour. 556. 436. Waterman on Corp. 235; Pfister 1 Walsh v. Insurance Co., 30 Iowa v . Gerwig, 122 Ind. 567; 23 N. East. 133-145; Treadway v. Insurance Co., r 0J1 . 10 41 ; Insurance Co. v. Perrine, 29 Conn. 68 ; Hale v. Insurance Co., 7 Watts & Ser. 348 ; Miller v. Associa- 6 Gray (Mass.) 169. tion, 42 N. J. Eq. 457; 7 Atl. Rep. 895. 2 Mitchell v. Lycoming Mutual, 51 36 BY-LAWS. by-laws of a society permit a contract of insurance to be assigned or made payable to a stranger who has no insurable interest in the life of a member, and the laws of the- state in which the contract is executed, hold such an assignment or designation of beneficiary to be void, as against public policy, such provisions are inoperative and void. 1 By-laws of a soci- ety which forbid a member to work at his trade at such prices as he chooses to accept, and compel him to join in a " strike " by punishing him for refusing to do so, are void as against public policy. 2 It is not illegal for workingmen to form and act as an association for the purpose of protecting themselves against the encroachments of their employers, and to agree, in furtherance of such object, not to teach others their trade un- less by consent of the society. It has been said : " In the relations existing between labor and capital, the attempt by co-operation, on the one side, to increase wages by diminishing competition, or, on the other, to increase the profit due to capital, is within certain limits lawful and proper. It ceases to be so when unlawful coercion is employed to control the free- dom of the individual in disposing of his labor or capital. It is not easy to give a definition which shall include every form of such coercion ; it is enough that in the compact before us there is no evidence of any purpose to use such unlawful means in any form." 3 A by-law of a society imposed a penalty for violation of its by-laws, one of which forbade any of its mem- bers to work for any person who should employ non-members. It was held that the by-law was not illegal. 4 An association of stevedores of a port, by by-law, fixed rates at which its members should work, and penalties for the violation of the by-law, to be paid to the association. The court held the by- law valid, and the penalty recoverable. 5 One of the by-laws of an association provided that any member who should bind his son in a shop where non-union men were employed, should 1 Price v. Supreme Lodge, 68 Texas ciety, 6 Thompson & Cook (N. Y.) 88. 366; 4 S. W. Rep. 633; Schonfield v. 3 Snow v. Wheeler, 113 Mass. 179. Turner, 75 Texas 324; 12 S.W. Rep. 4 Commonwealth v. Hunt, 4 Met. 626. ' (Mass.) Ill: but see People v. Fischer, 2 Doyle v. Benevolent Society, 3 14 Wend. (N. Y.) 9. Hun (N . Y.) 361 ; Farrer v. Close, L. R., 5 Stevedores Ass'n v. Walsh, 2 Daly 4 Q. B. 602; Doyle v. Benevolent So- (N. Y.) 1. bvt-laws. 37 be fined, and it was held to be illegal. 1 An incorporated med- ical societjr established a tariff of fees for medical services to be performed by its members, fixed a minimum salary to be re- ceived by any member who should be appointed to any public office in a professional capacity, and adopted a by-law declaring that it should be dishonorable, and subject him to expulsion, for any member to accept any appointment at a less sum. than was specified therein. The court held that the by-law Avas against public policy and void. 2 A by-law providing that no member of the society should sell a gun-barrel to any per- son of the trade, not a member residing in London, etc., was held invalid, as being in restraint of trade. 3 A society was incorporated for the purpose of cultivating the art of music, for the promotion of good feeling among its members, and for the relief of its unfortunate members. The by-laws provided that it should be the duty of every member to refuse to perforin in any orchestra or band in which any person or persons were engaged who were not members of the corporation in good standing, and also provided that it should be deemed a breach of good faith and fair dealing between members for a member to employ a suspended member or a person not a member. They also required a residence of six months in the United States before a person was eligible to membership. An action was brought to restrain the society from enforcing its by-laws and from fining the plaintiff for employing a person in his orchestra, who was not a member of the union. The court held that the effect of the by-laws above enumerated was to create a close corporation, and to force each member of the profession to also become a member of the union, unless he preferred to abandon his calling or seek some other locality in which to exercise it; that tin- by-law Avhich required a residence of six months in the United States before eligibility to membership virtually prohibited, in view of the restrictions contained in the other by-laws, a musician on coming into the United States, from exercising his calling : that such by-laws were not calculated to promote the general good feeling and good fellowship which it was the object of •Rigby v. Connol, L. R, 14 Chan. Societj of Gunmakers v. Fell, Div. 482-492. Willes' Rept. (Eng.) 384 2 People v. Medical Society, 24 Barb. 570. 38 BY-LAWS. the union to obtain, and were not onty against public policy, but antagonistic to the right of every man to earn his liveli- hood by honest labor. 1 All combinations and associations designed to coerce work- men to become members, or to interfere with, obstruct, vex or annoy them in working, or in obtaining work, because they are not members, or in order to induce them to become mem- bers ; or designed to prevent employers from making a just discrimination in the rate of wages paid to the skillful and to the unskillful ; to the diligent and to the lazy; to the efficient and to the inefficient; and all associations designed to interfere with the perfect freedom of employers in the proper man- agement and control of their lawful business, or to dictate in any particular the terms upon which their business shall be con- ducted, by means of threats of injury or loss, by interference with their property or traffic, or with their lawful emplo3 T ment of other persons, or designed to abridge any of these rights, — are pro tatito, illegal combinations or associations; and all acts done in furtherance of such intentions by such means, and accompanied by damage, are actionable. 2 'Theodore Thomas v. Mutual Pro- v. People, 35 111. 17; 76 Am. Dec. 783, tective Union, 49 Hun 171, Daniels, note; In re Baldwin, 27 Fed. Rep. 187; J., dissenting in a vigorous opinion State v. Donaldson, 32 N. J. L. 151; 90 in which the following authorities Am. Dec. 649, note; State v. Cole, 39 are cited and reviewed: People v. N. J. L. 324; People v. Richards, 1 Fischer, 14 Wend. 9 ; Regina v. Duf- Mich. 216; 51 Am. Dec. 75, note; field, 5 Cox C. C. 404; Regina v. Commonwealth v. Hunt, 4 Met. Ill; Shepherd, 11 Cox C. C. 325; Dunham 38 Am. Dec. 346, note; People v. v. Village of Rochester, 5 Cow. 462 ; Fischer, 14 Wend. 9; 28 Am. Dec. 501, Hooker v. Vandewater, 4 Denio 349 ; note; Mapstrick v. Ramge, 9 Neb. Stanton v. Allen, 5 Denio 434 ; 390; 31 Am. Repts. 415; Kimball v. Springhead v. Reily,L. R., 6 Eq. Cas. Harman, 34 Md. 407; 6 Am. Repts. 551 ; Commonwealth v. Hunt, 4 Met. 340; State v. Crowley, 41 Wis. 271; 22 111; Bowen v. Matheson, 14 Allen Am. Repts. 719; Morris Run Coal Co. 499 ; Carew v. Rutherford, 106 Mass. v. Barclay, 68 Pa. St. 173,187; Clancey 1 ; Master Stevedores' Association v. v. Salt ManTg Co., 62 Barb. 395. Walsh, 2 Daly 1. The by-laws of a society may be void 2 Old Dominion Steamship Co. v. as being in restraint of trade. Ber- McKenna, 30 Fed. Rep. 48; 35 Alb. L. wick v. Johnson, Lofft. 334; 2 Kvd J. 208; Walker v. Cronin, 107 Mass. on Corp. 125 et seq.; Gunmakers v. 555; Johnston Co. v. Meinhardt, 60 Fell, Willes, 384; Case of Tailors of How. Pr. 168; Slaughter-house Cases, Ipswich, 11 Co. 53; Grant on Corp. 16 Wall. 36, 116; Mogol, etc., Co. v. 82; Rogers v. Brenton, 10 Q. B. 26; McGregor, L. R., 15 Q. B. 476; Smith Hayden v. Noyes, 5 Conn. 391; Moore BY-LAWS. 39 The statutes of a state, which apply to corporations formed for purposes other than profit, govern incorporated mutual benefit societies, and, when these statutes provide that the term for which officers may be elected shall be one year, neither the incorporators, nor the trustees first elected, are authorized to adopt a by-law or regulation providing that they shall hold office during life. 1 A stock exchange may make membership therein subject to the rule, that, if the member becomes insolvent, his seat may be sold for the benefit of his creditors among the other members of the board. 3 Pajmients of the proceeds of such sale to such members are not prefer- ences, void by the bankrupt law. 3 Where the scheme of a society was the annual distribution by lot among its members of works of art purchased by their subscriptions, it was de- clared to be a lottery, and a violation of law. 4 By-laws can not be permitted to destroy or amend the express provisions of a contract of insurance, without the consent of the mem- ber. 5 It has been held, in many states, that, while societies may provide methods for redressing grievances and deciding controversies, and may compel members to resort to the pre- scribed methods before invoking the power of the courts, it is not lawful for them to entirely prohibit members from suing to recover benefits accruing to them under the by-laws of the society, or a contract of insurance issued by it. 6 A by-law of a society, setting aside a certain fund from which a certain sum is, upon the death of a member, to be paid to the living v. Bank, 52 Mo. 377; Sayre v. Asso- 'State v. Association, 38 Oh. St. ciation, 1 Duvall (Ky.) 143; Nash 281. v. Page, 80 Ky. 539; Huston v. Rent- 2 Belton v. Hatch. 109 N. Y. 593. linger, 91 Ky. 333; 15 S. W. Rep. 867. 3 Hyde v. Woods, 94 U. S. 523. An association of stenogra pliers, 4 Governors v. American Art Un- formed to establish and maintain uni- ion, 7 N. Y. 228. form rates of charges, and to prevent 5 Becker v. Farmers' Mut. etc., 48 com petition among its members un- Mich. 610; Ins. Co. v. Connor, 17 der certain penalties, is illegal, as in Pa. St. 136; Ins. Co. v. Harvey. 45 restraint of trade and against public N. H. 292; Ins. Co. v. Butler, :il policy, and one member can not Me. 451 : Morrison v. Wisconsin < >dd maintain an action against; another Fellows, etc., 59 Wis. 162; 18 N. W. for damages occasioned by the latter Rep. 13; Gundlachv. Germania Me- underbidding the former, in violation chanics Ass'n, 49 How. Pr. 190; of the rules of the association. More Pulford v. Fire Department, 31 v. Bennett, 140 111. 69; 29 N. East. Mich. 458. Rep. 888. • See §§ 132-358. 40 BY-LAWS. members holding numbers just above and just below the num- ber of the deceased member, is illegal as being in the nature of a wagering policy. 1 A society organized as a corporation under the laws of a state, may not by its by-laws subject itself or its members to the jurisdiction of an authority existing outside of the state, and beyond the control of its laws. A by-law of a corporation existing under the laws of Michi- gan may not require its members to pay assessments levied by a supreme lodge incorporated under the laws of Ken- tucky. The court said upon the subject: "The relator is not liable to pay the assessment. It is not competent for the respondent to subject itself, or its members, to a foreign authority in this way. There is no law of the state permitting it, nor could there be any law of the state which would subject a corporation created and existing under the laws of this state to the jurisdiction and control of a body existing in another state, and in no manner under the control of our law. The attempt of the respondent to do this is an attempt to set aside and ignore the very law of its being." 2 A corporation of a state can not permit, by by-law, a foreign cor- poration to interfere in its affairs, nor can it permit its mem- bers to be disfranchised by another body outside of it for any cause or in any manner. 3 A by-law of a merchants' exchange, requiring its members to submit their controversies to arbitra- tion, and prohibiting them from bringing suit in court against each other to settle their claims, has been held to be illegal. 1 In a beneficial society known as "Good Samaritans," there was a by-law providing that, when a member should for any cause be expelled, he should be suspended in the air by means of a rope fastened around the waist. This ceremony had often been performed upon others in the presence of a certain mem- ber, but when she was expelled, she resisted to the extent of her ability. The rope was, however, fastened around her waist, 1 The Golden Rule v. People, 118 4 State v. Merchants' Exchange, 2 111. 492; 9 N. East. Rep. 342. Mo. App. 96; State v. Chamber of 2 Lampherev. United Workmen, 47 Commerce, 20 Wis. 69; Sweeney v. Mich. 429. Society, 14 Weekly Notes of Cases, 3 Allnut v. High Court of Foresters, 466-486. 62 Mich. 110; 28 N. W. Rep. 802; State v. Miller, 66 Iowa, 26: 23 N. W. Rep. 211. BY-LAWS. 41 and an attempt was made to draw her up until her feet should not touch the floor, when she fainted. Those who had thus attempted to hang her were indicted, and convicted of assault and battery. The court said : " Rules of discipline for this and all voluntary associations must conform to the laws. If the act of tying this woman would have been a battery, had the parties concerned not been members of the society of ' Good Samaritans,' it is not the less a battery because they w r ere all members of that humane institution." ' By-laws or regulations are properly only rules for future action. Ke post facto law T s are no more lawful for corporations than for states, and all by-laws contrary to the general principles of the com- mon law, or the policy of the state, are void. The effect of an amendment of the constitution of a corporation, which be- fore contained no such provision, whereby it was declared that any member who should fail to pay the whole of his dues which should then be in arrears, or any indebtedness to the corpora- tion, on or before a day named, should, from and after that day, cease absolutely to be such member, without any further action whatever of the corporation or its trustees, and that the secretary should drop the names of all such delinquent persons from the roll of members, is not that of a regulation, but of an adjudication on existing defaults, analogous to a foreclosure decree fixing a short term of payment; and it is clearly ex post facto, in that it enforces a new penalty beyond those existing at the time of default. 2 A by-law made in pursuance of an express pow r er in the charter to make by-laws, is void, if con- trary to the general or statute laws of the state. § 20. By-laws must be consistent with the charter. — By-laws of a society inconsistent with the provisions or main objects of its charter are ultra vires and void. Where, by the charter, certain classes of persons are to be benefited, a corporacion has no authority to provide by a by-law for other beneficiaries, or to exclude any class provided for by the char- ter.' Where the charter provides that the devisees of members shall be among those who may take the benefit fund, restric- 1 State v. Williams. 7.") N. C. 131. East. Rep. 847; Supreme Council v. 5 Pulford v. Fire Department, 31 Perry, 1 10 Mass. 580; Kentucky Ma- Mich. 459. sonic v. Miller, 13 Bush (Ky.) 489; *Brigga v. Earl, 130 Mass. 473; 1 N. see §§ 158, 1G5, 168. 42 BY-LAWS. tions upon the power or right of the member to make a will are inoperative and void. 1 Where the charter prescribes the conditions and qualifications of membership in a society, no additional conditions and qualifications may be made in the by-laws. 2 A member of a society is not bound by a by-law which is contrary to its charter, even though he may have as- sented to it. 3 The controlling consideration in determining the validity of corporate by-laws is the nature and purpose of the corporation. If a by-law is clearly alien to its nature, and a departure from its purpose, it will be held ultra vires, and void; if not, and it is consistent with the general laws of the land, it will be valid. No rules can be framed, which would be of any practical value in applying this test, but the application of it to individual cases must always remain a matter involving the exercise of sound practical judgment. "Where the statute under which a corporation was organized required a majority of the trustees to do a corporate act, and a bv-law authorized a vacancy in the office of trustee to be filled by a less number than a majority, it was held that the by-law was contrary to the charter and void. 4 Where the charter of a society provides that for non-payment of an as- sessment the officers may forfeit a contract of insurance, the society may, by by-law, provide that such non-payment shall work a forfeiture, in which case no action of the officers will be necessary. 6 Where the charter of a society, limits and restricts the number of " active " members which a societ} r may have at one time, a by-law is void, which pro- vides for the election of "contributing" members in the same manner as active members, after the active list is filled. 6 Where the charter of a corporation provides for specific as- sessments to pay losses and expenses, a by-law is ultra vires and void, which requires the members to pay an annual deposit in advance each year, instead of assessments, and provides that the assessment liability of members shall be, for each year of 1 Rand v. Association, 3 Mackey (D. 4 State v. Curtis, 9 Nevada 325. C.) 68. 6 Equitable, etc. v. McLennon (Sup. 2 People v. Benevolent Society, 41 Ct. Tenn.), 6 Ins.L. J. 124. Mich. 67; People v. Benevolent So- 6 Diligent Fire Co. v. Common- ciety, 24 How. Pr. 216. wealth, 7o Pa. St. 291. 3 People v. Benevolent Society, su- pra. BY-LAWS. 4d the term of the contract, equal in amount to the annual deposit, but in no case shall any member be assessed in one year for an amount exceeding the annual deposit. 1 The charter of a religious society authorized the making of by-laws requisite for the good government and support of the church, and provided that no persons should have a vote in the election of its minister, except those who had been regularly admitted, and had been members of such church for twelve months preceding the election. A by-law was enacted, pro- viding that a member of the church, whose pew rent had been in arrears for a longer time than one year prior to the elec- tion, should not be entitled to vote. This by-law was held to be valid and not contradictory to the act of incorporation. The court said : " No person is excluded from voting, unless he is in default in a matter essential to the support of the church, and he may reinstate himself in his privilege by paying his debt. Nothing is more manifestly for the good of the church than this by-law." a A law of New York provides that " the directors * of any society or corporation organized under the provisions of this act * shall be jointly or severally lia- ble for all debts due from said society or corporation, con- tracted while they are trustees," etc. A policy issued by a society incorporated under this act provided that " the direct- ors of this society, either individually or as a body, shall not assume any liabilities personally by reason of the issuance of • this certificate." It was held that the fore^oin^ statute formed a part of the charter of the society and that the pro- vision of the policy, being repugnant thereto, was void. 3 An article of the charter of a society provided: " Every mem- ber of this union shall be entitled to one hundred dol- lars for funeral expenses, provided that he has been a member six months, and not more than three months' dues in arrears at the time of his death, the money to be paid to the deceased's nearest relative." A by-law provided: "Any member becoming three months in arrears shall not be enti- tled to benefits until eight weeks have expired from the time 'State v. Association, 42 Oh. St. * Greene v. Walton, 13 N. Y. Kupp. 555. 147, Learned, P. J., dissenting. 2 Commonwealth v. Cain, 5 S. & R. (Pa.) 509. 44 BY-LAWS. he settles up in full." This was held to be inconsistent with the charter. 1 The charter of a society stated its object to be to " af- ford relief, comfort and protection to its members." A by-law providing for the payment of benefits to defray the funeral ex- penses of members and of their wives was held to be proper. 2 § 21. By-laws of an unincorporated society must be con- sistent with its constitution. — The constitution of an unin- corporated society, is, as has been said, the fundamental law of the society; and it follows that in case of a conflict between the constitution and the by-laws the constitution must prevail. 3 § 22. By-laws of an unincorporated society must not be illegal. — In respect to the by-laws of an unincorporated society, the court has no visitorial power, and may not determine whether they are reasonable or unreasonable. The court regards the members of such societies as standing, to some extent at least, in the relation of partners, and per- mits them to make their own compacts so long as they are legal. 4 When a by-law of such a society is legal, the only question which a court may examine is, whether it has been adopted in the way agreed upon by the members in their con- tract of association. If a member of such a society deems its by-laws unreasonable and oppressive, his only remedy is to withdraw from membership in it. The theor}^ of an unincorpo- rated society is that men shall come together of their own free will and accord, and be bound by such legal rules as shall be passed in the manner agreed upon. There are cases in the books where the by-laws of an unincorporated society have been declared to be just and reasonable, but there are none, it is believed, where the by-laws of such a society have been held to be unreasonable and void. 5 §23. By-laws of an incorporated society must be rea- sonable and necessary. — But it is a governing rule with re- gard to corporations, that their by-laws must be reasonable, and all which are vexatious, unequal, oppressive, or manifestly detrimental to the interests of the corporation, are void. The 1 Sherry v. Union, 139 Pa. St. 470; 6 Kehlenbeck v. Norddeutscher 20 Atl. Rep. 1062. Bund, 10 Daly (N. Y.) 447; Harring- 2 Lysaght v. Association, 55 Mo. ton v. Workingmen's Society, 70 Ga. App. 538. 340; Grosvenor v. Society, 118 Mass. 3 See § 14. 78. "See §110. BY-LAWS. 45 power of making by-laws binding upon all the members of a corporation, whether it resides in the majority of the body at large, or those present at a corporate meeting, or be confined by charter to a select class, is in trust for the benefit of the whole, and mast therefore be exercised with discretion. 1 In Coleman v. Knights of Honor, 2 the court intimates that a mem- ber of an incorporated society may not complain that a by-law duly passed by the society is unreasonable, but this is clearly against both principle and authority. In People v. Board of Trade, 3 the doctrine is laid down that a court will not interfere with the enforcement of the by-laws of a society incorporated for the purposes of religion, morality, benevolence or amuse- ment, but this case is neither in harmony with the general current of authority, nor with prior and subsequent decisions oC the supreme court of Illinois. Where an unincorporated society becomes incorporated under a general law, the pro- visions of its constitution and by-laws become subject to the rules of law governing the provisions of the constitution and by-laws of corporations. While a society remains unincorpo- rated it may make such rules and regulations as may seem proper for the discipline of its members, but as soon as it be- comes incorporated, it surrenders this power, and becomes subject to the visitorial power of the courts. In such cases, therefore, provisions of the constitution and by-laws which were binding upon the members so long as the society remained unincorporated, may become null and void by the very fact of incorporation. The court will on proper application determine whether such provisions are reasonable and necessary to effect the object for which the society was incorporated. 4 Whether a by-law is reasonable and consistent with the law, is a ques- tion solely for the court to determine. 5 A by-law will not be set aside as unreasonable if there is any equipoise of opinion in the matter; its unreasonableness must be demonstrably shown. A by-law will not be held to be unreasonable merely 1 Ang. & Ames on Corp. §347; Car- 6 People v. Throop, 12 Wend. 186; tan v. Society, 3 Daly (N. Y.) 20; see see 10 Wend. 100 and 5 Covven 465; § 110. Commonwealth v. Worchester, 3 1 18 Mo. App. 189-194. Pickering 461 . 3 80 111. 134. • State v. Exchange, 2 Mo. App. 96. 4 State v. Medical Society, 38 Ga. 608. 46 BY-LAWS. because it causes some inconvenience to the members. All by- laws are apt to do that, and the fact that the by-law has been permitted to remain in force for some time is evidence that it is not seriously inconvenient. 1 A by-law need not recite that it is necessary, as such necessity is implied; and in a declara- tion for the penalty of a by-law, its necessity need not be al- leged." A by-law is reasonable which provides that a member shall be entitled to relief, in case of disability or sickness, only from the date of his application for such relief, and not from the time such sickness or disabilit}' occurred. While in individual cases such a by-law may work a hardship, on the other hand, it is necessary for the society to make fixed and certain rules to prevent imposition on the society, either by feigned or triv- ial sickness, or by disability produced by causes not entitling the claimant to relief. It is necessary that the society should have information of the state of the applicant, and have it in its power to visit him, and inspect personally his situation. 3 A by-law providing that the officers of the society shall with- hold benefits when intemperance, debauchery, etc., are the cause of sickness, and providing that when death is caused by intemperate use of alcoholic liquors, or by debauchery, the beneficiary shall not be entitled to the fund, is reasonable and valid. 4 Such a regulation is not a determination of the riffht of the member or his beneficiary. A trial of the claim may be had to determine these rights under the by-law. A society may, by by-law, prohibit its members from indulgence in vices which multiply disease and death among them and thus di- minish its general fund and increase the burden of assessments upon contributing members. Such provisions are not merely to regulate behavior, but strike at acts which will result in in- jury to the society. Where sick benefits are merely lost by reason of intemperance, membership remains in the society. A by-law providing that sick benefits shall be paid only upon pre- sentation of a physician's certificate of the character and dura- tion of the illness, is reasonable, as is also a by-law providing 1 Rex v. Ashwell, 12 East 22. 4 St. Mary's Soc. v. Burford, 70 Pa. 2 Tuttle v. Walton, 1 Ga. 43; Coates St. 321; Harrington v. Society, 70 v. Mayor, etc., 7 Cowen 585. Ga. 310. 3 Breneman v. Association, 3 Watts & Sergeant (Pa.) 218. BY-LAWS. 47 that no benefits shall be paid unless the sickness is reported to the " sick committee " for investigation and report to the so- ciety. ' A by-law of an incorporated society provided that any mem- ber who should be three months or more in arrears for dues, should be deprived of benefits for three months after liqui- dating the same. The court held, that this by-law was unreasonable and void, and in discussing the question said : *' Is the by-law referred to unreasonable ? I think it is most decidedly so. If it provided that delinquent members should be deprived of benefits during their delinquency, it would be otherwise ; but this by-law subjects the member to a quasi penalty after the payment of his dues and the performance of his duty, and for a prospective period of three months. * * It is not only unreasonable, but op- pressive and detrimental to the interests of the corporation, and one which, being fully understood, it seems, would pre- vent persons from becoming members of the society." 2 A by-law of an incorporated society declared that "vilifying any of its members" was a crime against the society, and provided that for such vilification a member might be removed from office, fined, or expelled from the society. The object of the society was for the relief of members in case of sickness and misfortune, and to assist distressed Irishmen emicrratino- to the United States. The court held the by-law unreasonable and unnecessary for the accomplishment of the end in view, declared it void, and in the opinion said: "Everyman who becomes a member looks to the charter; in that he puts his faith, and not in the uncertain will of the majority of the members. The offense of vilifying a member, or a private quarrel, is totally unconnected with the affairs of the society, and therefore its punishment can not be necessary for the good government of the corporation." 8 In People ex rcl. v. The .Medical Society, 1 the court held that a society chartered merely for the promotion of medical science had no right t<> 'Harrington v. Society, supra; Atl. Rep. 1062; Brady v. Association, Van Poucke v. Society. 63 -Mich. :;:s ; 14 X. Y. Supp. m. 2 N. W. Rep. 863. 3 Common wealth v. Society, 2 JJin- s Cartan v. Society, 3 Daly (N. Y.) ney (Pa.) 441. 20; see Pentz v. Ins. Co., 35 Md. 73 ; <21 Barb. 571. Sherry v. Union, 139 Pa. St. 470; 20 48 BY-LAWS. decide what fees its members should charge for their profes- sional services, and to expel a member who had disregarded such a regulation. The court said : " Can it be said with any plausibility that the establishment of a tariff of prices for medical services was a legitimate object of the creation of the corporation, or that it was necessary, or in any degree con- tributed to the accomplishment of the purposes or objects for "which the law authorized the corporation ? " The charter of the Board of Trade of Chicago provides that the corporation shall have the right to admit or expel such persons as it may see fit, in manner to be prescribed by the rules, regulations or by-laws thereof. Under this power it adopted the following by-law : " In case any member of the association, having made any business contract, either written or verbal, shall fail to comply promptly with the terms of such contract, he shall, upon the representation of an aggrieved member to the board of directors, accompanied with satis- factory evidence of the facts, be by them suspended from all privileges of membership in the association until such contract is equitable or satisfactorily arranged or settled, when he may be restored to membership." The court held this by-law to be reasonable, and said : " It (the charter) gives the power of expulsion, and under that power the corporation has adopted this by-law, providing that if a membsr fails to comply with a business contract made with another member, he shall be ex- pelled. This is somewhat different from the adjustment of disputes which are properly referable to the committees of reference and arbitration. It applies to cases of non-compli- ance with contracts about which there is no dispute necessary to be referred to one of these committees, as there was none in the present case. It certainly can not be said that this rule was not germane to the purposes for which the corporation was created. In our judgment, though it might sometimes operate harshly, it is well adapted to secure the object we have above named, and preserve the high character and credit of the Board." ' A by-law of a chamber of commerce prohibit- ing its members from " gathering in any public place in the vi- cinity of the Exchange Room " and " forming a market " for the purpose of making any trade or contract for the future delivery 1 People v. Board of Trade, 45 111. 112. BY-LAWS. 49 of grain or provisions, before the time fixed for opening the Exchange Room for general trading, or after the time fixed for closing the same, daily, is not unreasonable, or an unlaw- ful restraint upon trade. 1 Under the peculiar facts surround- ing the organization and maintenance of the Baltimore and Ohio Employes' Relief Association, it was held that a clause of the constitution of the association, providing that before the association will pay the beneficiary of the member killed the amount of benefits due, the person legally entitled to dam- ages for his death shall release the Baltimore and Ohio Kail R, 1878, could not visit a punishment upon plaintiff for a fault committed months before it was enacted." A by- law of a society contained this provision : " Upon the death, of 1 Pellazzino v. Society, lGCin. Law N. Y. Weekly Dig. 17: 2!) Hun 074. Bull. 27. Not reported in full in Hun'sreports. -Coylc v. Fr. Mathew Society, 17 56 BY-LAWS. one who has been a member of the association for six months last prior to his death, his widow shall be entitled to receive the sum of four dollars monthly during widowhood." A mem- ber who had been such for more than six months immediately prior to his death, died, leaving a widow surviving him. At the time of his death, and during his membership in the society, there was a by-law of the society as follows : "A revision or alteration of the articles of the association can be had at a general meeting of the members thereof by a majority of the votes of the members present." Subsequent to the death of the member, the by-law first set forth above was revised in conformity with the by-law concerning revisions and altera- tions, and was made to read as follows : " Upon the death of a member each person who may be a member of the society shall pay to the widow of the deceased member the sum of one dollar." The widow sued upon the original by-law for the arrears due at the bringing of the suit, claiming that she was entitled to four dollars per month, and that the revised by-law did not affect her rights. The court said : " The main ques- tion is, whether the allowance to the plaintiff was not cut off by the adoption of the new article after the death of her hus- band. It does not attempt to do so by any language which points to such a result. It is not in form retroactive, and, upon familiar rules of interpretation, ought not to be so con- strued as to cut off rights already fixed. " It must be conceded, I think, that the provision in favor of the plaintiff was, in all respects, binding as a contract between her husband and the association. The association undertook to pay to his widow a monthly allowance after his death, if, at the time of his death, he was a member, and had been such member for the preceding six months. After his death, it is not perceived how the association can, by adopting a new ar- ticle, or by repealing the old one, relieve itself from this obliga- tion. But, independent of this consideration, it is safe to say that the new article does not, in form or substance, attempt to repudiate its obligations when they had already been fixed by the death of one of its members." ' In 1862, a person became a member of a voluntary association. The by-laws of the as- sociation then provided that members paying the regular assess- 1 Gundlach v. Association, 49 How. Pr. 190. BY-LAWS. 57 merits should be entitled to twenty-five cents per day daring their sickness ; that the society would pay twenty-five cents per day to the widow of each member, so long as she remained a widow ; that the by-laws might be amended in conformity with certain specified rules. In 1S6S, said association was in- corporated by act of the legislature, which provided that it might alter or change its by-laws. The by-laws in force at the time of the passage of said act were continued in force till August, 1809, when the society adopted new by-laws, wherein it was provided that such widows should receive twenty-five cents per day, until they had received $200. Prior to the amendment of the by-laws, on January 5, 1S09, the member died, leaving his widow surviving him. She was paid $200 in all by the society, and, upon the failure to pay her twenty- five cents a day after she had received the sum of $200, she brought an action for about $200 against the society, being the arrears due her at the rate of twenty-five cents a day from the time she had received the $200, as provided in the amended b} r -laws, to date of bringing the action. The court held that the society had the right to amend its by-laws as set forth, and that the widow, having received $200, was precluded from further recovery. In its opinion the court said: "The regu- lation limiting the widow's share in this charity to $200, was made by a general law, and applicable to- all; and there is no suggestion of fraud, or that the regulation was not wise and salutary. We think the society were competent to make this by-law; and having fully performed the duty imposed, the plaintiff can not recover. But in this case there was an express provision in the constitution of the society that the by-laws might be changed, and the manner of doing it was specifically pointed out; so that the husband voluntarily became party in an association, and contributed his money with full knowledge of all the provisions in the articles of association, and fully assented to the same. There is no good reason, therefore, for claiming that the widow had a vested right which the society could not modify." 1 •Fugure v. Mutual Society of St. with its necessities. This proposition Joseph, 46 Vt. 362. The reasoning can not lie doubted. Hut to hold in this opinion is all to the effect that that a by-law maj be changed by the a society should have the right to society after the member lias per- change its by-laws in accordance formed his part of the contract, and 58 BY-LAWS. § 25. Even though a certificate of membership in a mutual benefit society contains upon its face the explicit statement that the contract of insurance evidenced thereby is subject to its by-laws and to any amendments thereto which may there- after be made, it is subject to the implied condition that any subsequent amendment shall be reasonable ; and any amend- ment which entirely changes the scheme of insurance, and makes a radical departure from the fundamental plan, is not a reasonable exercise of the reserved power of amendment. An amendment designed to perfect, in matter of form and detail, the original plan, will, if otherwise unobjectionable, be within the terms of the contract, but one calculated to defeat or destroy that plan, or to substitute for it some other and essen- tially different scheme, will be an abuse of the power, a viola- tion of the contract and an unreasonable and invalid amend- ment. In most cases it is easy to determine whether the change in the by-law is a mere matter of detail or whether it affects the principle of insurance on which the society is based; but occasionally a society finds that it must make some changes in the terms of its contract; that it must form new classes of certificate holders, even though the result is that persons are thereby induced to leave other classes and join the new one, or that it must in some way reduce the benefits and advan- tages promised in its original plan, and it is in these cases that the difficulty arises of determining whether there has been such an abandonment of the original scheme as is unreasona- ble and invalid. Where a society has contracted that certain advantages shall be given from the guaranty fund to all mem- bers who have paid their assessments for a certain number of years, it is clear that it may not, as the time approaches for the continuing members to receive these advantages, pass an amendment to its by-laws declaring that no part of the guar- clied, and when his beneficiary is the fragile and illusory obligations calling upon it to perform its part of for which they are paying out their the contract, is to sanction the repu- money, the better it will be for them, diation of a debt. If a society may Legislators may not pass laws which repudiate its part of the contract in impair the express obligations of a the manner above stated, the contract contract, and mutual benefit societies of insurance issued by it is a sham should not be permitted to do so. and a snare, and the sooner members People v. Fire Department, 31 Mich, of such societies are made aware of 458; Kent v. Mining Co., 78 N. Y. 159. BY-LAWS. 59 anty fund shall be used for that purpose. But the cases set out in the sections treating of the alteration and amendment of by-laws show how difficult it is to lay down any rules for guidance on this subject. It has been held that a change by a society of its system of insurance, in good faith, under a reserved power of amend- ment, whereby the number of persons in a certain class is re- duced by the creation of another class in which insurance is given on more favorable terms to persons under a certain age, and in which certificate holders are permitted to become mem- bers of the new class, and whereby the amount to be realized by an assessment upon the members of the old class is cut down by reason of withdrawals from that class, is not such a wrongful act or breach of contract as renders the society liable to the beneficiary beyond the amount which will be realized from such an assessment. But even if the depletion of the class mentioned constituted a breach of contract, the damages are too remote and conjectural, to form the basis of a recovery. 1 "Where a certificate provides for its payment " in an amount to be computed according to the laws of the society," and these provide that the provisions in regard to the payment of such certificates may be changed at any time, a member is bound by a change made in such laws after the issue of his certificate and before the time for its payment. 2 § 26. Whether or not a member is bound by an amendment to the by-laws adopted after his contract of insurance was made, depends upon the terms of this contract, or upon his consent to the change. If the contract provides that he shall be bound by any such amendment, and it is properly passed, there is no reason why it should not be valid against him. In such a case, the change is not made in violation of the contract 1 Supreme Lodge y. Knight, 117 Ind. only where then' is an abuse of dis- 489; 20 N. East. Rep. 479. [n this case cretion and a clear, unreasonable it was said: "The duly chosen and and arbitrary invasion of private authorized representatives of the rights that courts wil] assume juris- membera alone are vested with the diction over such societies orcorpo- power of determining when a change rations." Crossman v. A&s'n, L48 is demanded, and with their discre- Mass. 435; Eussev v. Gallagher, 61 tion courts can not interfere. Were Ga. 86; see; ill. it otherwise, courts wonlil control all -Howie v. Grand Lodge, 99 Cal. benevolent associations, all corpo- 892; :'. 1 Pac. hep. 103. rations, and all fraternities. It is 60 BY-LAWS. but in harmony with it. Where the contract provides that the by-laAVs may be amended so as to affect its terms, the first and primary inquiry is whether the body which made the change has done all that was necessary to give it the right to act, or, in other words, whether that body had jurisdiction to proceed in the matter; and the next inquiry is whether the amendment was passed in accordance with the rales and by- laws. Where the by-laws stipulate that members may alter or amend them b}^ a majority vote of those present, provided all the members shall have had previous notice of the proposed alteration, by mail or otherwise, notice must be given to all the members in order that changes shall be binding upon those not present or present only by proxy. In such a case, where the by-laws in force when a member obtained his certificate are afterward amended at a meeting which he did not attend, such amendments are not binding on him unless it is affirma- tively shown that the meeting was called in the manner pro- vided by the constitution. 1 Where the by-laws of a society provide that no changes in the by-laws shall be made except at its annual meeting, and that none shall then be made unless two-thirds of the members present agree thereto, no change may be made except in the manner prescribed, and a change of the by-laws at the annual meeting, by a vote of less than two-thirds of the members pres- ent, is invalid, although, after the meeting is adjourned, enough other members to make up the requisite number request in writing to be permitted to record their votes in the affirmative. 2 The organic law of a society provided : " Every by-law, and every repeal, amendment or re-enactment thereof, unless in the meantime confirmed at a general meeting of the company duly called for that purpose, shall only have force until the next annual meeting of the company, and in default of confirmation thereof shall from that time only cease to have force." A by- law of the society provided : " These by-laws, rules and regu- lations, and the plan and system of membership, may be annulled, amended or changed by a majority vote of all the di- 1 Metropolitan Association v. Wind- 2 Torrey v. Baker, 1 Allen (Mass.) over, 137 111. 417; 27 N. East. Rep. 538; 120; Hochreiter's Appeal, 93 Pa. St. 37 111. App. 170; see § 108. 479. BY-LAWS. 61 rectors at one of the regular meetings of the association." It was held that a by-law as changed by the board of directors ceased to exist after the next annual meeting, at which it was not confirmed. 1 Where there is nothing in the contract of in- surance which, in terms or by implication, authorizes any change in its provisions or conditions, by-laws subsequently passed do not become a part of that contract. Of course, they may be made a part of it by the consent of the member, and where he acts under them, and clearly recognizes them as modifying it, he will be estopped to deny that he has consented to the modification. They become effective in this case by reason of his conduct, not by reason of their enactment. But a mere acquiescence in the validity, force and effect of by-laws passed subsequent to the issue of his certificate does not nec- essarily imply that he consents that they shall modify his con- tract. Where the change does not necessarily affect contracts Avhich have been issued, it will be taken for granted from his acquiescence in them that he recognizes them as having their ordinary effect. Ordinarily, by-laws operate prospectively only, and it will be presumed that they are not intended to affect contracts already entered into. A member may know that certain amendments to the by-laws have been passed, or he may even vote for them, but it does not follow from this that he consents that they may have a retroactive force, and may modify a contract which he holds with the society. After the issue of a certificate, a society passed this by-law : "Death executed by the hand, act or procurement of the member, whether voluntary or involuntary, sane or insane at the time, is a risk not assumed by the association." In com- menting upon it the court said: "This by-law does not, except by mere implication, refer to the holders of certificates already issued. We ought not to construe this language so as to refer back and affect certificates then existing, but rather so •as to affect those issued thereafter. The words 'not assumed by this association' should be construed to read k will not here- after.' Thus construed, the by-law would not cover the case of the certificate here involved. The fact that (the member) had notice of its passage could not enlarge its meaning." a 'Johnson v. Association, 2 Daily • North western Association v. Wau* R.-cord ^Baltimore Cir. Ct.) 441. ner, 24 111. App. 359. 62 BY-LAWS. Where there is nothing in the original contract which, in terms or by implication, authorizes any change in its provisions or conditions, by-laws subsequently passed do not become a part of that contract. A member of a society was present at a meeting and voted for the adoption of a new article of the constitution providing that members should not be permit- ted to engage in extra-hazardous occupations, such as a car- coupler. The article was adopted, and afterward the mem- ber became a car-coupler and was killed while doing duty as such. There was nothing in the original contract which pro- hibited him from becoming a car-coupler, or which authorized any change in its provisions, and the new article was held to apply only to agreements made after its adoption, as it was not by its terms retroactive. 1 § 27. It is a recognized rule in the construction of statutes that they shall be so construed as to give them a prospective operation only, and that they shall be permitted to operate retrospectively only where the intention to have them so operate is clear and undoubted. The same canon of construc- tion should be applied to amendments and alterations of the by-laws of a society. They should not apply to or set aside acts already done under the sanction of the by-laws, unless it clearly and unmistakably appears that the authority adopting them intended that they should do so. It will be presumed that an amendment to the by-laws was not intended to affect a contract of insurance previously issued by the society. 1 A certificate was issued on May 8, 1888, payable to such per- son as it should be assigned to by the member. The member at once assigned it and made it payable to his mother. On October 5, 1888, he was married. On October 17, 1888, the society duly and legally changed its constitution as follows : " Any brother desiring to make a transfer of his benefit policy can do so, in writing, on the back of his policy, and in the form prescribed for that purpose, to be attested to by the sec- retary of the lodge under the lodge seal. Should a second transfer be desired, a duplicate policy shall be issued by the grand secretary and treasurer, upon the return of the old 1 Hobbs v. Association, 82 Iowa 9 §§ 136, 137. 107 ; 47 N. W. Rep. 983 ; see Morri- son v. Ins. Co., 59 Wis. 165 ; 18 N. W. Rep. 13. BY-LAWS. 63 policy. 'Where marriage is contracted after the issuance of policy, and said policy becomes payable through death, it shall be paid to the widow, or, in the event of her death, to their joint issue, if any, unless otherwise ordered. All transfers of benefit policies shall be recorded in the membership and policy register of the subordinate lodge and in the grand lodge." Proof of the death of the member was made and served Janu- ary 1, 1889, by the mother of the deceased, but the society paid the fund to the widow. In the suit of the mother against the society it was expressly admitted at the hearing that the indorsement made by the member on his certificate at the time it was issued, was a sufficient designation of his mother as his beneficiary, under its then existing laws, and that the indorse- ment remained as it was made, but it was contended by the society that the amended constitution of October, 1888, des- ignated a new beneficiary for the member. On this point the court said : ' " There is nothing in the language of the section of the amended constitution under consideration evidencing an intention to give it a retrospective operation. It does not at- tempt, either in terms or by necessary implication, to abrogate or set aside designations of beneficiaries already made in con- formity with existing rules, but it merely provides that 'unless otherwise ordered,' — that is, in the absence of any other des- ignation, — the widow, if there is one, shall be the beneficiary. We see no reason why the words, 'unless otherwise ordered,' should be so construed as to require a new designation of a beneficiary after the adoption of the amendment, so long as a valid designation was already in existence. The words apply just as readily to a designation already made as to one there- after to be made. If the convention which adopted the amended constitution intended to make the widow the bene- ficiary unless another designation should be thereafter made, it would have been easy to employ language which would clearly express thai intention. But the words used being such as apply just as readily to a past as to a future designation, the provision should not be so construed as to set aside valid designations already in existence, but to simply mean that, if a member, after obtaining his certificate, marries, and the cer- tificate becomes payable by reason of his death, his widow 1 Benton v. Brotherhood, 143 HI. 370; 3-1 N. East. Rep. 939. 64 BY-LAWS. shall become his beneficiary unless he has otherwise ordered ; that is, unless there is in existence a valid designation of an- other beneficiary. Here the member had designated his mother as his beneficiary, and that designation remained in full force and unrevoked at the time of his death. This clearly constituted an order to pay the money to his mother, within the meaning of the amended constitution, and it follows that the money was payable to her, and not to the widow." Members may contract in reference to laws of future enact- ment, — may agree to be bound by any future by-laws or amendments which may be passed by the society, as if they were existing at the date of the contract. They may consent that new by-laws or amendments shall enter into and form parts of their contracts, modifying or varying them. But the fact that a member has consented to be bound by future laws or amendments does not alter the rule that they will be given a prospective operation in the absence of a clear intent that they shall act retrospectively. 1 A contract expressly provided that the member should comply with all the laws, regulations and requirements which were or might thereafter be enacted by the society. He made a valid designation of a beneficiary who was not in any way related to him or dependent on him. Afterward the law relating to beneficiaries was changed, and read as follows : " Each member shall designate the person or persons to whom the beneficiary fund due at his death shall be paid, who shall in every instance, be one or more members of his family, or some one related to him by blood, or who shall be dependent upon him." He died without having des- ignated a new beneficiary. It was contended on the part of the society that the above law was retroactive, and intended to annul the appointment of beneficiaries theretofore made, who did not belong to the classes specified in it; and that the contract of the member was to comply with and be bound by the laws of future enactment as if they were already existing. But it '§136; Supreme Commandery v. N. Y. Supp. 801; Bowie v. Grand Ainsworth, 71 Ala. 436; Northwestern Lodge, 99 Cal. 392 ; 34 Pac. Rep. 103; Association v. Wanner, 24 111. App. Hogan v. League, 99 Cal. 248 ; 33 359 ; Hobbs v. Association, 82 Iowa Pac. Rep. 924 ; Stohr v. Society, 82 107 ; 47 N.W. Rep. 983 ; Morrison v. Cal. 557 ; 22 Pac. Rep. 1125 ; Mont- Ins. Co., 59 Wis. 165 ; 18 N.W. Rep. gomery Ins. Co. v. Milner (Iowa), 57 13 ; Hutchinson v. Supreme Tent, 22 N. Y. Rep. 612. BY-LAWS. 65 was held that the language of the law was wholly prospective in its operation, affecting the power to appoint beneficiaries after it was passed ; that it applied to new members, of course, but only to such old members as changed their beneficiaries after its passage. 1 Ketroactive by-laws are regarded as impolitic and unwise, and the}^ may often be said to be unjust and oppressive. Although they may in a given case be valid, they will always be subjected to such a construction as will circumscribe their operation within the narrowest possible limits, consistent with the manifest intention of the society as indicated by the lan- guage used. When it can be avoided they will not be per- mitted to destroy the validity of a certificate and to deprive a person of all rights under it. In one case a member designated as his beneficiary a person who was not in any way related to him or dependent on him, as he had a right to do under the c< mtract. Afterward the by-laws were changed so as to restrict the beneficiaries to the family or relatives by blood of the member or some one dependent upon him. From the time of the designation of his beneficiary to the time of his death, some months after the change in the by-laws, the member had no family or relatives by blood or any one dependent upon him. The court, assuming that the by-law was retroactive under the peculiar terms of the contract, held that it was addressed retroactively only to those who could comply with its terms; that it did not apply in the case before it, and that the beneficiary was entitled to the fund. 2 § 28. Repeal of by-laws. — It is evident that the power to enact by-laws implies also the power to repeal them, and every by-law may be repealed by the same body which made it. 3 A by-law which can be passed only by a two-thirds vote, may not be rescinded by a bare majority; 4 but a by-law, requiring a two-thirds vote to alter the by-laws, may, nevertheless, be repealed by a majority. Voluntary societies frequently make 1 Wist v. Grand Lodge, 22 Oregon, 8 Rex v. Ashwell. 12 Easi 22; Smith 271; 29 Pac. Rep. 610; citing End. v. Nelson, 18 Vt. 511; see § ill. Interp. Stat. §273; Sedgw. St. & *Stockdale v. School District, 47 Const. Law, 161; Hedger v. Ren- Mich. 220. oaker, 3 Mete. (Ky.)258. • Wist v. Grand Lodge, 22 Oregon 271; 29 Pac. Rep. 610. 5 66 BY-LAWS. constitutions and pass by-laws and declare that they ma,j not be altered or amended except in a certain mode or manner, as by a two-thirds vote, or by votes to be taken at two different meetings. In such cases, alterations or amendments must be so made. But their constitutions and by-laws may at any time be altered or abrogated by the same power which created them; and the vote of any subsequent meeting altering or abrogating them, though passed only by a majority, has as much efficacy as a previous vote establishing them. 1 In a corporation the power to enact by-laws is continuous, and no one has a right to presume that by-laws will remain unchanged. They may be changed whenever the welfare of the corporation requires it and the change is not forbidden by its organic law. 2 1 Smith v. Nelson, supra; Richard- 2 Supreme Lodge v. Knight, 117 son v. Union Society, 58 N. H. 187; Ind. 489; 20 N. East. Rep. 479. Commonwealth v. Mayor of Lan- caster, 5 Watts 152; see § 105. CHAPTER IV. MEMBERSHIP.— PART I. § 29. Admission into incorporated societies. 30. Admission into unincorporated societies. 31. Election to membership. 32. Who are members of a mutual benefit society. 33. Membership in religious corporations. 34. Expulsion, amotion, suspension. 35. Power of amotion in incorporated societies. 36. Power of incorporated societies to expel members. 37. Modern doctrine of expulsion. 38. Power of expulsion conferred by the charter. 39. Breaches of corporate duty. 40. Expulsion from religious corporations. 41. Surrender of right to expel members. 42. Double sentence of society. 43. Statute of limitations. 44. Right to trial by jury. 45. Regularity of proceedings. 46. Record of proceedings. § 29. Admission into incorporated societies. — As the power of admitting new members is incidental to an incorpo- rated society, it is not necessary that such power be expressly conferred by the statute under which it is organized, or by its charter. When the organic law of the society and its charter are silent as to its powers in this regard, the society may admit to membership any number of persons; but when such law or charter limits and restricts the power of admission to a particular number, it erects a barrier beyond which the society may not pass. Where the charter of a society provides that it shall consist of not more than one hundred active members, and may bestow honorary membership <>n active members under such regulations as may be prescribed, the society may not create honorary members, except from active members. And when, in such ease, the active membership has reached one hundred, the election of "contributing" members in the (67) 68 MEMBEKSHIP. same manner as active members, is void as being evasive of, and conflicting with its charter, even though, the privileges of such " contributing " members be greatly limited. 1 Where the statute of a state under which a mutual benefit society is organized, requires that all members shall be citizens of that state, and, of course, of the United States, a clause in the charter of such society, authorizing persons who have declared their intention to become citizens of the United States to be- come members, is illegal. 2 Where the articles of incorporation prescribe the conditions of membership, no additional restric- tions may be imposed, without amending the articles. 3 It may be stated, as a general rule, that when a person has applied for membership in an incorporated society, and has been refused admission, he is without remedy to compel the society to admit him. It would be manifestly unjust, and destructive of the harmony and efficiency of such societies to compel them to admit persons into the societies merely because they possessed the qualifications set forth in the organic law. These qualifications are necessarily expressed in very general terms, and do not take into consideration many elements of character which do, or do not, make persons desirable associ- ates and members. The succession of membership in the corporation is to be kept up by the election of proper members by those already admitted to membership, and, to the mem- bers clothed with this power and duty, the law gives the right to judge of the qualification necessary for membership. Not only are the relations between the society and its members voluntary on the part of the latter, but, as a corollary to this principle, no person is required to become a member. Having never been admitted to the right of enjoyment of the property of the society, or to any interest therein, and being under no obligation to take upon himself the privileges and duties of membership, the excluded applicant has received no legal injury, and the courts have no jurisdiction to interfere, even though the exclusion may seem to be the result of malice and arbitrary injustice. This power to determine whether an applicant possesses the qualifications necessary to entitle him 'Diligent Fire Co. v. Common- 8 People v. Society, 41 Mich. 67. wealth, 75 Pa. St. 291. 2 Alsatian Beneficial Society, 35 Pa. St. 79. MEMBERSHIP. 69 to membership in the society, is judicial in its nature ; and, in determining this question, the society affects no civil or prop- erty right of the applicant; there is nothing, therefore, to invoke the visitorial power of the courts over the society. This rule is not changed by the fact that the applicant claims to have been a member of a society with similar objects and a similar name. A man who claims to be a Mason may not in- voke the aid of a court to compel an incorporated society of Masons to admit him to membership in that society. The courts will not undertake to determine, as to this person, or that, whether he is a Mason, an Odd Fellow or a member of any organization, and whether, as such, he ought to be ad- mitted to fellowship with an incorporated society of Masons, Odd Fellows, etc. These matters must be judicially determined by the society itself. This power of judicial determination of the qualifications of an applicant for membership is inherent in the society, and exists whether recognized in its charter, or not. 1 But where the law provides for the formation of a society for objects of public benefit, and makes it the duty of a certain class of citizens to become members of the society, in order to enjoy certain privileges granted by the laws of the land, an entirely different case is presented. It is evident that such a society is not voluntary. A duty is imposed, and a privilege conferred upon a certain class of citizens, and the vis- itorial power of the court may be invoked to inquire into the exclusion of an applicant from the rights and duties of mem- bership. When a party having a clear presumptive title to its enjoyment applies to be admitted to the exercise of a franchise in such a society, the application should not be denied, unless the right of immediate expulsion, for causes then subsisting, be plain and unquestioned. The exclusion of such an applicant can be justified only by facts repelling the presumption that he was qualified for admission, or by extraneous facts, show- ing that, if his application had been granted, there were then subsisting causes, making a clear case for immediate expul- sion." Where the law made it the duty of the physicians of 1 State v. Odd Fellows, 8 Mo. App. ! Bagg's Case, 11 Coke 99; Ex parte 148; Burt v. Grand Lodge, 66 Mich. Paine, 1 Hill 665; People v. Medical 83; 33 N. W. Rep. 13; Connelly v. As- Society, 32 N. Y. 187. sociation, 58 Conn. 552; 20 Atl. Rep. 671. 70 MEMBERSHIP. each county in the state to form an incorporated medical society for that county, and provided that any physician who should not become a member of such society in his county, should forfeit his license, and become subject to the disabili- ties of unlicensed physicians, it was held that a licensed physician, having the qualifications prescribed by the by-laws, might proceed by mandamus to compel the society to admit him to membership, upon its refusal to do so. In the same case it was held that a licensed physician, having the pre- scribed qualifications, could not be excluded from the franchise, on the ground that, at a period antecedent to his application, he had advertised in the newspapers in a manner contrary to the conventional rules of the society. As he was not, at the time of the advertisement, a member of the society, he did not violate its law. "Where there is no law, there is no trans- gression." The court said : " Those who were members of the society could not lawfully be expelled for antecedent deviation from the code. Much less could such deviation be alleged as cause for exclusion against one who never agreed to be bound by it, and as to whom it was not merely an inoperative, but an unknown law." ' § 30. Admission into unincorporated societies. — Unincor- porated voluntary societies come into existence by the mutual agreement of the persons forming it, and the privilege of mem- bership is not given by statute, or derived through prescrip- tion, but is created and conferred by the organization itself. The law can not compel such a society to admit an individual to membership, and a person who has applied for admission and been excluded is utterly without remedy at law, however arbitrary and unjust he may regard the exclusion. Such soci- eties may prescribe the conditions upon which persons may be admitted to membership, and they are the exclusive judges as to the existence of such conditions. The right of admission to membership is voluntary and mutual between the society and individuals desiring to become members. No one can be com- pelled to join the society, or to remain a member against his wish, nor can the society be compelled to admit a person against its will. This principle is inherent in every voluntary 1 People v. Medical Society, supra; Gay v. Farmers' Mutual, 51 Mich. 2-15. MEMBERSHIP. 71 society. 1 A person may become a member of an unincorpo- rated voluntary society by paying in the prescribed amount of money, and by acting, and being treated and considered as a member, without simiin^ the constitution, although the consti- tution provides that any person wishing to become a member shall sign it, if he is elected to membership.* § 31. Election to membership. — If there be no form pre- scribed for electing members, every candidate must be pro- posed singly. If the names of more than one were set down in a list, and the election was made of the whole list by a sin- gle vote, such election is altogether void, although the names may have been repeatedly read over, and an offer made to strike out any to which an objection should be made, and not- withstanding the election was by the unanimous consent of the entire body. For, it may be presumed that, instead of using his judgment as to the propriety of admitting an indi- vidual, which he would do in case they were separately pro- posed, each member, desiring to obtain the admission of some one in particular, may compromise his opinion as to the others, and thus, persons may be introduced who would otherwise have been rejected. 3 If a person procure his election and ob- tain membership in a mutual benefit society by false represen- tations and suppression of facts concerning his state of health at the time of his application, his admission to membership is void, and he may be expelled. 4 A by-law of an incorporated society provided that the object of a special meeting should be stated in the call. Another by-law provided that a new mem- ber must be approved by a vote of the society. A warranl which called a special meeting of the society, contained no article for the admission of new members, but contained the article: "To transact any other business that may legally •The right of a person, duly elected funds, the alleged fact that it has a thereto, to sit as a new member of a fund of $4,000 does not give him any democratic county committee, a vol- right of admission. McKane v. Ad- untary unincorporated political asso- ams, 4 N.Y. S. 401; 21 Abb. N.C. 439; ciation, provided for by the constitu- 51 Hun 629: affirmed 123 N. Y. G09; tion of the democratic county organ- 25 N. East. Rep. 1057. ization, is one which the courts will 'Tyrrell v. Washburn, 6 Allen (88 not attempt to enforce. Plaintiff, not Mass.) 466. having been admitted as a member 3 Ang. & Ames on Corp., § 126. of the committee, and therefore not 4 Morel v. Society, 13 Lower Can. having acquired any rights in its Jur. 1. 72 MEMBERSHIP. come before said meeting." At this called meeting, several persons were admitted to membership, and permitted to vote. It was held that the election of such persons to membership was invalid. 1 § 32. Who are members of a mutual benefit society. — The members of a society incorporated for the mutual protec- tion and relief of its members, and for the payment of stipulated sums of money to the family or heirs of deceased members, are those mutually engaged in promoting the purposes of the organization, and who, by virtue of their relation to the corporation, are entitled to the mutual protection and relief provided or whose family or heirs are, in case of death, en- titled to the specific relief provided for them. The mem- bers of such a corporation are the elective and control- ling body, authorized to elect trustees and other proper officers, and prescribe regulations for the government of the same. 2 Membership in a mutual benefit society is frequently limited to the members of certain subordinate or- ganizations and is, by the by-laws, made to depend upon the continuance of membership in such organizations. When such is the case, a member who ceases to be a member of such organization, also ceases to be a member of the mutual benefit society. The fact that, after the withdrawal of the member from such organization, the society continues to carry his name on the roll of membership, to recognize him as a mem- ber, and to levy and collect assessments from him, gives him no rights against the society. Such acts on the part of the society do not operate as an estoppel, for the by-law setting forth the qualification of membership is as binding upon the member as upon the society, and, in such a case, the by-law declares that he is no longer a member. 3 The society and the member may agree upon some method by which the question of his being and remaining a member of a certain organiza- tion shall be determined so as to be binding upon both; but in the absence of any such agreement, it will be presumed that these questions are to be decided by that organization. Where such an organization has an orderly system of laws governing 1 Gray v. Society, 137 Mass. 329. 3 Burbank v. Association, 144 Mass. 2 State v. Association, 38 Ob. St. 434; Springmeier v. Association, 5 281. Cin. Law Bull. 516. MEMBERSHIP. 73 the admission into and expulsion from membership, its act de- termining the status of a member will, in the absence of con- trary provisions, be binding on a mutual benefit society, in which membership is contingent upon continued membership in that organization. The custom of a mutual benefit society to accept as conclusive a certificate of another organiza- tion stating that the person named therein is a member of that organization, or that he died while a m^mbsr thereof, clearly indicates that it is a part of the contract that the offi- cers or proper tribunal of the organization shall settle the question of membership in that body. 1 To prove that a per- son is a member of a society, it is competent to show that his name is on its records, or that he has stated that he was a mem- ber. 4 Eeceipts from the society for dues or assessments, de- mands upon a person for assessmsnts, and including him in the list of members, are facts tending to show that he was at the time a member in good standing. 3 But after a member has resigned, or been expelled, the mere fact that his name is carried on the rolls of the society does not continue his rela- tions with it. 4 "Where by-laws provide that a member may at any time withdraw from the society by giving notice in writing of his intention to do so, a notice of withdrawal by him severs his connection with the society. No assent or dissent on its part is necessary. 5 In an action on a certificate where the question of membership is in issue, evidence showing that the deceased was not a member of the society at his death is admissible. though his resignation or withdrawal is not specially pleaded.' A by-law of a Masonic mutual benefit society, passed in view 1 Connelly v. Association, 58 Conn. Turnbull v. Payson. 95 IT. S. 418; 552; 20 All. Rep. 671; but see Odd New Era life v. Rossiter, 182 Pa. St. Fellows v. Hook, 10 Cim Law Bui- 814; 19 Atl. Rep. 140. letin, 39!. See Pfeiffer v. Mt. Ho- » Bankere' Association v. Stapp, 77 reb Encampment, 13 Daly 161; Vi- Texas. 517; 14 S. W. Rep. 168; New var v. Supreme Lodge, 52 N. J. L. 455: Era v. Rossiter. supra. 20 Atl. Re]>. 86; Burbank v. Associa- 'Rood v. Association. 31 Fed. Rep. tion, 144 Mass. 434; Springmeier v. 62; Cramer v. Masonic Life. '.) N. Association, 5 Cin. Law Bull. 516; Y. Supp. 356. Ellerbe v. Faust (Mo.), 25 S. W. 5 Cramer v. Masonic Life. 9 N. Y. Rep. 890. Supp. 856; Borgraefe v. Supreme 8 Do\vs v. Naper, 90 111. 44; Minne- Lodge, 26 Mo. App. 218. apolis, etc., v. Libby, 24 Minn. 327; 6 Cramer v. Ma onic Life, sujora. 74 MEMBERSHIP. of a by-law of the Masonic lodges excluding saloon keepers from the privileges of the lodges, and providing that any member becoming a saloon keeper shall forfeit his member- ship in the society, applies to those who are and continue, as well as to those who become, saloon keepers after its passage. ' "Where a by-law of a society provides that any member ex- pelled from the Masonic lodge to which he belongs shall forfeit his membership in the society, such membership is forfeited by his being debarred, against his will, of the privileges of his lodge, though not in form expelled therefrom. 2 Under laws, 1S83, Chap. 175, of New York, providing for the incorporation of co-operative or assessment life and casu- alty insurance associations, and declaring each policy holder a member of the association, with a voice in the management of its affairs, only adult persons were contemplated as entitled to membership, as membership is founded on mutual contract between the members. 3 1 Ellerbe v. Faust (Mo.), 25 S. W. Rep. 390. 2 Ellerbe v. Faust, supra. 3 In re Globe Mutual Ben. Associa- tion, 135 N. Y. 280 ; 32 N. East. Rep. 122; affirming 17 N. Y. Supp. 852. In so holding, the court said : ' ' The defendant was a co-operative asso- ciation under the act, a continuing membership in which is made de- pendent on the member keeping up his dues. Each holder of a certificate is. by virtue thereof, a member and corporator in the association, and so remains until by nonpayment of dues his membership is forfeited. The statute contemplates a meeting of the associates in annual meeting, at which reports of receipts and expend- itures are to be submitted, and the associates, assembled at a meeting duly notified, are to consider and pass upon by-laws or amendments pro- posed for adoption. It is plain that the powers conferred upon members can not be exercised by children of tender years, such as have been per- mitted to become members of the corporation defendant. The children insured by the defendant, whose ages are given in the schedule, were in- capable of exercising any choice in becoming members, or of appointing a beneficiary, or of exercising the powers with which members are in- vested by the statute. They could take no part in the co-operative scheme upon which the corporation rests, and which implies the volun- tary association of persons capable of acting in the administration of the affairs of the corporation. There is nothing in the statute which permits the inference that a child may be made a member of the corporation upon the application of the parent, or that a beneficiary may be desig- nated or changed by any person ex- cept the member himself. It has been held that where a statute au- thorizes persons to form a corpora- tion, it is implied that they shall be persons of full age. Road Co. v. Townsend, 13 0nt. App. 534 ; 16 Am. & Eng. Corp. Cas. 645. Infants ad- mitted as members by the defendant MEMBERSHIP. 75 § 33. Membership in religious corporations. — A right as a corporator in a religious society is obtained by a stated at- tendance on divine worship and contributing to its support by renting a pew, or by some other mode usual in the congrega- tion. Such a right can not be derived by descent from the founders of the society, or from the former contributors to, or worshipers in it. The association between a religious in- corporation and its incorporators is voluntary on the part of the latter, and is dissolved by their withdrawing from attend- ance on its worship, omitting to contribute to its support, and uniting in the establishment of another like incorporation. Aliens may be corporators and trustees in a religious corpora- tit >n. 1 Membership in a church, however, is to be distinguished from membership in a religious corporation. The church is an unincorporated voluntary society, having power to adopt its own rules for admission. It is entirely independent of the re- ligious corporation, and a person may, by stated attendance at public worship, and contributing to its support, become a member of the religious corporation, without becoming a member of the church, for whose wants the corporation pro- vides. This distinction between membership in a religious corporation and membership in a church whose wants are sup- plied by the corporation's an important one, and must be kept m view in determining the respective rights of membership. •".+. Expulsion^ amotion, suspension. — Expulsion is the act of depriving a member of a society of his right of became members of the corporation) clothed with general legal capacity, it' legally entitled to admission, and anil while, in many cases, youths un- may be elected I rustees or directors, der twenty-one years of age arecapa- and it might happen that manage- hie of exercising an intelligent judg- ment of the affairs of the corporation ment and might properly i>e admitted would become vested Id persons who to the advantage of membership in a could not have organized it. We company like thai of the defendant, place our assent to the judgment be- in many others they would be w holly low on the ground that it appears unfitted to act as members of such from a consideration of the statute of an organization. We think the order 1883, and the nature and object of co- below is right, and it should be af- operative insurance companies, and firmed." But see Chicago Mutual v. the relation which members hold to Hunt, 127 HI. 857; 80 X. East. Kep. 55. the corporation, that adult persons 'Cammeyer v. United Church, 8 only were contemplated as entitled Sand. Ch, (N. Y.) 186 ; People v. to membership. The law fixes an ar- Tuthill, 31 N. Y. 550. bitrary period when persons become 76 MEMBERSHIP. membership therein, by the vote of such society, for some vio- lation of his duty as such, or for some offense which renders him unworthy longer to remain a member of the same. In an incorporated society there is a distinction between what is called amotion, or the right to remove an officer, which is a power inherent in every corporation, and disfranchisement. The former may be exercised without interfering with the franchise, as the officer, when removed, still continues to be a member; but disfranchisement is an actual expulsion of the member from the body, and the taking away of his franchise. This distinction is not generally regarded in the books, and the term "amotion" is frequently used as a synonym for ex- pulsion. It is well, however, in view of the increasing impor- tance of the subject of expulsion from voluntary societies, to preserve and recognize the distinction as laid down. Suspen- sion is a temporary expulsion, and the law regarding the sus- pension of members from their privileges is in all respects the same as the law governing their expulsion from membership, While this is true, there is still a well defined distinction be- tween suspension and expulsion. Expulsios severs the connec- tion between the expelled member and the society,but suspen- sion from membership, being the temporary privation of rights and benefits, does not otherwise affect the relation of the parties. The suspended member becomes entitled to his privileges by lapse of time, or by some act on his part, as the payment of dues, assessments or fines, etc.; but the expelled member may be re- admitted only on the terms and conditions of a new member. It is evident, therefore, that a member's duty to the society, in the absence of contrary provisions in the contract of mem- bership, remains undiminished during the time of his suspen- sion. He must, during all of such time, perform all the duties required of other members, and he is liable for all dues and assessments levied under the by-laws. The deprivation of all privileges and benefits by suspension does not determine the liability of a member for such clues and assessments by remov- ing the consideration necessary to support the contract to pay them. The consideration of any undertaking to pay them is his admission into the society as a member. While cer- tain privileges and benefits are incident to membership, there are also certain conditions upon which the enjoyment of MEMBERSHIP. 77 them is made to depend. The suspended member is, then, subject to the duties of membership, even while debarred from the enjoyment of its rights and benefits. 1 It is some- times argued that the power to expel a member implies the power to suspend him, on the principle that the greater includes the less. But the power to expel can not justly be held to include the power to suspend, for the suspen- sion of a member might work great injustice, by depriv- ing him of the benefits of membership, while leaving him subject to the payment of dues and assessments. Such a punishment should only be inflicted when it is provided for in the contract of membership, for the quasi-judicial powers of societies should be exercised in exact conformity with such contract. 2 The right to fine or expel, given in a contract of membership, does not include the right to suspend. § 35. Power of amotion in an incorporated society. — Incorporated societies have inherent power to expel members in certain cases, and it follows that they have power to amove an officer of the society from the station to which he has been assigned, before the expiration of his term of office, when the interest and good government of the society require it. It is well settled that the inherent power of amotion may be exer- cised for three causes : First, such as have no immediate rela- tion to the office, but are in themselves of so infamous a nature as to render the offender unfit to execute any public franchise. St conMy, such as are only against his oath and the duty of his office as a corporator, and amount to breaches of the tacit condition annexed to his office. Tkirdly^svLoh as are of a mixed nature, as being not only against the duty of his office, but also indictable under the law. Before he can be amoved for the first offense above specified, he must have been convicted in the courts of the land. But if he lias Bed the country before conviction, he may be removed as if convicted. In case of a mere ministerial officer appointed to bold office during the pleasure of the appointing power, he may be removed al the mere pleasure of those appointing him, without notice or charges; and the appointment of a new officer to serve in bis stead is a sufficient amotion of such an officer. But notice, 'Palmetto Lodge v. Hubbell, 24 'Schasslii-rgcr v. Staendel, 9 S. C. (2 Strob.) 457. W< n si ly Not< a of Cases, 379. 78 MEMBERSHIP. and an opportunity to be heard, are necessary where the appointment is during good behavior, or for a specified time, or where charges are preferred against the officer. Mere acts, which are a cause for amotion, do not create a vacancy until the amotion actually takes place. Where the organic law of a society and its by-laws are silent as to the mode of proceed- ing in amoving an officer, reference must be had to the nature of the case to determine what course justice requires the removing power to pursue in exercising its jurisdiction. Where the statute under which the society is organized pro- vides a cause for which an officer may be removed, it is not necessary that the cause assigned for removal should be stated in the precise language of the statute. If the charge sub- stantially embraces the cause as set forth, it is sufficient. 1 The power of, and proceedings in amotion rest upon the same principles as in expulsion and will not be separately treated of at length. §36. Power of incorporated societies to expel members. — A member of a corporation, whether it be municipal, eleemosy- nary or private, is in the enjoyment of a franchise, the right to which is not derived from the body, but is created by stat- ute, or exists by prescription, and, therefore, can not be taken away by the act of the corporation, except in certain extreme cases. As membership is a right conferred by statute, or derived from immemorial custom which implies the existence of a grant, it can neither be taken away by act of the corporation, nor withheld by the act of the corporation, from any one eligi- ble to the enjoyment of it. 2 Where corporations are for business purposes, are founded upon private capital, and own property, the modern cases are very unanimous in holding that no stockholder may be disfranchised, and thereby be deprived of his interest in the property of the corporation, without an express authority for the purpose in the charter. There is a power of expulsion inherent in every incorporated voluntary society. But, as held by Lord Mansfield in the case of Eex v. The Mayor of Liverpool, 3 and as has been held in a long line of subsequent cases, both in this country and in England, this 1 Peoples v. Higgins, 15 111. 110. (N. S.)(N.Y.) 162 : People v. Medical 2 Gay v. Farmers' Mutual, 51 Mich. Society, 32 N. Y. 187. 245 ; White v. Brownell, 4 Abb. Pr. 3 2 Burr. 723. MEMBERSHIP. 79 power is limited to three causes : First, offenses as a citizen against the laws of the land; when an offense has been com- mitted, which has no immediate relation to a member's cor- porate duty, but is of so infamous a nature as to render him unfit for the society of honest men. Such are the offenses of perjury, forgery, etc. But before an expulsion is made for a cause of this kind, it is necessary that the member shall have been convicted of the offense by a court or jury, according to the law of the land. Second, violation of duty to the society, as a member and incorporator thereof, such as the obliteration or alteration of its records, or acts tending to impair or de- st n >y its title to its property, rights or privileges. In this case he may be expelled on trial and conviction by the corporation. Third, breach of duty in respect alike to the corporation and the laws. This is an offense of a mixed nature, against the member's duty as a corporator, and also indictable by the law of the land. In these cases the expulsion of the member is but the exercise of a power incident to the right of self-pres- servation. It has been laid down as a rule that offenses against corporate duty consist of " things done that work to the de- struction of the body corporate, or to the destruction of the liberties and privileges thereof." 1 As observed in one case, 5 this rule may be somewhat too restricted in some special cases, but it is the general and leading rule, and is rarely departed from. If the member does acts which are calculated to de- stroy the corporation, or its liberties and privileges, he may be disfranchised. He thus forfeits his right to membership. It is very clear that the character of the act considered as an offense against the corporation, depends materially upon the nature and purpose of the corporation itself . The duties of membership should be liberally construed with reference t<> the objects for which the society was incorporated. Such duties, according to Lord Mansfield, are tacit conditions annexed to the franchise of a member. Whether an act is a breach of corporate duty, or not, should be judged entirely by its effect on the objects of the society. "Where a member per- forms an act in direct contravention of the purposes [or which the charter was obtained, he may be expelled. The authority 1 Ang. & Ames on Corp. 349; 2 ' 2 People v. Medical Society, 24 Barb. Kent's Com. 297. (N. Y.)5T1. 80 MEMBERSHIP. of an incorporated society to expel its members is a matter demanding the serious and careful consideration of the courts in each particular case. While the individual rights of those who are members should be carefully guarded and protected, and the courts should see that the powers conferred are not exceeded and abused, they should, at the same time, sustain any legitimate and proper action which may have been taken by the society, within the scope of its charter, to maintain and uphold the objects of its creation. Societies, clubs and voluntary associations of all kinds are increasing with great rapidity in this county, and the power of expulsion is natu- rally developing in its application to these widely different organizations. It seems to have been the policy of courts for many years to restrict the jurisdiction of societies over the rights of their members, but courts are now inclined to sustain the action of societies in expelling members for causes which tend to militate against their good government under their charters. Societies may set forth in their by-laws the offenses for which they will exercise this inherent power of expulsion, and if these offenses fall reasonably within the rule laid down in the preceding paragraph, the courts will hold the by-laws to be reasonable, valid and binding. § 37. Development of the doctrine of the inherent power to expel — Modern doctrine. — The rules just laid down con- stitute the modern doctrine on the power of expulsion of members from incorporated voluntary societies. A com- parison of the modern rule with the early English cases Avill show the growth and development of this power under the liberal application of sound principles. The famous case of James Bagg was reported by Lord Coke. 1 In Bagg's Case it was held by the court of King's Bench that the power of expulsion, being judicial in its nature, must be exercised by the courts of the land in all cases, except where authority to expel its members was expressly conferred upon the society by its charter, or was derived by prescription, and that where no such express authority existed, there must be a conviction of some offense in a court of law before the offending member might be disfranchised. But in applying this rule, it was found to be too narrow and restricted to enable corporations 1 11 Rep. 93. MEMBERSHIP. 81 properly to govern, their internal matters of discipline, and to attain the objects for which they were created, and afterward. Lord Mansfield held the doctrine to be as has been stated. 1 While the more modern cases have added no new causes for which the inherent power of expulsion may be exercised, the tendency is to hold the member to a rigid observance of his duty as a corporator, and to look with more favor upon the charge against a member, of breach of corporate duty. § 38. Power of expulsion conferred by the charter. — The power of expulsion for the three causes above specified being inherent in an incorporated society, any express power of ex- pulsion for certain defined causes, conferred upon a society by its charter, is to be regarded as cumulative. A society may not expel members for minor offenses without an express pro- vision of its charter conferring upon it that right ; and a gen- eral provision that the society shall have power to expel its members, confers upon it no greater power than it inherently possesses. While a general provision in the charter, that the society shall have power to expel its members, in fact confers upon it no other or greater power than is inherent in it, the courts, in some cases, seem to be inclined to give a broader and more liberal construction to its powers when they are thus recognized in the charter. Where the charter confers upon a society the right to expel its members, under such rules and regulations as it shall adopt, this power may not be used in an arbitrary and unjust manner, and without regard to the objects and necessities of the societ} 7- . When a person becomes a mem- ber of an incorporated voluntary society, he does so with ref- erence to the main objects of its existence, as pointed out in the charter. When an offense is totally unconnected with the affairs and objects of the society, disfranchisement can not be necessary for the good government of the corporation. The authority is conferred for the purpose of enabling the incorporated society to accomplish the objects of its cre- ation, and the power, in its exercise, is to be limited to such objects and purposes. But corporations inherently have the power of self-protection, and the right to do those things which are necessary to accomplish the objects of its existence, and, hence, it will be seen that these 1 Rex v. Richardson, 1 Burr. 517. 6 S2 MEMBERSHIP. general powers of expulsion, which are conferred upon societies, in reality add nothing to their inherent powers. Courts, in their desire to give to societies a sound discretion in determining what constitutes a breach of a member's duty as a corporator, have sometimes referred to the fact that, in the case at bar, the power of expulsion was conferred by the charter ; but while this tendency to be liberal in denning the offenses which fall within the breach of a member's corporate duty is in the right direction, it can not rightly be placed upon the ground that the power of expulsion has been extended by any general recognition in the charter. It may be confidently stated that there is no instance in which the expulsion of a member, under the general power conferred by charter, has been sustained, where the offense did not, with a reasonable and liberal construction, come within the second cause for ex- pulsion as above set forth, viz., a breach of the member's duty to the society. In Pennsylvania, where the approval of the supreme court of the state to the provisions of the charter is required before a society can become incorporated, it has been held that the court will not approve a charter for the incor- poration of a society where the articles of incorporation con- tain an indefinite statement of the offenses for which a mem- ber may be expelled. The court refused to approve a charter which provided that " an3 r member may be expelled, who commits any misdemeanor, or any other act which may prove injurious to his character or standing." ' It refused to approve one which gave to the majority of the members the power to expel any member " guilty of any offense against the law," 2 and one which gave to the society power to expel any member who should be "guilty of actions which may injure the as- sociation." 3 In one case it was held that a charter should not be approved which provided that membership in the society should be forfeited by enlistment in the army or navy. The court said : " It is against public policy. A corporation which is a creature of the law ought not to proscribe its members for aiding the government which creates and protects it." 4 But 1 Butchers' Beneficial Association, 3 Butchers' Beneficial Association, 38 Pa. St. 293. 35 Pa. St. 151. 2 Beneficial Association of Broth- *Inre Society, 10 Phila. Repts. 19. erly Unity, 38 Pa. St. 299. MEMBERSHIP. 83 it has been held that a by-law of an incorporated benefit so- ciety, providing that any member who shall enlist as a soldier, or enter on board any vessel as a seaman or mariner, slut 11 thenceforth lose his membership, is valid and reasonable, in view of the purposes of the organization, and " is not forbid- den by any principle of public policy." ' § 39. Breaches of corporate duty. — Where one of the ob- jects of an incorporated society is to provide assistance and sick benefits for sick members, it is subversive of the funda- mental objects of the society, — an act which tends to its de- struction, — for a member to feign sickness, and draw money from the benefit fund on account of such feigned sickness, and the society has power to expel a member for such an offense. 2 Where the main object of an incorporated mutual benefit so- ciety is to furnish life indemnity, or pecuniary benefits to widows, orphans and heirs of deceased members, indemnity for accidents, sickness or permanent disability to members thereof, the non-payment of dues and assessments is subversive of the fundamental object of the society, tends to its destruc- tion, and is a violation of the member's duty as a corporator. Not only has such a society an inherent right to expel mem- bers for non-payment of dues and assessments, but, from its nature and necessities, it has a right to provide in its laws, that such non-payment, within a stipulated time after notice, shall, without personal or other notice to the delinquent mem- ber, ipso facto, work a forfeiture of all the members rights of membership.' AVhere an officer or a member of an incorpo- rated society, in account with the society, charges it with money which he has never paid out and disbursed, and seeks to obtain credit from the society for such fraudulent items, he is guilty of an offense against his duty as a corporator, and may be expelled. 4 Though a person who is not a member of an incorporated mutual benefit society owes to it no corporate duty, yet a person who applies for membership and insurance therein is required to act in the utmost good faith. If he 'Franklin v. Commonwealth, 10 Lewin, 29 Hun (N. V.) 87; Benevo- Barr (Pa.) 359. lent Society v. Baldwin, 86 111. 479 ; 'Society v. Meyer, 52 Pa. St. 125; Equitable v. McLennon, 6 Ins. L. J. Schweiger v. Society, 13 Phila. 113. 124. 3 Rood v. Benefit -Association, 81 4 King v. Mayor, 2 Ld. Raym. 1566; Fed. Rep. 62 ; McDonald v. Ross- King v. Chalke, 1 Ld. Raym. 226. 84 MEMBERSHIP. procure admission to membership on the false representation that he is in good health, and by suppression of the fact that he has an hereditary or incurable sickness, he commits an offense against his corporate duty by the acceptance of mem- bership and of the contract of insurance so procured by fraud, and may be expelled. 1 When in his application for member- ship in such a body he knowingly misrepresents his age as less than it really is, he may be expelled. 2 Where the charter of an association stated that it was formed, among other things, "to inculcate just and equitable principles in trade," it was held that a member might be expelled for obtaining goods under false pretenses, though the offense was not committed within the local jurisdiction of the corporation, nor against a member of the association. The court said : " When a person became a member, and subscribed to the articles of the asso- ciation, he agreed as a condition of his being associated with the company that he would, by his example and his practice, aid in this great object and leading purpose of the corporation. This could most effectually be accomplished by a practice of integrity, honesty and fairness in commercial dealings, both in reference to the acts of the association and its members, at its place of business and elsewhere, at all times and on all occa- sions when engaged in trade. * * He had no right to make a distinction between dealing with members and strangers." 3 Where a medical society, both by its charter and by-laws, has jurisdiction to inquire into and pass judgment upon the conduct of its members, and, in a proper case, to expel a mem- ber, gross immorality in a professional transaction, having a tendency to bring the profession into dishonor before the com- munity, if distinctly charged and proved, is sufficient to justify the exercise of its power. And where a member of such a so- ciety sold out his practice and good will to another physician, and agreed not to practice medicine in the community, but soon afterward began to practice in the community, in violation of his agreement, and the society expelled him therefor, the court refused to restore him to membership. 1 1 Morel v. LaSociete, 1 Lower Can. Abb. Pr. 271; Dickenson v. Cbamber Jurist, 1. of Commerce, 29 Wis. 45. 2 Vivar v. Supreme Lodge, 52 N. J. 4 Barrows v, Mass. Medical Soc, 12 L. 455 ; 20 Atl. Rep. 36. Cush. 402. 3 People v. N. Y. Com. Ass'n, 18 MEMBERSHIP. 85 A medical society, having power by charter to expel its members, passed a by-law providing that no homeopathic physician should be admitted as a member, and passed another by-law providing that any member might be expelled for any conduct unbecoming and unworthy an honorable physician and member of the society. Under this last by-law, a member was charged with practicing medicine according to home- opathy, and the court held the charge sufficient under the powers and objects of the society. 1 A member of a society, in resisting the unlawful authority of the society, commits no offense against his duty as a member. 2 Where the charter of a chamber of commerce conferred upon the association the power to expel members as it should see fit. the court held that the association had no power to expel a member because he refused to submit to the arbitrament of the association, according to the by-laws, a claim against- a fellow member. The court said : " Is it necessary -for the good government and management of the affairs of the corporation, that it should have power to compel him to do any such act '{ We can not see that it is. On the contrary, the assumption and exercise of the power in this case strikes us very unfavor- ably." 3 A board of trade or chamber of commerce, the object of which, as expressed by its charter, is to inculcate just principles in trade, may expel a member for gross violation of a contract entered into by him, even though the contract be between the member and one who is not a member, and even though the contract may be void by the Statute of Frauds/ The charter of the Board of Trade of Chi- cago provides that " said corporation shall have the right to admit or expel such persons as they may see fit, in the manner to be prescribed by the rules, regulations, or by-laws thereof." Under that power the corporation adopted a by-law providing that if a member fails to comply with 1 Gregg v. Mass. Medical Society, 4 Dickenson v. Chamber of Coin- Ill Mass. 185. merce, 29 Wis. 45; Blumenthal v. 'Leech v. Harris, 2 Brewster (Pa.) Cincinnati Chamber of Commerce, 7 571. Cin. Law Bui. 327; People \. N. Y. 3 State ex rel. v. Chamber of Com- Commercial Association, 18 Abb. Pr. merce, 20 Wis. 63 ; see State v. Mer- 271. chants Exchange, 2 Mo. App. 96; Sweeney v. Beneficial Society, 14 W, N. C. 460-186. 86 MEMBERSHIP. a business contract made with another member, upon satis- factory evidence of such fact, he shall be expelled. The court held that, although the discretion granted by the charter to expel members is not purely arbitrary, and can be exercised only for some just and reasonable cause, yet, as this rule was germane to the purposes for which the corporation was created, a member might be expelled for non-compliance with such a contract. 1 A member having been expelled from the common council of the city of Liverpool applied to the Kind's Bench for a mandamus to restore him. The return of the mayor showed, as cause for expulsion, that the member had become a bankrupt. The court held that the cause was insufficient, as bankruptcy was no ground for disfranchising a member of a municipal common council. 2 A member had vilified a fellow member, in violation of a by-law, and had been expelled therefor. The society was created for the pur- pose of aiding its members when in need, and of relieving dis- tressed Irishmen emigrating to the United States. The ex- pelled member applied to the court to be reinstated to the privileges of membership. The court said : " My opinion will be founded on the great and single point on which the case turns. Is this by-law necessary for the good government and support of the affairs of the corporation ? I can not think that it is. * * On mature reflection it appears to me that, without an express power in the charter, no man can be disfranchised unless he has been guilty of some offense which either affects the interests or good government of the corporation, or is indictable by the law of the land." s In Earl's Case, Carthew, 173, it was held that a member of a cor- poration may not be disfranchised for any personal offense of one member to another. Two members of an incorpo- rated club were sitting together in conversation in the bar- room of the club-house, when a third member came in and used insulting language which was understood by one of the two to be applied to himself. He thereupon struck the offender, and was afterward expelled for the offense. 'People v.Chicago Board of Trade, 3 Commonwealth v. St. Patrick's 45 111. 112. Benevolent Society, 2 Binney (Pa.) 2 Rex v. The Mayor of Liverpool, 2 448. Burr. 732. MEMBERSHIP. 87 The court held that the act of striking his fellow mem- ber was not such as would justify his expulsion from the club by the members thereof, — that mere offenses against decorum, personal offenses of one member against another, so long as they do not tend to the subversion of the government of the corporation and the management of its affairs, do not justify disfranchisement on the ground of being against the duty of the corporator. 1 The libel of one member by another is no ground of expulsion. 2 Where a society is incorporated under a general law providing for the incorporation of benefit societies, its object is obviously civil and benevolent, and not religious, and it may not be made, directly at least, the pro- moter of religious discipline. While it can refuse admittance to persons who do not believe in certain religious doctrines, by rejecting their applications, yet it may not compel a person who has once been admitted to membership, to continue in that faith, and to continue to observe the discipline of any church, on pain of expulsion from the society. Such religious faith and discipline are totally unconnected with the objects of benevolent societies. The law permits religious societies to establish rules, regulations or articles of faith for the govern- ment of their own bodies, and he who becomes a member of such a religious society agrees to these rules, regulations and articles of faith, and to the mode of discipline and trial pro- vided by it. But where a society is organized and incorpo- rated for beneficial and benevolent purposes, under the statute ot' the state, a member may not be deprived of his rights in the society by a by-law not necessary for, or connected with the purposes and objects of the society, and relating to relig- ious discipline, even though he may have assented to it. In such a society, a by-law providing for the expulsion of any mem- ber who shall not twice during each year attend to his duty of private confession and reception of the Holy Communion, is vltra /•//v.vaiid void. 3 In one case the court held that a society chartered merely Eor the promotion of medical science had no right to decide what fees its members should charge for their 'Evans v. Philadelphia Club, 50 3 People v. Society, 24 How. Pr. Pa. St. 107. (N. Y.) 210; People v. Society, 41 8 AUunt v. High Court, 62 Mich. Mich. 67. 110: 28 N.W. Rep, 802; Mulroy v. Su- preme Lodge, 28 Mo. App. 403. 88 MEMBERSHIP. professional services, and to expel a member who had disre- garded such a regulation. The court said : " Can it be said with any plausibility that the establishment of a tariff of prices for medical services was a legitimate object of the creation of the corporation, or that it was necessary, or in any degree contrib- uted to the accomplishment of the purposes or objects for which the law authorized the corporation ? " ' A member of a society, the charter and by-laws of which contain no definition of offenses against the society, or provisions for imposing penal- ties, may not be expelled or suspended for non-payment of a fine imposed by the society. 2 An incorporated voluntary society has a right to provide in it s by-laws for the levying of reasonable fines for breaches of duty to the corporation, and the nonpayment of any fine which may be imposed under the by-laws may be made the ground of dismissal and expulsion. 3 Where the laws of a so- ciety do not make such an offense a specific cause for expul- sion, " being drunk while drawing benefits " from the society is not a sufficient ground for the expulsion of a member, where it is not claimed that he was feigning illness at the time he became intoxicated. 4 § 40. Expulsion from religious corporations. — From the principles and authorities above set forth, it is evident that a corporation, the object of which is merely to hold the title to property, can neither admit nor expel members. As voluntary societies frequently make use of corporations to hold their property, while they themselves perform acts entirely inde- pendent of such corporations, it is necessary that the distinc- tion between those acts which are corporate, and those which are merely the acts of these societies, should be thoroughly understood and constantly kept in view. In most of the states, the laws provide for the incorporation of religious so- cieties. There is, of course, great difference between the pro- visions of these laws, but they are, in the main, drawn upon the same general plan. Persons desiring to form themselves into a religious society may sign articles of association for that 'People v. Medical Society , 24 Barb. 3 State v. Association, 43 La. Ann. (N.Y.) 571. 1098; 10 So. Rep. 169. 2 Erd v. Association, 67 Mich. 233; 4 Commonwealth v. Association, 1 34 N.W. Rep. 555; Otto v. Union, 75 Mont. Co. L.Rep. (Pa.) 101. Cal. 313; 17 Pac. Rep. 217. MEMBERSHIP. 89 purpose, agree upon a name, elect trustees, and put their arti- cles on record when duly perfected. They thereby become a corporation by the name agreed upon, and may take, hold and convey property, and exercise the ordinary functions of cor- porate bodies. The corporators are not necessarily profess- ors of any particular belief or faith, or members of any church. Corporate succession is kept up by conferring the privileges of corporators on all who regularly attend wor- ship in the society, and contribute to its support. The trustees who are to manage the temporal affairs of the corporation may, or may not, be church members. Con- nected with the corporation there is a church organization. This is spiritual in its objects. Its name may, or may not, be identical with the name of the corporation. This church has its voluntary members who are supposed to hold certain relig- eous dogmas. It is not incorporated, and has nothing whatever to do with the temporalities. It does not control the property or the trustees. Membership in the corporation arises by operation of law from attendance at public worship, and contributing to the support of the corporation. The church can admit members into fellowship with it, according to its rules of admission, but it can not receive a person into the cor- poration, nor can it expel a person from the incorporated soci- ety. On the other hand, the corporation has nothing to do with the church, except as it looks after the temporalities, and provides for the wants of the church. It can not alter the church faith; it can not receive members; it can not expel mem- bers; it can not prevent the church from receiving or expel- ling whomsoever that body shall see fit to receive or expel. 1 A religious corporation has no spiritual capacity; it is given capacity in respect to temporalities only. The rules of the church as to the discipline of members have no relation to the corporate property or corporate matters. It has no power to try a corporator for moral delinquency, or to disfranchise him in consequence thereof. 1 Immoral men may not usually attend divine worship, contribute to the support of religious corpora- 1 Hardin v. Baptist Church, 51 58N.Y. 108; Livingston v. Trinity Mich. 137; Calkins v. Cheney, 92 Church, 16 Vroom 280 ; Sale v. Bap- Ill 164. ti-t Church, 62 Iowa 26. 3 People v. German, etc., Church, 90 MEMBERSHIP. tions, and insist upon their rights in such societies, but when they do, the law does not distinguish between them and those who have been regularly admitted into the church. The ex- pulsion of members from unincorporated societies will be treated of further along in this chapter, but sufficient has already been said to show that a religious corporation, the sole object of which is to hold and administer property, may not expel its members. Expulsion from membership in the church is effectual to exclude the member from the spiritual privileges enjoyed by its members, but it does not, in the least, affect his status as a member of the incorporated society. If, because of his ex- pulsion from the church, any one should exclude him from the proper enjoyment of the property of the corporation for re- ligious worship and instruction, he may maintain an action therefor, and, in fixing his damages, the injury to his feelings may be considered. The same course may be taken if pre- vented from exercising his right to vote when entitled to such right by the statute. 1 But the excluded member must, in such cases, sue the persons who illegally excluded him. An action in damages for expulsion from the church and de- privation of church privileges will not lie against the religious corporation connected with the church. While it is true that the church is an integral part of the corporation, it by no means follows that the corporation is chargeable with the wrongful acts of members of the church in expelling its mem- bers. Counties, towns, and school districts are integral parts of the state, but the state is not for that reason liable for their torts. The incorporated society may neither expel members from the church, nor prevent such expulsion, and it is neither liable in damages for a wrongful expulsion from the church, nor can it be proceeded against by mandamus to restore an expelled member to his spiritual privileges. 2 § 41. Surrender by a society of its right to expel its members. — While it is not competent for an incorporated society, by its constitution or by-laws, to surrender absolutely its inherent power of expulsion — its right to perform an act necessary to the preservation of its existence, it may, never- 1 People v. German Church, 53 N. Mich. 137; People v. German Church, Y. 103. supra, 2 Hardin v. Baptist Church, 51 MEMBERSHIP. 91 theless, by proper laws, qualify and abridge that right, by pointing out the manner in which, and the occasions on which, it will exercise such right. A limitation which does not de- prive the incorporated society of the right to protect and pre- serve its franchise is unobjectionable. Where the constitution of such a society provides that " the manner of suspension for the non-payment of dues and assessments s ball be detailed in the by-laws, " and no by-law is adopted by the society on the subject of suspension, the neglect of the society to provide a mode and manner of suspension, prohibits it from exercising its inherent power to expel a member for failure to perform his corporate duty in the payment of dues and assessments. 1 § 4l\ Double sentence of society. — A society may in proper cases provide in its by-laws for the imposition of a fine, sus- pension, or expulsion. It may provide for a double punish- ment, as for a fine and suspension. But it is well settled that in the absence of direct provisions, the power to give an alterna- tive sentence does not authorize a double one, and that such a sentence is void. § 43. Statute of limitations. — In the absence of any pro- vision on the subject in the constitution and by-laws of a society, there is no limitation as to the time within which an inquiry may be made by it into offenses against its laws. The statutes of limitation of a state do not govern such an inquiry, unless they are made a part of the laws of the society. 2 I L. Bight to trial by jury does not apply to proceedings in expulsion. — The constitutional provisions relative to the right of trial by jury do not apply to proceedings taken bvan incorporated society for the expulsion of a member for offenses within its jurisdiction, but only to trials of issues of fact in civil and criminal proceedings in courts of justice. They have no application to incorporated societies which have the power of expulsion or disfranchisement, or to any bodies not exercising the ordinary jurisdiction of courts; or to collateral or incidental proceedings which are disciplinary in their character, by asso- ciations authorized by law, as to the conduct of their members who have voluntarily submitted themselves to their juris- diction. 8 1 District Grand Lodge v. Cohn, 20 s People v. Association. 18 Al>l>. Pr. 111. App. 83ft. 271; In re Newell Smith, 10 Wend * Chase v. Cheney, 58 111. 509. 449. 92 MEMBERSHIP. § 45. Regularity of proceedings in expulsion. — A member of a mutual benefit society has a right to demand a substantial compliance with its rules governing proceedings in expulsion. "When a rule prescribes that the vote on the expulsion of a member shall be given in writing, it is an irregularity vitiating the proceedings to take a vote by casting white and black balls. 1 Where articles providing for the appointment of a com- mittee of investigation by the presiding officer do not direct how or when it shall be made, an appointment made immedi- ately after the adjournment of the meeting which passed the resolution of reference, by the second vice-president who had presided at that meeting, and a subsequent appointment by the first vice-president to the places of two members first appointed who had refused to act, are not open to objection as to the source or time of the appointments. 2 A member was notified that on a certain night he would be tried by his lodge upon certain charges. He thereupon notified the principal officer of the lodge that, owing to certain duties which he was obliged to perform as county surveyor, he could t not be present at the time and place fixed for the trial of the charges. He made no application for a continuance based on proof of the fact that he had public duties to perforin at that time. He was tried at the time set, and expelled. The court held that the notice to the principal officer was not of itself sufficient to oust the lodge of jurisdiction to try him on the charges at the appointed time and place. 3 A society has no right to expel a member merely because he does not appear, and without proving the charges against him. Even though the party charged does not appear, still, proof of his offense should be required." The return to a mandamus was quashed because the member had been expelled without proof of the offense with which he was charged, his presence and failure to deny the charge having been taken by the society as sufficient evidence of his guilt. 5 Where an incorporated society in its by-laws adopts the rules in Cushing's Manual for the government of all debates of its members, and no other provision is made on that subject in 'Hoeffnerv. Grand Lodge, 41 Mo. 4 People v. Society, 65 Barb. 357; App. 359. Strempel v. Rubing, 4 N. Y. Supp. 2 People v. Society, 28 Mich. 261. 534. 3 Robinson v. Yates City Lodge, 86 5 Rex v. Faversbam, 8 T. R. 356. 111. 598. MEMBERSHIP. 93 the by-laws, Cushing's Manual must control the members of the society in that matter. That provides that if offensive words are not taken notice of at the time they are spoken, but the member is permitted to finish his speech, and then any other person speaks, or any other matter of business inter- venes before notice is taken of the words which gave offense, the words are not to be written down or the member using them censured. Therefore, where a member in debate at a meeting of the society uses what are considered offensive and improper words which are not objected to or noticed at the time, or during the meeting, he may not be tried and expelled for using those words, upon charges made at a subsequent meeting, even though the use of such words Avas, under the charter and by-laws, a sufficient cause of expulsion. An expul- sion under such circumstances is irregular and without author- ity. 1 When a member has been tried before an incorporated society in which a two-thirds vote of the members present was required to expel a member, and more than one-third of those present voted against the resolution to expel him, this amounted to an acquittal. A subsequent trial and expulsion, on the same charges, for the same offense, is irregular and void. A member who has been regularly tried and acquitted by a society may not be twice put in jeopardy before the society for the same offense. 2 But where a member has been irregularly and illegally expelled from a society, it may set aside and annul the void proceedings, restore the member, and proceed against him regularly for the same offense. 3 When the laws of a society provide that a member may be expelled for refusing to comply with the decision and order of its tribunal in any matter submitted to the tribunal under the by-laws, it is error to expel a member for such refusal, when he has, under the by-laws, appealed from the decision of the tribunal to the society at large. When a member has submit- ted a controversy to such tribunal, and appealed from its decision, under provisions of the by-laws giving him the right of appeal, the society has no right to proceed against him for 'People v. American Institute, 44 47 Wis. 670. But see Otto v. Union, How. Pr. 468. 75 Cal. S18, IT Pac. Rep. 217, where 2 Commonwealth v. Guardians of the reinstatement of the member for Poor, 6 Ser. & R. (Pa.) 469. the purpose of expelling him again 3 State v. Chamber of Commerce, was taken as evidence of bad faith 94 MEMBERSHIP. a failure to comply with such decision, and the denial to him of his right of appeal from such decision is an irregularity and an error, from the effects of which a court of equity will afford him relief. 1 The requirements and provisions of the constitution and by- laws of a society are intended as safeguards for the members against improper suspension and expulsion, and their office is to secure to its members a fair and impartial trial. The neglect or refusal of the society to comply with them in any substantial particular in a proceeding in expulsion will be irregular as against a protesting member. A society was authorized under its by-laws to expel members for the non- observance of its constitution, by-laws or rules, provided that " no such expulsion * * shall be made, except on charges preferred, a copy of which shall be served upon the member so charged." Under such provisions, a notice summoning the relator to attend a meeting of the board of directors, at a time and place therein stated, to show cause why he should not be expelled from membership for a violation of a certain by-law, does not comply with the provision of the by-law, requiring charges to be made and a copy to be served, if the member refuses to answer the charge. He has a right, under such a contract of membership, to a trial on charges and specifica- tions which he shall have full opportunity to answer. 3 The constitution of a society directed that charges against a mem- ber should be referred to a committee of five members ; that this committee should reduce to writing its opinion as to the guilt or innocence of the accused, and present it to the lodge ; that at the next meeting after the presentation of the report, a ballot should be taken, and if a majority of the votes cast were in favor of the report, it should be recorded as the judg- ment of the lodge. There was no provision as to the pro- cedure when a majority of the ballots were cast against the report. It was charged against a member that he gave a false age upon entering the lodge. The committee, to whom the charges were referred, examined into them and reported in writing: to the lodg;e that all the members of the committee believed that a false age had been given, but that three of its 1 Powell v.Abbott, 9 W. N. C. 2 People v. Musical Union, 47 Hun 231. 273. MEMBERSHIP. 95 members did not believe that the false statement had been made with any malicious intent, or intent to defraud. At the next meeting the motion that the charge be sustained, and that the accused be suspended for ninety -nine years was carried by a large majority. This proceeding was held to be irregular and void, because the report of the committee practically ex- onerated him from guilt, and the suspension was beyond the authority of the lodge under the constitution. 1 Where a society has jurisdiction to expel its members but no mode of procedure is specified, it may adopt such mode of trial as it pleases, subject only to the implied limitation that it be fair. 2 § 46. Record of proceedings in expulsion. — It is a maxim of the law that a corporation speaks by its records. It will be presumed that entries made in the minutes of meetings of a society have been made by the proper officer. The entry of an order of suspension on the minutes of the society is prima facie evidence of its legality, but parol evidence is admissible to show that it was merely the order of an officer, without the requisite vote of the members. 3 The records and minutes of a private corporation are admissible to prove its acts, but they are not the only mode of proof. They are prima facie admis- sible, but may be rebutted by parol. 4 While the records of a society may be contradicted, and it may be shown that they do not fully disclose all the proceedings which ought to have been recorded, yet it is clear that proof of that kind must be so convincing and satisfactory as to leave no doubt but that tin' matter attempted to be interpolated into the records of the proceedings of the society actually occurred. Where the rec- ords of each meeting are read at each succeeding meeting, and are subject to correction at such succeeding meeting, the presumption will be strong in favor of their truth and exactness. 6 The expulsion of a member from an incor- porated society should be shown by its minutes, proceed- ings or records, and not by the statements of its officers •Vivar v. Supreme Lodge, K. of 4 Partridge v. Badger, 25 Barb. 147; P., 52 N. J. L. 4.").-,; 20 Ail. Rep. 36. Whart Ev. § 661 : Abbott's Trial Evi- 8 Spillman v. Supreme Council, 157 dence, pg. 16, §56; pp. 51, 52, §65. Mass. 128; 31 N. East. Rep. 776. Hawkshaw v. Supreme Lodge, 29 3 Knights of Honor v. Wi.kser, 72 Fed. Rep. 770. Tex ss, 2ol ; 12 S. \V. Rep. 175. 96 MEMBERSHIP. or members ; in other words, it should be shown by some official action or corporate act on the part of the society. 1 The records which every corporation is supposed and bound to keep, must show upon their face the exact cause of expulsion, and all of the proceedings necessary to authorize action upon its part. These facts should be determined by the record itself in case they are brought in question. 2 Where the laws of the society require that charges preferred against a member be read in open lodge, that a copy of them be furnished to him under the seal of the lodge, and that he be cited to appear to answer them, the record should show that these requirements were fulfilled ; and a mere record of a sentence of expulsion, or suspension, without any record of the proceedings to found this sentence upon, is a nullity. 3 The minutes and reports in writing are the best evidence of what took place in meet- in o-s of the tribunal which expelled a member, for upon them the resolution of expulsion is based. In an action by a mem- ber of a society, who has been expelled, to have the resolution of expulsion adjudged null and void, a member of that tri- bunal may not, as a witness, make any statement as to what particular conduct on the part of the expelled member was deemed by the tribunal improper and prejudicial. Such a statement would be his opinion merely. What is wanted in such an action are the facts, not the conclusions or judgment of the witness. It would clearly not be permitted to the wit- ness to place his interpretation upon, or give his opinion of, the proceedings and actions of the tribunal which are evidenced by such minutes and reports. Nor may such a witness be asked to state what conduct on the part of the expelled mem- ber, he, as a member of the tribunal, deemed to be improper and prejudicial to the society. When the witness voted upon the resolution of expulsion, he performed a judicial act, and he may no more be asked the particular ground upon which he based his judgment than a judge, a juror or arbitrator could, after judgment, be questioned as to the reason or basis of his determination. Inquiry into what was said by members of the tribunal during the investigation about the charges and the 1 High Court v. Zak, 136 111. 185. 3 Lazensky v. Supreme Lodge, 31 2 Roehler v. Society, 22 Mich. 86; Fed. Rep. 592. Medical Society v. Weatherly, 75 Ala. 248. MEMBERSHIP. 97 guilt of the accused member, would violate the sanctity of such proceedings, and weaken their efficiency. Such inquiry is clearly opposed to the policy out of which such investiga- tions originate, and by which they are to be conducted. Such investigations are in their nature judicial. If the conduct and action of the members of the tribunal, in the discussion and decision of questions before it, are to be the subject of public discussion and comment, it would greatly embarrass them, and prove to be a restraint upon a free debate on the questions involved. What member of the society would be willing to serve on such a tribunal, if his remarks concerning the mat- ters for discussion and decision could be made public ? "With the result of the discussion, as expressed by a proper and suf- ficient vote, the parties must be satisfied. 1 It is evident that the records of a society are as much the records of one member as of another, and that they are evidence against him. 2 They are evidence in disputes between members of the society, but not against strangers. 3 They are competent to show who are its members. 1 Loubat v. Leroy, 65 N. Y. 138. Grand Lodge, 131 111. 498; 22 N. East 2 Diehl v. Adams County Mutual, Rep. 487, at § 252. 58 Pa. St. 443; Washington Society 3 Commonwealth v. Woelper, 3 Ser v. Bacher, 20 Pa. St. 425; Bagley v. & R. (Pa.) 28. 7 CHAPTER IT. MEMBERSHIP.— PART II. § 47. Reinstatement of member; remedies in society must be exhausted. 48. Jurisdiction of appellate tribunal when appeal is irregular. 48a. Subordinate society refusing to obey order of superior body. 49. When decision of appellate tribunal is final. 50. Death pending appeal to courts of the society. 51. Injunction to restrain illegal expulsion. 52. Action for benefits where expulsion of the member is inquired into. 53. Action for damages for unlawful expulsion. 54. Injunction to reinstate expelled member. 55. Reinstatement by courts of justice. 56. Mandamus the proper remedy. 57. Mandamus a discretionary writ. 58. Delay in applying for restoration. §47. Reinstatement of member to Lis rights; remedies provided for the expelled member in the laws of the so- ciety. — Where a voluntary society provides, in its charter, constitution or by-laws, a mode for reviewing and correcting any error or injustice on the part of any subordinate tribunal bv which a member has been tried and expelled, he is bound to avail himself of the remedy so provided, before he may ask a court of law or equity to investigate the regularity of the proceedings. These proceedings, being subject to review, may be annulled by the action of the tribunals created in the so- ciety and clothed with authority to investigate the proceed- ino-s of such subordinate tribunals: and those who fail to avail themselves of the opportunity thus offered to correct these ir- regularities within the society, will be repelled from the courts. Courts will not in any wise interfere with, or inquire into the affairs of such a society until they are obliged to act, and until the aggrieved member has exhausted all the remedies pro- vided in its laws. It is not necessary that its laws shall pro- vide in express terms that the member must appeal from the (98) MEMBERSHIP. 99 decision expelling him to a higher tribunal in the society, before seeking restoration by a court of justice; the mere right to appeal from such decision, for the reasons just stated, creates a duty on the part of the expelled member to exhaust his right of appeal in the society. 1 A by-law providing that a member Avho has been expelled may be reinstated at any regular quarterly meeting of the society by a two-thirds vote of all the members present, after having paid all dues and fines standing against him, and an extra fine of fifty dollars, is not intended to provide a method of reviewing the proceedings instituted to remove the member, and he is not obliged to resort to it before instituting proceedings to pro- cure a peremptory mandamus restoring him to his rights and privileges as a member. 3 Such a provision has reference to a lawful expulsion, and to cases where the society may exercise its discretion in the restoration of a member. After having submitted his rights to a tribunal of the society, or after having appealed from a lower to a higher tribunal in the order, a member may not, before the decision is announced, apply for relief to the courts of the land. 3 It. has been held that the rule requiring a member to exhaust his remedies in the society before resorting to the courts ap- plies, in its strictness, only to those cases in which the right is given to appeal to an officer or to a tribunal other than the tribunal which convicted and expelled him. When the rem- edy provided in the society is not in the nature of an appeal to a higher officer or body, or to a superior tribunal, but is merely in the nature of a petition for a rehearing to the same per- sons who convicted and expelled the member, the court will examine into facts concerning the trial and expulsion, and de- termine whether, under all the circumstances, the aggrieved member should have applied to them for a reconsideration of the case upon its merits before resorting to the court. A reso- lution of expulsion was adopted by the governing committee 'Karcher v. Supreme Lodge K. 2 People v. Musical Union, 47 Hun ofH., 187 Mass. 868; Harrington v. 278; People v. Protective Union, 118 Workingmen's Ben. Association, 70 N. Y. 101; 23 N. East. Rep. 129; af- Ga. 340; Poultney v. Bachman, 81 firming 43 Hun 454. Hun (N. Y.) 49: White v. Brownell, 2 8 Strempelv, Rubing, 4 N. Y. Supp. Daly 329; Lafoncl v. Deems, 81 N. Y. 534. 507; see §§ 111, 311. 100 MEMBERSHIP. of a society, by a vote of fourteen to four, upon the report of a committee of five of its members, who had been appointed to investigate and report as to the facts. The by-laws of the society provided that in cases of expulsion the expelled mem- ber might make an application to the governing committee for a rehearing. The expelled member, however, without making such an application as he was authorized to do by the by-laws, resorted to the court. It was claimed that, before bringing the action, the plaintiff should have applied to the committee to have the resolution of expulsion reconsidered and revoked, and that, in consequence of his failure to do so, the court would refuse to interfere in his behalf. But the court, in considering this question, said: "The resolution which they (the members of the governing committee) adopted conclu- sively establishes the fact that they had formed and acted upon convictions adverse to the plaintiff, and, after that, the probability is extremely slight, indeed, that they could have been induced to change their views and act differently upon an application for the reconsideration of the resolution. The probability that favorable action might in this manner have been secured by the plaintiff is so extremely remote that, in the reasonable administration of the law, he should not be held to be required to apply for such reconsideration before commencing an action to restrain the enforcement of the reso- lution against him if that should turn out to have been un- lawfully adopted." ' This distinction is not sustained by anal- ogy to proceedings in courts of law, for a motion for a new trial is required to be made before the tribunal in which the trial took place, before an appeal may be prosecuted. It is but fair that the tribunal in which the trial took place should have an opportunity to correct its errors, and it is to be pre- sumed that such tribunal will act in good faith upon the appli- cation. Because the members of a tribunal have formed, and acted upon, convictions adverse to a member, it must not be assumed that they will continue to hold those convictions after they have looked carefully into an application for a recon- sideration of their acts in the premises. Every presumption is in favor of the* fairness and honesty of a tribunal which has expelled a member from a society. The interests of the fellovv- 1 Loubat v. Union Club, 40 Hun 546. MEMBERSHIP. 101 members are, naturally, that the rights of each individual member shall be sedulously guarded, as the same measure they apply to others may in the end be administered to themselves. The obligation to appeal to the higher tribunals within the society is not imposed where the judgment is void for want of jurisdiction. Such a judgment of expulsion may be likened to a judgment rendered by a court which has no jurisdiction of the subject-matter or of the person. No appeal or writ of error is necessary to get rid of such a judgment; it is void in all courts, and in all places. Thus, a suspension of a lodge by an officer not vested by the laws of the order with that power, without notice and opportunity to the lodge for a hearing, is absolutely void, and cannot affect the legal rights, or change the legal status of the lodge or any of its members, and from such an order of suspension no appeal, in the mode provided in the laws of the order, is necessary to save the rights of the Lodge or its members. 1 Where the expulsion of a member by his lodge was without jurisdiction, as where it was founded on a charge on which the lodge had no jurisdiction to try him, his expulsion is null and void, and it is not incumbent on him to take steps to have it reversed in a higher judicatory of the society. 2 If when he has appealed to a superior tribunal, the member is practically deprived of the benefit of such remedy, by evasion, intentional delays, or other unjust procedure on the part of such tribunal. he may resort to the courts, alleging and proving such eva- sion, delays, or other unjust procedure, as an excuse for not having exhausted his remedy in the society. But it must clearly appear in such a case that the appellate tribunal is act- ing in bad faith and in practical disregard of the member's right of appeal.' There is no presumption thai there is open to the expelled member a remedy under the constitution and Laws of the association itself, for a review of the proceedings in his expulsion, ami, in case of error, for his reinstatement. This must be made to appear. 4 §48. Jurisdiction of appellate tribunal when appeal is 'Hall v. Supreme Lodge, 24 Fed. ■ Carles ▼. Drury, i 7ea. & Beames Rep. 160; Mulroy v. Supreme Lodge, 164; White \. Brownell, 2 Daly 829, 29 Mo. App. 488. *01erj v. Brown, 61 How. Pr. 92. 4 Glardon v. Supreme Lodge, 50 Mo. App. 45. 102 MEMBERSHIP. irregularly taken. — "When the laws of a society give to its superior tribunal the right to hear complaints and appeals and to redress grievances arising in subordinate lodges or councils, the validity of the action of that tribunal in revers- ing and setting aside a judgment of expulsion rendered in such lodge or council may not be disputed on the ground that the appeal was not taken and presented in the exact manner prescribed by its laws. While the superior tribunal may not be required to act on an appeal, taken without regard to the prescribed rules, it may certainly waive all such requirements. Prescriptions with regard to appeals are designed for the government of subordinate lodges or councils and their mem- bers, but they are not limitations upon the authority of the superior tribunal. Where the general authority to redress grievances is conferred upon some higher body or committee of the society, it undoubtedly has the power, even when no appeal has been taken, to summon before it the necessary members and subordinate officers, and give such redress as a grievance may imperatively demand.' § 48a. Subordinate society refusing to obey order of superior boily. — In an action by a benefit society against a member for money loaned, the defense was that the defendant had been wrongfully deprived of membership in the lodge and money privileges thereto appertaining, exceeding plaintiff's claim, and that, upon defendant's appeal from such expul- sion to the grand lodge, according to the rules of the society, his reinstatement was ordered, which order the local lodge refused to obey. It was held that a court of equity would refuse to aid plaintiff until the order of reinstatement was obeyed, according to the rules of the society, although the grand lodge itself had no mandatory powers to enforce its superior authority ; that the court would grant relief in equity by refusing to enforce payment of the claim of the society against such member, until the case was heard on its merits. 2 §49. Appeal to superior tribunal "whose decision shall be final." — It is a question, upon which the authorities do not agree, whether a society may create judicial tribunals for the final and conclusive settlement of controversies arising under 1 Vivar v. Supreme Lodge, 52 N. J. 2 Schmidt v. Lodge, 84 Ky. 490 ; 2 L. 455 ; 20 Atl. Rep. 36. S. W. Rep. 156. MEMBERSHIP. 103 its contracts of membership or its contracts of insurance. Some cases hold that it may, 1 and others hold that it may not. a The constitution of an unincorporated society provides that " any member having a grievance, shall have the right to lay his case before the central body, who shall take action thereon, and whose decision shall be final." A member of the society, who had been expelled, applied to the central body for rein- statement to membership, but his application was denied. He then instituted a proceeding for reinstatement in the courts. It was urged that the court had no jurisdiction, and upon this question the court said : " No doubt when action is properly taken in the manner indicated, it is final, and the courts will not interfere, but when, under the guise of remedying the grievance of a member, the central body acts in bad faith, and maliciously makes the subject of the grievance a pretext for oppression and wrong, its actions may, however, to that extent, be the subject of review." 3 § 50. Death of the member pending his appeal to the higher courts of the society. — A member was expelled by his lodge. He appealed under its laws to the grand dictator, and pending the appeal he died. Subsequently the judgment of expulsion was reversed by the grand dictator. He was reinstated by a vote of the lodge, as required by the by-laws, and the assessments due at the time of his death were paid as ] provided in the by-laws. The court said : " If the analogies of the common law are to be regarded, the appeal did not abate by the death of (the member). 4 By the reversal of the sentence •Fritz v. Muck, 62 How. Pr. 70; Lodge v. Schmidt, 98 Ind. 374; Toramv. Association, 4 Pa. St. 519; Supreme Council v. Forsinger, 125 Cincinnati Lodge v. Littlebury, Ind.")-': 25 N. East. Rep. 129; Austin cin. L. Pull. 237; Mohawk Lodge v. v. Searing, 16 N. Y. 112; Strasser v. Wentworfh, 4 Cin. L. Bull. 513; Staats, 13 N. Y. Supp. 167; Poultney Anacosta Tribe v. Murbach, 1.') Bid, v. Bachman, 10 Abb. New Cases, 252; 91; Osceola Tribe v. Schmidt, 57 Md, Stephenson %-. Ins. <\>.. 54 Me. 70; 98; Rood v. Benefit Society. :;i Fed- H [ns. Co. v. Morse, 20 Wall. 445; Rep. 62; Van Poucke v. Society, 63 Barron v. Burnside, L21 U. S. 186; Mich. 378; 6 Western Rep L32; 29 Scott v. Avery, •"> House of Lords N. W. Rep. 863; Canfield v. Great Cases 811; see §§ 816, 317. Camp, 87 Mich. 626. 3 Otto v. Union, 75 Cal. 313; 17 *Dolan v. Court of Good Samari- Pac. Rep. 217. tan. L28 Mass. 4:37: Elkhart Mutual 'Green v. Watirins, 6 Wheat. 260. v. Houghton, 98 Ind. 149; Supreme 104 MEMBERSHIP. of expulsion, and by the action of the lodge, he was reinstated as at the date of his expulsion, and was entitled to his benefit. It may be added that such was, at the time, the law of the order, which had held, by its supreme dictator, that if a decis- ion of expulsion was reversed on final appeal, the appellant stands a member as if there had been no such judgment, and he must pay all back dues and assessments; and if, pending the appeal, he die, had regularly tendered his dues and assess- ments, and after death the appeal is decided in his favor, his benefit will be paid as one who died in good standing, less the amount of his tendered and unpaid dues and assessments." ' A mutual benefit society was open to members of a certain order only. Its laws provided that if any member should be suspended from his subordinate lodge, his membership in the society should cease at the time of such suspension ; but that if his suspension should be set aside by higher authority in the order, his standing in the society should be the same as if no action had been taken, and he must pay all assessments made during such suspension. A member was suspended from his subordinate lodge. He appealed to higher au- thority in the order, and after his death the suspension was reversed. It was held that the member was in good standing at his death, and that his beneficiary was entitled to recover the benefit fund from the society. The court said : " The sec- ond ground on which the validity of the action of this com- mittee is denied is that (the member), being dead at the time, could not be restored to membership. But it was not required that he should be actually restored to membership. It was enough, in the words of the constitution, * if the ' action of the subordinate lodge was reversed by higher authority.' His death in no way prevented such a reversal. The rights to be impaired by that action survived him, and the persons in whom those rights vested were as really aggrieved thereby as he would have been had he lived. Their grievance, arising in the (lodge), the grand lodge had power to redress. It is an every-day occurrence to reverse judgments erroneously ren- dered against those who have since died, and although such a 1 Marck v. Supreme Lodge K. of H. , 733; Connelly v. Association, 58 Conn. 29 Fed. Eep. 896; see Jackson v. As- 552; 20 Atl. Rep. 671. sociation, 78 Wis. 4C3; 47 N. W. Rep. MEMBERSHIP. 105 reversal can not restore the status of the decedent in fact, it may do so in legal contemplation." ' § 51. Injunction to restrain illegal expulsion. — Courts of chancery have jurisdiction in a great variety of cases to en- join parties from proceeding in courts of law. Their juris- diction extends as well to proceedings in the highest as in the lowest and most limited tribunals; and courts of one state may enjoin parties from proceeding in the courts of other states. But injunctions issue against parties, and not against courts; and the jurisdiction in this respect has legal limits which ap- ply to proceedings in all courts and tribunals. The proceed- ings of a society in expelling members are judicial in their character, and, in such proceedings, the society performs the functions of a court of limited and special jurisdiction. A court of chancery has no more power over the proceedings of a court of special and limited jurisdiction than over proceed- ings of courts of general jurisdiction. Where the inferior tri- bunal has jurisdiction of the subject-matter, a bill in equity will not lie to correct and restrain alleged irregularities in the pleadings and procedure before it; nor will it lie to enjoin the tribunal from a judicial determination of the matter before it, in order that the court may inquire into the alleged im- proper constitution of the tribunal. The general principle is, that a court of chancery is not the proper tribunal to correct the errors and irregularities of inferior tribunals, and that in ordinary cases the court may not interfere/ A medical so- ciety, incorporated under a charter empowering it to expel its members, summoned the plaintiffs, who were members, to ap- pear before a board of trial composed of members, to answer charges preferred by a committee, that the plaintiffs had vio- lated the by-laws of the society by conduct unworthy of hon- orable physicians and members of the society, in practicing according to a certain exclusive theory or dogma, and that plaintiffs belonged to an association whose purpose was at variance with the principles of the society. Plaintiffs, there- upon, filed a bill in equity against the society, the board of trial, and the committee preferring charges, alleging that it 1 Vivar v. Supreme Lodge, 52 N. J. cases there cited: Mooers v. Sraed- L. 455; 20AU. Rep. 36. ley. (5 Johns. Ch. 88; Hey wood v. 5 Kerr on Injunctions, C. 3, and Buffalo. 4 Kern. 5:;). 108 MEMBERSHIP. was the defendants' intention to expel the plaintiffs only and solely for practicing homeopathy; that the body to try them was wrongfully constituted; and that the proceedings were irregular and void. The supreme court of Massachusetts held that the court had no jurisdiction to interfere by injunction with the proceedings before a court of limited and special jurisdiction. 1 It was held, in one case, by the judge of the court of common pleas for Philadelphia, that an injunction will lie to restrain a contemplated illegal expulsion. In stat- ing the grounds of this decision, the court said : " Equity pre- vents mischief. It does not wait until it is consummated. It does not even measure the paces by which it advances. It meets it at the threshold, and seeks to prevent a meditated wrong more often than to redress an injury already done. Courts of equity constant!} 7- decline to lay down any rule which shall limit their power and discretion as to the partic- ular cases in which special injunctions shall be granted or withheld." 2 The right of a court of equity to interfere in this class of cases, at least where the society is unincorpo- rated, has been maintained by other courts. 3 Where a member of a society has been cited to appear before one of its officers and show cause why his rights of membership should not be forfeited for failure to pay assess- ments, injunction to restrain the forfeiture will not lie before the member has appeared before such officer and asserted his defense. 4 § 52. Action for benefits where the expulsion of the member is inquired into. — Where a person, formerly a mem- ber of a mutual benefit society, sues the society for benefits, and the question of his proper expulsion is inquired into and deter- mined under any of the issues presented in the case, both the plaintiff and the society are concluded by such determination, unless the decision is appealed from. An expelled member commenced an action against the society for the recovery of "Gregg v. Society, 111 Mass. 185; Rep. 217; Huston v. Rentlinger, 91 see Sturges v. Board of Trade, 86 111. Ky. 208; 15 S. W. Rep. 867. 441. 4 Whiteside v. Association, 23 N. 2 Leech v. Harris, 2 Brewster (Pa.), Y. Supp. 63 ; 68 Hun 565 ; citing 571 ; citing Story's Equity Jurispru- Thomas v. Union, 121 N. Y. 50 ; 24 dence, § 862. N. East. Rep. 24. 3 Otto v. Union, 75 Cal. 313; 17 Pac. MEMBERSHIP. 107 weekly allowances. His claim embraced a period before his alleged expulsion, and extending beyond it. Among ' the defenses interposed to his right to recovery was that of his expulsion prior to the bringing of the suit upon his claim. A judgment was rendered in this action for weekly allowances up to the date of his expulsion, but his claim for benefits after that period was rejected. Upon the trial the record of plaintiff's expulsion was given in evidence, and other evidence was also given touching the regularity of the expulsion under the rules of the society. The plaintiff might, perhaps, have avoided a decision upon the question of his expulsion, had he limited his claim to the time of the alleged expulsion, and could then have properly invoked the aid of the court to annul the record of his expulsion, if he had sufficient cause therefor ; but by including in his claim for weekly allowances a period beyond his expulsion, and by submitting the question of its regularity to the decision of the court upon the trial of the claim, he became bound by its decision, and his only remaining remedy was by appeal from the judgment. Upon application, made after the rendition of this judg- ment, for restoration to membership, the court dismissed the plaintiff's complaint upon the sole ground that the question of his expulsion had been determined against him on the trial of his claim. 1 When a matter is regularly determined, in whatever form, by a competent tribunal, it is not open to inquiry in any other proceeding between the same parties. A judgment at law is conclusive in equity upon the same subject between the same parties. And where the legality of the expulsion of a member is once judicially determined in a legal or equitable controversy between the parties, in which an issue involving the question has been distinctly raised, the door to further inquiry upon that subject is forever closed. § 53. Action against the society for damages for unlawful expulsion. — As a general principle it may be laid down that a member of a corporation may lawfully sue the corporate body for an injury which he has sustained from the miscon- 1 Bachman v. Arbeiter Bund, 64 "Woolsey v. Odd Fellows, 61 Iowa How. Pr. 442; see §g 310, 319; see 492; 10 N. W. Rep. 570. 108 MEMBERSHIP. duct of its officers or agents, 1 and that where a power to act in certain matters has been delegated to a select body, such as a committee or board of directors, and has been exercised by it, the corporation is to be considered as having done all that the select body did in the proceeding. But it is exceedingly doubtful whether a member of a mutual benefit society, who has been illegally expelled, may waive his right to a mandamus for restoration to membership, and sue the society for damages for the unlawful expulsion. Such a member undoubtedly has property interests, to which he is entitled to protection from the courts, but if he has not been lawfully expelled, he is entitled to be restored to his rights. It is manifest that the most exact and complete remedy is by restoration, for in this way he is not only vindicated in his character, but is also re-established in the very rights which belong to him. An action for dam- ages, however, assumes the illegal expulsion, waives the wrong, and demands compensation for the injury. If he waives the wrong, acquiesces in the expulsion, and forfeits his right to restoration, it does not follow that he is entitled to compen- sation. One may not always waive a tort for the purpose of maintaining an action which, without the tort, would have no foundation. In an action for assault and battery, if one waive the tort, there is nothing to sue for. Members of the society alone have rights in its property, and if a member waives the illegality of the act of expulsion, and acquiesces in it as a legal and accomplished fact, he must take it with its consequences; and the consequences of an expulsion, with the element of illegality dropped out of it, are a valid deprivation of membership, for which no action lies. 3 Ordinarily a mutual benefit society has no fund, which may be applied to the pay- ment of a judgment for damages, and it would seem that one who had voluntarily given up his right to restoration to the rights and privileges of membership should not be permitted to recover such a judgment against it. It is a serious question whether any measure of damages can be laid down in an action for compensation for an unlawful expulsion. Members of a mutual benefit society have no severable interest in the fund •Gray v. Bank, 3 Mass. 385. Cal. 240; 27 Pac. Rep. 191; Cooley, 2 Lavalle v. Societe, 17 R. 1.680: 24 Torts, 2d Ed., 107-111; see Blumen- Atl. Rep. 467; Peyre v. Society, 90 feldt v. Korschuck, 43 Bl. App. 434. MEMBERSHIP. 109 or property. It can not be determined whether they will con- tinue to pay dues or assessments and thus continue their mem- bership. The payments to be made by them may far exceed the value of the property or funds of the society, and there may be a loss to them if they continue in membership. Matters of speculation and guessing are too uncertain to form a basis for the measure of damages. It must be stated, how- ever, that the few decisions on the question as to the right of one who has been illegally expelled to maintain an action for damages are not in accord. It has been squarely held that such an action may be maintained, though nominal damages only were given in that case. 1 In some cases there are dicta that such an action may be maintained, but there is no discussion of the grounds on Avhich the right of action rests. It is assumed that compensation should be given for an injury caused by a violation of a right. 2 In a suit for damages for wrongful expulsion, it is not suf- ficient for plaintiff to aver that the proceedings in expulsion were irregular and void, or that the 1 charges against him were not such as he might lawfully be expelled for under the contract of membership, or that he had no notice of the meeting at which lie was expelled, or of the charges against him. lie may not sue for loss of membership if the adjudication is void. In such a case his remedy would clearly he to enforce by umn- da/mus his restoration, a right lie still has. His remedy would nol !)•' t<» obtain damages for its loss. 3 An action may not lie- maintained againsl a society by a person to recover damages on account of his suspension for misconduct, when the pro- ceeding was had under the provisions of its by-laws and was affirmed on appeal taken by himself under the by-laws, and it, is immaterial whether the tacts upon which the deter- mination was predicated justified the suspension or not. 1 Where an organization, such as a chamber of commerce, act- ing on a void adjudication of expulsion, deprives a member of his rights as such, it commits a trespass upon him. and is liable ' Ludowiski v. Society, 29 Mo. App. 'Lavalle v. Societe, IT i: l. 680; 337. -M Ail. Rep. W7; Blumenthal v. 1 Society v. Bacher, 20 Pa. St 125; Chamber of Commerce, 7 ('in. L. People v. German Church, 58 N. T. Bull. 827. 103. * Peyre v. Society, 90 Cal. 240. 110 MEMBERSHIP. in damages for the trespass. It is not necessary for him to show that he was assaulted and put out of a meeting or ses- sion, or that in attempting to enter, he was violently laid hold on and kept out. It is sufficient to show that he was physic- ally kept out ; that he could not have gone in without bring- ing about a breach of the peace or an assault. He need not put the matter to a test. 1 The bringing of an action by a person who has been ille- gally expelled from an incorporated society, to recover dam- ages for deprivation of his rights and privileges, is a waiver of his right to a mandamus to restore him to membership. A member of an incorporated society was expelled, without any notice to him or knowledge on his part. After such expulsion he brought an action to recover damages for the loss of his rights and privileges as a member occasioned by such expul- sion, and in the action he recovered a verdict and judgment for $275. While this cause was pending in error in an appellate court, the member sought by mandamus to be restored to membership in the society. In considering the effect of the action for damages upon the application for the writ of man- damus, the court said : " The gravamen of this action is, that by the expulsion he has lost all the rights and privileges of membership. That being true, the satisfaction of his judg- ment is compensation for all he has lost, and nothing remains for which he can complain further. But without such judg- ment, if he brings his action for these causes, that action is based upon the theory that he has lost membership and all his rights, and that he can not be restored thereto ; otherwise he has no cause of action. If his rights are not gone, and gone irrevocably, his petition is not true when it says he has been deprived of those rights. In bringing such action, therefore, in order to maintain it he necessarily abandons all interest in the society." a § 51. Injunction to reinstate expelled member. — There are several cases in the books, in which expelled members have exhibited bills in equity against their societies complain- ing of their illegal expulsion, and praying an injunction to 1 Blumenthal v. Chamber of Com- 2 State v. Slavonska Lipa, 28 Oh. merce, 7 Cin. L. Bull. 327. But see St. 665. Innes v. Wylie, 1 Car. & Kir. 262. MEMBERSHIP. Ill restrain the society from interfering in any manner with the full enjoyment of their rights, privileges and franchises of membership. It is evident, however, that in these cases the members have mistaken their remedy. Injunction is a pre- ventive remedy. It comes between the complainant and the injury he fears or seeks to avoid. If the injury be already done, the writ can have no operation, for it can not be applied correctively so as to remove it, 1 Xor will such a bill for an injunction be aided by an allegation that a petition for man- damus has been tiled in a court of law, praying that the soci- ety show cause why a writ of mandamus should not be issued, requiring it to restore the complainant to all his rights, privi- leges and functions of membership. Resort may not be had to the writ of injunction, either directly or indirectly, to ob- tain affirmative relief. "Where a party is excluded from mem- bership in an incorporated society, the rightfulness of his expulsion must be tried at law, and, until his rights are thus settled, a court of equity will not interfere, by injunction, to restore him to his position, even though he may suffer a loss of profits which he might make through his membership be- fore the action at law can be determined. An injunction should not be awarded in doubtful cases. Its use is the exer- cise of a delicate power, which should not be encouraged by courts, except in clear and well defined cases falling within principles of equity jurisprudence, sanctioned by well adjudi- cated precedents. The injury which an expelled member of a board of trade or chamber of commerce may suffer in tin 1 loss of profits which he might make by reason of the privileges of membership, can ool be regarded assufficienl t<> justify a court of equity to interfere by injunction and place the expelled member in the full enjoyment of the rights and privileges of membership, without stopping to inquire whether the expul- sion was Legal or illegal.' Th< plaintiff, who had been expelled from the Board of Trade of the city of Chicago by its board of directors, brought suit in equity to obtain an injunction to re- strain said board from interfering with his access into the hall of the association, and with his carrying on his business 'Wangelin v. Gtoe,50 111.468; Me- v. Board of Trade, 80 Til. sr> : Baxter nard v. Hood. (5s 111. 122. v. Board of Trad., 88 111. HO. 'Wangelin v. Goe, supra; Fisher 112 MEMBERSHIP. therein. He alleged that two of the directors were not nat- uralized citizens of the United States; that two of them were prejudiced and unfair; that some did not hear the evidence, but read it after it had been written out; that the prosecuting witness was improperly sworn before a notary public, and that plaintiff was not guilty of the charges brought against him. The court held that such a proceeding was not proper, as it was an attempt to attack collaterally the judgment of ex- pulsion. 1 § 55. Reinstatement to membership in an incorporated society by courts of justice. — Where the charter of a society provides for an offense, directs the mode of proceeding and authorizes the society on conviction of a member to expel him, this expulsion, if the proceedings are not irregular, is conclu- sive, and can not be inquired into collaterally by mandamus or any other proceeding. The courts have jurisdiction to keep such tribunals in the line of order, and to prevent abuses, but they do not inquire into the merits of what has passed in rem adjudicatam in a regular course of proceeding. The society in such a case acts judicially, and its sentence is conclusive like that of any other judicial tribunal. This is nothing more than the application to the decrees of these societies, affecting their members, of the familiar principles which obtain in rela- tion to the validity and effect of judicial determinations of controversies between citizens in the courts. If the court has jurisdiction of the subject-matter and the parties, its judg- ment, however erroneous on the law and the facts, concludes the parties unless appealed from. When an expelled member resorts to a court of justice to compel the society to reinstate him, he does not appeal from the judgment of the society; courts of justice have no appellate jurisdiction in such cases. All that he can ask the court to decide is, whether or not the charge against him was sufficient under the powers of the society, and whether the necessary steps for his expulsion were regularly taken after notice and opportunity to be heard. The supervision which courts maintain over the right of ex- pulsion in corporate societies is derived from what is termed the visitorial power of courts. In this country, the visitorial power of correcting the abuses and irregularities of incorpo- 1 Pitcher v. Board of Trade, 121 111. 412; 13 N. East. Rep. 187. MEMBERSHIP. 113 rated societies is vested in the courts of general jurisdiction. The assent of the members to the provisions of the charter and by-laws is a fundamental requisite of membership, and where the right of expulsion for certain causes is conferred upon the incorporated society, it may be exercised in the man- ner and for the purposes prescribed in its laws. But while courts will not inquire into the merits of the decisions of in- corporated societies in expelling a member in the regular course of proceedings, yet, if the expulsion has been irregu- larly conducted, without due authority, sufficient cause or proper notice, the courts will interfere by mandamus to com- pel the restoration of the member to his corporate franchise. 1 It has, in one or two cases, been doubted whether membership in an incorporated society which is purely literary, social, scientific, benevolent or religious, and owns no property, is such a right as the court will protect, and whether the right of meeting the other members, and enjoying their companion- ship, is such a vested right as courts will take cognizance of. 2 But it is clearly settled, both upon principle and authority, that the franchise which is vested in each member of a corpo- ration is a vested right and privilege which the courts will not permit such societies to abuse or destroy. In this country the franchise is granted by the state, and it will be presumed in the courts of the state that its grant is of value to its citizens. Tims, in one case it was held that the place of trustee in an eleemosynary corporation, though no emoluments are attached to it, is yet a franchise of such a nature that a person improp- erly dispossessed of it is entitled to restoration, and a peremp- tory mandamus was awarded. 3 Such a franchise is an incor- poreal hereditament. All immunities and franchises are 'People v. Mechanics' Aid Society wealth, 52 Pa. St. V2~t\ Smiths 32 Mich. 86; State v. Chamber of Society v. Vandyke, 2 Whart. (Pa.) Commerce, 20 Wis. 63; Common- 308. wealth v. German Society, 15 Pa. St. 'People c.r rd. Hire v. Board of 251; People v. Medical Society, Ml Trade, 80 111. 134; Waring v. Medical Barb. 570; Commonwealth v. Guar- Society, 8 Am. L. Reg. ."»:!:'». dians of Poor, 6 Ser. & K. Hi!)-. 'Fuller v. Trustees, 6 Conn. 532; Commonwealth v. Pa. Beneficial So- Bee state v. Society, 88 Ga. 608; ciety, 2 Ser. & R. 141; Common- Manning v. San Antonio Club, 63 wealth v. St. Patrick's Ben. Soc, 3 Texas, 166, Binney 448; Society v. Common- 8 114: MEMBERSHIP. deemed valuable in law. The owners have a legal estate and property in them, and legal remedies to support and recover them, in case of any injury to, or obstruction of them. A member has a right to insist that proceedings for his ex- pulsion were not conducted in substantial compliance with the rules of the society governing such proceedings. Voting on the question of his expulsion by casting white and black balls, when the rules prescribe that votes shall be given in writing is an irregularity which will invalidate the proceedings. 1 In the absence of any fixed rules of procedure in the constitution and by-laws of a society, the question is not whether the pro- ceedings for the hearing and expulsion of a member might not have been conducted differently, and more in conformity with those which obtain in courts, under statutes and fixed rules, but whether or not the principles of natural justice have been violated in withholding from him a fair and impartial hearing, before the passage of the resolution for his expulsion. So long as he has had notice, and an opportunity to be fully heard, he can have no reasonable ground of complaint on account of this or that omitted step or form, on the part cf the tribunal thus acting quasi-judiciallv. 2 Courts will take cognizance of the right of a tribunal to proceed with the trial of a member, but not of matters which relate to the mode of pro- cedure. 3 They will, therefore, take no cognizance of a refusal of the tribunal to issue a commission to take testimony, of its refusal to grant a new trial or of the alleged misconduct of a member of the tribunal. These are matters which relate to the mode of proceeding, and not to the right to proceed. And for the same reason, they will not consider the fact that the witnesses were not sworn when examined by the tribunal, where the contract does not expressly provide that they shall be sworn. 4 A member of a society was charged with being guilty of fraud and improper practices. He appeared before the governing committee which tried him, made statements and explanations, cross-examined the witnesses who were pro- duced, and read his defense at great length. At a subsequent 1 Hoeffner v. Grand Lodge, 41 Mo. 486; Chase v. Cheney, 58 111. 509. App. 359. Connelly v. Association, 58 Conn. 2 Hutchinson v. Lawrence, 67 552; 20 Atl. Rep. 671. How. Pr. 38. 4 Walker v. Wainwright, sujira, 8 Walker v. Wainwright, 16 Barb. State v. Verein, 3 Cin. Law Cull. 295. MEMBERSHIP. 115 meeting, in his absence, two accusing witnesses were examined by the committee. The accused member afterward demanded that these witnesses be recalled to be cross-examined by him, but the committee refused to recall them, and expelled him. The court held that the action of the committee at the subsequent meeting was not just or fair to the accused in either a legal or equitable sense, and that it was an irregu- larity of procedure of which he had a right to complain. 1 A benevolent order contained three grades of member- ship, to the highest of which, the supreme council, peti- tioner belonged. The laws of the order provided for the expulsion of a member, and gave the method of procedure in expelling members of the two subordinate councils only. The supreme council was vested with original jurisdiction in cases of its own members, and had appellate jurisdiction as to matters emanating from the two lower councils. Petitioner A\as expelled by the supreme council, and petitioned for a mandamus to compel his reinstatement, on the ground that the procedure followed in expelling him did not conform to the method provided by the laws of the society. It was held that the mode of procedure provided in the case of the expul- sion of members of the two lower councils did not apply to proceedings by the supreme council to expel one of its mem- bers, and that that body might adopt any method of trial which it might choose, subject to the implied limitation that it must he fair. 5 The judgment of a proper tribunal of a society againsl ;i member on charges which by its constitution and by-laws it was authorized to investigate and act upon will not be exam- ined into by a court on the weight or the competency of the evidence introduced to snst;iin the charges. 1 The exclusion of a competent witness offered by the accused, on the ground that he is incompetent, is a mistake of judgment, and not an irregularity of procedure. If. od appeal to the higher tribu- 1 Hutchinson v. Lawrence, 67 How, 144 Mass. 484; 11 X. Bast. Rep. 691; Pr. 47. Society v. Commonwealth. 53 Pa. St. • Spillman v. Supreme Council, 167 125; Gray v. Society. L87 Ma—. :;j:t. Mass. 128;, 81 N. Bast. Rep. 776;cit- 5 Blumenthal v. Chamber of Com- ing Grosvenor v. Society, IIS Mass. mercc. 7 ('in. Law Bull. ;'>'-'?: Con- 78; Karcher v. Supreme Lodge. 137 nelly v. Association, 58 Conn. 552; 20 Mass. 368; Burbank v. Association. Atl. Rep. 671. 116 MEMBERSHIP. rials of the lodge, the expelled memher omits to com- plain of this mistake, he waives any right to have the error inquired into in a court or equity. 1 But it is cer- tainly true, as urged in the dissenting opinion of Justices Green and Trunkey, in the case just cited, that where it is evident from the whole facts surrounding the case that the exclusion of the witness took place, not as a mis- take of judgment, but as a part of a plan to exclude the mem- ber from benefits to which he was justly entitled, and in bad faith toward the accused, then the court should reinstate the expelled member. While every presumption is in favor of the fairness of proceedings in expulsion, still where a member's judges, jurors, accusers and debtors, are one and the same — namely, the society to which he belongs, mistakes of judgment upon the trial must not be so gross and inexcusable as to lead to the conclusion that they were intentional. If they are, the member should be reinstated. When a member charged with violating its rules appears before the tribunals of a society and submits his case without objecting to the mode of its proceeding, all irregularities of procedure are waived. 8 Where, under the constitution and by-laws of an unincorporated mutual benefit society, charges are preferred against a mem- ber who is apparently and actually of unsound mind, his failure to appear and answer is not excused by his insanit}-, and the society may regularly proceed, according to its laws, to convict him of neglect to appear, and punish him by expul- sion and the loss of all rights in the society. In considering this question the court said : " It is claimed that Pfeiffer, be- ing apparently and actually of unsound mind, could not be duly summoned or convicted of neglect to appear, and punished by expulsion and the loss of all rights in the society. There is no force in this point. A person who has even been adjudged a lunatic, and of whom a committee, both of person and estate, has been appointed, may be sued at law, and the judgment re- covered against him is not void. It would be a contempt of the court which appointed the committee to sue without leave, but the judgment is valid. There was no reason why the lodge should not proceed against a person not adjudged a lu- 1 Sperry's Appeal, 116 Pa. St. 391; 'Pitcher v. Board of Trade, 121 111. 9 Atl. Rep. 478. 412; 13 N. East. Rep. 187. MP2MBEESHIP. 117 natic. He could have been defended and his rights protected. If they were not, the lodge might regularly proceed according to its laws. His alleged insanity did not excuse his failure to appear." ' The expulsion of a member of a mutual benefit so- ciety, when the tribunal had no jurisdiction for want of proper service of a notice and a copy of the charges against him, and while he is insane and incapable of giving jurisdiction by consent, is void, and is no bar to a suit by the beneficiary of a certificate of insurance, issued by it. 3 Where an insane mem- ber appears before a tribunal of a society trying him, and ad- mits the truth of the matters charged against him, both his appearance and his admissions are void. One who voluntarily appears to an action must be able to intelligently comprehend the meaning of his act, and an admission can not bind one, unless he has the mental capacity to understand its force and effect. Appearance and admission involve the element of consent; and consent involves an act of reason. When one is bereft of rea- son, he can give no consent to proceedings against him. 3 § 56. Proper remedy for reinstatement of expelled mem- ber. — In case of the illegal disfranchisement of a member of an incorporated society, mandamus is the proper remedy for his restoration. This is the settled modern rule/ The dis- charge of a corporate duty is treated as an office or function, and the corporation as a functionary. A corporate society having been created, invested with certain powers, and charged with certain duties to be performed for the benefit of its mem- bers and the public, is not a private individual, in the ordinary sense of the word, so that an action which would l>e a sufficient remedy between individuals to enforce private rights, would 'Pfeiffer v. Weishaupt, 13 Daly, l Medical Society v. Weatherly, 75 161. Ala. 248; People v. Benevolent So- 2 Hoeffnt>rv. Grand Lodge, 41 Mo. ciety, 3 Hun, 861; state v. Georgia App. 859; Supreme Lodge v. Zulke Medical Society, 88 Ga, 608; People 139 111. 398; 21 N. East. Rep. 789] v. Medical Society, 34 Barb. 570; Where by statute an insane person An.^ell A: Ames on Corp.. Sirs. 704, who is under guardianship musl be 705,698; state v. Chamber of Corn- sued by service on his guardian, and merce, 80 Wis. 68; People v. Supreme must defend by guardian, a judg- Council, ION. V. Supp. 24*: Lysaght ment recovered against him in any v. Association, •">:, Mo. App. .'>:;*. other manner is void. 'Supreme Lodge v. Zuhlke, 129 111. 298; 21 N. East. Rep. 789. 118 MEMBERSHIP. be a sufficient remedy against it. In one case it "was said: "An action to enforce the right could not be maintained against the corporation, because performance of a corporate function is not a duty to be demanded by action; and unless recourse could be had to the functionary in the first instance, the relator might have a cause for redress without a remedy." A member of an incorporated society, whose rights are with- held or violated by the society, and who is without other remedy, is entitled to the writ of mandamus. When a mem- ber has been expelled from a society, and seeks to be restored to membership, it is necessary for him to show, both in plead- ing and in evidence, that he was at some time a member of the society. If he shows that the society at some time recognized him as a member, this is sufficient to cast upon the society the burden of showing that it legally expelled him. In proceed- ings for reinstatement of a member, it as a question of fact, whether any, and, if any, what proceedings in expulsion took place in the society, but whether the expulsion was in accord- ance with the constitution and by-laws of the society is a ques- tion of law for the court to determine. 1 Where a society is proceeded against by a name not inappropriate as a corporate designation, and the application is resisted by it in that name, and no denial of its corporate character is contained in the pa- pers, it will be presumed that it is in fact a corporation, and that the use of the writ of mandamus is proper. 2 §57. Mandamus a discretionary writ. — The issuing of a peremptory writ of mandmnus is discretionary with the court. By this it is not meant that the court may arbitrarily deny the writ to a person seeking restoration to membership in an incorporated society, but it is meant that a court, in the exer- cise of a sound discretion, may deny the writ to a person tech- nically entitled to it, where it is apparent from the evidence in the case that the person is not entitled in good conscience to the protection of the court, or that reinstatement to member- ship would be useless to such person. Where a member was twice notified to appear before a tribunal of the society to answer charges, and he appeared twice, and broke up the 1 Osceola Tribe v. Rost, 15 Md. 296; 2 People v. Benevolent Society, C Hutchinson v. Lawrence, 67 How. Hun 361. Pr. 38. MEMBEKSIIIP. 119 meetings, the court refused to reinstate him, where it appeared that he had been expelled at a third meeting without notice to him. 1 The court will not order a peremptory writ to issue, restoring a relator to membership in an incorporated society, where it is plain from the testimony that the members thereof may at once expel him in the manner pointed out and agreed upon in the laws of the society. 2 The power of expulsion, under the rules of a society, existed only in case of a member wrongfully reporting himself sick. A member was expelled on charges of disorderly conduct, abuse of family, and calling the chairman of the committee on sickness a liar. The com- mittee to whom the charges were referred examined witnesses to show that the relator was drunk, instead of sick, while he was drawing benefits, and their report treated this conduct as coining within the charge. The statements of the witnesses were annexed to the charges, giving point to, and explaining them, and the relator had notice and opportunity to be heard. The minutes of the meeting recited that he was accused of having wrongfully drawn benefits. Upon the trial witnesses were heard in presence of the accused, and he had opportunity to cross-examine them. Upon these facts, the court said : " Irregularity not sufficient to deprive the relator of the full advantage of his opportunity to defend would scarcely war- rant a court, in the exercise of its discretion, to interfere by a peremptory writ, since if the objection be simply to the irreg- ularity of the expulsion, a restoration to membership would Leave the relator liable to be expelled by a subsequent proceed- ing."' The writ will issue only to do substantial justice, vin- dicate substantial right and prevent substantial wrong, and where the relator admits that he committed a wrong for which he might be lawfully expelled, the court will not order him to be restored, because he was not properly notified of the charges against him.* § 58. Delay in applying for restoration to membership. — A member who has been illegally expelled from a society should apply for reinstatement, at once, if at all. Seeming 1 State v. Portuguese Society, 15 La. 3 State ex rel. Dindorf v. Alge- Ann. 73. meiner Deutcher Baecker Gewerbe 2 State ex rel. Becker v. Society, 5 Verein, 3 Cin. Law Bull. 295. Cin. Law Bull. 124; State v. Society, * State v. Society, supra. 42 Mo. App. 485. 120 MEMBERSHIP. acquiescence in his expulsion is of itself unfavorable to his claim for restoration; for it is reasonable to suppose that he will at once move in the direction of recovering his lost rights and privileges, if he entertains a sense of injustice and wrong when he is expelled. Where a member for nineteen years after he was dropped from the roll of members paid no dues, took no interest in the affairs of the society, and attended none of its meetings, the court refused to inquire into the legality of his expulsion, and dismissed his application for restoration to membership. Even arbitrary and illegal expulsion may be accepted by a member, and where he neglects to prosecute his right to restoration to membership for an unreasonable length of time, the court may properly refuse to interfere in his be- half. The writ of mandamus is discretionary, and may prop- erly be denied because of such unreasonable lapse of time. 1 In one case 2 the fact that the member had waited for six years to apply for restoration was commented upon unfavorably, though the case was decided upon another point. In one case 3 the delay in making application for restoration, and the non-payment of dues to the society, were accounted for by the absence of the member in the army during the war of the re- bellion. In another case 4 the writ of mandamus was denied, and, in giving the reasons for such denial, the court said : " Another consideration in the case was that the expulsion complained of occurred in 1876, and the minutes showed that when he was expelled the relator left the society, saying it was 'all right;' and it would seem, from the fact of his delaying so long (about two years) to make application for this writ, that he continued for a considerable space of time to think it was all right." A notice to one who has been suspended from membership that he may be reinstated upon cer- tain conditions, must be acted upon within a reasonable time, and it is a question for the jury to determine under all the cir- cumstances of the case whether the application for reinstate- ment was made without unnecessary delay. Even in the case of a void expulsion or suspension, the expelled or suspended 1 Bostwick v. Fire Department, 49 3 Pulford v. Fire Department, 31 Mich. 513; 14 N. W. Rep. 501; see Mich. 458. g 294. 4 State v. Verein, 3 Cin. Law Bull. ' 2 Bachman v. Arbeiter Bund, 64 295. How. Pr. 442. MEMBEKSHIP. 121 member is under a duty to the other members of a mutual benefit society to affirm or disaffirm the act of expulsion or suspension within a reasonable time and in some distinct and appropriate manner under the circumstances. "Where he takes no steps of any kind to secure his reinstatement, permits dues which had accrued and were payable prior to the date of his ex- pulsion to remain unpaid, makes no tender of such dues or of any subsequently accruing and pays no subsequent assessments although notified of them, he must be taken to have acquiesced in and consented to the sentence of expulsion or suspension. 1 'Glardon v. Supreme Lodge, 50 Mo. App. 45; see § 294. CHAPTER IV. MEMBERSHIP.— PAET III. § 59. Return to writ of mandamus. 60. Charges preferred against a member. 61. Notice of charges, notice of meeting. 62. When notice need not be given. 63. Sufficiency of notice. 64. Service and proof of notice. 65. Waiver of notice. 66. Answering charges immediately when presented. 67. Tribunal of society expelling a member. 68. Good faith in proceedings in expulsion. 69. Decree of court reinstating member must be presented to the society. § 59. Return to writ of mandamus. — The return to a mandamus to reinstate a member of an incorporated so- ciety must distinctly set forth all the facts relating to the expulsion, in order that the court may judge of its sufficiency, both as to the cause, and the form of the proceedings. It must show the cause of the expulsion, notice to the person expelled, such as will give him an opportunity to be heard, and such as conforms to the provisions on the subject in the contract of membership, the assembly of a proper tribunal, the proceedings before them, a conviction of the offense, and an actual expulsion by the society. 1 These requirements are in harmony with the well settled principle, that in all cases of special and limited authority, especially when it is penal in character and to be exercised in derogation of the common law, great strictness and jealousy is to be exercised, not only in construing the law, but in canvassing the proceedings. Proceedings to disfranchise a member must be strictly con- strued, for a removal being an act of an odious nature, all clauses concerning it must receive a strict interpretation. 2 1 Commonwealth v. Society, 15 Pa. 2 Rex v. Sutton, 10 Mod. 76. St. 251. (122) MEMBERSHIP. 123 Where the charter expressly requires that' charges against a member shall be proved by two or more credible witnesses, the return must state specifically that the charges were either proved on oath by two such witnesses, or that they were con- fessed. 1 And where the charter expressly requires that a charge against a member shall be made by certain officers of the society, and be signed by them, the return must show that the charge was so made and signed. 2 The facts must be set forth distinctly and certainly, not argumentatively, inferen- tially, or evasively. A return is insufficient, which states that the relator was, according to the constitution and by-laws of the society, " tried and convicted of the charges," without showing that the society took proofs which were deemed to be sufficient evidence of the truth of the charges. 3 A return is insufficient, which states merely that the expelled member was present when the charge was made, and did not deny it; it should appear that the charge was proved. 4 § 60. Return to the writ— Charges preferred against a member of an incorporated society. — Where the constitution of an incorporated voluntary society makes " slander against the society " by a member an offense for which he may be fined or expelled, it will be held that an offense something analogous to the common law offense of slander, as applicable to indi- viduals, is intended; and, in a proceeding to enforce such a pro- vision, unless the words charged to be slanderous are set forth, it can not be known whether there is any jurisdiction to.make the inquiry." If the return to the mandamus states in general terms that the member was expelled for violation of duty, without specifying the charges on which he was convicted, it is bad. 8 [Jnder articles of association providing for expelling members "guilty of improper conduct calculated to bring the society into disrepute," charges were preferred against a mem- ber: first, of receiving of an applicant for admission his pro- posed initiation fee, and failing to pay it over to the society, 1 Ang. & A. on Corp., Ch. 29 Sec. * Society v. Commonwealth, mprq* 8; King v. Mayor, etc., 5 Mod. 25; 4 King v. Faversham, 8 T. K. 366; King v. Faversham, 8 T. R. 856; People v. Society, 65 Barb. (X. Y.) Will on Corp., pt. 2, Sec. 840, pt. 1, 357. Sec. 702. 6 Roehler v. Society, 82 Mich. 86. 8 Society v. Commonwealth, 52 Pa. 'Commonwealth v. Guardians 61 St. 125. the Poor, C Ser. & K. (1'a.i 169. 1 2-i MEMBEKSHIP. or to return it to the applicant, who had complained thereof to various persons; and, second, of having been intrusted by the secretary with the keys of the society chest to obtain a receipt book therefrom, and of having, at the same time, and without leave, taken from such chest the original roll of the society, and refusing to return it. It was held that the above pro- vision covered cases of misconduct injurious to the society, and damaging to the reputation of the person charged, and that the charges were sufficient. 1 Where the articles of incorpora- tion authorize the expulsion of a member for being concerned in scandalous or improper proceedings, which may injure the rep- utation of the society, it is a good cause of expulsion, that a member, claiming relief from the society, had altered a phy- sician's bill from four dollars to forty, and had presented that bill to the society as evidence of his claim. 2 In a certain case the charges were, first, indecorous and improper expressions respecting the board of trustees, in charging the members of the board with being governed in their official acts by a spirit of sycophancy; secondly, neglect of official duty, in not per- forming his duty as one of a committee of the board of trustees in relation to one of its concerns. The court held that though the charges, if true, subjected the accused to the censure of all honorable men, they were insufficient as causes of expulsion from the society, under its inherent power of expulsion. 3 The charge that a member of an incorporated society had " assisted as president of the society in defrauding the society out of the sum of fifty cents," without stating in what manner he had assisted in defrauding the society, under what circumstances of time and place, and without even stating that he had de- signedly assisted in the alleged fraud, is too vague and general to be sufficient. And the charge that he had been guilty of " defaming and injuring the same in public taverns," is equally vague and indefinite. 4 In State v. Georgia Medical Society, 6 the offense charged consisted in the fact that the relator became one of the sure- ties on the official bond of a colored citizen of his county, who 1 Burton v. Society, 28 Mich. 261. 4 Commonwealth v. Society, 15 Pa. 2 Commonwealth v. Society, 5 Bin- St. 251; Mulroy v. Supreme Lodge, ney 486. 28 Mo. App. 463. 3 Fuller v. Trustees, 6 Conn. 532. 5 38 Ga. 608. MEMBERSHIP. 125 had been elected clerk of the superior court of the county, by a majority of the legal votes cast at the election for that office, and in the further fact that he became surety on the bonds of certain other colored citizens who were charged with the of- fense of riot, for their appearance at court to answer the charge as the law directs. Tin- cha rge was " ungentlemanly conduct,'' contrary to the by-laws passed under authority of the charter. The court held the offense, as charged, insufficient, and said: '• lie was expelled for doing that which the law of this state not only authorizes, but encourages. The very fact that the law requires the clerk of the superior court to give bond and security for the faithful discharge of his duties, is sufficient to justify any citizen of the county in becoming one of his sure- tics, and protect him, in contemplation of law, from the imputa- tion of having forfeited his position as a gentleman by so doing." AVhrre the rules of an incorporated society forbid a member to commence a suit at law against another member ''except the case be of such a nature as to require and justify a process at law," it is not sufficient, in a return to a mandamus, to merely stale the rule, and aver that the expelled member had commenced a suit at law. It should also be averred that the case was not of such a nature as to require and justify a process at law. 1 The charter declared the objects of an association to be, among other things, "to adjust con- troversies between its members, and to establish just and equitable principles in the cotton trade." and gave it power to make all proper, and needful by-laws, not contrary to the constitution and laws of the State of New Fork, or of the United States, and "to admit new members, and expel any member in such manner as may be provided by the by-laws." The by-laws provided for expulsion for improper conduct, but did not state what should be considered as such. There was no express <>r implied authority conferred upon the association by its charter or by-laws to try the title to a seat in the exchange, and to determine who was the owner of a right of membership in dispute. A member asserted Ins ownership of ;i right to a seat which had formerly belonged to an expelled member, and the association claimed thai the right of mem- bership had been forfeited, and was subject to sale by it. A 1 Green v. Society, 1 Ser. & R. (Pa.) 234. 126 MEMBERSHIP. committee charged with the investigation of this controversy decided adversely to the member's claim of ownership. He then commenced an action against the association, and obtained an injunction restraining it from selling the right of membership. For this act he was arraigned and expelled. The court held that he was not guilty of improper conduct warranting his expulsion for resorting to the courts to prevent the association from disposing of such a right of membership ; that he was not acting in antagonism to the corporate power of "adjusting controversies between its members" or of "es- tablishing just and equitable principles in the cotton trade," but was asserting a right secured to him by the fundamental law of the land. 1 Where the rules of a board of brokers pro- vided that if any member should refuse to comply with his stock contracts, he should be expelled, it was held not to be a sufficient charge that a member had refused to comply with a contract for the sale of oil lands. 2 It is not a proper cause for expulsion that prior to the admission of a person to member- ship in a society, he conducted himself in such a manner, and performed such acts, as would justify the expulsion of a mem- ber for breach of his corporate duty. Persons who are not members of a society are not bound to observe its laws, and can not be said to break its laws by any of their acts. Where a physician, before he became a member of a medical society, advertised his ability to effect cures in certain diseases, it was held that, as he was not amenable to the laws of the society at the time he procured these, advertisements to be published, the society had no jurisdiction to try him for the offense. 3 A member of a fire department failed to pay his dues to the cor- poration for a long period of time, and the society passed a by-law providing that any one who had been in arrears for dues for a certain length of time should be expelled. The member was at once expelled, but the court held the charge insufficient, and the by-law void, as being in the nature of an ex post facto law. 4 1 People v. N. Y. Cotton Exchange, Y. 188; In re Newell Smith, 10 Wend. 8 Hun 216. 447. 2 Leech v. Harris, 2 Brewster (Pa.) 4 Pulford v. Fire Department, 31 571. Mich. 458. 3 People v. Medical Society, 32 N. MEMBEESHIP. 127 A return showed that the offense charged against the mem- ber was a breach of corporate duty in " illegally drawing aid as granted in case of sickness," and the minutes annexed to the return and made a part of it established the fact that the only finding against the member was " that the relator on June 16 was training his dog to fetch stones out of the water; that in the afternoon of that day he Avent to the Rising Sun. and appeared in the evening with the Schiller singing society, in corpore, at a wedding." In deciding that- the return was insufficient, the court said : " Give to this finding a liberal construction; does it sustain the charge, or show a suffi- cient cause for disfranchisement ? * * We think not. The relator may have been a very sick man, and yet occupied and enjoyed himself as above specified. If he has feigned sickness, or deceitfully drawn relief, then he has committed a wrong against the fundamental objects of the corporation, an offense against his duty as a corporator. The fact, however, must be stated as found after a formal investigation, and must not rest on an inference alone. The charge here is a grave one, but the finding is so indefinite as to render it impossible to say that the finding sustains the charge." ' § 61. Return to the writ — Notice of charges — Opportu- nity to be heard — Notice of meeting. — It may be stated, as the general rule, that a society, the members of which become entitled to privileges or rights of property therein, may not exercise its power of expulsion without notice to the member, or without giving him an opportunity to be heard. It is a fundamental principle of law, recognized in every court of jus- tice, that no man shall be condemned or prejudiced in his rights, without an opportunity to be heard. A society, or se- lect number of its members, to whom authority is given in the premises, is a court when passing on the rights of its mem- bers. Audi alteram 'partem is the first principle in the admin- istration of justice, and it is against natural justice to proceed against one's rights without giving him an opportunity to be heard in defense of them." It is competent for the mem- 1 Schweiger v. Society, 13 Phila. Muck. 62 How. Pr. (N. Y.)69; Loubat 113. v. LeRoy, 40 Hun (N. Y.) 543; Su- 2 People v. Benevolent Society, 3 preme Lodge v. Zuhlke, I'.'.i 111. 298; Hun 361; Delacyv. Neuse River Nav. 31N. East. Rep. 789; O'Hara v. Stack, Co., 1 Hawks (11 IT. C.) 274; Fritz v. 90 Pa. St. 477; Willis v. Cluld, 13 128 MEMBERSHIP. bers of a society organized for the purpose of mutual insur- ance, to agree that the non-payment of an assessment levied by it, within a stipulated period of time after notice of the as- sessment, shall ipso facto operate as an expulsion of a delin- quent member from the society. Such an expulsion is in real- ity a forfeiture of rights for a cause over which the member has full control, and for a cause which imputes to the member no disgraceful conduct.' But it is a well established rule of law that no man shall be condemned to suffer the consequences resulting from alleged misconduct, until he has been notified of the accusation, and been given an opportunity to make his defense. This rule is not confined to the conduct of strictly legal tribunals, but is applicable to every tribunal, or body of persons invested with authority to adjudicate upon matters in- volving civil consequences to individuals. A by-law providing that a member may be expelled for any alleged misconduct, without notice to him, and without affording him an oppor- tunity to be heard, is in conflict with the law of the land, and is void. 2 In Manning v. San Antonio club, 3 it was held that, in the absence of a by-law of an incorporated club, requiring the member to be notified of the charges against him and the meeting at which he was to be tried, the action of the direct- ors in expelling a member without notice to him, would not be annulled by the court. Upon this subject the court said : "It is true, that in most, perhaps all, of the cases which occur in the books, notice to the party is treated as necessary to the validity of the proceedings. But it is also true that most, or all, of these cases involve rights of such a character as are recognized and protected by the law of the land, or else the articles of association provide for notice to the party and some method of trial." In basing the decision in this case upon this opinion, the court seems to have forgotten that the first point decided in the case was that membership in an incorporated society is a valuable right which the court will protect, re- gardless of the question of property. The bv-laws of a mutual benefit society provided that each ap- Beav. 117; Hutchinson v. Lawrence, 190; Fritz v. Muck, 62 How. Pr. (N. 67 How. Pr. 47. Y.) 69; Wachtel v. Society, 84 N. Y. 1 See § 285 et seq. 28; compare dictum in People v. So- 4 Supreme Lodge v. Zuhlke, sxipra; ciety, 24 How. Pr. on p. 221. Wood v. Woad et al., L. R., 9 Exch. 3 63 Texas 166. MEIFBEESHIP. 129 plicant for membership should be a member in good standing of a lodge of Odd Fellows, and that, if he were dropped or expelled from his lodge, his membership should cease, and the society should not be bound to his beneficiary. The by-laws of the Odd Fellows lodjje to which a member of such mutual benefit society belonged, provided that notice should be issued by the secretary to members in arrears for dues, and that if the dues were not paid within four weeks from the date of notice, the delinquent should be dropped. It was held that it was not sufficient to cause the forfeiture of his rights in the mutual benefit society that the books of his lodge contained an entry that he had been dropped, in the absense of the evidence that he had received the required notice.. 1 A return to a manda- m us to restore an expelled member, which states that the ex- pelled member was heard in his defense, is sufficient, without stating that he was summoned to appear. 2 Although the rules of the society do not provide that notice of the charges against a member, and of the meeting at which he will be tried, shall be given to him, he should have such notice and be given an opportunity to be heard in his own defense. .^ 62. Exceptions to the rule that notice must he given. — AVhere a member of the society has been tried in a court of the land, found and adjudged guilty of an infamous crime, and the judgment of the court has been sustained in the highest court of appeals in the state, it is apprehended that an expul- sion from the society, without notice, or perferment of specific charges, would be valid and binding. In such a case it is to be presumed that the member had a fair and impartial trial in court, and the judgment of the court being conclusive against the memb i r as to his guilt, may well be accepted by the so- ciety as a sumei\<-n\ of settlement of a Baptist chapel, it was provided that the minister should be liable to be removed by the direction of the church, declared at one meeting, and confirmed at a second meeting; that all direc- tions of the church should he declared by a majority of com- municants present at a meeting Of which notice should have been.given in the chapel during divine Bervioe on Sunday morning at least four days previously; also that whenever the church should have to consider the appointment ordis- ■Marshv. Huron College, 27 Grant's 'Cannon v. Toronto Corn Ex- Chan. Rep'ts (Upper Canada) 605. change, 27 Grant's Chan. Rep'ts (Up- ' Labouchere v. Wharncliffe,L. R., per Canada) 28. 13 Ch. Div. 346. 132 MEMBERSHIP. missal of a minister, the notice should expressly state the object of such meeting, and each of the directions to be declared at any such meeting should be reconsidered at a second meet- ing to be convened by public notice to be given in manner aforesaid, expressly stating the object thereof. On Sunday, the 18th of October, a notice was read in the chapel to the effect that a meeting would be held on the following Saturday " for the purpose of bringing charges against and considering the dismissal of " the then minister. On the 21th of October the meeting was held and a resolution was passed that, in con- sequence of certain offenses alleged to have been committed by the minister, " he is not a fit and proper person to occupy the position of pastor; and that his office as pastor cease forth- with." On Sunday, the 25th of October, a notice was read in the chapel to the effect that a meeting would be held on the following Saturday " for the purpose of confirming and ratifying " the resolutions passed at the meeting of the 21th ; and on the 31st of October the meeting was held, and a reso- lution passed that the minutes of the meeting of the 21th be " passed, confirmed and ratified." It was held that the notice of the 25th of October was invalid in law, because it did not specify the resolutions, of the intended confirmation of which it gave notice; and hence that the res- olution of the 31st of October, and the dismissal of the min- ister, purported to have been thereby effected, were also in- valid. 1 Where, by the laws of the society, it is necessary that notice shall be given to the society of the object of the pro- posed meeting, the proceedings of a meeting expelling a mem- ber, held pursuant to a notice which omitted to state the object of the meeting, are void under the positive provisions of its laws, because of such omission. 8 Where the by-laws of a society provide for special meetings of its board of directors on notice in writing to each director, and authorize the expul- sion of a member at a special meeting, the board has no juris- diction to expel a member at a special meeting of which one of the directors did not receive written notice, and at which he was not present. One director may be able to influence the minds of several others as to the propriety of the contem- plated action of the board, and the accused member has a 1 Dean v. Bennett, L. R., 9 Eq. 625. * Weber v. Zimmerman, 22 Md. 156. MEMBERSHIP. 3 33 right to have the notice given to each one, so that he may have the benefit of the influence of any one of them in their deliberations.' Where notice of a special meeting of the board is required to be given to each director, and no provision is made as to the manner of service, the service must be personal, as re- quired at common law. 1 Independent of the positive provisions of the laws of a society, in order properly to exercise the right of expulsion of a cor- porator, notice must be given to all the members of the tribunal before which he is to be tried, that it is intended to consider the question of removing the particular person. "Where the power of expulsion is in the society at large, notice must be given to all the members of the society; and when the power is in a select body, each member of such body must be notified. 3 In giving notice of a meeting, it is not, generally, necessary to state what business is to be transacted, when it relates only to the ordinary affairs of the corporation; but when it is for the purpose of expelling a member, that fact should be stated; for members who might think that their attendance was unneces- sary for the usual routine of business, will, perhaps, feel it their duty to attend a matter involving the rights of a fellow member. The notice should be given in the manner pre- scribed by the charter or by-laws, or, in the absence of any such provisions, by personal notice to the members of the tribunal. When it is intended to expel a member, it is, in general, absolutely necessary, not only that he should be sum- moned generally to attend, but that he should also be notili<t' 27:'.. its contents. Supreme Lodge v. 8 Jonesv. Sisson,6Gray 288; York Johnson, 7s ind. 110. Co. Mut. v. Knight, 18 Mr. 75; Will- 8 Blumenthal v. Chamber of Com- iams v. German Mutual. 68 111. :'>*7. merce, 7 Cin. Law Bull. :'>'J7. 4 People v. Hoboken Turtle Club, 'Commonwealth v. Beneficial In- 14 N. Y. S. 7G. stitution, 2 Ser. & R. (Pa.) 141. 136 MEMBERSHIP. fends himself, or answers or confesses the charge against him, he thereby waives his right to notice. In Downing v. St. Columba's Society, 1 it is said : " It has been decided that though a member attends, and enters upon his defense, he does not waive his right to a notice of the charges." The reason suggested for such a rule is, that if a member be not apprised of the charges, he will have no opportunity to bring witnesses in his behalf. It is undoubtedly true that, if a mem- ber appears at a meeting where charges against him are taken up for hearing, and declares that he has had no notice of the charges, and that he is unwilling to proceed with the investi- gation, he does not waive his right to a notice of the charges by entering upon his defense. By his protest he saves his right to question the jurisdiction of the society over his per- son. But if he, without qualification, submits himself to the jurisdiction of the society, he undoubtedly waives his right to notice. The authorities cited by the court in Downing v. St. Columba's Society, suj)ra, do not sustain the proposition therein laid down. They are to this effect : Where the contract of membership provides that, when charges are preferred against a member, notice of the meeting at which they shall be considered shall be given in a certain manner to the mem- bers of the society, the fact that the accused member attends a meeting of which proper notice has not been given, and en- ters upon his defense before the society, does not preclude him from afterward filing a bill impeaching the proceedings at that meeting as irregular and invalid for want of proper notice. As the society, in proceedings of expulsion, acts as a court of limited and special jurisdiction, it is necessary, in or- der that it may obtain jurisdiction of the subject-matter, that all the steps required, under the contract of membership, be taken. By an appearance at the investigation, the accused member neither confers jurisdiction of the subject-matter upon the society nor admits such jurisdiction to be in it. The so- ciety must, by its own acts, in accordance with the contract of membership, acquire jurisdiction of the subject-matter. But it may acquire jurisdiction of his person by serving the re- quired notice upon him, or it may acquire it by the consent and act of the accused member, in submitting himself to its jurisdiction. 1 10 Daly (N. Y.) 262. MEMBERSHIP. 137 "Where the by-laws provide that the accused shall be served with a copy of the charges made against him, he may waive such service by submitting himself to the jurisdiction of the tribunal. This a party may do before any tribunal having jurisdiction of the subject-matter involved. But where the accused, in answer to a summons to attend a meeting on a certain day to answer why he should not be expelled, appeared and denied the jurisdiction, because no copy of the charges had been served on him, and because the member making the charges did not appear personally against him, as required by the by-laws, it was held that he had not submitted himself to the jurisdiction of the tribunal for the purposes of the pro- ceeding. 1 "Where a member, against whom charges have been made, voluntarily attends the meeting at which the charges are heard, and defends himself on the merits, he thereby waives the requirement of the by-laws that he should be served with a certain notice and a copy of the charges, and he can not raise the point after an order of expulsion has been entered against him. 2 ^ 66. Answering charges at same meeting at which they are presented. — Sergeant "Whitaker's case 3 is sometimes quoted as authority for the statement that it is very doubtful whether a member waives his right to notice by appearing to, and answering charges at the same meeting at which the charges are presented. But Kyd on Corporations, on page 447, savs of that case : " It is not easy to reconcile the event of the case with what is reported to have been said by the chief justice and the court, i that the sergeant appearing, and being charged and answering, supplied the want of notice, both of the time and of the offense,' and 'that he might waive the notice if he would.' The ground on which the peremptory mandamus was awarded was that one offense was specified in the notice, and that he was charged with another when he appeared: how is this to be reconciled with the proposition ' that appearing and answering supplied the want of notice of the offense'? That a man may waive anything which the law has intended 'People v. Protective Union, 118 2 People v. Association, 24 N. Y. N. Y. 101; 23 N. East. Rep. 129; Supp. 114; 4 Misc. Rep. 424. affirming 42 Hun 656; People v. B % Ld. Raymond, 1240; 2 8alkeld's Musical Union, 47 Hun 273. Rep'ts 435. 138 MEMBERSHIP. for his benefit is a general proposition which can not be denied; and as previous notice of an offense charged against a party is given him only that he may come prepared to defend himself, he may, no doubt, dispense with it. But if he be present acci- dentally at a meeting, and answer immediately, or be unable to give an answer to a charge made against him, of which he had no previous notice, is it from thence to be concluded that he 'waives the necessity of such notice? I apprehend that nothing less would cure the want of notice than an express declaration of the party, that he consented to answer without it." ' § 67. Tribunal of the society expelling a member.— The power of expulsion must belong to the society at large, unless, by the fundamental articles, or some by-law founded on these articles, it is transferred to select a number. 2 A return to a mandam us, which states that the member was tried and expelled by a select number of the society, is insufficient unless it fur- ther shows the authority of that select number. 3 Where the organic law of a corporation provides that such societies " shall have the right to admit as members such persons as they may see fit, and expel any member as they may see fit," the power of expulsion resides in the corporation at large, and may not be delegated to a select committee or board of directors. 1 But where the charter confers the power to expel " such persons as the association may see fit, in man- ner to be prescribed by the rules, regulations and by-laws thereof," a rule prescribing the mode of expulsion by a trial before, and by a vote of the board of directors, is justified by the language of the charter. 6 ISTo corporation has the power to delegate to an outside body the power of expelling a mem- ber. Where various corporations send delegates to a grand council, whose pow T ers in the premises are not derived from the incorporation laws of the state in which these corporations exist, it has no jurisdiction to expel members of these corpo- 1 See Rex v. Faversham, 8 Term Hassler v. Association, 14 Phila. 233. Rep't 356; Hceffner v. Grand Lodge, 3 Green v. Society, 1 Ser. & R. 354. 41 Mo. App. 359; Supreme Lodge v. 4 State v. Chamber of Commerce, 20 Zuhlke, 129 111. 298; 21 N. East. Rep. Wis. 63. 789 6 Pitcher v. Board of Trade, 121 111. 2 Commonwealth v. German Soci- 412; 13 N. East. Rep. 187; State v. ety, 15 Pa. St. 254; State esc rel. v. Chamber of Commerce, 47 Wis. 670. Chamber of Commerce, 20 Wis. 63; MEMBERSHIP. 139 rations, or to review the proceedings in expulsion, which may have taken place in any of these corporations.' On the trial of a member of a lodge before a committee, an irregularity in the appointment of the committee under the by-laws is waived by the appearance of the accused, who, having knowledge of the irregularity, does not object to it. 2 Where a member of an association appears before a tribunal thereof, charged with violating its rnles, and submits his case to it without objec- tion to the manner in which the tribunal is constituted, all irregularities in the constitution of the tribunal are waived. 3 The laws of a society provided that its governing committee, to which its government and management was confided, should consist of twenty-four members, and that a two-thirds vote of the governing committee should be necessary for the expul- sion or suspension of a member. At the time when certain proceedings in expulsion were taken, the committee had been reduced in number to twenty members, and but eighteen were present when the vote for the expulsion took place. Fourteen of the members who were present voted in favor of the adop- tion of the resolution of expulsion, and the other four voted against it. The resolution, therefore, failed to secure the vote of two-thirds of the members of the governing committee; for to constitute such a vote, that of sixteen of the members was necessary. The judgment of expulsion in this case was ir- regular and illegal. 4 Two members of a club had a quarrel, ;iinl one used abusive language toward the other. For this he was tried and expelled. One of the members of the tribunal which expelled him was a distant relative (cousin) of the wife of the person to whom the abusive language was addressed, and the expelled member brought suit to have the resolution of expulsion declared null and void. The court held, that although proceedings in expulsion must be characterized by honesty and good faith, yet such relationship does not dis- qualify the member of the tribunal from taking part in the proceeding, under the rules applicable in courts of law in case of the consanguinity or affinity of a judge to either of the •Allnut v. Forrester. B2 Midi. 110: 9 All. Rep. ITS; People v. (society. 28 28 N. W. Rep. 802; Bee also Lamphere Mich. 261. v. Workmen, Vt Mich. 129; state v. 8 Pitcherv. Board of Trade, mpra. Miller, 66 Iowa 26; 23 X. W. Rep. 241. *Loahat 7. LeRoy, LO Han 546. 2 Sperry's Appeal, 116 Pa. St. 891; 14:0 MEMBEESIIIP. parties, since the proceeding is not before a legal tribunal, nor inter partes, but is of a quasi-judicial character, by the club, in the way of discipline against the offending member. 1 The mere fact that members of the tribunal have become familiar with the subject-matter of the charges to be investigated, through conversations with members of the society and other- Avise, does hot disqualify them from serving, nor sustain a charge that they were biased or prejudiced against the party expelled. 2 The court of a society need not observe any of the rules of law as to challenge of jurors. 3 § 68. Good faith in proceedings in expulsion. — Malice, though not a crime, is a quasi crime, and will never be pre- sumed bv the courts. It must, when relied on as invalidating an expulsion be charged and proved specifically. The books speak of malice on the part of committees and societies in matters of expulsion; and in applications for reinstatement to membership and in suits for damages for wrongful expulsion, there are usually strong allegations of malice and bad faith in the proceedings of expulsion, and yet in the adjudicated cases there is little said upon the subject of malice and bad faith. except the decision of the court that, in the particular case in hand, there is, oris not, sufficient evidence of malice and bad faith to set aside the expulsion. It has never been decided whether malice may be shown by proving that each individual was in- dependently actuated by malice, or whether it must be further shown that the members of the tribunal, whether composed of a committee or of the whole society, had combined together and agreed upon an illegal proceeding. Where malice and bad faith in the proceedings in expulsion are charged, the court will permit the members of the tribunal to testify as to the mo- tives under which they acted in such proceedings, will permit them to give their reasons for voting in favor of the expulsion of the member, and to declare that they did not exercise their power capriciously, corruptly, unjustly or maliciously. They may also state that they acted bp'na fide, and were not influ- enced by the persons pressing the charges. 4 1 Loubat v. LeRoy, 15 Abb. N. 4 Lyttleton v. Blackburn, 33 L. T. Cas. 1. Rep. (N. S.) 642; Gardner v. Free- 2 Loubat v. LeRoy, 15 Abb. N. mantle, 19 W. R. 256; Hopkins v. Cas. 1. Marquis of Exeter. L. R., 5 Eq. 63. 3 Chase v. Cheney, 58 111. 509. MEMBERSHIP. . 141 § 69. Decree of court reinstating member must be pre- sented to society. — One who has been expelled from member- ship in a society, but who has been subsequently reinstated by a decree of court, should present the decree in a regular manner, serve it on the officers of the society, and demand Ins reinstatement of such officers. He may not assert his status by simply appearing at the next regular meeting after the de- cree and insisting upon his rights, without informing the offi- cers, in a regular manner, of the action of the court. If, while so appearing and insisting upon his rights, he is ejected from the hall in which the meeting is held, he can not recover damages at law. 1 1 McLafferty v. Sweeny (Pa. St.), 9 Atl. Rep. 277. CHAPTER IV. MEMBERSHIP.— PART IT. § 70. Inherent power of unincorporated society to expel members. 71. Right of such society to pass by-laws providing for expelling its members. 72. Power of expulsion from usage. 73. Expulsion agreed upon in articles of association. 74. Charges against a member of such a society. 75. Reinstatement in unincorporated society. 76. Proper remedy of expelled member. § TO. Inherent power of unincorporated society to expel members. — In the absence of any provision in the constitu- tion or by-laws of an unincorporated society, giving to the members the power of expulsion, there is no inherent power in the majority to expel a member. The society, as such, has no leo-al entitv, and it would be manifestly absurd to sav that it had the power of self-preservation. The written contract of association expresses the terms on which the members meet, and is the law governing the members in their relations toward each other. There is the greatest possible latitude given to members to agree upon the terms upon which they shall associate, but the law will supply no provisions in the articles of association. In the absence of an agreement that it may be done, the majority may not expel the minority of an unincorporated society. 1 It is sometimes said that this is the English rule, but that in this country the inherent power of such societies to expel their members is recognized, and may be exercised for the same causes as in incorporated socie- ties. The case of Leech v. Harris 2 is cited as the authority for the so-called American doctrine. In the first place, the opin- ion expressed in that case, about which the court had " very 'District Grand Lodge v. Cohn, 20 2 2 Brewster (Pa.) 571. 111. App. 335; Dawkins v. Antrobus, L. R., 17 Chan. Div. 615. (142) MEMBERSHIP. 143 little doubt," is a mere dictum^ and then, the ground upon which the court predicated the opinion was that unincorporated societies were given a legal existence, and were placed under the supervision of the courts by the laws of Pennsylvania. And in White v. Brownell 1 it is said that "where they (unin- corporated societies) have no regulation upon the subject they may expel a member by a vote of the majority, if he has been notified of the charge against him and afforded an opportunity of being heard in his defense." 2 The range of discussion is wide in the case of White v. Brownell, and the opinion is. in many respects, exceedingly valuable. The language quoted is, however, entirely outside of any questions in the record. The case of limes v. AVylie is an English case which holds that a member may not be expelled from a society without notice, and that damages for deprivation of rights of member- ship can only be recovered in certain cases. The court begins its opinion by saying : "I am of opinion thai where there is not any property in which all the mem- bers of a society have a joint interest, the majority ma}- by resolution remove any one member." The majority can remove a member in such a case, and he will be without remedy, because the courts will not exercise jurisdiction to reinstate a member where no rights of property are involved merely that he may enjoy the righl to meet with other mem- bers, but the majority may not remove him, for it is funda- mental, us will hereafter more fully appear, that the majority must proceed according to the rules of the society. Having no rules on the subject, how may they proceed in the matter? In one case the charge upon which the member was expelled from an unincorporated society was that he had beenguUtyof a conspiracy to injure and destroy the society. The constitu- tion provided as follows ; "If any member defraud this union, he shall he dealt wit h as the cent ral body in;iy decide." Be- yond this no specific provision appeared in the constitution or by-laws, under which members might l>e expelled. The con- tention of the society was that the power of expulsion is inher- ent in every society, and that the offense of which themembeT ■4 Abb. IV. N. s. 162; J Dalj 339. "Lyttleton v. Blackburn, 45 L. J. 'Citing lanes v. Wylie, 1 Car. A: Ch. •,"-':'.: :'-:'> L. T. B. 642; Bigby v. Kir. 262. Connol, 11 Chan. Div. 182. 144 MEMBERSHIP. was found guilty, was sufficient ground for expulsion, as mat- ter of law, irrespective of any provision of the constitution or by-laws. The member was reinstated to membership upon the ground that the facts in the case raised the irresistible con- clusion that the trial and conviction of plaintiff was a travesty upon justice, and lacking in the essential elements of fairness, good faith, and candor, which should characterize the action of men in passing upon the rights of their fellow-men. But in the opinion the court subscribes to the proposition that there is an inherent right of expulsion in every society, and says •. " The right of expulsion from associations of this character may be based and upheld upon two grounds : First, a viola- tion of such of the established rules of the association as have been subscribed or assented to by the members, and as provide expulsion for such violation. Second, for such conduct as clearly violates the fundamental objects of the association, and, if persisted in and allowed, would thwart those objects, or bring the association into disrepute. We content ourselves with stating the propositions thus broadly, and, for the pur- poses of this case, need not refer to the numerous authorities denning and limiting the power." ' It is evident from this language that the expulsion would have been sustained by the court, had it not found that malice and bad faith were the motives which prompted it. "While this case is not an authority in favor of the proposition that unincor- porated societies have an inherent power of expulsion, it indi- cates very decisively the opinion of the court upon the question. Where the contract of association is silent as to the expulsion of its members, and a minority, whether one or more, defrauds the members, or performs acts against the objects and purposes for which the members associated, the remedy is by dissolu- tion and distribution of the property among the members. It is within the power of the members to provide the remedy of expulsion, and thus to preserve the association from dissolution in such cases, but the law will not interpolate into the contract of the associates a provision supplying such a remedy. The true rule is laid down in White v. Brownell," where it is said : "As this association is not organized in pursuance of any 1 Otto v. Benevolent Union, 75 Cal. 2 3 Abb. Pr. N. S. 318. 313; 17 Pac. Rep. 217. MEMBERSHIP. 145 statute, nor are the terms of membership fixed by principles of the common law, it follows that the agreement which the members make among themselves on the su bject must estab- lish and determine the rights of the- parties on the subject. The constitution of the association and its laws agreed upon bv the members contain all the stipulations of the parties and form the law which should govern. The members have es- tablished a law themselves." §71. Right of unincorporated societies to pass by-laws providing for expulsion of members — Effect of such by-laws on protesting minority. — When a person becomes a member of an unincorporated society, he is bound by the laws of the society as they exist at the time of his admission. If, by the contract of association, the majority has power to make and alter rules affecting the general interests of the society, he is bound by such by daws as may thereafter be passed concern- ing expulsion of members. But if the contract of associa- tion is silent as to future legislation by the members, he is not bound by subsequent by-laws, unless he voted for them, as- sented to them, or in some way acted upon them. There is no inherent right in an unincorporated society to pass by-laws for the expulsion of members. 1 In one case the question was as to whether a by-law, under which a member had been ex- pelled, was binding upon him as a member of a certain club. The court said : " Now that does not depend on the inherent power of a club to pass a rule to expel one or more of its members; I, for one, am unaware of the existence of such a power, and I was surprised to hear such a proposition put for- ward. There is no more inherent power in the members of a club to alter their rules so as to expel one of its members against the wishes of the minority, than there is in the mem- bers of any society or partnership which is founded on a con- t i-act, that written contract, of course, expressing the terms on which the members associate together; and it is intolerable to imagine that the majority should in such a ease claim an inherent power of expelling the minority. I say this because that has been a matter pressed upon me as if capable of argu- ment. I think it is not." Where the articles of association are silent upon the power of future legislation, a protesting 1 Dawkins v. Antrobus, L. R., 17 Chan. Div. 615. 10 146 MEMBERSHIP. minority are not bound by the acts of a majority in passing by-laws. § 72. Power of expulsion from long and immemorial usage. — It is undoubtedly true that some unincorporated societies which have existed for many years, either as a certain and delinite class, or as individual societies, have the right to inquire into the conduct of their members, and the power to ex- pel them for certain offenses, whether this right and power is specially conferred by the contract of membership, or not. Churches, for instance, may expel their members for immoral and scandalous conduct. . This power is established by long and immemorial usage ; and when the usage has been proved, the law will presume the existence of provisions in every con- tract of membership in a church, giving to it this power of expulsion, and will also presume that the member joined the church well knowing, and assenting to, the recognized power of expulsion in the body of the church. It must be remem- bered that the contract of membership in a church is not a written contract ; it arises from admission into fellowship with a large and indefinite body governed by certain customs and usages ; it is, at most, a contract partly in writing and partly constituted of these customs and usages. It differs from a contract of membership wherein all the conditions of member- ship are specifically set forth. But even in a church, this power of expulsion is not to be regarded as an inherent power, but must be said to be. a power arising from usage and cus- tom which implies the existence of an unwritten by-law con- ferring the power upon the church. And an inherent power is vastly different from one which is conferred by a custom. It requires no evidence to establish the existence of an inher- ent power, but a custom must be proved as any other fact. It would be exceedingly difficult to prove a custom which would sustain the expulsion of a member from a society in which the contract of membership is specifically written out. Custom may not be shown to take the place of the contract of mem- bership as agreed upon, but may be shown merely as evidence of the adoption of an additional unwritten provision. Where this contract, originally silent as to the power of expulsion, has been amended from time to time during the period over which it is proposed to show that the custom of expelling MEMBERSHIP. 147 members has extended, but no amendment has been added upon the subject of the power of expulsion, no custom can prevail over the express provisions of the contract as amended And again, it may be questioned whether an established usage can be successfully asserted in any society which is only in its infancy, — which has only existed for five or ten years. A usage, in its most extensive meaning, includes both custom and prescription ; but, in its narrower signification, it refers to a general habit, a mode or course of procedure. A usage differs from a custom, in that it is not required that it should be im- memorial to establish it ; but it must be known, certain, uni- form, reasonable, and not contrary to law. It will, therefore, be next to impossible to show that, under a contract of asso- ciation which has been only a few years in existence, there can have grown up a usage in regard to the expulsion of members, although no express power of expulsion is given by the terms of such contract. To make a proper showing of such usage, it is necessary to show cases sufficiently numerous to establish a course of procedure, in which the power has been exercised and acquiesced in by the society. To be able to cite a few in- stances in which such a power has been exercised will not es- tablish a usage. This doctrine is, by analogy, clear and well settled.' There is no reason for the existence of a constitution and by-laws, if they are to be overridden by mere usages and customs open to dispute. 3 ;< 73. Expulsion of members agreed upon in the con- tract of association. — An unincorporated society may, in its articles of association, prescribe the conditions upon which the continuance of membership shall depend. There is one, and only one, qualification to this rule; such society may not make the continuance of membership dependent upon a condi- tion which is contrary to the laws of the land. In such a so- ciety, the privilege of membership is not given by statute us in a corporation, but is created and conferred by the organiza- tion itself, and is derived exclusively from the body which he- stows it. When a person becomes a member he bases his rights, as such, not upon any charter which guarantees to him a certain protection under the laws of the land, but upon the 1 Knights of Pythias' Case, 3 Brews- 8 Lazensky v. Supreme Lodge, 3 N. ter, 452. Y. Supp. 52. 148 MEMBERSHIP. will of a majority of his fellow members, under the contract of association. The policy and acts of such a society are neces- sarily controlled by a majority of its members; and the con- stitution and by-laws agreed upon contain the contract of association, and form the laws which govern the majority, and each member of the society. It-is not the province of a court to make contracts for parties, and it may not make any other contract for the members than that which is set forth in the constitution and by-laws. The court has no visitorial power over unincorporated societies, since they exist, not by grant from the state, but by the agreement of the members; and when the parties have agreed upon the terms under which member- ship shall continue, the court will not inquire into the reason- ableness or unreasonableness of such terms. There are obiter dicta in some cases, and one decision to the effect that courts will not inquire into the reasonableness of by-laws of voluntary societies, even though they be incorporated, if it be shown that the member assented to them. There are numerous obiter dicta in the books to the effect that courts will not interfere with the rules and by-laws of un- incorporated voluntary societies, unless they are manifestly harsh and unconscionable; but it is believed that there is not a case in which a court has ever declared a by-law of such a society to be unreasonable and, on that account, invalid. The true rule is that the by-laws of an incorporated society must be reasonable and necessary for its good government, as well as in conformity with the laws of the land, and the assent of the members to the by-laws is not to be considered as deter- mining their validity; but individuals who form themselves into an unincorporated voluntary society for a common object, may and do agree, that, so long as they retain their relations with the society, they shall be governed by the constitution and by- laws as they exist, and as they may be amended under the contract of association, if there is nothing in them or in such amendments, in conflict with the law of the land; and those who become members of the society are presumed to know them, to have assented to them, and are bound by them. While a society remains unincorporated, therefore, it may make regulations ad libitum for the discipline of its members including, of course, expulsion, so long as they are not in con- MEMBERSHIP. 149 flict with the law. But the moment it obtains a charter, it parts with the powers it before possessed, and comes under the law which governs corporate bodies. 1 While this power to determine the causes for which a member may be expelled is very extensive, and may be said to be almost beyond the con- trol of the law, yet it is held in check and from abuse by the powerful motive of self-interest. The abuse of the power may be visited upon those who are responsible for such abuse; and hence the compact of association will naturally be formed in a spirit of justice and fairness to the interests of all the mem- bers. The members of a voluntary unincorporated society may agree that no associate shall remain a member and enjoy its privileges if he refuses to comply with its rules and by-laws. 3 Where the rules of an unincorporated society provide that if the society "shall at any time deem the conduct of any mem- ber suspicious, or that such member is for any other reason unworthy of remaining in the society, they shall have full power to exclude such member," the language of these rules gives an unconditional and absolute power to the societv to expel a member. 1 The rules of a club provided that "it shall be the duty of the committee, in case any circumstances should occur likely to endanger the welfare and good order of the club, to call a meeting, and in event of its being voted at that meeting by two-thirds of the persons present, to be decided by ballot, that the name of any member shall be removed from the club, then he shall cease to belong to the club." The court, in commenting upon the poAver of this club to expel its members, said: "It is clear that every member has contracted to abide by that rule which gives an absolute discretion to two-thirds of the members present to expel any member: Such discre- tion, like that referred to by Lord Eldon, 4 must not be a capri- cious or arbitrary discretion. But if the decision has been arrived ;it bona fide i without any caprice or improper motive, then it is a judicial opinion from which there is no appeal. None but the members of the club can know the little details which are essential to the social well-being of such a society of gentlemen, and it must be a very strong case that would 1 State v. Medical Society, 38 Ga. 3 Wood v. Woad et al., L. R., 9 608. Excli. 190. s Lewis v. Wilson, 121 N. Y. 284. * While v. Damon, 7 Ves. 35. 150 MEMBERSHIP. induce this court to interfere." ' Where the only penalty im- posed by the constitution and by-laws of an unincorporated society for an offense is a fine, the expulsion of a member for such an offense is invalid. 2 The constitution adopted by an incorporated mutual benefit society for the government of its unincorporated subordinate lodges provided : " The manner of suspension for the non-payment of dues and assessments shall be detailed in the by-laws of every lodge, and is left to their option." It is clear that this provision, which is a part of the fundamental law of every lodge, requires the adoption of by- laws fixing and prescribing the manner of suspending members for the non-payment of clues and assessments, before the power to pronounce a sentence of suspension may be exercised. Such language is imperative and mandatory, and while it leaves the subordinate lodge free to adopt such mode of pro- cedure in the matter as it may see tit, the mode adopted, whatever it may be, is imperatively required to be embodied in its by-laws. Where a lodge has never adopted any by-law on the subject of suspensions as required b} 7 this constitution, it has no mode of procedure consistent with, or authorized by, its organic law for suspending persons from membership, and any attempted suspension of a member is, therefore, wholly without authority and void. 8 The fact that officers and mem- bers of an unincorporated society, as individuals, unite with a society of a similar character, does not vacate their offices or forfeit their membership in the former society, in the absence of a provision in its constitution or by-laws, forbidding them to unite with the second society, and the fact that the consti- tution and rules of the second society forbid its members to become or continue members of any other local organization, does not affect their relations to the first society. 4 The rules of a club provided that, in case the conduct of any member, either in or out of the club-house, should, in the opin- 1 See Inderwick v. Snell, 2 Mac. & 8 District Grand Lodge v. Cohn, 20 G. 216; Manby v. Gresham Life As- 111. App. 335. surance Society, 29 Beav. 439; Lam- J Farrell v. Cook, 5 N. Y. Supp. 727; bert v. Addison, 46 L. T. R. 20; Lyt- Farrell v. Dalzell, 5 N. Y. Supp. 729; telton v. Blackburn, 33 L. T. R. N. Warnebold v. Grand Lodge, 83 Iowa, S. 642. 23; 48 N. W. Rep. 1069. * Otto v. Union, 75 Cal. 313; 17 Pac. Rep. 217. MEMBERSHIP. 151 ion of the committee, or of any twenty members of the club who should certify the same in writing, be injurious to the character and interests of the club, the committee should be empowered (if they deemed it expedient) to recommend such member to resign, and, if the member so recommended should not comply within a month from the date of such communica- tion beino- addressed to him, the committee should then call a general meeting, and, if a majority of two-thirds of that meet- ing agreed by ballot to the expulsion of such member, his name should be erased from the list, and he should forfeit all right or claim upon the property of the club. A member of the club sent a pamphlet which reflected on the conduct of another member, S., at his official address, such pamphlet being en- closed in a cover on which was printed : "Dishonorable con- duct of S." This was brought to the attention of the com- mittee, and they called upon the member to resign, being of opinion that his conduct was injurious to the character and in- terests of the club. He, however, refused to resign, and a general meeting was called, at which the requisite majority voted in favor of his expulsion. On an action by the member to restrain the committee from excluding him from the club, it was held that the plaintiff having had an opportunity of explanation, the rules having been observed, and the action of the club having been exercised bonajide, and without malice, the member was entitled to no relief from the court. 1 §74. Charges against a member of an unincorporated society. — Whether the moral conduct, or acts complained of as prejudicial to the society, are sufficient to justify expulsion, under the general power of expulsion agreed upon in the con- stitution of the society, is a matter exclusively Tor the tribunal hearing the complaint, and not for the court to decide. Such decisions may not be reviewed by a court, or even be consid- ered, unless the alleged cause of expulsion be so trivial, or unimportant of itself, as to suggest that the action of the tribunal was capricious, orcorrupt, and not hmni ri jure, and not being a "benevolent society *' under the statute. In deciding that the action would not lie against the defendants as individual persons, the court said: ** I tut notwithstanding it is not a corporation de jure, we think it must, at .least as between its members, be regarded as a cor- poration defacto. It is manifest that the understanding. be- tween the members, and the basis upon which certificates of membership were issued, was that the association was a cor- poration in fact as it was in form. 1 It never could have been intended or expected that the members of the association, whether (.rigin;,| founders members, like defendant, or those who should become members by joining at any time, should or would be Liable as individuals, either jointly or severally, to any particular member who should, by virtue of and under the terms of his membership, become entitled to pecuniary relief or bench t. On the contrary, the intention and real con- fcracl was thai the association, as a corporation in the contem- plation of the parties, i. e., the members, should be liable and the association onlv. In such a state of facts, though the association is not ;i corporation di jure, and perhaps nol for every purpose a corporation d\ focto,\\ is. as between the members themselves, to be treated as a corporation^ facto, for that is the way in which the contract of the parties treats it; and the righl of a member to pecuniary benefit from the association by virtue of Ids membership musl stand upon the Itasis that it is a corporation '• there is no considera- tion for such promise moving from the plaintiff to the defendant, or from any person acting in privity with him or acting for his use or benefit, or with an intent and purpose to obtain a benefit to the plaintiff . There is no ground to infer from the factsagreed, that the son. who was a member of the lodge in paying his contributions thereto had any purpose of obtaining money from the lodge, in case of his death, for the use of his father, or other next of kin, for his own benefit; to whomso- ever it might be paid, under these provisions, it was a naked trust for defraying the charges of his burial. It is, therefore, nol at all analogous to the case where A owes J5 and 15 owes ( '. and in consideration that B will release A, he promises to pay 0. Such promise is valid, and C may sue A upon it. The reason is, that, although the consideration for A's promise to C does not move from C, it moves from A for C's use and ben- efit." 1 In one case the proof showed that some young men organized a society for acting plays, and thai they rented a house for that purpose, and agreed to pay the landlord six dol- lars a month rent for every month they should so occupy it. Harry became a member of the society some months after the contract. The courl was requested to charge the jury, that if the contract was made before Barry became a member of the society he was not hound by it. This the court refused, and charged thai in such a case he would not be hound forthe previous, but would he tor the subsequent rent, and the jury found accordingly. This was erroneous under the state of the pleadings. If Barry was liable at all for the rent alter he became a member of the society, it was not upon a counl framed upon the contract originally made, nor upon an indeb- itatus or quantum meruit count for work and labor done, but upon a count for use and OCCUpal ion. s 31. Liability of the person incurring the debt. An ' Payne v. Snow. 12 Cosh. (Mass.) Hump.) 824; see Conn v. Borst, 36 443. Bun (N. 5 . 562. • Barry v. Nuckolls, 21 Tenn, (2 168 LIABILITY OF MEMBERS. unincorporated society can not be a party to a contract, or to an action at law. The persons contracting in the name of such an organization are themselves personally liable, either as being themselves in fact principals, or as holding themselves out as agents for a principal which has in law no existence. They are liable for debts contracted by them in the name of such society with a stranger, in the absence of any agreement or understanding of the parties to the contract that they shall not be personally liable for such debts. 1 It is a general prin- ciple that, although a party may be a mere agent, and known to be such, yet if he contracts in his own name, or in his name as agent, when his principal is incapable of contracting, or is irresponsible, the law presumes that he intended to bind him- self. 2 The justice of this rule rests on the principle that other- wise the party performing the service would be remediless. If the agent in such a case would stand exonerated, he must disclose a responsible principal, or, by contract, exempt himself from personal liability. It is not necessary that the person in- curring the debt for the benefit of an unincorporated society should know and believe at the time that he is incurring a per- sonal liability or indebtedness. It does not alter the question, that he at the time contracted as an officer of the society. His liability springs from the fact that he had no principal, no legal association or body which he could represent, act for or bind, and he must be held in such a transaction, at least as against a stranger, to have represented, acted for and bound only himself, in the same manner and to the same extent as if there had been no assumed authority to act for such society. 3 Where a person contracts a debt for such a society, and as an officer thereof, the termination of the term of his office does not relieve him from liability. Having contracted the debt, he is bound to pay it, and his successor in office is not a suc- cessor in that sense which renders him liable on the contracts of his predecessor. 4 In one case it was held that where the committee of a vol- ' Lewis v. Tilton, 64 Iowa 220; 2 Story on Agency, §§281, 282. Heath v. Goslin, 80 Mo. 310; 50 Am. 3 Fredenthal v. Taylor, 26 Wis. 286; Rep. 505; Doubleday v. Muskett, 7 Blakely v. Bennecke, 59 Mo. 193, Bing. 110; Blakely v. Bennecke, 59 supra. Mo. 193; Eichbaum v. Irons, 6 Watts 4 Sizer v. Daniels, 66 Barb. (N. Y.) &Ser.(Pa.)67; 40 Am. Dec. 540. 427. LIABILITY OF MEMBERS. 1G9 untary society entered, as such, into a contract for business to be done on behalf of the society, the funds proving insufficient, all the acting committee were personally answerable, on the ground that the credit must fairly be presumed to have been given to them rather than to the subscribers at large. 1 AVhere four members of an unincorporated church society signed a call to a pastor, agreeing to pay him one thousand dollars per year for his services, and he accepted the call and performed the services as pastor of the church, the signers of the call were held personally liable for the promised salary. 9 The members of a committee appointed by an unincorporated so- ciety to make arrangements for a public exhibition are indi- vidually liable for work necessary for the occasion, which a sub-committee of their number procures to be done, although in making the contract the sub-committee assumed to act as officers of the association. 3 Such a rule is salutary, and tends to the promotion of justice, by preventing the procurement of services from too incautious laborers, and of goods from too con- fiding merchants, by putting forward an irresponsible com- mittee to act for an irresponsible public gathering. "Where a person expressly permitted his name to be used as a member of a committee of arrangements for a ball to be given by an association, and subscribed to some of the preliminary ex- penses, but took no further part, and did not attend the ball, it was held that he was not liable for the cost of a supper pro- vided for the occasion without his knowledge or consent. 4 In an action against a person who has incurred a debt on behalf of the society, it is always competent for him to show that the debt was contracted on the credit of the funds of the society. and not on a footing of his personal liability. If the plaintiff, by his contract, has trusted solely to the state of the funds. and this has been shown, the member acting on behalf of the society is not liable unless the funds have been collected. § 82. Where debt is incurred, payable out of the funds of the society. — "Where a contract is made between members of a society and a third person, by which the members agree '.Cullenv. Duke, 1 Brown's Ch. 101. 540, supra; McCarteev. Chambers, 6 •Thompson v. Garrison, 22 Kan. Wend. (N. Y.) 849. 766. 4 Downing v. Mann, 3 E. D. Smith's 3 Fredendall v. Taylor, 23 Wis. Rep. (N. Y.) 36. 170 LIABILITY OF MEMBERS. to pay a certain sum out of the funds of the society, when they shall have funds applicable to his demand, the conditional contract becomes absolute, and an action may be maintained against the members, so soon as they receive such funds in the society. 1 When an association consists merely of subscribers to a fund for a common object, and is not a partnership, it is competent for the members of the association to contract ex- pressly on the credit of such fund, and to limit their liability to the amount of such fund, which may be applicable to the particular debt. 2 But when an association, which is under its rules and scheme a partnership, executes a note containing a promise to pay " out of their joint funds, according to their articles of association," the members are personally liable un- less it appear unequivocally that the payee, knowing the force and effect of such a stipulation, agreed to look solely to the partnership fund for payment. 3 Partners are personally liable for the debts of the partnership, and the limitation of their lia- bility is viewed with disfavor by the law, both on account of the opportunity afforded by such limitation for fraud upon unsus- pecting persons, and because such limitation seeks to give to partnerships the exemption and shield of corporations. In the case of simple contracts, where the party has looked to the anticipated realization of funds by projectors of a particular undertaking, and not to the personal liability of the parties with whom he has contracted, his claim is confined to the fund, and he can not enforce payment from individuals; and if the project miscarries, and funds are not realized, he has no claim upon anybody or for anything. 4 ^ 83. Notice to creditors of withdrawal from the society. — AVhere a body of men associate themselves for social inter- course and pleasure, and assume a name under which they commence to incur liabilities by opening an account, they become jointly liable for any indebtedness thus incurred; and if either of them wishes to avoid his personal responsibility by withdrawal from the body, it is his duty to notify the creditors of such withdrawal; otherwise, if a creditor continues to fur- 1 Higgins v. Hopkins, 3 Exch. 162. 4 1 Addison on Contracts, pg, 289*, 2 Landman v. Entwistle, 7 Exch. 186 Abbott's notes. 632. s Hess v. Werts, 4 Ser. & R. (Pa.) 336. LIABILITY OF MEMBERS. 171 nish, in good faith, articles such as have been previously pur- chased for the use of the society, his responsibility will con- tinue, upon the same principle which holds retiring partners to liabilities for an indebtedness subsequently contracted with former creditors. 1 And the fact that a member moves away from the town or city in which the society meets and has property, is not of itself an abandonment of membership and a notice of withdrawal. 2 In Park v. Spaulding, 3 defendant was a member of the club at the time the account was first opened with the plaintiffs. He was one of the committee who made the first purchase of the plaintiffs, and he never notilied plaintiffs at any time of his withdrawal from the club. The goods thus purchased were sent to the club-house, and came into the possession of the steward, who subsequently paid the plaintiffs the amount of that bill. He thereafter continued, as such steward, to act in making purchases from time to time in the name of the club; and, although a private arrangement existed by which the steward had agreed to make these purchases himself, and to furnish the articles to the members of the club on his own account, yet this arrangement was never communicated to the plaintiffs. Upon these facts the defendant was held liable for the debts contracted by the steward in the name of the club. § 81. Actions for libel and slander— Privileged commu- nications. — All communications by members of corporate bodies, churches and other voluntary societies, addressed to the body or any official thereof, and stating facts which, if tine, are proper to be thus communicated, are privileged. They are not absolutely privileged, so that no action will lie, even though it be averred that the injurious publication was both false and malicious, but are conditionally privileged to this extent, that the circumstances are held to preclude any presumption of malice, but still Leave the party responsible, if both falsehood and malice are affirmatively shown.' Words spoken or written in the regular course of church discipline, or before a tribunal of a religious society to or of members of the church or society, are, as among the members themselves, 'Park v. Spaulding, 10 Hun 128; 8 10 Hun (N. Y.) 128. Tenney v. Union, 3*3 Vt. 64. *Cooley <>n Torts, pg. 311-215; Van 9 Tenney v. Union, supra. Wyck v. Aspinwall, 17 N. Y. 190. 172 LIABILITY OF MEMBERS. privileged communications and not actionable without express malice. 1 Among the powers and privileges established by long and immemorial usage, churches have authority to deal with their members for immoral and scandalous conduct, and for that purpose to hear complaints, to take evidence and to de- cide, and upon conviction, to administer proper punishment by way of rebuke, censure, suspension and excommunication. To this jurisdiction every member, b} r entering into the church covenant, submits, and he is bound by his consent. 2 When a vote of excommunication from a church has been passed, and the offender thereby declared to be no longer a member, the sentence may, nevertheless, be promulgated by being read in the presence of the congregation. 3 Where an incorporated so- ciety has no jurisdiction to expel a member upon a certain charge which has been preferred against him, its proceedings in such a case are coram nonjudice; and if the charge made against the member is libelous under ordinary circumstances, a resolution adopted and entered in the minutes of the proceedings, expelling the member for such cause, is a libel, and the member introducing it is liable to an action. 4 Where a report is made by a subordinate lodge to the grand lodge of the order, in accordance with the usual rules, regu- lations and customs of the order, by a member of a special committee thereof, to which was referred a petition respecting the expulsion of a member of the order from a subordinate lodge, justifying the subordinate lodge in expelling the mem- ber for perjury, and setting forth that the officers of the sub- ordinate lodge were unanimously of the opinion that the state- ments sworn to by such member in a petition presented by him to the grand lodge, were all infamously untrue, and where the report is received and adopted by the lodge in the usual course of its business, and thereafter is printed and published in a pamphlet entitled " The Grand Lodge Journal of 1873," in connection with the general and ordinary transactions of 1 Halliard on Torts, 355; Lucas v. v. Stevens, 51 Vt. 501; 31 Am. Repts. Case, 9 Bush (Ky.) 297; Kershaw v. 698, note. Bailey, 1 Exch. 743. 3 Farnsworth v. Storrs, 5 Cush. 2 Remington v. Congdon, 2 Pick. (Mass.) 412. (Mass.) 310-315; O'Donaghue v. Mc- 4 Fawcett v. Charles, 13 Wend. Govern, 23 Wend (N. Y.) 26; Serva- (N. Y.) 474. tius v. Pichel, 34 Wis. 292; Shurtleff LIABILITY OF MEMBERS. 173 the lodge, and in the usual manner of printing and publishing the journal of the records and proceedings of the lodge, for the use of the members of the order, such publication is prima facie privileged. In such a case the occasion and man- ner of the publication prevent the inference of malice, which the law draws from unauthorized communications, and afford a qualified defense, depending upon the absence of actual malice. In such a case, where the publishing is conditionally privi- leged, and where the circumstances of such publication are such as to repel the inference of malice, and exclude any liability of the defendant unless upon proof of actual malice, the burden of proof upon the trial, as to whether the defendant was actuated by actual malice, is upon the plaintiff. If the plaintiff gives no evidence of express malice, the defendant is entitled to a verdict. 1 In an action for slander the defendant set up as a defense, that plaintiff and defendant were, at the time of the alleged publication, members of an association known as the Inde- pendent Order of Odd Fellows ; that the acts charged in the allefi-ed libel were violations of the laws of said order ; and that the publication complained of was a presentment to the . lodge, of which both parties were members, of the charges, for the purpose of having the truth thereof inquired into, and of having the plaintiff dealt with according to the laws of the order. The court said : " The law protects the defendant so far as not to impute malice to him from the mere fact of his having spoken words of the plaintiff, which are in themselves actionable, though he may not be able to prove the truth of his allegations. But the plaintiff will be able to sustain his action for slander if he can satisfy the jury by other proofs, that there was actual malice on the part of the defendant, and that he uttered the words for the mere purpose of defam- ing the plaintiff. * * The law simply requires that there should not be a want of common honesty in preferring the charffe." 2 This rule is stated in Addison on Torts : "Whether the circumstances under which a communication was made constitute a privileged communication or not, is a question which the court has assumed the jurisdiction of determining, Kirkpatrick v. Eagle Lodge, 26 2 Streety v. Wood, 15 Barb. (N. Y.) Kan. 384. 103. 174 LIABILITY OF MEMBERS. but if there is any dispute about these circumstances, the question must be submitted to a jury. It is essential to the existence of the privilege and protection that the communica- tions, under whatever circumstances made, should be believed to be true by the party making them; for a person can not shelter himself under privilege, if he believes the charge imputed untrue, unless he at the same time declares his belief in its untruth. If a man knowingly makes a false charge, there is at once actual malice, and the privilege is blown to the winds." In De Senancour v. Societe La Prevoyance, 1 it is said : " The defendant corporation appointed a committee to investigate certain bills presented by the plaintiff, without specially di- recting or authorizing them by any vote or regulation of the corporation to make their report in print ; and, in the absence of any usage to that effect, there was no express or implied authority to the committee to make or circulate a report on a subject of this nature in print. Such an act can not be said to have been done in the due course of their employment, there being nothing to show or to raise any inference that the corporation had any reason to expect or understand that it would be so done. The committee, however, made a report in print at a regular meeting, by placing on the secretary's desk printed documents or reports, which were then freely taken from the desk by members present in the meeting, and which were libelous. In all this there was nothing for which the corporation was responsible. It was only the individual acts of the committee, and of certain members. The omission of the secretary to prevent members from taking the report from his desk, was not sufficient, as matter of law, to put upon the cor- poration the responsibility for their circulation. All that the corporation did at that meeting in respect to the report was to vote to hold a special meeting to pass upon its adoption. At the next meeting the corporation voted to adopt the report, but this was not a publication of it, and no fact is stated which shows that the corporation gave to the report any currency or circulation, or any sanction to its previous circulation. It is not as if the corporation, after adopting the report, had circu- 1 146 Mass. 616; 16 N. East. Rep. 553; 6 N. Eng. Rep. 270. LIABILITY OF MEMBERS. 175 lated it. 1 Under these circumstances, there was no evidence or any publication of the libel by the defendant. The court did not reach the question of privilege, having disposed of the case on the ground that there was no publication; and that question, therefore, is not to be considered here." An action for slanderous words spoken of and concerning the plaintiff by an unincorporated mutual benefit society, of which he was a member when the alleged tort was committed, will not lie against the society sued as a partnership, but the redress, if any, is against the wrong-doers in their individual or non-part- nership capacity. Nor does it make any difference in this respect that, in consequence of the slander, the plaintiff was suspended from the benefits of membership for a term of years, and that the action was brought pending this term of suspension. In discussing this question the supreme court of Georgia said: "If, as the declaration alleges, the association was a partnership, the plaintiff was a member of it, and after diligent search we have been unable to discover anv authority supporting the theory that a man can slander himself, either when he speaks directly as an individual, or when he speaks indirectly through a partnership of which he is a member. Upon principle, we do not see how he could charge the part- nership assets with the damages that might be recovered, he having an interest in the assets as part owner of the same. X«>r can we see how he can escape the general rule that, in an action at law against a partnership, all the partners, so far as the partnership assets are involved, must be defendants. That rule, applied to this case, would require the plaintiff to sue himself. The equity powers of thecourt can not be invoked to overcome this obstacle, for a court of equity has not, nor never had, jurisdiction to decree damages for defamation or slander." 3 Where, by statute, suits are permitted by or against a treasurer of an unincorporated society, with like effect as if all the members are or were sued, "as regards the joint rights, property and effects" of such society, it is doubtful whether such statute covers a suit for libel published 1 Raitroad Co. v. Quigley, 01 How. 'Gilberl v.Crystal Fountain Lodge, 202; Railway Co. v. Conybeare, II. 80 Ga 284; 1 S. East Rep. U00. L. Cas. 711,725. 176 LIABILITY OF MEMBERS. by a society, and whether it is not confined to the assertion of property rights, strictly so called. 1 § 85. Actions between members. — In determining the proper remedy of members of an unincorporated society against each other, it is necessar} 7 " to inquire whether the rules and scheme of the society create a partnership or quasi-partnership between the members. If the liabilities which the rules and scheme create are those in the nature of copartnership, the member must seek his remedy against his fellow-member un- der the laws of partnership, and in all matters growing out of the relation of such membership, the only remedy is by bill in equity, or action of account. 2 If an officer of the society or- der goods for the society from a fellow-member, the solution of the question of the personal liability of the officer is not to be found by examining the cases with reference to the liability of officers and members in their dealings with third persons, but by looking at the rules of the society, to see what are the liabilities which they create. If it be found that, by becom- ing a member, the seller did not lose his right of action against any other member for goods sold, although they were bought for the purposes of the society, he may sue the purchaser and those consenting to or approving the purchase; and the only question which can then arise in the case is, whether the seller contracted to supply the goods on the credit of the purchas- ers, or whether he looked to the funds of the society for pay- ment; and this is a question of fact for the jury to determine. These principles are clear, but the application of them to the facts in each individual case is exceedingly difficult. 3 Where the person incurring the debt on behalf of the society and the person with whom the debt is incurred are both members of the same unincorporated voluntary society, and where the nature of the agency, and the extent of the powers of the repre- sentative of the society are known to the creditor, such repre- sentative or agent is not individually liable for the debt. A member of a voluntary society formed for building a meeting- house, who is appointed one of the building committee, and 'Duncan v. Jones, 32 Hun 12; son (N. Y.) 401; see Chambers v. Cal- Rorke v. Russell, 2 Lansing (N. Y.) houn, 18 Pa. St. 13. 244. 3 Caldicot v. Griffith, 22 Eng. L. & 2 Niven v. Spickerman, 12 John- Eq. 527; 8 Exch. 898. LIABILITY OF MEMBERS. 177 acts as such in making contracts and procuring materials for the building 1 , is not individually liable to pay for services for which he thus contracts with a member of such society, who knows his agency, and who knows that the contract is for the benefit of the society, and that it is entered into by him merely as such agent. 1 In one case it was said : "The sub- scribers to the articles of agreement, not being constituted a society under the statute with corporate powers, but being a mere voluntary association of individuals, the question is whether the defendants, who acted as their committee in super- intending the building of the meeting-house, were personally answerable for the services performed by the plaintiff upon it. It does not appear that the defendants made any express promise, or pledged their individual credit and responsibility, so as thereby to impose a personal obligation upon themselves- nor does it appear that any moneys were in their hands, or that any funds remained at their disposal to answer or pay for the services. They were appointed by the body of the subscribers to execute a mere trust; were bound to act under the direction and control of the subscribers, and liable to be removed at their pleasure; and it appears that one of them was in fact removed and another appointed in his place. The plaintiff was one of the subscribers by whom the defendants were appointed; and. in the absence of any express contract or undertaking, he can have no legal or equitable right to look to the personal security or liability of the defendants, and hold them answerable out of their private funds for work done by him for the benefit of the subscribers generally. Indeed, as the subscribers to tin • :i r- ticles of -association were all equally interested in building the meeting-house, and the plaintiff and the defendants were mem- bers of the association, the case seems to fall within the rule that one of several persons jointly concerned in a common purpose can not maintain an action against all or any of the others for work and labor performed for their joint benefit In Holmes v. Higgins, 8 where a number of persons associated together for the purpose of obtaining an act of parliament and making a railway, and subscribed for shares of £50 each, it was held that they were partners in the undertaking, and that 'Abbott v. Cobb, 17 Vt. 593. 2 1 Barn. &Cres. 74. 12 ITS LIABILITY OF MEMBERS. a subscriber, who acted as their surveyor, could not maintain an action for work done by him in character, against all or any of the subscribers." Where the defendant purchased a steamer, and had it repaired, in the expectation of selling it to an association of which he and the plaintiffs were, or were to be, members, he was held liable in an action at law to the plaintiffs, for such repairs, whether the vessel was sold to and employed by the associa- tion or not. But if the repairs were made by the plaintiffs upon an agreement or understanding between the defendant and the plaintiffs, that the association was to pay, or that the plaintiffs should look to the association for payment, then he is not liable therefor in such an action. Where the question is, on whose credit was the labor done and materials furnished, each party has the right to ask for instructions based on his view of the case, if the evidence relied on be legally sufficient to warrant the conclusion sought to be deduced from it. 1 An action at law will not lie by one member, in his right of mem- bership and as the assignee of other members, against a con- tractor with the association, who is also a member, upon his contract with the society. Xo member has an interest in the property and effects of the society, which can be separated and taken out of the whole for his sole use, until the joint affairs are settled, the society dissolved, the mutual rights of the members adjusted, and the ultimate share of each determined. In any agreement made by a contracting party with the asso- ciation as such, and in any right of action arising thereon, each member has an interest, but no member has an interest which he can transfer, so that an action can be maintained by his assignee. In such an agreement the defendant member has as great an interest as any other member. A court of equity, with all the parties before it, can grant appropriate relief in such cases. 2 Where the constitution of an unincor- porated society defined its object to be to stimulate a healthy interest in the breeding and management of pigeons and ban- tams, and to disseminate useful knowledge in relation thereto, gave the board of directors the charge and management of all public exhibitions of the society, and provided that each mem- ber should pay an initiation fee and an annual assessment; and 1 Wells v. Turner, 16 Md. 133. s McMahon v. Eauhr, 47 N. Y. 67. LIABILITY OF MEMBERS. 179 the society held a public exhibition and awarded premiums, and the expenses, including premiums, were greater than the receipts, a bill in equity may be sustained by those members who paid the deficiency, against other members for contribu- tion, if the defendants participated in a vote to give the exhi- bition with premiums, or if they assented to such vote. 1 § 86. Liability of members in Pennsylvania. — In Penn- sylvania it was held that members of an unincorporated mutual benefit society were jointly and severally liable to pay sick benefits to co-members, but the act of April 28, 18T6, of that state, declares that members of beneficial societies " shall not be individually liable for the payment of periodical or fu- neral benefits or other liabilities of the lodge or other organiza- tions," and provides that " the same shall be payable out of the treasury of such lodge or organization." Notwithstand- ing the above act, such associations still continue to be part- nerships. The act simply limits the remedy. It exonerates the members from all individual liability, and confines the execution to the partnership property. An action at law may be maintained against the members, but the remedy is limited. 2 § 87. Liability of members suspended by statute in New York. — The New York Code of Civil Procedure, at section 1919, provides that an action or special proceeding may be maintained against the president or treasurer of an unincor- porated association, consisting of seven or more persons, upon any cause of action upon which the plaintiff may maintain such an action against all the ass< x-iates by reason of their inter- est or ownership, either jointly or in common, on their liability th • re Cor, either jointly or severally. Any partnership or other company of persons which has a president or treasurer is deemed an association within the meaning of this section. When an unincorporated association, consisting of more than seven members, has been formed, and has adopted by-laws and elected 'Ray v. Powers, 134 Mass. 22; see Notos of Ca8ea (Pa#) 317; Kurz v also Tyrrell v. Washburn, 88 Mass. Eggert, 9 Id. 126; Paul v. Keystone 466; Murray v. Walker, 83 Iowa 202; Lodge, 3 [d. 108; Commonwealth v 48 N. W. Rep. 10. Volz, 14 Id. 289. 2 Pritchett v. Schafer, 2 Weekly 180 LT ABILITY OF MEMBERS. a treasurer, an action can not be maintained against the indi- vidual members thereof upon a debt due from the association, unless an action has first been brought against its president or treasurer, as prescribed by this section. 1 1 Flagg v. Swift et al., 25 Hun (N. 628; see Tibbits v. Blood, 21 Barb. Y.) 623, criticising and distinguishing 650, and Schmidt v. Gunther, 5 Daly Park v. Spaulding, 10 Hun 128; With- 452; McCabe v. Goodfellow, 15 N. Y. erhead v. Allen, 4 Abb. Ct. App. Dec. Supp. 377. CHAPTER VI. SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. § 88. Proper parties to an action. 89. Actions by society or a member to recover property. 90. Right of society to exclusive use of its name. 91. Injunction restraining libel on society. 92. Judgment against an unincorporated society. § 88. Proper parties to actions. — The old rule was that, in suits by or against an unincorporated voluntary society, whatever the number of its members, or the nature or extent of the objects undertaken, the society was looked upon as in the nature of a partnership, and all the members were neces- sary parties. But by statute, both in this country and in England, this rule has been modified to suit the exigencies of modern practice. It would serve no useful purpose to recite in this treatise the exact changes which each state has made in the old rule, and it is only necessary here to state the mod- ern, sometimes called the equity rule. If the members of the society are so numerous that they can not be made parties to the cause with any chance of bringing it to a hearing, in con- si "(juence of abatements and like difficulties, suit may be brought in the name of one or more for the use of all, or two or three members may be made defendants to represent the interests of all. 1 If there should be two or more classes of members who have separate or conflicting interests, then a small number may be selected from each class to represent that interest in the same way as if the whole class had been brought before the court. It sometimes happens that there is a class of members in a society who have conflicting interests with the others ; then the plaintiffs, if the class to which they belong is very numerous, put forward two or three of their number, who sue on behalf of themselves and all the others •Eiggett v. Ladd, 17 Oregon, 89; 21 Pac. Rep. 133. (181) 182 SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. of that class, and make the other members defendants, who have conflicting interests; or, if the defendants are numerous, make some of them defendants on behalf of the rest. 1 A statute provided that " when the question is one of a general or common interest of many persons, or where the parties are very numerous and it may be imprac- ticable to bring them all before the court, one or more may sue or defend for the whole." Plaintiffs sued " on behalf of themselves and the other stockholders of the association, who may come in and contribute to the expense of the suit." The court held that the complaint showed a compliance with the statute, and said : " If the plaintiffs could have required from all other parties interested who may come in and avail themselves of the benefit of the action, to contribute to the expense, stating this condition in the complaint can not affect their rights in this particular, or prevent them from prosecut- ing the action. The liability to share the expense was the practice in the court of chancery; it has not been abolished, or in any way affected by the recent legislative changes in our practice. * * One or more parties, therefore, of a numer- ous class, have a right to state that they sue for the benefit of the whole, or of those interested, who may come in and contribute to the expense." 2 Where one party brings a suit, under such a statute, for the benefit of many having a common interest, but too numerous to be brought before the court, it is sufficient if they are described with as much certainty as the nature of the controversy will admit. 3 To enable a mem- ber to bring a suit in his own right, and on behalf of others having a common interest, it is not sufficient to allege that the other parties are so numerous that it would be impracticable to bring them all before the court, but the nature of their common interest must appear to be such as would entitle them, were they all before the court, to maintain the action in their own right, or in their own names." In an action against an un- 1 Bromley v. "Williams, 32 Beav. 2 Dennis v. Kennedy, 19 Barb. 517; 177; 1 Daniell's Ch. Pr. 27; Pearce v. Stadler v. District Grand Lodge, 3 Piper, 17 Ves. 1; Cockburn v. Thomp- Am. L. Rec. 589. son, 16 Ves. 321; Story's Eq. Plead- 3 Sourse v. Marshall, 23 Ind. 194. ing, §§75, 107; Phipps v. Jones, 20 4 Habicht v. Pemberton, 4 Sand- Pa. St. 230; Maguire's Estate, 7 W. ford's Repts. (N. Y.) C57. N. C. 214. SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. 1S3 incorporated society, except when the statute permits it to be sued in the name adopted by it, the members are the proper parties; but where the trustees only are sued, if they are mem- bers, the defect is one of parties only, is waived if not objected to, and the trustees will, after judgment, be presumed to have been members. 1 In the absence of statutory regulation permitting an unin- corporated society to sue or to be sued in the name by which it is commonly designated, the members must sue or be sued as partners or persons jointly interested. The court will not permit them to sue or to be sued in the character of a society, nor will courts of equity lend their aid to petitioners coming before them in such a character. It is the exclusive preroga- tive of government to create corporations, and to invest them with power to sue, as such, by their corporate name; and upon principles of policy the courts of the country do not sit to de- termine upon charters granted by persons who have not the prerogative to grant charters. 2 In Lloyd v. Loaring, 3 Lloyd and two other persons, " cm behalf of themselves and all other members of the Caledonian Lodge of Free Masons, except the defendant, LoaTing,'' brought their bill to obtain certain chat- tels belonging to the lodge. On demurrer to the bill for want of parties, Lord Eldon declined to hear argument in support of the demurrer, and, in allowing it, in the course of his opinion, snid : " How is this court to take notice of these persons as a society? A bill might be filed for a chattel, the plaintiffs stat- ing themselves to be jointly interested with several other per- sons, but it would be very dangerous to take; notice of them .is : i society, having anything of constitution in it. * * It is the absolute duty of courts of justice not to permit persons not incorporated to affect to treat themselves ;is incorporated on the record. * * I desire my ground to be understood distinctly. I do not think the court ought to permit persons who can only sue as partners, to sue in u corporate character, ami that is the effect of this bill."* Where a suit in chancery was brought in the names of ■Matpon v. Wentworfh, 4 Cin. L. bury, 1 Brown's Chancery Cases 101; Bull. 518. Pearce v. Piper, IT Vesey 1: Cock- * Story's Eq. PI. g 497. burn v. Thompson, 16 Vesey 821; :i 6 Vesey. Jr., 77:5. Beaumont v. Meredith, 2 Ves. & 4 See Cullen v. The Duke of Queens- Beames 180. 184 SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. " Jonah Pipe and William II. Humphreys, who sue in behalf of themselves, and many other persons too numerous to bring before the court, constituting the members of the British Emi- grant Mutual Aid Society," it was held that the petitioners were not entitled to relief in the character in which they sued, that a mere voluntary society, without franchises, could not sue in the character of a society possessing corporate rights, and that the bill must be dismissed for want of proper par- ties. 1 Where a written promise to pay money is made to " the treasurer of" an unincorporated society, no action may be maintained by the treasurer against the promisor. To main- tain that the treasurer has a right to an action in such a case would be to put him upon the same ground which he would occupy if the society had been incorporated and made capable by its charter of suing in the name of whoever might be its treasurer, on instruments made payable to the treasurer. Such a capacity to maintain an action can be conferred by a charter only. In such a case the members of the society are the proper parties to bring suit. 2 § 89. As to actions by a society or a member for recov- ery of its property. — A member of an unincorporated society can not maintain, in his name, for the benefit of the society, an action on a note given to or held by the society, without showing by his complaint or declaration that he is the general agent of the society, or that he is specially authorized to bring the suit for, and on behalf of the society, and without further showing that, under the contract and agreement by which the members are formed into and united as a society, the members themselves have a legal title to maintain the suit. The right to maintain the action must be shown to be in both the mem- bers at large and the member suing. Although the complaint or declaration avers that the society is unincorporated, it by no means follows that its individual members have a right to maintain an action in their own names, and for their own ben- efit, upon every security given to the society, or to third per- sons for account of it. Their right to do so must depend upon the nature of the association, and the terms and conditions of J Pipe v. Bateman, 1 Iowa, 369; 82; Piggott v. Thompson, 3 Bos. & Chambers v. Calhoun, 18 Pa. St. 13. Pull. Repts. 146. 2 Ewing v. Medlock, 5 Porter (Ala.) SUITS BY OK AGAINST AN UNINCORPORATED SOCIETY. 185 the agreement by which its members are united. Although the society is not incorporated, its members are not necessarily either partners or joint owners. They may have only an equitable, and that only an eventual and contingent interest in the property and funds of the society, and to permit them to appropriate these to their own immediate use, by a recovery in their own names, or by one on behalf of the others, might be to aid them in deceiving the public, and defrauding creditors. These observations show not only the propriety but the neces- sity of requiring that the contract or agreement by which the members are formed into and united as a society shall be set forth, as the only means of enabling the court to determine whether they have a legal right to maintain the suit; and whether a member suing on behalf of the society has such an authority as will enable him to bring suit in his own name for its property is a question of law, which can only be determined when the whole nature and terms of his authority shall be set forth. 1 An unincorporated society, organized for purely benevolent and social purposes, carrying on no business, provided in its constitution and by-laws that its funds should be solely under the control of its members in good standing. All the members in good standing joined in an assignment to plaintiff of all their right to, and interest in, its funds, and authorized him to bring suit against defendants, who had appropriated them to their own use. It appeared that at the time of the assign- ment there were many members in arrears, and not in good Btanding, who had originally contributed to the fund, and who could, under the rules, resume their rights as members by paying arrearages. In a suit by the plaint ill' against the de- fendants to recover the funds, it was held that plaintiff was ch.t lied with a good title and had a right to sue under such an assignment and authorization, that the contributing members who were not in good standing had no legal interest in the funds, but only an interest contingent on paying arrearages, and that the organization was not a copartnership, the rights of whose members could be settled only in equity, and thai a verdict for plaintiff was warranted." The revocation by a su- 1 Habicht v. Pemberton, supra. 41 N. W. Rep. 921; see Kuhl v. 2 Brown v. Stoerkel, ~A Mich. 269; Meyer, 85 Mo. App. 806. 186 SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. preme lodge or council of the social charter of a local lodge does not deprive the local lodge of the right to sue for and collect debts due it, since such right springs from the laws of the state and not from the rules and regulations of the society. 1 Trustees de facto of a society, whether incorporated or not, may maintain an action against a trespasser for an injury to the property of the society. 2 If, under the agreement of as- sociation, the trustees of an unincorporated society have power to collect money from its members, they niay sue to recover the money if it is not paid. 3 § 90. Right of an unincorporated society to the exclusive use of its name. — The dissatisfied members of an unincor- porated voluntary society can not, by incorporating themselves, deprive the unincorporated society of the right to use its own name; and a temporary injunction for that purpose will not be granted. 4 An action will lie on behalf of an unincorporated so- ciety to enjoin a part of its members from procuring the incor- poration of a society under the name used by it. 5 § 91. Injunction restraining libel on society. — An in- junction will be granted upon an interlocutory application to restrain the publication of matter tending to injure a friendly society. An honorary member of a friendly society, having for its object the assurance of sums of money to defray the ex- penses of the funeral of deceased members, issued a circular among the clergymen of the parishes in which the society had district lodges, stating in the circular matters which were false at the time of framing and issuing the circular, and were calculated to injure the business interests of the society. Upon motion in an action by the trustees of the society against the honorary member, an injunction was granted restraining the issue of the circular until the trial of the action. 8 § 92. Judgment against an unincorporated society. — Where a society is proceeded against by mandamus or kin- 1 Wells v. Monihan, 129 N. Y. 161; 4 Black Rabbit Association v. Mun- 29 N. East. Rep. 232, affirming 13 N. day, 21 Abb. New Cases (N. Y.) 99; Y. Supp. 156; see Wicks v. Monihan, Henry v. Deitrich, 84 Pa. St. 286; see 130 N. Y. 232; 29 N. East. Rep. 139; § 12. affirming 8 N. Y. Supp. 121. 6 McGlynn v. Post, 21 Abb. New 2 Green v. Cody, 9 Wend. 414. Cases 97.' s Humphreys v. Company, 10 N. 6 Hill v. Hart-Davis, 47 L. T. R. Y. Supp. 461. (N. S.) 82. SUITS BY OR AGAINST AN UNINCORPORATED SOCIETY. 1S7 dred action, by a name not inappropriate as a corporate des- ignation, and the application is resisted by it in that name and no denial of its corporate character is contained in the papers, it will be presumed that it is in fact a corporation.' But if the society is in fact an unincorporated society, in the absence' of statutory regulation, a judgment against it will be null and void. Such a judgment is not a recovery against any person, either natural or artificial. The sale on execution on such a judgment of property held in the name of the society would be a nullity. "Where suit is brought against a member of an un- incorporated society, he may not plead a former recovery in an action against the society, under the nanm by which it is commonly designated. The society, having no legal existence, could not represent its members in a suit against it. and, as the member was not a party to the proceeding, such a plea would constitute no defense. 2 . 'Doyle v. Benevolent Society, 3 84 111. 459: Stoddard v. Onondago Hun (N. Y.)361; Barbaro v. Occiden- Conference, 12 Bail). (N. Y.) 570. tal Grove, 4 Mo. App. 429; United 2 Ash v. Guie, 97 Pa. St. 493. States Express Company v. Bedbury,. CHAPTER VII. OFFICERS. § 93, 94. Election of officers. 95, 96, 97, 98. Powers and duties. 99. Salaries, fees, commissions. 100. Liabilities of officers. 101. Official bonds, rights and liabilities of sureties. 102. Liability of new sureties. 103. Liability on a bond to a state. § 93. Election of officers. — Power to elect officers and to conduct business through their agency pertains to an incorpo- rated society, and need not be expressly conferred upon it. This power is, generally speaking, in the society at large, but may be lodged in its board of directors. Where the charter of a society authorizes the election of its " directors or man- agers at such time and place, in such manner, as may be speci- fied in its by-laws," a by-law authorizing its members to vote at all elections either in person or by proxy, is valid. Unless custom had ruled it otherwise, a member of a society could not vote by proxy by the civil law. It was so held because of the mischief and inconvenience which might arise from hav- ing a few members manage the affairs of the society. 1 The common law required all votes to be given in person, and when that is a part of the law of the land, and there is no statute authorizing votes to be cast by proxy, the society may not make provisions for voting by proxy. 2 But it has been held that provisions of the by-laws of an incorporated society for voting by proxy are matters of internal regulation and con- venience, with which courts will not interfere, even though that mode of voting is not sanctioned by any statutory pro- vision. 3 Where at an election of directors of an incorporated 1 Ayliffe, Civil Law, 202. 42; Commonwealth v. Binghurst, 2 Taylor v. Griswold, 2 Green (N. 103 Pa. St. 134; 49 Am. Rep. 119. J.) 222; Craig v. Church, 88 Pa. St. 3 State v. Tudor, 5 Day 329. (188) OFFICERS. 189 mutual benefit society, the only objection made was as to the right of members to vote by proxy, it was held, on quo w. 135. Concerning the election of of- 8 Chicago Mutual v. Hunt, 127 111. ficers, see People v. Railroad Co., 55 257; 20 N. East, Rep. 55. Barb. (N. Y.) 344; Partridge v. Bad- 8 Rudolph v. Southern Beneficial ger, 25 Barb. (N. Y.) 146; Owen v. League, 1 N.Y. Supp.136; People v. Whitaker, 20 N. J. Eq. 122; Johnston Hosmer, 2 How. Pr. (X. S.) 472; v. Jones. 28 N. J. Eq. 216: 1 Water- People v. Railroad Co., 7 Abb. Pr. (N. man on Corp. §58; State v. Bonnell, S.) 205; In re Railroad Co., 19 Wend. 35 Oh. St. 10. 190 OFFICERS. the terms of office of some of those participating in the elec- tion had not commenced; and the old treasurer is entitled to retain the books, papers, and moneys of the association, as against the person so elected. 1 § 94. On the trial of a quo warranto proceeding in which the issue is on the legality of the election, evidence may be given of conversations and transactions, threats and con- federacies of members previous to the election, if they were connected with, and might have had an influence on it. 2 Where the charter gave to the society power " to make rules, by-laws and ordinances, and to do everything needful for the good government and support " of the society, it was held that the society had power to make a by-law vesting the appointment of inspectors of their elections in the president of the society, and to make a by-law prohibiting tickets from being counted at an election, which had other things on besides the names. And it is a violation of such a by-law as last above mentioned, to have an eagle engraved on such tickets. 3 When the mode of electing officers is not regulated by the charter, a corporation may make by-laws to regulate the election. 4 Where an office in a society is not created or expressly authorized by state law, but is one created by an unincorporated society, and filled by election by a body which possesses no corporate powers or functions, the courts of the state have no authority whatever over the office, or over the election to it. These are controlled exclusively by such society, and the decisions of the society upon the legality or the result of such elections are final. Such an office can not be made the subject of quo warranto proceedings. 6 Where two elections for trustees of a religious incorpo- rated society were held on the same day, one held before persons designated in the manner customary with the con- gregation, and held at the usual place, and the other at another place, the persons having a majority of votes at the election conducted at the usual place, and in the usual manner, are to be considered as duly elected over others voted for at a 1 Grand Rapids Guard v. Bulkley, 3 Commonwealth v. Woelper, sn- 97 Mich. 610; 57 N. W. Rep. 188. pra. 2 Commonwealth v. Woelper, 3 4 Newling v. Francis, 3 T. R. 189. Ser. & R. (Pa.) 29. 6 Ter Vree v. Geerlings, 55 Mich. 562. OFFICERS. 101 different place of election, though the persons holding the latter election were excluded from the usual place of election, and though the latter had a majority of all of the votes cast at both places of election. 1 Plaintiffs and defendants were originally members of the voluntary society known as "The Ancient Order of Hibernians," which consisted of national, state, and local bodies. Under its constitution, members of a local " division " were members of the national organization, and a withdrawal from the latter severed the connection of a member with the former, also. Any member could withdraw by paying bis dues and giving written or verbal notice of his intention to do so. A schism arose in the order, and a new organization of seceding members was formed, which repudi- ated connection with, or obedience to, the old society, both national and state. Defendants united with the new order, and plaintiffs, though a minority of the division, reorganized it, and elected officers in lieu of the seceding members, who comprised all the officers but one. The reorganized division was recognized by, and retained its relations with, the old national organization. The seceding officers no longer pre- tended to act as officers of the old division. It was held that as it was apparent the seceders no longer intended to act as officers, vacancies existed, and the remaining members had the power to fill them by elections, and the division was not dissolved. 9 In svery case of corporations created by statute, so far as the statute directs and provides, it must rule; but in cases pre- termitted by the statute, there are numerous principles of common law which apply, and guide and sustain the corpora- tion; and to ward off their application, it would be necessary for the legislature to use negative expressions, or such as would exclude those general rules of law. It is one of 1 hose general rules that it a corporation fails to elect officers on its corpo- rate flay or time, still the corporation does not cease; the old officers retain their powers, and may act until they are super- seded by a new appointment. Such officers are subjeci to liability on their bonds as much after, as before the time for which they were elected expires, it they continue to act. and 1 Juker v. Commonwealth, 20 Pa. 'McFaddeu v. Murphy, 149 Mass. St. 48-4. 341; 21 N. East. Rep. 868, 192 OFFICERS. no subsequent election has taken place. 1 The decision of a court of law upon a quo warranto or mandamus operates in rem, and may remove or oust any one from an office which he holds, but a court of equity has no jurisdiction to remove an officer from the possession of his office or to declare such office forfeited. But when a court of equity has jurisdiction in a suit it is competent to inquire into and decide the question of the right to an office, or of the regularity of an election when that question arises incidentally. 3 § 95. Powers and duties. — In the absence of express pro- visions in the charter of a mutual benefit society, limiting the appointment of its officers and agents or the scope of their powers and duties, it must be presumed that each person, in becoming a member of the society, impliedly consents that it shall be represented by such officers and agents as are reason- ablv necessary for the transaction of its business, and that they shall possess the powers and perform the duties ordinarily possessed and performed by such officers and agents. While it is not competent for the officers and agents to relieve a member from the payment of any assessment properly made on him, it is competent for them to mitigate the terms upon which his contract would otherwise become forfeited. In regard to regular insurance companies, it is well settled that ao-ents may, by acts binding on the company, waive the causes of forfeiture declared in the policy, and there is no reason why the principle may not also apply to mutual benefit socie- ties, where the waiver does not substantially impair the rights of the other members. 3 It will be presumed that the officers of a mutual benefit society have such powers as are generally exer- cised by officers of other corporations. Persons acting publicly as officers of a society are presumed to be rightfully in office. If officers of an incorporated society openly exercise a power which pre-supposes a delegated authority for the purpose, and other corporate acts show that the corporation must have con- templated the legal existence of such authority, the delegated authority for their acts will be presumed. The president, sec- 1 Weir v. Bush, 4 Littell (Ky.) 430; 3 Protection Life v. Foote, 79 111. People v. Runkel, 9 Johnson Rep. 147. 361. 2 Johnson v. Jones, 23 N. J. Eq. 216; Doremus v. Church, 2 Green's Ch. 332. OFFICERS. 193 retary or other general officer of a society, when in the dis- charge of the duties of his office, represents the society itself, and has power, prima facit , to do any act which the directors could authorize or ratify. 1 He rmoy waive the prompt pay- ment of an assessment, and the valid exercise of such a power does not depend upon the particular place where he may be at the time. The true test of his authority to bind the society is not whether he acts in its general office, or in another state from that in which the general office is situated, but whether at the time he is engaged in the discharge of the general duties of his office and in the business of the corporation.' 2 He may by his acts, after knowledge of an existing cause of forfeiture, waive the forfeiture, and estop the society to take advantage of it. s His promise, made in the discharge of his general duties, is binding on the society. 4 He may waive the prompt payment of assessments. 6 The statement of the secretary of a mutual benefit society to a member, that he need not pay his dues until certain charges pending against him were disposed of, is binding on the so- ciety." Notice from the secretary of a society, whose duty it is to send it, is notice from the society, and it is bound by his nets. 7 The application of a deceased member of a society was wit- nessed by a special instituting officer, who was present at the institution of the subordinate council to which the deceased belonged, and performed the duties of the secretary of such subordinate council, as a secretary had not been elected. The 1 Leslie v. Lorrilard, 110 N. Y. 510; Supp. 985; Ken yon v. Association, 100 18 N. East. Rep. 363; Holmes v. Wil- N. Y. 017: 25 N. East Rep. 299; Mc- lanl, 125N. Y. 75; 25 N. East. Rep. Corkle v. Association, 71 Texas 149; ins::-. Rathbunv.Snow, L23N. V. 843; s s. \V. Rep. 516; Van Houton v. Pine, 25 N. East. Rep. 879; Hastings v. Ins. Stew. Eq. 133; 38 N. J. Eq. 70. Co.,188N.Y.473;34 N. East. Rep.289; National Mutual v. .1 a, 84 Ky. Mor. Priv. Corp., ;>: 251 258. 110; 2 S. W. Rep. 447: Loughridge v. Hastings v. Ins. Co., supra. Association, s l Iowa ill: 50 N. W. 3 Lindsey v. Society, 84 Iowa 734; Rep. ."itiS; Mallory v. Insurance Co., 50 N. W. Rep. 0!): Grand Lod^e v. 90 Mich. HO: .">l N. W. Rep. 188. Brand, 00 Neb. 644: 46 X. W. Rep. • Jones v. Association, 84 Ky. 110; 95; .Morrison v. <>iM Fellows..')!) Wis. S. W. Rep. 447; True v. Association. J62; Warnebold v. Grand Lodge, 83 78 Wis. 287; 17 N. \V. Rep. 520. Iowa 28; 48 N. W. Rep. 1009. : Olmstead v. Farmers' Mutual, 50 4 Keeler v. Association, 20 N. Y. Mich. 000. 13 19-JL OFFICERS. instituting officer was charged with no duty respecting the application, except to see that it was in proper form when it was passed to the supreme council, of which he was, however, no officer. The grand council, of which he was an officer, had nothing to do with the benefit fund, nor was he by law charged with the duty of instituting councils, or receiving applications for membership. It was no part of his duty to pass on the qualifications of beneficiaries, and there was no officer on whom such duty did devolve. This officer had heard that the beneficiary was not a niece of the member, as set forth in the application, but testified that he had no personal knowledge on the subject, and did not recollect paying any attention to the statement in the application to the effect that she was his niece. The society was not, under these circumstances, es- topped from showing that the beneficiary was not a niece of the deceased. 1 When the trustees of a secret society are vested with general power to manage its property, a lease of the lodge room to another society for use on one night in each week is not beyond their power, and is valid. 2 § 96. Where the organic law of a society or the charter procured from the state under that law, prescribes what classes of persons may become beneficiaries of its insurance, it is not in the power of an officer of the society to enlarge or restrict these classes. 3 ISTo restriction contained in the charter may be waived by an officer. 4 § 97. Mutual benefit societies and stock companies are essentially different in their plans of carrying on the business of life insurance. Societies have many by-laws which are a part of the contract of insurance, and which are binding on all members, whether officers or not. They are conducted on principle of mutuality, and should give insurance to each member on the same terms, conditions and restrictions. It would be destructive of this equality in the contracts of insur- 11 Supreme Council v.Green, 71 Md. Mutual v. Eolfe, 76 Mich. 146; Hy- 263; 17 Atl. Eep. 1048. singer v. Supreme Lodge, 42 Mo. 2 Phillips v. Aurora Lodge, 87 Ind. App. 627. 505. 4 Luthe v. Ins. Co., 55 Wis. 543; 3 Kentucky Masonic v. Miller's Belleville Mutual v. Van Winkle, 1 Adm'r, 13 Bush (Ky.) 489; Eindge Beasley (N. J.) 333. v. Ins. Co., 146 Mass. 286; Michigan OFFICERS. 195 ance to give to an officer the power to waive the provisions of a by-law which relates to the substance of the contract. Asa general rule, an officer of a mutual benefit society has no authority to waive a strict compliance with the by-laws on the part of a member. The society has power to establish by-laws, and it is the imperative duty of the member to comply with them. Where the laws of a society provided that its by-laws should in no case he altered, unless previous notice of such intended alteration was given as prescribed, and it should be voted for by two-thirds of all the members presentat that meeting, it was held that the" president had no right in any case to suspend or change the by-laws by his verbal act, and at his pleasure, and thai a member was chargeable with notice that he had no such right. 1 An officer of a mutual benefit society has no authority, as a general rule, to waive a strict compliance, on the part of a member, with its by-laws. This rule, however, does not extend to those by-laws which relate to the clerical transaction of its business, or to the mode of establishing its liability. By-laws in regard to proof of deatb of a member, for instance, may be waived. But it is well settled that the officers of such a soci- ety have in. authority to waive those of its by-laws which relate to the Bubstance of the contract between it and a member, determine the relations of the members to each other, or in any manner fix the rights and liabilities of the parties. 2 The by-laws of a society provided that no person should be eligible to membership who was under twenty-one. or over sixty years of age. For the purpose of procuring insurance as a member, a person represented that he was fifty-nine years old, when in fact he was sixty-four years of age. It was claimed after his death that the treasurer of the society had received assess- ments after he had knowledge of t he decedent's t rue age. The court held that the evidence failed to show that the treasurer had acquired any knowledge or information of the false repre- sentation while in the discharge of any official duty, and said : ' Hal.' ▼. Mechanics' Mutual, 6 Gray Mulrey v. Ins. Co., t Allen 116; Ev- 169; Baxter v. Los. Co., I Allen SJ94; ana r. Ens. Co., 9 Allen 839; Harvey Hall v. .Merrill. 17 Minn. 360; Bee v. Grand Lodge, 50 Mo. App. 473; £ 147. Lyon v. Supreme Assembly, 153 * Burbank v. Association, 144 Mass. Mass. 83; 36 N. Bast Rep. 386; see 184; it N. East. Rep., 691; Swetl v. Grand Lodg. r.J ,50111. Aj? p. 101. Society, 78 Me. 541; 7 Ail. Rep. :!!J4; 196 OFFICERS. " But assuming that the treasurer acquired notice of the fact, when he received the assessments, he had no power to ratify the invalid contract. He could not admit a member, and thereby make a contract of insurance, and if he had no power to make such a contract for the corporation, he had no power to validate a void contract by any act of ratification." l Where a by-law provided that only persons between twenty and fifty-one years of age were eligible to membership, and the application of decedent stated that he was about forty-nine years old, when he was in fact over fifty-one years of age, it was held that even though the officers of the society knew his age and attempted to waive the by-law, they could not do so. 2 A mutual fire insurance company issued a policy to its treas- urer on a house owned by him. The policy contained several conditions, but not all of the by-laws of the society. The treasurer afterward sold the house and lot to the complainant, and assigned the policy to him. The complainant, during the negotiations, in the presence and hearing of the secretary, asked the treasurer whether the policy contained all the con- ditions of insurance. He replied that it did, and the secretary remained silent. After the house had burned, complainant brought an action at law on the policy, to which the society pleaded a by-law not mentioned in it. He had violated this by-law, and thereby forfeited all right of recovery. It was held upon these facts that as the officers of a society could not waive its by-laws, it was not estopped by the treasurers state- ment to complainant, or by the secretary's silence, when the statement was made. 3 But in one case it was held that where the by-laws provide that no one over the age of fifty years may become a member of the society, this qualification may be waived by the society. 4 Neither the majority of the members, nor the board of 1 Swett v. Society, 78 Me. 541; 7 and the insured, knowing the restrie- Atl. Rep. 364. tion, conspired to falsely represent 4 McCoy v. Ins. Co., 152 Mass. 272; that the applicant was under that 25 N. East. Rep. 289. age, the society is not bound by the 3 Miller v. Association, 42 N. J. Eq. acts of the agent, and there is no 457; 7 Atl. Rep. 895. waiver of the by-law. Hanf. v. As- 4 Morrison v. Odd Fellows, 59 Wis. sociation, 76 Wis. 450; 45 N. W. Rep. 162; 18 N. W. Rep. 13; contra. Mc- 315; see Supreme Council v. Boyle, Coy v. Ins. Co., 152 Mass. 272; 25 N. (Ind. App.); 37 N. East. Rep. 1105. East. Rep. 289. But where the agent OFFICERS. 197 directors hare a right to disregard a by-law which has been properly passed. It must be lived up to until repealed or amended. In one case the by-laws restricted membership to persons between certain ages. Applicant was ineligible but misstated his age, and the secretarv knew of the misstatement. The by-laws also provided that "in case a certificate of member- ship has been issued upon an application fraudulent or false in any statement therein, the secretary shall cancel the certificate and return the money." Instead of acting under this by-law, the secretary continued to make assessments on the member, and the court held that the course pursued was an effectual waiver of the restriction as to a^e. 1 An officer may not waive prepayment of the membership fee or an assessment, and declare the contract binding, where the by-laws require prepayment before the contract shall be- come effective." Where the by-laws make it the imperative duty of officers to literally and rigorously enforce forfeitures for non-payment of assessments on the day fixed, the members are each bound by such provisions. Where the constitution of a supreme body sets forth the only method of re-instating a member after he has been suspended. the officers of a subordinate lodge may not waive these re- quirements. 3 § 98. The failure of the officers of a mutual benefit associa- tion to keep correct, and intelligible books of accounts, whether such failure results from design, carelessness, or want of skill, is a serious breach of official duty. Such olficers are trustees, having funds intrusted to their care, to be safely and honestly kept and administered, not for their OWE benefit, but solely for the promotion of the laudable objects for which the associa- tion is organized. It is a duty of primary importance, incum- bent on all trustees, to keep proper accounts of trust funds; for unless that is done the beneficial owners of such funds are subjected to constant uncertainty as to their rights, and to a 1 Morrison v. Odd Fellows. 59 Wis. s Brewer v. Ins. Co., 14 Gray iMass.) 162. In this case the court expressly SOS. states that the secretary bad the ''Grand Lodge v. Jesse, 50 111. App. power to waive the restriction as to 101. age. See Supreme < kmncil v. Boyle, Ind. App.; 37 N. East. Rep. 1105. 198 OFFICERS. constant liability to be defrauded. Next to the duty of hon- estly administering a trust fund is that of keeping a true, honest, and intelligible account of such administration. 1 It was held that the officers of a society were guilty of fraud upon the members in issuing certificates of membership num- bered higher than the total number of certificates issued up to that date; and it was no excuse that such false numbering was done, not to deceive new members, but merely to prevent rival associations from ascertaining the state of the business. No attempt having been made to apprise applicants of the truth, the effect was fraudulent. 2 Where an officer of a society ren- ders a false statement of its affairs to an officer of the state, to whom he is required by law to make a report, or where he sup- presses facts which ought to have been stated in such a report, he is guilty of fraud and should be removed. 3 § 99. Salary, fees, commissions. — Where there is no agreement between the society and one of its officers, that he is to receive any salary for his services, the right to such com- pensation must depend upon the usage in like cases. Where an officer has not only made no charge against the society from time to time, as he has made reports to it of his stewardship, but has, as shown by the minutes of the proceedings, received the thanks of the society for his gratuitous and able management of the affairs under his control as such officer, it must be held that he may not charge the society for such services. 4 Trustees of a society, having voted to themselves and accepted desig- nated sums of money as compensation for their services for par- ticular years, have no power, in subsequent years of their serv- ice, to vote themselves " back pay " for their services during such former years. Such trustees have no authority, by virtue simply of their trusteeship, to act for or bind their society, except in their aggregate and administrative capacity as a board ; and whore they assume, by virtue of their trusteeship, to act in the separate and individual capacity of treasurer, secretary, or as general or special agent of their association, they can not thereby create against it a iegal liability to com- pensate them as trustees for such services. Such trustees, 'Chicago Mutual v. Hunt, 127111. 3 Chicago Mutual v. Hunt, supra. 257; 20 N. East. Rep. 55. 4 Vestry and Wardens v. Barksdale, 2 Chicago Mutual v. Hunt, supra. 1 Strob. Eq. (S. Car.) 197. OFFICERS. 199 unless specially invested with the additional capacity and authority of officers or agents, are limited in their claims for compensation to such sums as will reasonably compensate them for the time and expense incurred in going to, attending, and returning- from their official meetings, and for their serv- ices while in session. 1 Trustees are charged with the duty of faithfully executing the trust which the laws and regulations impose on them. They are entitled to a reasonable compen- sation for the service rendered; but any plan or scheme by which money is collected from members by assessment or otherwise, with a view to their individual profit, and beyond what is necessary to defray the reasonable expenses of exe- cuting the trust, is a I trench of trust. 2 Where officers and directors of a mutual benefit society, engaged in the business of issuing wagering policies, have divided among themselves the surplus funds of the society as compensation for their own services, a decree may he entered against the officers and direct- ors jointly, in favor of a receiver appointed on dissolution of the company, for the amount of the funds fraudulently misap- propriated. 3 The salaries of officers of voluntary societies must not. especially when the officers fix the amount of their own sala- ries, he out of proportion to the amount of responsibility and labor devolving upon them. And where it is shown that ths officers of the society seem to regulate their salaries rather by the condition of its expense fund than by the compensation actually earned, courts will, upon application, interfere to protect the interests of the members. 4 A corporation can not avail itself of a mutual agreement made by its officers among themselves to accept a reduced rateof salary for their services to be thereafter performed, the corporation not having been a party to the agreement, and the same not having been com- municated to or accepted by it or its directors.'' An officer of a corporation, in order to recover compensation for bis sen ices, ■State v. Association, 12 < (hio St. 597; Robinson v. Supreme Council, 579. Baltimore Dailj Record,May IT. L892. State v. Association, 88 Oh. St. s Richard Thompson Co. ▼. Brook, 281. 14 N. V. Supp, 370; Robinson v. Su- McCarthy's Appeal. IT W. N. C. preme Council, Baltimore Daily Rec- 182. ord, May 17, 1892. 4 State v. Association, 42 Oh. St. 200 OFFICERS. must show that he is an officer de jure as well as de facto. It is the legal right to an office which confers the right to receive and appropriate the salary, fees, and emoluments incident to such office; and if an officer de facto has obtained such salary, fees, or emoluments, he is liable to the officer de jure in an action for money had and received." If suit be brought by a person claiming to be an officer for the salary or compensation belonging to such office, his title to the office is in issue, and, if that be defective, and another has the real right, although not in possession, the plaintiff can not recover. 2 § 100. Liability of officers of mutual benefit society. — It is the duty of the officers of a mutual benefit society to pro- tect and properly disburse the funds which have been col- lected by assessments for the payment of death losses, and if the directors have divided among themselves and other incor- porators, and paid out for expenses, any money which ought to have been applied to the payment of a death loss, they are personally liable to the beneficiary for the amount misappro- priated or misapplied, even though they acted in good faith in the matter. 3 But officers of such a society, whose duties are executive, and who are subject to the direction and control of the directors, are not liable for such misappropriation of funds, if they have simply performed their duties as directed. The officers of such a society are not liable for money of the society deposited in bank, and lost by its failure, if they acted, in reference to such deposit, in good faith, and as pru- dent men generally acted in the same community. 4 The treas- urer of a society in a proceeding for an accounting, should not be allowed a set-off for expenses incurred "by him in carrying out an illegal vote to dissolve the society, nor for costs and expenses of an equity suit brought by members to restrain him from carrying into effect the illegal vote. 5 Where the laws of an association provide that the funds shall be placed JMayfield v. Moore, 53 111. 428. Iowa 698; 10 N. W. Eep. 248; Com- 2 Waterman v. Company, 139 111. siock v. Grand Rapids, 40 Mich. 397. 658; 29 N. East. Eep. 689; Dolan v. 3 Stewart v. Association, 64 Miss. Mayor, 68 N. Y. 274; Matthews v. 499; 1 So. Eep. 743. Supervisors, 53 Miss. 715; Dorsey v. 4 Stewart v. Association, supra. Smyth, 28 Cal. 21; Andrews v. Port- 5 St. Mary's Ben. Ass'n v. Lynch, land, 79 Me. 484; 10 Atl. Rep. 458; 64 N. H. 213; 9 Atl. Rep. 98; 4 N. McCue v. County of Wapello, 56 Eng. Rep. 163. OFFICERS. 201 in the hands of the treasurer, and that no money shall be drawn except by an order of the executive council, signed by a chief officer (naming him) and at least two trustees, without providing any maimer of turning over funds to a successor, an action to recover the funds can not be maintained against the treasurer merely because he refuses to pay the money in accord- ance with a resolution of the executive council, when no order is drawn and signed as provided. 1 Trustees or officers of an unincorporated society are not individually liable for its debts, unless they have in some way specially rendered themselves liable. 4 The funds of a society were kept on deposit in bank, subject to the order of the trustees. One of the by-laws of the society provided that the trustees should "keep the funds invested, for the best interests of this tribe, in such stocks, bonds, mortgages, or other securities as shall be approved by two-thirds of the members thereof present at a regular coun- cil." An order was passed by the tribe or society, instructing the trustees "to try and invest the money in the bank, not ex- ceeding $2,000." Such an order does not purport to author- ize an investment of money of the tribe otherwise than "in stocks, bonds, mortgages, or other securities, approved by two-thirds of the members thereof present at a regular coun- cil," and an investment of any of such funds by the trustees in real estate bought of a member of such tribe or society, is voidable at the election of the society. In an action against the trustees and the vendor to have such a purchase declared void, evidence that one of the trustees understood that the propriety of the purchase was first to be submitted to the society, is admissible; and evidence that one of the trustees acted without the concurrence of a co-trustee, or thai the lat- ter was induced to concur in his act by reason of misrepresen- tations which he had made with respect to the concurrence of a third trustee, is also admissible. In such an action the question whether the acts of the officer were fair or unfair is to be determined by the jury, and not by the trustees who may be called as witnesses. "Where a mortgage made by the vendor has I n paid oil' and canceled with funds derived from a fraudulent sale of property to the society, and suit is "Smith v. Pinney, 86 Mich. 184; i'.» - Wott v. Schlieffer, 2 Brewa 568. N. \Y. Rep. 305. 202 OFFICERS. brought to set aside such sale, the vendor and mortgagee be- ing parties, the mortgage may be revived and enforced for the benefit of the society against all the property therein de- scribed, to the extent of the amount applied by the vendor to its satisfaction, from the proceeds of such fraudulent sale. 1 A member of a society, who is elected its treasurer to receive and invest the funds of the society in his individual name, and who does so invest them, holds the funds as a trustee for the society, and is subject, as such trustee, to the jurisdiction of a court of equity. 2 Neither the society nor its officers can ap- propriate its funds to other purposes than those for which they were intended, and a court of equity will interfere to prevent a wrongful disposition of them. 3 The fact that an unincorporated society, not a charity, is subject to the sole government and control of a superior body, does not deprive courts of their jurisdiction to compel certain trustees of the society, removable at its pleasure, to transfer the trust estate to new trustees duly chosen by it. 4 A bill in equity stated that the plaintiffs and many others had formed a voluntary association for benevolent purposes, that the name of the as- sociation was afterward changed by vote of its members at a regular meeting, that the funds of the association were depos- ited for its use in the names of its four trustees in a savings bank, that one of its trustees had refused to join with his co- trustees in an assignment of those funds to their successors, and that the bank had refused to transfer the funds without such an assignment; it prayed that the savings bank might be ordered to transfer the funds, and that the trustee might be ordered to join in the assignment. The court held that plaint- iffs and their associates might maintain the bill. 5 Where the trustees of a lodge had executed their notes for its 1 Red Jacket Tribe v. Gibson, 70 Library v. Bliss, 151 Mass. 364; 25 N Cal. 128. East. Rep. 92; Peter v. Carter, 70 s Weld v. May, 9 Cusb. (Mass.) 181. Md. 139; 16 Atl. Rep. 450; Trustees v. 3 Penfleld v. Skinner, 11 Vt. 296; Adams, 65 N. H. 225; 18 Atl. Rep. Bailey v. Lewis, 3 Day (Conn.) 450: 777. Stadler v. District Grand Lodge, 3 4 Brown v. Griffen, 14 "Weekly Notes Am. L. Rec. 589; In re Equitable of Cases, 358. Reserve, 16 N. Y. Supp. 80; Good- 5 Birmingham v. Gallagher, 112 man v. Jedidjah Lodge, 67 Md. 117; Mass. 190; see Snow v. Wheeler, 113 9 Atl. Rep. 13; Thomas v. Ellmaker, Mass. 179. 1 Par. Sel. Cases (Pa.) 98; Cary OFFICERS. 203 debts and afterward bad in good faith made a sale of its prop- erty to a stranger, in consideration of his agreement to pay such notes, it was held that they might thereafter, as individ- uals, repurchase the property from such purchaser, and tin- mere fact that they did so. without any consideration other than their agreement to pay the notes assumed by the pur- chaser, did not render such sal* 1 fraudulent and void as to the creditors of the lodge. 1 Zealous as courts of equity are. in watching the conduct of a trustee in connection with the ob- jects of his trust, he is only forbidden by them from dealing with the trust property for his own benefit, so long as the trust continues. The moment it ceases, he occupies precisely the same relation to it that strangers to the trust do, and, act- ing in good faith, he may become the owner by purchase or otherwise. 2 §101. Suits upon the bonds of officers — Rights and liabil- ities of sureties. — Where persons become sureties upon the bond of a treasurer of a society, for the faithful application of money in his hands belonging to the society, the fact that the officers and members knew of his previous misappropriations of the funds intrusted to him during the prior year, and with such knowledge re-elected him, and failed to communicate such tad to his sureties, no inquiry having been made of them by the sureties, and they having- done no act to put the sunt ies off their guard or to prevent them from ascertaining the facts. does not impute fraud on the part of the society, which can be set up in avoidance of the liability of such sureties on the loud. This rule is not changed by the fad thai such so- ciety is a secret organization. The account books are not under the seal of secrecy. But, under any circumstances, if a per-.Mii proposing to become surety for an officer of a Lodge in- quires of any other officer, or even of its members, they will, if within their knowledge, be required to communicate correct information. The sources of information are open to the pro- posed sureties it' they are disposed to pursue them, hut if the officers and members are asked nothing and say nothing, they are not guilty of fraud. 3 If the principal in the bond was. at 'Miller v. Lebanon Lodge, sS 1 n< 1 . 'Roper v. Sangai i Lodge, ( J1 111. r.ts. • Munn v. Burgess, 7<> 111. 604; Bush v. Sherman, 80 111. 160. 20-i OFFICERS. the close of his first term, a defaulter in his capacity as such officer as respected a material amount of the funds of the so- ciety, and if such fact was known to the president of the society before, and at the time of the delivery by the sureties of the bond, but was unknown to the sureties, or any of them, and the latter, before they would deliver the bond, made or caused to be made inquiries of said president, or in open lodge, in his presence and hearing, for information respecting the condition of the accounts or financial relation with the society of such officer, and if the fact of such defalcation was fraudulently concealed from them by the president, or other agent of the society, acting within the scope of his apparent authority, and having knowledge of such defalcation, or if they falseh T repre- sented to the sureties that his accounts were all right and cor- rect, and thereby induced them to deliver the bond to the society, then it would be void, and no recovery could be had upon it. 1 It is fraud in law, if a party makes representations which he knows to be false, and injury ensues, although the motive from which the representations proceeded may not have been bad. Fraud will be inferred in such a case, and it is not necessary to show in addition to the knowingly false representations, that they were made with the intention to de- ceive the sureties, and with the purpose of deceiving them and inducing them to deliver the bond. 2 In an action against the sureties on the bond of an officer of a society it was held that admissions by the principal on the bond, although made subsequently to the acts to which they related, were properly admitted to charge the sureties, such admissions being against the interest of the principal, and he having since died; that a letter of the principal containing col- lateral matters, written in extenuation of his conduct in using certain money in his hands, w T as improperly admitted. 3 F. w r as 1 Drabek v. Grand Lodge, 24 111. 3 Drabek v. Grand Lodge, supra, App. 82; Wayne v. Commercial Nat. citing as sustaining the first proposi- Bank, 52 Pa. St. 250; Franklin Bank tion 1 Greenleaf on Ev. (May's Ed.) v. Cooper, 36 Me. 180; 39 Me. 542; §§ 151, 152, and authorities cited in Sooy ads. the State, 39 N. J. L. 135. notes, and as sustaining the second, 1 2 Drabek v. Grand Lodge, supra; Greenleaf on E v. § 52. Case v. Avers, 65 111. 142; Gough v. St. John, 16 Wend. 645; Railton v. Mathews, 10 CI. and Fin. 934. OFFICERS. 205 elected treasurer of a lodge of Knights of Pythias in 1879, and. annually thereafter until 1885. Although the constitu- tion of this order required that this officer should give bond with security before entering upon the duties of his office, F. was not required to give bond until April, 1884, when he exe- cuted the bond sued on. This bond covenanted that he would render an account for all money or other property which should come, or had already come to his hands, " or is now in his hands." At the time he executed the bond he owed the lodge from, $400 to $500. He had placed the money in his business, but this fact was not known either to the lodge, or to his sureties. When his successor was elected in 1S85, he owed the lodge $880.17, and soon afterward paid $500. An action was brought on the bond to recover the remainder. The court held that F. was at least a de facto officer prior to the time he executed the bond, and the sureties could not rely upon his failure to execute bond as a defense as to the money which came into his hands during that time; that the amount which F. owed to the lodge when the bond was executed was in legal contemplation, "in his hands" within the meaning of the bond, although the money was invested in his business, and that his sureties were liable therefor. 1 § 102. Liability of new sureties. — That new sureties are not responsible for prior defalcations, unless the condition of the new obligation embraces them, is a principle which has frequently been decided by the courts. 8 It is a familiar prin- ciple that the obligation of a surety is a matter of strict law, and can never arise from implication. The bond must speak for itself, and its language can never be extended or altered to the injury of the surety. It would be a violation of this ele- mentary principle to hold the sureties on the last bond liable for the defaults of the first as well as the second term. 8 But a different rule prevails in Illinois, and it is there held that when an officer of a society is re-elected and becomes his own 1 Wilson v. "Wright, 8Ky. Law Rep. 'dining v. City of Evansville, 66 963 (Ky. Sup'r Ct). Irul. 51); Vivian v. Otis, 24 Wis. 518; 2 United States v. Boyd, 15 Peters Thomas v. Hubbell, 15 N. Y. 405; 35 187; Myers v. U. S., 1 McLean 493; N. Y. 120. Bessinger v. Dickerson, 20 Iowa 260; Inhabitants, etc., v. Randall, 105 Mass. 295. 206 OFFICERS. successor, and at the commencement of his second term re- ports a certain sum in his hands, and gives bond with sureties to account for and pay over the moneys coming to his hands during the term, his sureties when sued, will be responsible for the sum so reported in his hands, and will not be permitted to show that the defalcation, in fact occurred during the pre- vious term, and throw the liability on his sureties for that term. 1 § 103. Liability on a bond to a state. — The law of Kansas 2 provides : " The officers of each such association having custody of the papers or funds thereof shall enter into bonds to the state of Kansas for the benefit of the party interested, in the sum of fifty thousand dollars, with three or more sureties, to be approved by the superintendent of insurance, conditioned for the faithful accounting for, and proper payment and disburse- ment to the legitimate purposes of the association, of all the moneys thereof which come into their hands, and for the faith- ful performance of all contracts made with its certificate or policy holders." Of this statute the supreme court of that state said: "The legislature has seen fit to require a bond from these officers for a faithful performance of their duty under the law, and the contracts made with the members, in- stead of requiring a bond to be given by the association, and thus holding all the members liable for the defaults of those in office. Some doubt is thrown on the construction of the stat- ute by providing in addition for the faithful performance of the contracts made with the certificate or policy holders; but as the bond is given by the officers, and the promise is made for them, the manifest meaning is that they were to faithfully perform the contracts of the association while they were in- trusted with the control of its business, — that is, during their terms of office. At each annual meeting officers are chosen who are required to give a bond; and it would be an unreason- able interpretation which would require officers to be respon- sible for the derelictions or defaults of those who succeed them. Taking the provisions of the act together, the reason- able construction is that the officers will faithfully discharge their duties, and perform the contracts of the association, dur- ino- the term for wdiich thev were elected.'' 3 1 Roper v. Sangamon Lodge, 91 111. 3 Kaw Life Ass'n v. Lemke, 40 Een. 51 8. 142 and 661; 20 Pac. Rep 512. 2 Chapter 131, Laws 1885. CHAPTER VIII. MEETINGS. § 104. Notice of meetings. 105. Rules governing future meetings. 106. Duty of members present to vote. 107. Presumption that a quorum was present. 108. When corporate acts are binding. 109. Meetings on Sunday. § 104. Notice of meetings. — If the charter or by-laws of a society fix the time and place at which regular meetings shall be held, no further notice to the members is necessary. But where particular business of great importance and extra- ordinary character is to be brought before a regular meeting, notice of the meeting, and the particular matter to be brought before it should be given. In order to give validity to acts done at a special meeting, all the members must be notified. 1 A notice of a special meeting must always be given. It should be given to the member in person, unless it is other- wise provided in the charter or by-laws. A notice of a meet- ing should state specifically the time when, and the place where it will be held, and the particular business which will come before the meeting. Where the charter or by-laws do not prescribe how long before a meeting a notice shall be served, it must be served a reasonable time before it. A notice of a special meeting of a society, which does not state the business to be transacted, does nol authorize a vote to dis- solve the association and dispose of its property." When a member of a society is present at a meeting, and participates in the proceedings he complains of, such proceedings not being improper in themselves, nor subversive of the object for 1 Commonwealth v. Guardians, 6 C. 789; Kuhl v. Meyer, 42 Mo. Arp. Serg. & R. 469: Knyaston v. Mayor, 474. 2 Strange 1051; Rex v. Liverpool, 2 5 St. Mary's Association v. Lynch, Burr. 734; Smyth v. Darley, 2 H. L. 64 N. H. 213; 9 At!. Rep. 98. (297) 208 MEETINGS. which the society was formed, he is estopped to object to the irregularity of the meeting and the insufficiency of the notice of it.' Where the organic law, the charter, or the by-laws prescribe a form of notice, or the manner in which it shall be served, the notice must conform to these requirements. If it fails so to conform, the proceedings of a meeting held pur- suant thereto, are invalid. 2 All members of a society are pre- sumed to know of the times appointed by the charter, con- stitution or by-laws, for the transaction of particular business; and, therefore, no special notice is required to be given of such meeting, or of the intention to transact such business. A society can transact any business at an adjourned meeting, which could have been done at the original meeting, the former being but a continuation of the latter. No new notice of the adjourned meeting is necessary. 3 But if, at a regular meeting, notice is given that a special meeting has been called, notice of such meeting should be sent to the members, for there is no presumption that persons not present at a regular meeting knew what was done there." It is a presumption of law, that every meeting of a society was lawfully and regularly held, and that the proper notice of it had been given. It is for him who attacks the legality and validity of a meeting, to, prove want of notice, or its insuf- ficiency. 5 Where the time or manner of giving notice is pre- scribed, it is essential to the validity of the acts done at the meeting that notice was given as prescribed. Any member may object to the sufficiency of the notice and the validity of the acts done. But the prescribed notice may be dispensed with by unanimous consent, and where all the members appear and participate in the proceedings of the society without objection to the notice of the meeting, they waive any objection to it. 7 § 105. Rules governing future meetings of the society. — 1 Fischer v. Raab, 57 How. Pr. 87; Porter v. Robinson, 30 Hun 209; Sar- Hussey v. Gallagher, 61 Ga. 86. gent v. Webster, 13 Mete. (Mass.) 497. 4 Stevens v. Society, 12 Vt. 688. 6 Hunt v. School District, 14 Vt. 3 Warren v. Movver, 11 Vt. 385; 300; 39 Am. Dec. 255; Stow v. Wyse, Scadding v. Lorant, 5 Eng. L. & Eq. 7 Conn. 214; 18 Am. Dec. 99. 16; Smith v. Law, 21 N. Y. 296. 'Judah v. Ins. Co., 4 Ind. 333; 4 People v. Batchelor, 22 N. Y. 128. Jones v. Milton, 7 Ind. 547. 6 Society v. Weather ly, 75 Ala. 248; MEETINGS. 209 An enactment made by one meeting of the society to govern the proceedings of future meetings, is inoperative beyond the pleasure of the society, acting by a majority vote at any regu- lar meeting. The power of the society to enact its laws is continuous, residing in all regular meetings of the society so long as it exists. Any meeting can, by a majority vote, mod- ify or repeal the law of a previous meeting, and no meeting can bind a subsequent one by irrepealable acts or rules of pro- cedure. The power to enact is the power to repeal. A by-law requiring a two-thirds vote of members present to alter or amend the laws of the society, may itself be altered, amended or repealed by the same power which enacts it. 1 § 106. It is the duty of members present to vote. — When the proper presiding ollicer of a society puts a question to a vote, it is the duty of every member to respond, or be counted with the greater number, because he is supposed to have as- sented beforehand to the process pre-established to ascertain the general will. But the rule of implied assent is certainly inapplicable where the proceedings are revolutionary in their character, and the question is not put'by the proper presiding officer. The refusal of an appeal from the decision of the pre- siding officer is no ground for his degradation at the call of a minority; nor could it impose on the majority an obligation to vote on the question when put unofficially, and out of the usual course. Ln such a case, the rule of implied assent does not apply, and such a vote of degradation can not be sustained by the constructive votes of those who remain silent. 2 ' All persons present at a meeting at which a vote is taken, dispos- ing of a fund of the society, if no one dissents, are considered as voting with the majority for the motion, and assenting thereto. Their right to the fund is concluded. But the rule is otherwise as to those not present.' §107. When, a quorum is presumed to have been pres- ent. — Where it is not usual to mention on the minutes the names or number of those present, and the charter requires 1 Commonwealth v. Mayor, 5 Watts ^Alids v. McKeen, 18 N. J. Eq. I.Y..': Richardson v. Society, 58 X. II. 462; Richardson v. Society, ob X. II. 1ST: see §28. 187. '-'( k>mmonwealth v.Green,4Whart, •£Pa.) 537-(io:;. 14 210 MEETINGS. two-thirds to form a quorum, it will be presumed that the required two-thirds assembled, where it is stated on the min- utes that, on due invitation, the members met.' § 108. When corporate acts are binding. — In aggregate societies, the acts of the majority, in cases within the charter powers, bind the whole. The majority here means the major part of those who are present at a regular meeting. There is a distinction taken between a corporate act to be done by a select and definite body, as by a board of directors, and one to be performed by the members of the society; the majority of the definite body must be present, and then a majority of the quorum must decide; but a majority of the members of the society present may act. 2 When no special provision is made by the constitution of a corporation, the whole are bound by the acts, not only of the major part, but of the major part of those who are present at a regular corporate meeting, whether the number present be a majority of the whole body or not. And, though a particular constitution require the presence of a majority of the whole number, yet the concurrence and con- sent of a majority of the whole is not necessary; it is sufficient that a majority of the number present concur. So, where a number less than the majority of the whole are by a particular constitution competent to do a corporate act, the act of a ma- jority of that smaller number is equivalent to the act of the majority of the whole. 3 An incorporated society can only speak and act through the medium prescribed by law. When the law prescribes this medium to be the board of directors, the society at large may not assume the management and di- rection of its affairs. At a meeting of the members of an incorporated mutual benefit society, a resolution was passed directing a larger amount to be paid to certain beneficiaries than the amount of the respective assessments collected for their benefit. A by-law of the society provided that no money could be drawn or appropriated from the treasury Avithout the order of the directors. The supreme court of California held that, in the absence of an adoption or ratification by the di- rectors, the resolution was inoperative, as in that state an 1 Commonwealth v. Woelper, 3 2 2 Kent's Com. 293; see § 127. Ser. & R. 28. s 2 Bacon's Abridgment, 459. MEETINGS. 211 incorporated society could only act by its board of directors.' A by-law adopted at a meeting at which a quorum is not pres- ent is invalid. 2 An amendment to the by-laws is binding upon members not present at the meeting at which it was adopted, only when it is affirmatively shown that the meeting was called in the manner provided by the constitution. 3 Where the minutes of a society show that a motion was made to sus- pend a certain member, but do not show what action was taken on the motion, it is competent to prove by parol evi- dence that the motion was put and carried. 4 § 109. Meetings on Sunday. — A member was expelled from the society at a meeting held on Sunday evening, and the notice of the charges and meeting was also served on Sun- day. He applied to be reinstated on the ground that the pro- ceedings and notice were void. But the court held that, however objectionable it might be to hold business meetings of such a society on that day, it was not forbidden by the statutes of the state of New York, and, in the opinion, the court said : " The relator chose to belong to a society which held all its regular meetings on that day, and if. at such a meeting, he was served with a notice to attend the next meeting, it does not rest with him to make the objection. At the common law, judicial proceedings only were prohib- ited on Sunday. Hence, judicial proceedings on Sunday are void at common law. But all other business transactions are valid, except so far as prohibited by our statute." Speaking parenthetically of the fact disclosed by the record, that a member had been expelled on Sunday from a mutual benefit society consisting of Israelites only, the supreme court of Pennsylvania said : " It may not be amiss, with a view to call attention to it, to notice that this was not an ecclesiastical or church trial, concerning matters of conscience. It was an ordinary secular or business affair, being the same kind of trial which any other corporation mighl engage in. It miffht be well to consider how far such trials on Sunday 1 In re Association, 68 Cal. :V.t J. * Hamill v. Supreme Council, 152 - Lockwood v. Bank, 9 R. I. 308. Pa. St, 5:57: 35 Atl. Rep. 846. 3 Metropolitan Association v. Wind- 5 People v. Society, 05 Barb. (N. Y.) over. 137 111. 417; 27 N. East. Rep. 538; 357. see § 20. 212 MEETINGS. comport with the legislation of the state and the genius of our institutions. It will also be remembered that Jews, who regard the seventh day only as their Sabbath, are bound to observe the civil regulations made for the observance of the Christian Sabbath." ' 1 Society v. Commonwealth, 52 Pa. St. 125; citing Merritt v. Earle, 31 Barb. 38, 41. CHAPTER IX. JURISDICTION OF COURTS OVER SOCIETIES.— PART I. § 110. Visitorial power.of courts. 111. Courts of society must first be resorted to. 112. Courts may not be ousted of jurisdiction. 113. 114. When courts will not take jurisdiction. 115. Injunction to restrain illegal act. 116. Injunction to restrain society from doing business on erroneous plan. 117. Status of unincorporated societies. 118. Dissolution of an unincorporated society. 119. Dissolution of an incorporated society. 120. When a society is dissolved by its own act or neglect. § 110. Yisitorial power of courts. — The visitorial or su- perintending power of the state over incorporated societies created by the legislature will always be exercised in proper cases, through the medium of the courts of the state, to keep those corporations within the limits of their lawful powers, and to correct and punish abuses of their franchises. To this end, the court will appoint receivers, and issue writs of quo warranto^ mandamus^ or injunction, as the exigencies of the particular case may require, will inquire into the grievance complained of , and, if the same is found to exist, will apply such remedy as the law prescribes. Ever}'- corporation of the state, whether public or private, civil or municipal, is subject to this superintending control, although in its exercise differ- ent rules may be applied to different classes of corporations. 1 The doctrine, as laid down by the supreme court of Illinois, that the power of incorporated voluntary societies to enact by-laws is unlimited, and thai courts will not interfere with the enforcement of any by-law thus enacted, is in conflict with the decisions and principles oh this subject. 3 But over 1 State ex rel. v. Chamber of Com- 2 People v. Board of Trade, 80 111. merce, 47 Wis. 670. 134. (213) 211 JURISDICTION OF COURTS OVER SOCIETIES. unincorporated societies the state has no visitorial or superin- tending control. They are not created by the state, but are brought into being by the contract of the members. Courts will interfere, on the application of an aggrieved member, to see that his property or civil rights are governed according to such contract, but will in no wise interfere with the terms of the contract, so long as they are not contrary to law. 1 § 111. Courts will not take jurisdiction until the reme- dies provided for in the society have been exhausted. — It is the law of voluntary societies, whether incorporated or unincor- porated, that they may, in all matters relating to their internal and governmental affairs, and concerning the relations and rights of members, as such, provide methods for redressing grievances and deciding controversies, and may compel mem- bers to resort to the prescribed methods of procedure, before invoking the power of the courts of the land. Men volun- tarily enter such societies, and in becoming members, sub- scribe to their laws. It is, therefore, no hardship to require them, before seeking their remedy under the law, to exhaust their remedy under the contract of membership. The har- mony and efficiency of such societies require that they be permitted, as far as possible, to carry out their purposes and objects in the manner and mode which shall be agreed upon bv the members, and that the right to resort to the courts for the settlement of controversies and grievances be restricted. When the charter, constitution or by-laws of the society require a member to first seek redress within the society, and by appeal to carry the question to its highest tri- bunal, he has no right to bring an action against the society in a court of the land, until he has exhausted his remedy in its tribunals. 2 After a controversy has been submitted to a tri- bunal of a society, while it is still pending, and before the de- cision is announced, a court will refuse to entertain jurisdic- tion of it. 3 There is no presumption that societies provide methods within themselves for redressing grievances, or set- i § 22. Harrington v. Association, 70 Ga. 2 See §§47, 311; Screwmen's Asso- 310; Karcher v. Supreme Lodge, 137 ciation v. Benson, 76 Texas, 552; Es- Mass. 368. sery v. Court Pride, 2 Ontario Rep. 3 Strempel v. Rubing, 4 N. Y. Supp. 596; Poultney v. Bachman, 31 Hun 534. 49; Lafond v. Deems, 81 N. Y. 508; JURISDICTION OF COURTS OVER SOCIETIES. 215 tling controversies, and in the absence of evidence showing the existence and terms of such provisions, the courts will as- sume that there are none. 1 Where the society makes provision for the settlement of controversies between it and its members, or between its members, concerning its government, its dissolution, or its property, courts Avill refuse to take cognizance of such contro- versies until those who have grievances have, in the first in- stance, resorted to and exhausted the remedies provided by the society; and it is not necessary, in such a case, that the language of such provisions shall make it imperative on the members to exhaust these remedies, but it is sufficient that the society has afforded a means for a settlement within the society itself. The mere provision of such a means abridges the right to appeal to the courts, until the prescribed means have be.en pursued. This rule also prevails in matters of dis- cipline, in the expulsion and suspension of members, and arises from the fact that in such cases the controversy springs from the contract of membership, anel is a matter of internal regulation. "With such matters courts are loth to deal, and will take jurisdiction only when compelled to do so. But it has been held that where a member appears in the relation of a creelitor of the society, he is not bound to present his claim to the tribunals of the society unless such provisions stipulate expressly that he must first submit his claim to the tribunals of the society, before seeking to enforce it in the courts of the land. 3 The plaintiffs were members of an association which received its charter from, and was subject to the laws and usages of a state association, both organizations being sub- ordinate to a national association or council. Acting under its rules, the state association declared forfeited the charter of the first mentioned association for non-compliance with the constitution, laws, and usages of the state council, anel took its property, as provided in its charter. The general laws of the national council provided that a member of the order might appeal from the action of his state or subordinate council, pointed out the steps to be taken, and declared that the decision of a state council should be binding until reversed by the national council. Xo appeal to the latter was made 1 Olery v. Brown, 51 How. Pr. 92. 2 See g 360. 216 JURISDICTION OF COURTS OVER SOCIETIES. by the plaintiffs, but they at once resorted to the public courts. The court held that a bill in equity by the plaintiffs to recover back their property so taken, on the ground that their charter had been illegally forfeited, could not be main- tained until the plaintiffs had first sought the relief prayed for from the tribunals provided by the association. 1 The rights of different persons claiming to represent a subordinate lodge are to be determined by the constitution of the grand lodge, and although a subordinate lodge has done acts which render it liable to have its charter declared forfeited to the grand lodge, yet, until such forfeiture has been declared, it is entitled to possession of the property of the lodge; and a bill in equity can not be maintained against its members to recover possession of such property by persons claiming to be recog- nized by the grand lodge as the subordinate lodge, until such charter has been formally declared forfeited by the grand lodge, and until the remedies within the society, prescribed by the constitution, have been exhausted. 2 § 112. Courts may not be ousted of jurisdiction. — But it has been held that while a society may, by its by-laws, com- pel members to submit their controversies concerning its prop- erty and their rights therein to the tribunals of the society, before seeking the aid of the courts, it may not prohibit them entirely from resorting to the courts. So long as the members of the society recognize its decisions as final on questions of property rights, the law interposes no objection; but when a member refuses to abide by the decision of the society, depriv- ing him of his interest in its property, it is the duty of the courts, on his application, to afford him his proper remedy. The remedy of an expelled member who has, by the judgment of the society, been deprived of his rights in its property, has already been treated of; the question now is, how far the judgments, orders and decrees of the society are binding upon existing members. This question frequently arises in the attempt of a grand or supreme lodge, whose decisions, it is agreed, shall be final, to take from a subordinate lodge its 1 Oliver v. Hopkins, 144 Mass. 175; 136; Supreme Council v. Forsinger, ION. East- Rep. 776; Reed v. Ins. Co., 125 Ind. 52; 25 N. East. Rep. 129. 138 Mass. 575; Supreme Sitting v. 2 Chamberlain v. Lincoln, 129 Mass. Stein, 120 Ind. 270; 22 N. East. Rep. 70. JURISDICTION OF COURTS OVER SOCIETIES. 217 property and its rights in the order. It may be laid down as the Law that, whatever powers the higher lodges or councils of a society may have to make rules or laws for the govern- ment of subordinate lodges, the courts can never recognize as valid any by-law, the effect of which is to give to these higher bodies the final right to determine when, under what circum- stances, and for what causes, the property of the subordinate lodges may be taken, nor will the courts permit or recognize the enforcement of any such by-law, when its enforcement will accomplish, and is designed to accomplish, the confiscation of property, or the talcing away of property from one set of members to give it to another set. 1 Where the by-laws of an unincorporated society establish an executive board, "to which shall be referred for final action all matters of difference which may arise," and a decision of the board, transferring certain property and affecting pecuniary interests, operates unjustly against any of the members, the enforcement of the decision will be restrained by the courts. 2 § 113. When courts will not take jurisdiction. — In ques- tions of doctrine or policy, a society is the sole and exclusive judge. Courts of justice will not entertain jurisdiction on the merits of such matters. They will not inquire whether the decision or declaration of the society upon the subject of its principles is in harmony with the traditions, customs, usages and practices of the society, nor will they examine into the merits of the decision of a society, concerning the policy to be adopted by it in its internal government and administration. The courts take it for granted that the society is the best judge of such matters, and accept its decisions as final. The society being purely voluntary, the person who joins it con- sents that he will he bound by the principles and rules of gov- ernment, which it has adopted or may adopt. Although he may be dissatisfied with the action of the society in such mat- ters, he has no right to appeal to the courts unless he claims that such action has injured him in liiscivil or property rights, [n case any civil or property right is affected by such action, the courts will impure whether the society, under the laws of 1 Goodman v. Lodge, 67 Md. 117; 9 'Rudolph v. Southern League, At!. Rep. IS; An-tiii v. Searing, 1G 7 N. Y. Supp. 135. N. V. 112; see § 311 etwq. . 218 JURISDICTION OF COURTS OVER SOCIETIES. the state and the provisions of its charter, had authority to decide upon such questions and to pass such laws, and will ex- amine into the proceedings of the society and determine whether they are regular under the rules prescribed by the so- ciety. Courts will not interfere at all in the matters of a society, where there are no civil or property rights involved, and, even where the controversy is concerning such rights, courts will not act unless they see clearly that they are obliged to take jurisdiction. They will only interfere to protect some civil right, or for the due disposal and administration of property. 1 At the regular annual meeting of a society a vote was taken on the adoption of a certain amendment to the constitution. The president decided that the amendment was not carried, for the reason that it did not have the votes of two-thirds of all the members of the association in its favor. Several persons protested against the decision, on the ground that it only re- quired the vote of two-thirds of those present, voting either in person or by proxy, to adopt it.' J A petition for a writ of numdamm was filed to compel the oilieers to declare the adoption of the amendment. An agreed statement of the laws of the society and of the facts in the case was also filed in the cause. The court in denying the writ of man- damus said : " The question arises, whether from this agreed state of facts it can be inferred that petitioners have shown the slightest pecuniary interest in the settlement of the ques- tion raised by the petition. From the most careful considera- tion of the facts, we are unable to find that they, or either of them, have. It is merely to settle a dispute whether or not a particular proposed amendment to the constitution of the asso- ciation was adopted. We do not see, nor can we determine that the decision of the question, one way or the other, can or will affect the pecuniary interest of either petitioner. It has ever been held that relief will not be granted to a petitioner until he shows that he has a clear legal right which is denied, and that the denial of the right affects his pecuniary interest. This is a mere fancy question that will not, as now presented, bo considered or determined by the court." 3 'Eigby v. Connell, 28 W. E. 650; 2 See §108; §127. Ellison v. Bignold, 2 Jacobs & Walker 3 People ex rel. v. Masonic Benevo- 503. lent Association, 98 111. 035. JURISDICTION OF COURTS OVER SOCIETIES. 219 A court of equity in this country will not interpret the or- ganic laws of a mutual benefit society to determine whether subordinate lodges conform to its tenets, and specifically to direct the conduct of officers and agents in performing their duties, but will accept the decision of the authorized tribunals of the society. To interfere in such matters would amount to administering the internal affairs of such a society. 1 A court will not inquire whether it is necessary to establish other funds and plans of insurance for the protection of the members and their beneficiaries, in addition to those already established in a society, nor will a court restrain the officers of a society in the creation and dispensation of a fund which such society has, within the proper objects of its existence, provided for. These are matters of internal regulation. 2 Nor will a court interfere to control the discretion of the officers of a mutual benefit society in the management of the funds of a society, as, for instance, to direct them to pay a death benefit from the reserve fund of the society, instead of by levying an assess- ment when the reserve fund is within the limited amount which it may carry. This is a matter of internal regulation and management. 3 It is the essence of a voluntary society and of its right to establish a tribunal for the decision of questions of principle and policy arising upon matters of internal govern- ment, that its decisions should be binding and final, subject only to such appeals as the society itself provides for. This power to decide upon such questions is, in some respects, anal- ogous to, and is certainly as necessary as, the power to pass by-laws for the government of the society. §111. [incorporated societies possess the inherent right, and unincorporated societies are usually given the right to pass. alter, amend and abrogate by-laws for the management of their affairs, as their necessities and welfare may require. Their members, or their chosen and authorized representatives are alone vested with the power of determining when a new by-law shall be passed or an old one changed or repealed, and with their discretion courts may not interfere. Were it other- wise, courts would control all corporations, fraternities and 'Stadler v. I. O. B. B., 3 Am. L. 'Grossman v. Mass. Mutual, 143 Rec. 589. Mass. 433; 9 N. East Rep. 758. ! Stadler v. I. O. B. B., supra. 220 JURISDICTION OF COURTS OVER SOCIETIES. societies. It is only where there is an abuse of discretion, and a clear, unreasonable and arbitrary invasion of private rights, that courts will assume jurisdiction over societies or corpo- rations. They will compel adherence to the charter, and to the purpose for which the society was organized, -but they will do no more. To justify interference by the courts, and war- rant the overthrow of by-laws enacted in the mode prescribed by the by-laws, it must be shown that there is an abuse of power, or, in case of an incorporated society, that the by-law is unreasonable. It is not enough to show that a better or wiser course might have been pursued, for it must be shown that there was an abuse of discretion. § 115. Injunction to restrain illegal or unauthorized act of the society. — If the officers of a society are about to engage in a method of doing business, or in an enterprise, not contemplated by its charter or articles of association, or are about to apply its funds or credit to other purposes than those specified in such charter or articles, a court of equity will in- terfere by injunction at the instance of any of its members. In one case the court granted an injunction restraining the society from expending money in sending a committee to Washington to urge congress to pass an amendment to the contract labor law, so as to include foreign actors among those debarred from entering this country under contract, holding that the clause in its constitution, which extends its benefits to ''members of the profession in all parts of the world," made it improper to use its funds in discriminating against foreign actors. 1 A court of equity on a proper bill may prevent the unauthorized use of the funds of a society, and enjoin upon its officers the proper application of them.' 2 § 116. Injunction to restrain society from carrying on business upon erroneous principles and plans. — An injunc- tion was granted restraining a friendly society from applying any of its funds to the payment of annuities payable according to the rules and plan of the society, when the annuities charge- able on the funds had, in consequence of the erroneous prin- 1 Flocton v. Edwin Forrest Lodge, 4 Stadler v. District Grand Lodge, 3 N. Y. Supp, 7. Am. L. Rec. 589; In re Equitable Re- - Roper v. Burke, 83 Ala. 193; 8 serve, 16 N. Y. Supp. 80; Peniield v. So. Rep. 439; Goodman v. Jedidjah Skinner, 11 Vt. 296; Bailey v. Lewis, Lodge, 67 Md. 117; 9 Atl. Rep. 13; 3 Day (Conn.) 450; see § 126. JURISDICTION OF COURTS OVER SOCIETIES. 221 ciples upon which the plan was founded, become so numerous as to be likely to exhaust the whole fund in the hands of the society. 1 §117. Status of unincorporated societies in courts of justice. — It is exceedingly difficult to define the status of unincorporated societies under the law. It seems that they were entirely unknown to the common law, and that their existence has been recognized in the statutes of very few states. It is acknowledged that an unincorporated society is sui generis, but courts do not agree as to the legal principles which they will apply to it. It is generally assumed, in the decisions of courts upon questions involving rights under such organizations, that they must either partake of the nature of corporations or of partnerships, and that, as the law does not incline to give the shield of the acts of incorporation to un- incorporated bodies, they must necessarily be governed largely by the rules which govern in matters of partnership. If it be stated that such a society must be regarded as a partnership, it is not difficult to cite numerous authorities as sustaining 1 the proposition; 2 but it is equally easy to find authorities which hold the contrary doctrine. 3 Many cases hold that in some of their relations they are to be regarded as partnerships, and to be governed by the general law of partnerships, and that, in other relations, the law of corporations, in absence of a better rule, is to be regarded as applicable to them. They hold that this distinction is to be made in cases involving the rights of third parties in their relations with the society, or one or more of its members, on the one hand, and in cases involving the rights of members, as between themselves, on t be other hand. The general rule founded upon this distinc- tion has been Laid down as follows: " The true principle is, and upon this view the apparenl dis- cordance in the cases may be 'nearly reconciled, that the law allows associates to imitate the organization and methods of corporations so far as their rights between themselves ar< in? vol/vvd, and will enforce their articles of agreement (nothing 1 Reeve v. Parkins. 2 Jac. & Walk. Womeraley v. Men-it. L. R. 4 Eq. 800; see Pearcev. riper. 17 Yes. 1. Cas. 695; Butterfield v. Beardsley,28 * Gorman v. Russell. 11 Cal. 537; Mich. 412; Brown v. Dale. L. R.. 9 Richardson v. Hastings, ? Beav. 823; Ch. Div. 78. Cockburn v. Thompson, 16 Vt. 321; 3 See cases cited in this section. 222 JURISDICTION OF COURTS OVER SOCIETIES. illegal or unconscientious appearing) as between the parties to them. But the public and creditors have a right to invoke the application of the law of partnership to the dealings of any trading association, unless such association has the shield of incorporation. Thus, if the controversy is between mem- bers of the association, and relates to such subjects as modes of acquiring membership, tenure of the property, division of the profits, transfer of shares, voting, expulsion, dissolution, or the like, the courts may deal with the association by anal- ogy to the law of corporations, so far as the compact between the members contemplates. But if the question is between the association or its members and third parties, and relates to such points as in what name the association may sue, whether members are individually liable to the creditor for debts, etc., a mere compact of association can not vary the rights of strangers to it, but the associates must submit to the general rules of law applicable to the questions raised." ' An association for purposes of mutual benevolence among its members only, such as a lodge of Odd Fellows, is not an asso- ciation for charitable uses. If not incorporated, its members are regarded in law as partners in their relations to third per- sons, and the property of the association must be appropriated to pay the debts of creditors who are not members, before it can be applied toward payment of the claims of its members. 2 An unincorporated society organized for relief in sickness, by means of a fund raised by subscription of the members, must be considered in the nature of a partnership, and in a suit against the trustees by some members for an account, alleging a dissolution contrary to the articles, all other members must be parties. 3 An unincorporated voluntary society formed for mutual relief in sickness or distress, by funds raised by initia- tion fees, fines, dues, and assessments upon its members, par- takes of the nature of a partnership. 4 While a member has no severable interest in the property of such a society, and has no interest which is transmissible, yet 1 Abb. Dig. Corp., title Association; 4 Gorman v. Eussell et al., 14 Cal. Brown v. Stoerkel, 74 Mich. 269. 531; Rabb v. Reed, 5 Rawle(Pa.) 158; 2 Rabb v. Reed, 5 Rawle 151; 28 Pearce v. Piper, 17 Vesey 15; Ellison Am. Dec. 650. v. Reynolds, 2 Jac. & "Walker 511; 3 Beaumont v. Meredith, 3 Ves. & Reeve v. Parkins, 2 Jac. & "Walker Beame 180. 300. JURISDICTION OF COURTS OVER SOCIETIES. 223 the rights of members in this property, and the modes of enforcing these rights are not materially different from those of partners in partnership property. 1 Prima fade the interest of each member in the property of the society is equal and proportionate, but his interest can not be separated and reduced to his possession, until the society has been dissolved, and the rights of all parties in the property have been adjusted and determined. His interest in, and right to use this property may cease by refusal to comply with the contract of association, by death, or by expulsion for improper conduct, and his rights in this regard are far different from the rights of a partner to partnership assets. In one case it was held that the minority of the members are not entitled to a decree of dissolution of the association on grounds which might be urged for the dis- solution of a partnership; that a society, where there is no power to compel the payment of dues, and where the right of the member ceases on his failure to make such payment, is not a partnership.' 2 A mutual benefit society formed by several persons who carry on business substantially for the benefit of the individual members among themselves, and not for the ben- efit of the society as such, is not to be regarded as a partner- ship. 3 g 118. Dissolution of an unincorporated society. — A court will require a strong case to be made out before it will dissolve an unincorporated society, and decree a sale of the whole concern, but in the dissolution of such an association, it will be governed by the same principles which obtain in the dissolution of partnerships. Not only willful acts of bad faith and fraud, but gross instances of carelessness and waste in the administration of the affairs of the association, as well as the exclusion of members from their just share in the manage- ment and benefits of the association, preventing the business from being conducted on the stipulated terms, are sufficient grounds for the dissolution of the contract of association by a court of equity. Though the court stands neuter with respect to occasional breaches of agreements between tin' members of i McMahon v. Rauhr, 47 X. Y. 69. Mich. 106; Caldicot V.Griffiths, 33 2 Lafond v. Deems, 81 N. Y. 508. Eng. L, and Eq.'527; 8 Exch. 898; 3 Bear v. Bromley. It Eng. Law 2:5 L. J. Ex. 54: Ash v. Guie, 1 Ont. and Equity, 414; Burt v. Lathrop, 52 493; 97 Pa. St. 493. 224: JURISDICTION OF COURTS OVER SOCIETIES. such an association, which are not so grievous as to make it impossible for the association to continue, yet, when it finds that the acts complained of are of such a character that relief can not be given to the members, except by dissolution, the court will decree it even though not specifically asked. "When it is insisted that the conduct of a majority of the members entitles the minority to a dissolution, the court must consider not merely the terms of the express contract between them, but also the duties and obligations implied in every such con- tract of association. If such an association exclude a member from its meetings, because he refuses to take an oath to be administered by the president, which oath is not required by the constitution or the by-laws, and is foreign to the objects of the association, it is ground for a dissolution. 1 Courts should not, as a general rule, interfere with the contentions and quarrels of voluntary associations, so long as the government is fairly and honestly administered. 2 Before a court will decree a dissolution of a society, opportunity will be given, where it can properly be done, for a correction of the cause of complaint within the so- ciet} 7 . 3 Where a majority of the association have mistaken their powers or duties, and acted under such mistake, and are willing to correct the error, a court of equity will not neces- sarily dissolve the association, but may give them an oppor- tunity to correct the mistake. 4 An unincorporated voluntary society for mutual relief having excluded certain members from the association because of their refusal to take an oath not required by its constitution or by-laws and foreign to the objects thereof, these members, as plaintiffs, instituted a pro- ceeding for the dissolution of the society and the distribution of its funds. The supreme court, having decided on demurrer to the complaint that the society was a partnership, and would be dissolved by a court of equity for improperly excluding a member, remanded the cause for further proceedings. The society then rescinded its resolution requiring an oath, and filed an answer offering to admit the plaintiffs to all their rights and privileges. The supreme court of California held that this action of the 1 Gorman v. Russell, 14 Cal. 531. 3 Gorman v. Russell, supra. 2 Lafond v. Deems, 81 N. Y. 508. 4 Lafond v. Deems, supra. JURISDICTION OF COURTS OVER SOCIETIES. 225 society sufficed to prevent a decree of dissolution, and that the bill was property dismissed in the court below. 1 Notice of a special meeting of a society, which does not state the business to be transacted, does not authorize a vote to dissolve the asso- ciation and dispose of its property. 2 A voluntary association instituted for moral, benevolent and social objects should not be dissolved by the courts for slight causes, and, if at all, only when it is entirely apparent that the organization has ceased to answer the ends of its existence, and no other mode of relief is attainable. The parties to a proceeding were members of an unincorporated association for moral improvement, relict' in sickness and in case of death. In an action brought to dis- solve the association, it was urged that the association was di- vided into factions, that the feelings of hostility between the members were such as to render it impossible for them to aarree as to the transaction of its business and the care of its funds, and that the usefulness of the association had departed. By the constitution and by-laws, provision was made for re- dress of grievances, and for the punishment of parties offend- ing, and it was within the power of the association to suppress conduct of the kind complained of. An appeal was authorized to a higher tribunal. No complaint before the association had been made against the members charged by plaintiffs with a violation of the rules. The by-laws provided that the associa- tion should not be dissolved, save by unanimous vote, and that no motion to dissolve should be entertained so long as ten members remained in good standing. The court held that the action was not maintainable; that plaintiffs were at least re- quired in the first instance to resort to the remedies provided by the rules of the association, before seeking the interposition of a court of equity. 3 In the same proceeding it was urged as a further ground for the dissolution of the association, that it had hired more room than was necessary for the meetings, that it had fitted up. furnished and sublet the portion it did not require, and rented its own room when not in use, and that it had from these rents accumulated a large fund; but the court held that the 1 Gorman v. Russell, 18 Cal. C88. 8 Lafond v. Deems, siq)ra. -St. Mary's Association v. Lynch, 64 N. H. 213; 9 Atl. Rep. «JS. 15 226 JURISDICTION OF COURTS OVER SOCIETIES. association in such matters might exercise a reasonable dis- cretion, and where the renting of rooms was merely incidental to its primary object, and the rents received were the result of accident and good management, in the exercise of a proper discretion, having in view merely the accommodation and prosperity of the association, there was no such accumulation of funds as would call for the dissolution of the association on that ground. In case of violent dissension and irreconcilable differences between the members of a voluntary association, judgment will be rendered at the suit of one or more members against all others, dissolving the society; ' but no action will be entertained for such a purpose upon mere proof of differ- ences of opinion, bad temper, the ordinary disputes common to such societies, or upon proof of injuries or injustice sustained by one member, through the vote or action of the society, if he have another remedy. 2 Where the constitution of a society provides that it shall not be dissolved so long as a certain number of members desire its continuance, such provision is controlling in an action to obtain a decree of dissolution, and if that number of members oppose a dissolution when the vote is put in the society, or, if there be no vote, when the action is commenced, dissolution will not be decreed. 3 But in an old English case 4 it was held that a court will not enjoin a society from dissolving itself where a great majority of its members agree to such dissolution, notwithstanding a by-law of the society, providing that if " three agree to hold the society, i-t shall not be dissolved." § 119. Dissolution of an incorporated society. — In the absence of statutory provisions, courts of equity have no juris- diction to decree the dissolution of a corporation, by forfeit- ure of its franchises, either at the suit of an individual or at the suit of the state. 6 1 Roshi's Appeal, 69 Pa. St. 462. 6 Attorney General v. Bank,l Hopk. 2 Fischer v. Raab, 57 How. Pr. 87. Ch. 354; Doremus v. Church, 3 N. J. 3 Fischer v. Raab, supra; Lafond Eq. 332; Doyle v. Petroleum Co., 44 v. Deems, supra; St. Mary's Asso- Barb. 239; Strong v. McCagg, 55 Wis. ciation v. Lynch, 64 N. H. 213; 9 624; Slee v. Bloom, 5 Johns. Ch. 366 ; Atl. Rep. 98; Kuhl v. Meyer, 42 Mo. 2 Mor. Priv. Corp. § 1040; see § 121. App. 474. 4 Waterhouse v. Murgatroyd, 9 L. J. Ch. (old series) 272. JURISDICTION OF COUKTS OYER SOCIETIES. 227 But it has been uniformly admitted, whenever the ques- tion has arisen, that jurisdiction to decree the dissolution of a corporation may be conferred upon courts of equity by statute. Whether a corporation which is shown, upon a quo Warranto proceeding, to have misused or abused its franchises, should be ousted of its corporate franchises, is a question not capable of determination by any fixed rule or test, hut rests in the sound discretion of the court, in the light of all the cir- cumstances of the case before it. Where trustees of a society had operated it for their own profit, and had misused and abused its franchise, the supreme court of Ohio said : "The present membership of the defendant numbers about thirty-five hundred, chiefly worthy and deserving people, ut- terly innocent, if not wholly ignorant of any misuse or abuse of its franchises. Purged of the unfortunate features of its management which this trial has developed, this association is capable of much usefulness. To visit the perversion of its ob- jects by a few, upon the heads of the entire membership, must result in irremediable hardship; and without stating more fullv the grounds of our action, or the considerations which move us, it must serve our present purpose to say that the relators' prayer that the defendant be ousted of its franchises to be a corporation is refused. Judgment will be entered, however, ousting it of the use of its franchises for the profit of its trustees. 1 The charter of a benefit society will not be forfeited because it docs an insurance business in violation of the statutes, as this would inflict upon many innocent members a severe loss. It will be permitted to wind up its insurance business, and to con- tinue any functions it may have as a fraternal order, or it may amend its charter so as to bring itself within the insurance laws of the state. 4 AY here it is shown that the scheme of insurance as oriffinallv marked out is a failure; that substantial and organic depart- ures must be made from the fundamental scheme, in order to save the society from ruin; that the fund is in danger, and that a large number of the members are desirous of having its affairs wound up, the court will appoint a receiver for the society in 1 State v. Association, 42 Oh. St. 579. 2 Order of Alliance v. State, 77 Md. 547; 26 Atl. Rep. 1040. 228 JURISDICTION OF COURTS OVER SOCIETIES. order to mike an equitable distribution of its assets among the persons entitled to them. Where misconduct and mis- application of funds on the part of the officers, fraud and breaches of trust which endanger the fund, are charged and proved, the court will appoint a receiver to protect the prop- erty, and, if necessary, wind up the corporation. Mere mis- takes, or acts of misuser or non-user are not enough to warrant a judgment of ouster against an incorporated mutual benefit society. Such a society can not be dissolved on account of loss of members, so long as enough remain to supply vacancies and continue the succession. 1 An incorporated society organ- ized under an original act, against which an information in the nature of a quo warranto was pending at the time of the passage of an amendatory act, is entitled in such suit to the benefit of the amendment. 2 Where the statute under which a society is incorporated provides that no part of the funds col- lected for the payment of death benefits shall be applied to any other purpose, it is unlawful, and a ground of dissolution, for the society to use, in the payment of running expenses, any part of the fund acquired from mortuary assessments. 3 In quo warranto against an incorporated society, where it has assumed franchises not granted, and it appears that the certifi- cate of incorporation doas not comply with the requirements of the statute under which it is organized, the cou*t, in the exercise of its discretion, will oust it of its corporate franchises. 4 When a foreign corporation, doing business in a state, is exer- cising its franchises in contravention of the laws of that state, it may be ousted therefrom by proceedings in quo warranto? It is not a ground for dissolution of a corporation, that it provides in its by-laws that contracts may be entered into by it with persons who are not of lawful age, and that it issues certificates of membership to minors in the regular course of its business. 8 In this case the court said : " The statute under which the association was organized is silent on the subject, nor do we find any statute which either expressly, or, so far as 1 State v. Societe Republicaine, 9 4 State v. Association, 29 Oh. St. Mo. App. 114. 399. - State v. Association, 26 Oh. St. B State v. Society, 47 Oh. St. 167; 19. 24 N. East. Rep. 392. 3 Chicago Mutual v. Hunt, 127 111. 6 Chicago Mutual v. Hunt, 127 111. 257; 20 N. East. Rep. 55. 257; 20 N. East. Re> 55. JURISDICTION OF COURTS OVER SOCIETIES. 229 we can discover, by implication, either permits or forbids their admission to membership. If, then, minors are ineligible, such ineligibility arises from some principle growing out of the nature and objects of these associations, or the policy of the law applicable thereto. The contention is that the certificate of membership is a personal contract between the member and the association, and that, as an infant is capable of making only a voidable contract, his admission to membership is a violation of those principles of mutuality which lie at the basis of mutual benefit societies. We may admit, in the broadest sense, that these societies are founded upon the principle of entire mutuality in relation to burdens as well as benefits, yet we are unable to see how that principle places the membership of infants upon any footing different from that of adults. While the certificate of membership is a contract, such contract, in the absence of express stipulations to the contrary, is purely unilateral. It may be enforced against the association where the member has performed all the prescribed conditions, but none of its stipulations are enforceable against the member. If he fails to pay his assessments or dues, or does any act forbidden by the certificate of membership, the certificate becomes void, and the membership ceases. But the making of an assessment or the maturing of dues does not make the member a debtor to the association so as to authorize it to bring a suit for its recovery in case of his neglect or refusal to pay. Payment is left wholly to his discretion. The contract, then, not being one which has the legal effect of binding him to the payment of any money or the performance of any condition, we can not see how it can be at all important whether it is voidable or otherwise. •• Performance is no more left to the option of the member where the contract is made by an infant than when made by an adult. If an infant performs the conditions prescribed in the certificate, he, the same as an adult, becomes entitled to the benefits thereby secured. If he fails to perform, his membership ceases, and that is all. We do not assent to the view that, as a further consequence of his disability, he' may recover back the dues and assessments he may have already paid. 'If an infant advances money on a void- able contract which he afterward rescinds, he can not re- 230 JURISDICTION OF COURTS OVER SOCIETIES cover this money back, because it is lost to him by his own act, and the privilege of infancy does not extend so far as to restore this money unless it was obtained by fraud.' ' Kor are we able to see any force in the suggestion that minors should not be admitted to membership because of their inca- pacity to act as trustees, or to perform the duties of members at corporate meetings, such as consulting or giving advice for the mutual benefit of the members, voting for officers, and the like. We know of no reason why the capacity to act as trustee should be a necessary qualification for membership. If a sufficient number of members possess the requisite capacity, so as to afford the members a reasonable and proper range of choice in the selection of trustees, the admission of others who are not thus qualified can work no injury to anybody. It will not be claimed that the want of the requisite intelligence or business experience on the part of an adult to qualify him to act as trustee would render him ineligible to membership. But these are quite as essential to the proper discharge of the duties of trustee as mere legal capacity. There would seem to be no legal obstacle in the way of minors taking part in corporate meetings, consulting, advising, or even voting. The only objection to their doing so grows out of their inexperience and the immaturity of their judgments. But these are disqual- ifications which are not necessarily confined to persons under the age of twenty-one years, and no one would allege them as a legal bar to the admission of an adult to membership. It should be remembered that in this proceeding we have noth- ing to do witJi the good or bad policy, in an economic or busi- ness point of view, of admitting minors to membership. "Whether it w r as wise or unwise is not the question. "We have only to determine whether it was such a violation of the rules or policy of the law as should subject the association to dissolu- tion. On this point we are unable to agree with the learned chancellor before whom the cause was heard; our opinion being that, so far as this charge is concerned, the decree is not sus- tained." 2 A statute provided that the affairs of mutual benefit socie- ties should be managed by not less than five directors, trustees, 1 1 Pars. Cont. 332. tual Ben. Assn., 135 N. Y. 280; 32 N. 2 But see contra, In re Globe Mu- East. Eep. 122. JURISDICTION OF COURTS OYER SOCIETIES. 231 or managers, elected from and by the members. A certificate of association provided for a board of eight trustees, to be elected annually. At first the manager and secretary were appointed by the trustees, but in 1886 a resolution was adopted that the manager and secretary should thereafter be elected annually by the members. Blank applications for membership then in use by the association had printed upon them a blank proxy, authorizing the person whose name should be inserted to act and vote for the member at all meetings, and underneath it was a request to the applicant to sign it in blank, to be filled up by the secretary. In accordance with this request a great number of such proxies were so signed and sent to the secretary. The resolution above mentioned was adopted mainly by the use of such proxies. From that time on the board of trustees practically ceased to control, the real governing authority being the manager and secretary, who held a sufficient number of these proxies to perpetuate them- selves in office, and conducted the association as they saw lit. It was held that this was a violation of law, and a fraud on the members, justifying dissolution.' It is sufficient ground for dissolving the association, that the books containing the accounts of receipts and expenditures are so confused and un- systematic as to make it almost impossible, even by the aid of experts, to derive therefrom any certain information as to the financial affairs of the association." Where a statute provides that associations organized there- under may provide for an accumulation of a surplus or guar- anty fund, which shall belong to the association and not to the officers, "and shall be used only for mortuary benefitSj without assessment, or applied in payment of future assess ments, or otherwise used for the promotion of the objeel for which such funds are specially provided and set apart, and such use shall not be deemed or construed to mean a profit received by members;" and where a society organized under this ac1 created a tontine reserve fund, by reserving twenty- five percent of the assessments for death benefits, for the ap- portionment of which fund the members were divided into classes, the surviving persistenl members of each class to re- ceive a distribution at the end of ten years, it was held that 'Chicago Mutual v. Hunt, supra. 9 Chicago Mutual v. Hunt, supra. 232 JURISDICTION OF COURTS OVER SOCIETIES. such disposition of the reserve fund was a direct violation of the statute, justifying dissolution. 1 §120. When a society is dissolved by its own act or neg- lect. — A society, in which persons must be elected to member- ship by the votes of existing members, is dissolved by the death of all the members, whether it be incorporated or un- incorporated. 2 A legal surrender of the corporate franchise of a mutual benefit society will not be presumed from non-user, or from failure to collect dues, or to hold meetings for six months or any short period of time. 3 A chapter of Free Masons, in 1836, disposed of all their real and personal property, con- sisting of their hall, furniture and equipment, pursuant to a vote of the chapter, and for twenty -three years held no meet- ings, elected no officers, performed no acts required by its by- laws and rules, and ceased to have any visible sign of exist- ence; it was held that the legal existence of the chapter was gone, and that it was beyond the power of the state chapter to restore it to life so as to preserve for it a continued exist- ence from 1836. A rule of the society that the officers should hold their offices until their successors were elected, could not, in such a case as above stated, operate to preserve its legal existence. 4 The grand lodge of a society can not make new regulations subversive of fundamental principles and land- marks of the order, without the clear consent of the subordi- nate lodges; nor can the officers of a corporation composed of several integral parts dissolve the corporation, without the full assent of the great body of the society. The dereliction of the charter by the heads of the corporation does not dissolve the corporate body especially if the remaining members have the power of renovating the head. 6 1 Chicago Mutual v. Hunt, supra. 4 Strickland v. Pritchard, 37 Vt.324. 2 MorawetzonCorp., §1009. 5 Smith v. Smith, 3 Desau. (S. C.) 3 State v. Societe Republicaine, 9 557; see State v. Societe Republicaine, Mo. App. 114. etc., 9 Mo. App. 114, CHAPTER IX. JURISDICTION OF COURTS OVER SOCIETIES.— PART II. § 121-125. Dissolution, trust funds, distribution of property. 126. Trust funds of a society. 127. Rights of contributors to funds. 128. Rights of members in property and funds. 129. Revocation of social and fraternal charter. 130. Mutual benefit society is not a public charity; taxation. § 121. Dissolution, trust funds, distribution of property on dissolution. — The dissolution of a voluntary society can not be prevented. It is in the power of any association, whether incorporated or not, except such as are created for the administration of political or municipal authority, to dis- solve itself by its own assent. This has been repeatedly ad- judged. But it by no means follows that the members of a society holding funds in trust, or of a body incorporated for eleemosynary purposes, can on such dissolution appropriate its funds among themselves. Mere monied corporations, in which the funds are owned solely by the stockholders, and are not held in any manner for charitable or public use, may do this, but no others. The society may be dissolved, but the trust fund is not, therefore, to be either distributed or aban- doned. It is an established maxim in equity that no trust shall fail for want of a proper trustee. Such fund may be saved to carry out the original purposes and wishes of the donors or contributors. Although a court of equity may nol decree a dissolution of an incorporated society unless that power be expressly conferred by statute, 1 yet, in virtue of its general jurisdiction over trusts, it has jurisdiction to grant relief against an incorporated society upon the same terms as against an individual under similar circumstances, and it will interfere to prevent an actual or threatened misapplication of its funds. 'See §119. (233) 234 JURISDICTION OF COURTS OVER SOCIETIES. Where the funds of a masonic lodge have accumulated under a by-law providing that they shall be appropriated " for the good of the craft, or the relief of indigent and distressed worthy masons, their widows and orphans," these funds are in the hands of the acting members for a charitable use, and a dissolution of the lodge and a division of the funds among the acting members for their private use, is a violation of the trust on which they were raised. 1 In 1870, a subordinate charitable society was incorporated, chartered and organized under the powers and regulations of the general council of the association. One of the provisions of its charter was that, if it should dissolve, its charitable funds should be paid over to the general council, and be held and dis- bursed by the latter, according to its rules. These rules pro- vided for holding the funds by that council in trust for the purposes to which the widows' and orphans' fund was devoted originally, and for refunding them if the subordinate council should reorganize. In 1881, the subordinate council voluntarily disbanded, surrendered its charter to the general council, and, under a resolution, divided all its charitable funds among its members then in good standing. The court held that it had jurisdiction to compel those participating in the division to refund to the general council the money so received bv them. 2 A mutual benefit society which has created an en- dowment fund can not, on being refused a license by the state in which it was incorporated, and thus being compelled to cease business, organize a new company, and, against the pro- test of parties insured, use such endowment fund to obtain re- insurance of the old members in the new society; and the members insured, in such case, may proceed in a court of equity to wind up the affairs of the old society and compel the distribution of such fund among those for whose benefit it was created. 3 A contract by which an incorporated mutual benefit society undertakes to pay from its own mortuary fund the losses of another society is ultra vires and void. 4 The minority of the members of a lodge, having been out- 1 Duke v. Fuller, 9 N. H. 536. 4 Twiss v. Association (Iowa), 55 2 State Council v. Sharp, 38 N. J. N. W. Rep. 8. Eq. 24. 3 Stamm v. Association, 65 Mich. 317; 32 N. W. Rep. 710. JURISDICTION OF COURTS OVER SOCIETIES. 235 voted upon the question of the disposition of its funds, brought an action against its trustees, charging them with an intention to divert the funds, and, by concealing the fact of the vote, obtained an injunction and the appointment of a receiver, which action the court revoked upon full information. Sub- sequently the district grand lodge, at the instigation of the minority of the lodge, revoked the fraternal charter of the lodge referred to, and thereupon the minority filed a bill in their individual names for a proportion of the funds, alleging that the lodge had ceased to exist " through no fault of theirs." The court held that the conduct of plaintiffs, who had vol- untarily seceded from the lodge, and formed a separate lodge under authority of the district grand lodge, was so unfair and inequitable as to preclude them from relief. Courts will never recognize as valid any rule or law of a mutual benefit society, the effect of which is to confiscate property, or arbitrarily take away property rights from one set of members and give them to another set; and where a minority of the members claim title to the property of the society under an arbitrary for- feiture of the charter of a subordinate lodge by the supreme lodge of the society, they can not recover. 1 i'hf facts in this ease showed that the trustees had appropri- ated from nine to ten thousand dollars of the funds of the old society, amounting to about fifty thousand dollars, and had paid tin- same to the new society for reinsurance of members who hail insured in the new company and accepted a cancellation of their certificates of membership in the old society. The court said: "These facts show the necessity forthe interposi- tion of a court of equity to prevent a further misapplication of the funds of the old association, and to decree an equitable dis- tribution thereof. Otherwise, what is to become of this large accumulation of money now in the hands of the trustees i The new association is not entitled to it. The trustees have no righl t«> appropriate it. It can not he used in carrying out the purposes for which it was created. There is no equity in applying it to the payment of death losses in full, as they occur, for, aside from there being no contract to that effect, it Would, in the natural COUrse of events, he exhausted long 'Goodman v. Jedidjah Lodge, 67 Mil. 117; 9 Ail. Rep. 18; see §§ 128 L89. 236 JURISDICTION OF COURTS OVER SOCIETIES. before membership in the association would be terminated by death, and the surviving members would receive nothing." If there has been a perversion of the funds of a society, a court of equity, on a proper bill may prevent the further unauthorized uses of them, enjoin on its officers the proper appropriation of them, and hold such officers to account for the amount per- verted. 1 § 122. "Where the contract of insurance provides for a re- serve fund to be used only for mortuary benefits, without as- sessments, or applied otherwise for the promotion of the object for which, by the by-laws, it is set apart, it is a trust fund, and may not be diverted from such objects. Under such a con- tract, a society had accumulated a reserve fund of $518.68, but, despairing of success, the directors and the society filed a bill to wind up the corporation. The beneficiary of a member who died subsequent to the filing of the bill filed a cross-bill, claiming that there was due from the society eighty per cent, of the amount which could be collected from the certificates in force, not to exceed $1,000, alleging that all other claims had been paid except his, and that there remained in the re- serve fund the above amount; and asking that this money be decreed to him. The directors set up by way of answer to the cross-bill that they had advanced $1,058.51 from their own money to pay the last claim against the society, in favor of one Pierce, in-order to avoid making an assessment; that when the resolution was passed to wind up the corporation there was in the reserve fund $518.68, and that said sum was ap- plied in payment to the directors upon the amount which they had advanced to the death fund, and that there was still due the directors something over $500. The court below found that the claim of this beneficiary was the only outstanding claim against the society on account of a death loss, and that there was in the hands of the directors $518.68 belonging to the reserve fund, realized from assessments for death losses, and ordered the directors to pay that sum to the claimant. On appeal the court said : " We think this action of the court was correct. It was the duty of the directors to make an as- sessment upon the members to pay the death claim of Pierce, and if, instead of doing so, they saw fit to advance their own 1 Roper v. Burke, 83 Ala. 193; 3 So. Rep. 439. JURISDICTION OF COURTS OVER SOCIETIES. 237 money to discharge said claim, they did not thereby gain a right to appropriate the reserve fund in payment to themselves of such advance, so long as there was any certificate holder who had the right to have such reserve fund paid out to him as a mortuary benefit. By force of the statute, 1 and under the terms of the certificates which the association issued, such reserve fund was a trust fund to be used only for mortuary ben- efits, without assessments, or applied otherwise for the promo- tion of the object for which, by the by-laws, it was set apart. The advance of the directors made them only ordinary cred- itors, and the trust fund could not be used to pay such debts, if there were trust purposes to which it could be applied. No doubt the act of the directors in advancing the money was in good faith, and done for what they regarded as the best inter- est of the association, but the good faith of their act in ad- vancing the money did not take them out of the class of ordi- nary creditors. * Those holding death claims have the first right to be paid out of the reserve fund when the association is not in a condition to pay their claims by a regular assess- ment." 3 A death claim, which had been approved before the levy of the last assessment made before suit, has no priority over other death claims where the assessment in question was not made to satisfy that particular claim, but merely to increase the death fund.' The constitution of a society provided that the reserve fund should be paid only to those members who were living when the fund was to be divided, and who had paid all ssments. After the suit to dissolve the society had been begun, an assessment wasmade by order of court. Itwas held that those who paid such assessment were entitled to be repaid such assessment in fall out of the reserve fund, and that the balance should he divided pro rata among those members who had paid all assessments up to the commencement of the suit, regardless of the last assessment, since the pendency of the suit was a sufficient excuse for the members who failed to pay the last assessment. 4 The constitution of a •Sec. L29, Chap. 7:$, Starr & C. Illi- * In re Equitable Association, 131 nois Statutes. N. Y. :s~>t: 80 N. East. Rep. 114, mod • Wilber v. Torgerson, -I 111. App. ifying 16 N. Y. Supp. 80, supra. 119; see Jn re Equitable Associa- * In re Equitable Association, supra. tion. 10 X. Y. Supp. 80. 238 JURISDICTION OF COURTS OVER SOCIETIES. society provided that assessments should be applied to the creation of two distinct funds, one of which was a death fund, and the other a reserve fund; that death claims should be paid from the death fund, and that no death claim should be paid from the reserve fund, except on a contingency which had never happened. The society was dissolved and a receiver placed in charge of its property. It was held that although the death fund was insufficient to pay the death claims in full the beneficiaries were not entitled to share in the reserve fund. The time at which to determine who may share in the reserve fund and who may share in the death fund, is the date of the commencement of the suit, and not the date of the decree of dissolution. 1 Where the by-laws of a society provided for the payment of a specific sum to each member in case of sick- ness or disability caused by accident, and, in case of death for the payment of a sum to his beneficiary, on dissolution and distribution of its assets, the claims of members for benefits in cases of sickness beginning or accidents occurring before disso- lution, as well as cases of death, will be held to be preferred claims. The right to benefits does not terminate with the dis- solution. 4 On dissolution death losses must be paid pro rata, although an assessment for a particular loss has been made and collected, but not paid over. 3 The charter and by-laws of a society created a mortuary fund and a security fund. It was provided that if the society, after a specified time, should be unable to pay out of the mor- tuary fund, the maximum indemnity called for by the certifi- cates issued, then it should be the duty of the trustees at once to convert the security fund into money and distribute the same " among the holders of the certificates then in force, or their legal representatives, in the proportion which the amount of each of their certificates shall bear to the amount of the whole number of such certificates in force. It was held that representatives of deceased members, whose certificates had not been paid in full out of the mortuary fund, were not 1 In re Equitable Association, su- Commonwealth v. Ins. Co., 119 Mass. pra .but see Commonwealth v. Amer- 45; Taylor v. Ins. Co., 46 Minn. 198; ican Life (Pa. St.), 29 Atl. Rep. 660. 48 N. W. Rep. 773. 2 Baltimore v. Association, 77 Md. 3 Ellerbe v. Association, 106 Mo, 566; 26 Atl. Rep. 1045 ; see Mayer v. 13; Ellerbe v. Association, 114 Mo. Attorney General, 32 N. J. Eq. 813; 501. JURISDICTION OF COURTS OVER SOCIETIES. 239 entitled to priority over living members in the distribution of the security fund, but that both classes were placed on equal terms, and that the fund should be divided among the living members and the representatives of deceased members in pro- portion to the amount of their respective certificates. 1 AVhere a foreign corporation, consisting of a governing body and local branches, becomes insolvent, and the by-Jaws ret pure a part of each assessment received by the local branches to be set aside as a reserve fund, to be the property of the governing body, but to be retained by the branch and invested by it, the reserve fund of a branch in one state will be distributed among the members of such branch in proportion to the assessments paid by them. 2 § 123. It may be stated on principle and authority that when a corporation is virtually dead, although the term of its existence as limited by law has not expired and it has in its possession property or assets which can not be used in carry- ing out the purposes of its organization, courts have juris- diction to distribute such property and assets among its mem- bers or beneficiaries upon such a basis as shall be just and equitable. "Where the functions of a corporation have ceased, its managers are bound to account for all moneys belonging to it, and when such moneys are improperly retained by them, the court will on proper application enter a decree against them and recover the funds, in order that they may be distrib- uted among those persons who are equitably entitled to them. A mutual benefit society, the dues of which were to be used to pay to the widows of members fifteen dollars per month during widowhood and good deportment, in the judgment of the directors, being dissolved, the fund in the treasury at the time of the dissolution was ordered to be distributed as follows: The valued annuity, by annuity tables, of each widow's lilV. . 'it tlif date of dissolution, al the rate of fifteen dollars per month, must be first ascertained, without taking into consideration the possibility of her marrying again, or not properly conducting herself, and the fund, if insufficient, paid Kentucky Mutual v. Turner. 89 'Lindguisl v. Glinea, 28 X. Y. Ky. 666; 20 s. W. Rep. 888; Bee Supp. 872; 8 Misc. Rep. 814. Commonwealth v. Am. Ins. Co. (Pa. St.), 29 Atl. Rep- 060; M-> 29 Atl. Rep. TUT. 240 JURISDICTION OF COURTS OYER SOCIETIES. pro rafa, and if sufficient to pay the annuities in full, the remainder to be divided equally among the members surviving at the date of dissolution. The widows of those dying since [issolntion were nut to have their annuity value reckoned and allowed, but were required to work out their rights through the estates of their deceased husbands. The rights of a widow who remarried prior to distribution ceased on such remarriage. though she again became a widow, for she is then the widow of the last, and not of the first husband. Where, by reason of the surviving members not being made parties, no final dis- tribution was made, and by reason of s<>me of the widows who were made parties being in default for answer, another widow receives, under decree of court, more than the present value of her annuity, she is not to be compelled to repay the excess, on the stockholders being made parties, and the other widows then insisting on their rights. Where, by investment of the fund after dissolution and before final distribution, it has in- creased, each widow is entitled to the portion of the net ac- cumulations produced by the investment of the amount due her on her annuity value. 1 A mutual benefit society, organ- ized to pay monthly to the widows of members a sum of money, which has the right to dissolve at any time on the votes of a certain number of members, if so dissolved, can not be administered by a court of equity in perpetuity, by the con- tinued collection of dues, but the funds in the treasury must be distributed, and the society wound up. 3 The certificates of a mutual benefit society provided for payment of death benefits, not exceeding $1,000, by ass< ss- ment on its members, and for payments to a " safety fund." which was to enure to the benefit of members of five years' standing by having the income of it. after five years, or after it had amounted to $100,000, applied to the payment of future dues. If after that time, the association should fail to pay the indemnity provided in the certificates, the fund was to be di- vided among all the holders of certificates then in force, but the fund should " be in no way chargeable or liable for any use or purpose except as above mentioned." The society failed before the five years, and while the fund was only $19,000. 1 Collier v. Association, 1 Cin. Law - Collier v. Association, supra. Bulletin 18. JURISDICTION OF COURTS OVER SOCIETIES. 241 The supreme court of Massachusetts held that the safety fund must be divided among all the holders of certificates in force, or their legal representatives, in the proportion which the amount of the certificates of each should bear to the amount of the whole number of certificates in forca; that the date to be adopted in taking this account should bs the date of the filing of the bill for the dissolution of the society; that the safety fund could not be taken, by attachment or otherwise, by the holders of death claims, notwithstanding general expressions on the back of the certificates asserting that the society pro- vided substantial protection for the families and dependents of deceased members by means of the safety fund; that the legal representatives of holders of certificates who died without having incurred any forfeiture, and who had not had any benefit from an assessment to pay the death loss, though not entitled to maintain any claim upon the safety fund in conse- quence of such death, should share in the division. 1 Where, in such a case, the by-laws of the society provide that a certificate shall lapse by reason of the non-payment of a certain sum toward the safety fund within one year from the date of the certificate, the payment of such sum after a bill for dissolution has been filed, but within one year from the date of the cer- tificate, will keep it in force so as to entitle its holder to share in the safety fund, but, unless it appears that such payment was made within the year, the holder is not entitled to share in it, for it is manifestly contrary to the true intent of the con- tract to permit holders who have contributed nothing toward it, to share in the division of the fund. The non-payment of an assessment made prior to the filing of a bill for dissolution, within the time limited for its payment, after notice given as required, will invalidate a certificate, so as to preclude its holder from sharing in the safety fund. 11 1 Burdon v. Mass. Safety Fund was organized under statutes of Mas- Assn.. 147 Mass. 360; 17 N. East. Rep. sarhusetts, 1888, c. 421). as amended 874: 6 N. Eng. Rep. 840; see Mayer by St. 1890, <•. 841, which provided v. Attorney General, 32 N. J. Eq. 815; that all the money derived from the 9 Ins. Law Jour. 671; Bank v. Bank, first-class assessments therein pro- 23 Pick. 480, 489. vided for should lie divided into two * Burdon v. Association, supra, funds, — one to be set aside as a re- The Order of the Golden Lion, a mu- serve fund for the exclusive paymrnt tual benefit insurance corporation, of matured endowment certificates, 16 242 JURISDICTION OF COURTS OVER SOCIETIES. § 124. The filing of a bill to wind up an incorporated society, is an invitation to all persons to present their claims against it, and in such a case, claims not due at law will be accelerated so as to share in the assets. It would be flagrantly and the other to constitute a benefit fund, to be applied exclusively to the payment of disability benefits, — and that no portion of the moneys so re- ceived should be used for any other purpose. The act further provided for assessments to meet expenses. A receiver was appointed for the corpo- ration in a suit to wind up its affairs. Held that, though the business prose- cuted by the corporation may have been illegal, and ultra vires, the cer- tificate holders are not entitled to re- cover the moneys paid by them in assessments and initiation fees, as for money had and received, but, in dis- tributing the assets, each should re- ceive from the fund derived from assessments of the first class a divi- dend in proportion to the amount paid by him into that fund. The date of filing the bill for a re- ceiver of the corporation is to be taken as the date which fixes the rights of the parties. • The law governing such corpora- tions provided that any member who should fail to pay an assessment within thirty days from the date of the call should stand suspended, but that thirty days should be allowed for reinstatement, by the payment of a fine. An assessment was laid Sep- tember 19th, payable October 19th, and the right to reinstatement ex- pired November 18th. The bill for a receiver and an injunction was filed November 18th, and service made, and an injunction granted, Novem- ber 19th. It did not appear that the members knew of the injunction on the 18th, or were prevented from paying their assessments. Held, that holders of certificates who failed to pay the assessment by November 18th are not entitled to prove their claims against the assets. Members, how- ever, who failed to pay an assessment laid October 20th, payable November 19th, are entitled to prove their claims, as they were excused by the legal proceedings on November 19th from payment to procure reinstate- ment. Payments made to a certificate holder on account of sick or disability claims are to be deducted from the money paid in by him, and the bal- ance, only, is provable; but no com- putation of interest should be made on sums paid for sick or disability benefits. Though, while the business of the corporation was carried on, the rela- tions of the certificate holders to it were such that their rights under their certificates could not be as- signed, after the injunction against further business they could assign their claims, subject to rights of set- off and other equities against them. An assessment for expenses was made, and some of the certificate holders paid the same, prior to the injunction. The general fund appro- priated for expenses in the receiver's hands was insufficient to pay cred- itors of the corporation in full, but payment of the assessment by all the certificate holders would give more money than needed. Held, that the assessment should be treated as valid, and enforced for a sum suf- ficient to pay the debts. Those cer- tificate holders who have paid the assessment should have their propor- tion deducted therefrom, and the balance refunded, and those who JURISDICTION OF COUKTS OVER SOCIETIES. 243 unjnst for tlie court to proceed to wind up a corporation and distribute its assets, part of which are trust funds, and leave unpaid a just claim entitled to have such funds appropriated to its discharge, because if the society Was continuing in busi- ness, it could not be sued thereon at law until after the lapse of a given number of days. A certificate issued to a mem- ber, provided, among other things, that within sixty days after the receipt of evidence by the society of her death, it would pay to her husband the amount of one assessment. The directors of the society filed a bill to wind up the corporation, and afterward the member died. Her husband, as the bene- ficiary of her certificate, immediately after her death filed a cross-bill claiming that the amount of the reserve fund should be paid him on the death claim. The society objected that the claim was premature, as it would have sixty days after notice of death in which to pay it; but the court held that as the original bill was filed to wind up the society and dis- tribute its assets, and the claimant had an interest in the sub- ject-matter of the proceeding and had filed his cross-bill for a proper purpose, to wit, to prevent the misappropriation of a trust fund, the court had full jurisdiction of the whole matter and a right to do complete justice b} r ordering the fund to be paid to him. 1 have not paid should have their pro- fund derived from the first class of portion of the debts deducted from assessments, but not against the gen- their dividends. eral or expense fund. Fogg v. Su- The holders of certificates, who preme Lodge, 159 Mass. 9; 33 N. East, have Lost their right to prove claims Rep, 692; seeFoggv. Supreme Lodge, against the reserve or benefit fund by 156 Mass. 431. failing to pay assessments, can not ' Wilber v. Torgerson, ~2\ 111. Appj escape the effect of Buch failure by 119. Under Rev. St. ?' 1232, of En- mowing that the assessments were diana, providing that a "receiver may illegal because of irregularities, where be appointed when a corporation lias they allowed the other certificate been dissolved, or is insolvent, or ill holders to pay, and failed to make imminent danger of insolvency, or such objection, or make it known has forfeited its corporate rights, a that they would jnsist on their rights, court of equity has jurisdiction to Holders of certificates, who re- appoint a receiver in proceedings to ceived checks in payment of sick or secure an accounting of the officers, disability benefits, or otherwise, and and the application of the funds to failed to collect them bet,, re the cor- the proper objects of the corporation, poration was enjoined, are not en- The right to have a receiver ap- titled to have the checks paid in full, pointed for a corporation exist- as but may prove the same against the well in a policy holder therein, 214 JURISDICTION OF COURTS OVER SOCIETIES. Where a mutucal benefit association, with branches in several states, becomes insolvent, and a receiver is appointed, the benefit and reserve funds should be proportionally distributed among the certificate holders, regardless of their residence, to which end certificate holders who have attached property of the association will be excluded from any share in such funds unless they release such attachments or account for the property in their possession. 1 A voluntary association of individuals who have contributed funds for a public purpose will be regarded as a charity, and a court of equity has jurisdiction over the parties. Funds supplied from private gifts for legal, general or public pur- poses are charitable funds to be administered by a court of equitv. Where the association is for private and individual profit or pleasure, with no public object, it is treated as a co- partnership. So, where the association is for private emolu- though his debt be not due. as in a Acts 1888, c. 429, of Massachusetts, creditor of such corporation. In a authorizing the incorporation of "fra- proceeding by policy holders to have ternal beneficiary organizations," a receiver appointed for a mutual provides (section 8) that " any cor- benefit association, a complaint poration duly organized as aforesaid, alleging that it is insolvent; that its which does not employ paid ageuts" assets amount to $1,000,000; that its in soliciting business, " and which officers have converted $750,000 to conducts its business as a fraternal their own use, placing them in a society on the lodge system," may bank under their control, without pay a benefit to the member or his security, save the money so deposited; family. It was held that where a that the money due the corporation corporation, organized under such from branches in the various states act, provided for the payment of a is only secured by the indemnity of benefit to members at the end of a such irresponsible bank; that the year out of a fund created by assess- chief officer, who has misappropri- ments levied for that purpose, but ated the funds, and whose duty it is employed paid agents to solicit busi- to call meetings of the board of man- ness, members to whom such benefit agers, fails to do so, and refuses to certificates had been issued might allow the proceedings to be published refuse to pay further assessments as required: and that a large sum will without forfeiting payments already fall due on certificates within about made, and were entitled to have the six months from the filing of the fund so accumulated distributed complaint — states ample cause for among the certificate holders. Fogg the appointment of a receiver. Su- v. Supreme Lodge, 156 Mass. 431; 31 preme Sitting v. Baker, 134 Ind. 293; N. East. Rep. 289; see In re Order of 33 N. East. Rep. 1128. Fraternal Guardians, 159 Pa. St. 594; 1 Garham v. Society (Mass.), 37 N. 28 Atl. Rep. 482. East. Rep. 447. JURISDICTION OF COURTS OVER SOCIETIES. 245 ment, or for benevolence, confined exclusively to the members, and in which none others participate, as between themselves they are partners. But a private unincorporated association for general purposes of public utility, a court of equity will not treat as a partnership, nor declare its dissolution and diyide its assets among the members composing it. Property given to such an association is pledged to the objects for which it was intended to be applied by the successive contributors, and can not be diverted from them, while those remain who are ready and willing to execute the public trust with which it has been clothed. A court of equity will not suffer its funds to be diverted to other uses than the donors intended. 1 In private unincorporated associations of individuals for public purposes, the majority can not bind the minority in the dispo- sition and management of its funds, except by special agree- ment, and in the manner and to the extent stipulated in the agreement. 2 § 125. A decree had been entered dissolving an incorpo- rated mutual fire insurance company, and the court was called upon to decide what should be done with its assets. The con- clusion reached by the court was not in accord with the decis- ions which have just been cited, and the decision may well be stated at length. The court said : " Our statutes contain ample provisions for the disposition of the assets of stock companies, but this is a mutual company and has no stockholders, and the provisions cited do not apply. According to the old settled Law of the land, says Chancellor Kent, upon the civil death of a corporation, when there is no special statute to the contrary, all its real estate reverts to the grantors and their heirs, and all its persona] estate vests in the people. 1 But it is said that in this class of cases the corporators named in the act of in- corporation should be regarded as stockholders. They are not stockholders; and to hold that they are would bea fiction, and fictions are not favored, and are never resorted to except to work out some strong and inherent equity; and there is no such equity in favor of the corporators of a mutual insurance 1 Thomas v. Ellmaker, 1 Par. Sel. 573: Kulil v. Meyer, 12 M<>. Aj.p. IT!. Cases (Pa.) 98. 3 2 Kent Comm. i LOth ed.) 885 386; ' Thomas v. Ellmaker, s>i)>ra; Liv- Aug. & A. Corp. (2ded.)c 22, £6. ingston v. Lynch, -1 John. Ch. (N.Y.) 21G JURISDICTION OF COURTS OVER SOCIETIES. company. They contribute nothing toward its assets, and we think it would be against public policy to allow them to have a pecuniary interest in them. Such an interest would inevita- bly tend to create a temptation to fix the rates of insurance higher than would be necessary to meet losses; and then, when a surplus had been thus obtained, to divide it among them- selves, and thus reap a profit from a business in which they had invested no capital and had taken no risks; and this, at the expense of the policy-holders. We think there is a much stronger equity in favor of the former policy-holders, whose money has contributed to produce the assets. But we do not think they can be regarded as stockholders after their policies have expired, and their premium notes have been canceled, or given up to them. They have received in full the benefits for which they contracted, and are no longer members of the com- pany; and to distribute among them a small amount of assets, and to determine what each former policy-holder's share ought in equity to be, would be attended with difficulties, and an amount of labor which the end would not justify. When a man dies leaving no wife or kindred, his property descends to the state; and when a corporation which, like a mutual in- surance company, has no stockholders, ceases to exist, we are not prepared to say that the rule of the common law, which gives its surplus assets to the state, is not a wise one." ' § 126. Trust funds of a society.— It has been held that money contributed by the members of a society to a common fund, to be applied to the relief and assistance of- its members when in sickness, want of employment, or other disability, is not a charitable fund to be controlled by a court of equity. 2 There is, however, a distinction between a fund contributed by the members of a society, to be employed and disposed of among themselves as they may agree, and a gift conferred as a matter of bounty upon such society, in trust to be distributed in charity. Where the fund belongs to the first class, courts of equity will not, as a general rule, interfere with the mere administration of the fund, for this would be a virtual admin- istration of the internal affairs of the society. 3 In such a case, to authorize the court to interfere, it must be shown that 1 Titcomb v. Ins. Co. , 79 Me. 315; 9 2 Rabb v. Reed, 5 Rawle, 151. Atl. Rep. 732; 4 N. E:ig. Rep. 411. 3 See §114. JURISDICTION OF COURTS OYER SOCIETIES. 247 the fund is distinctly impressed with the qualities of a trust, and that the trust has been, or is about to be, violated by a misapplication of the fund. Whether a fund formed by the contributions of the members of a society has been impressed with a trust and so accepted, is a question of fact always open to judicial inquiry, and whether the alleged trustee be an individual, or a collective body of individuals, incorporated or otherwise, no act, declaration, or decision of such trustee will prevent such inquiry. If the terms of the alleged trust are contained in an instrument of gift, that instrument will be examined and the intentions of the donor carried into execu- tion. If expressed in the articles of association of a voluntary society, these articles will be carried into specific execution for the purpose of enforcing the trust, and if in the funda- mental law, or in the ordinances and by-laws of a society, on the faith of which contributions have been made, the court will adopt the construction of the members, and apply relief according to their own views of the law. An ordinance of a society, which provides for the creation of a fund for the benefit of the widows, orphans, heirs, or designated beneficiaries of the members, and commits the ad- ministration of such fund to the officers of the society, im- presses any money paid into such fund with the qualities of a trust for the special purposes expressed therein; and the fund thus formed can properly be applied only in that particular manner pointed out in such ordinance, which, in this regard, is to be treated as an express declaration of trust. Where funds have been contributed by members of a society, under its by-laws, for the exclusive benefit of its own members when in sickness and distress, and have accumulated in the treasurv. Slich by-laws will be treated as declarations of trust, and a court of equity will not permit such accumulations to be diverted from the specified objects. And funds collected by the separate lodges of a mutual benefit society from theirown members, for the exclusive benefit of the members of each Lodge, are held in trust for the special purposes expressed in their by-laws and ordinances, which are to be treated as ex- press declarations of trust, and the appropriation of anypart of such funds to a new purpose, by order «>:' a representative body, governing the subordinate lodges, is a misappropria- 248 JURISDICTION OF COURTS over societies. tion which a court of equity will restrain, on application of members of such lodges. 1 Where a number of persons belonging to a society were killed and injured by a cyclone, and a call is made on the differ- ent branches of the society for financial aid for the sufferers, the money sent to it in response to the call is given to it in trust, to be distributed among the sufferers in proportion to their necessities, and the society has no discretion as to how much shall be distributed, but is bound to distribute the whole sum. 2 In such a case, the contributions are made to relieve the necessities of sufferers, and the sum necessary for that pur- pose is to be estimated by the contributors; and, as the sum necessary for that purpose depends upon the opinion of each contributor, there can be no surplus, and the contributors can not recover back any part of their contributions, unless on the ground of mistake or fraud. The power of the trustee does not extend so far as to withhold any part of- the fund, where there is no complaint on the part of the contributors. § 127. Rights of contributors to funds in the custody of the society. — The contributors to a fund placed in the cus- tody of a society for a specific purpose have a right to have repaid to them, in proportion to their contributions, any sur- plus not needed for the object. The claim is founded in equity, and will be enforced in the courts. This fund is in the control of the society only for the purpose for which it was raised. It may be disposed of for any purpose within the ob- ject for which it was contributed, at any regular meeting of the society, by the voice of the majority of the members pres- ent, even if a minority of the whole number. 3 But the vote must be for some purpose for which the money was contrib- uted. A majority can not devote the money of the minority, or even of a single member, to any other purpose without his consent. All persons present at the meeting at which the vote 1 See §115; Stadler v. District Grand 25 N. East. Rep. 92: Peter v. Carter, Lodge, 3 Am. Law Record, 589; In re 70 Md. 189; 16 Atl. Rep. 450; Trustees Equitable Reserve, 16 N. Y. Supp. v. Adams, 65 N. H. 225; 18 Atl. Rep. 80; Goodman v. Jedidjah Lodge, 777; Penfield v. Skinner, 11 Vt. 296; 67 Md. 117; 9 Atl. Rep. 13; Thomas Bailey v. Lewis, 3 Day (Conn.) 450. v. Ellmaker, 1 Par. Sel. Cases (Pa.) ' 2 Supreme Lodge v. Owens (Ky.), 98; Kuhl v. Meyer, 42 Mo. App. 474; 22 S. W. Rep. 326. Cary Library v. Bliss, 151 Mass. 364; 3 See § 108. JURISDICTION OF COURTS OVER SOCIETIES. 249 is taken, disposing of the fund, if no one dissents, are consid- ered as voting with the majority for the motion, and assenting thereto. Their right to the fund is concluded; but it is other- wise as to those not present. 1 If it is so provided, the ma- jority may control the minority by a vote, if such vote is for the purposes of the association, and within its provisions. Courts of chancer} 7 have power to see that societies are faith- ful trustees in the disposition of the fund, and will see that it is appropriated to the object designed, and will not suffer it to be diverted to another, unless with the consent of the con- tributors. Where, under a resolution of the majority, the surplus fund has passed into the hands of new trustees, between whom and the original contributors there is no privity, such trustees are not accountable to them for the fund. Their remedy is against the original trustees only. 2 The supreme court of Kentucky interfered to require the funds raised by a fair, to be applied to the objects for which the fair was held, and to prevent self- constituted trustees from diverting such funds from those ob- jects. 3 Contributors to a fund creating a trust for religious or charitable purposes, can not, as such, call the trustees to an account for their disposition of the fund. They have no stand- ing in court for such a purpose, unless they are trustees, or cestuis que irmtent, or have some reversionary interest in the trust fund. 4 An action for money had and received may be main- tained by a member of an unincorporated voluntary society against the treasurer, to recover the amount of his contribu- tion, where it appears that the latter has possession of the funds, and the purposes and objects for which the contribu- tions were made can not be accomplished. 8 Upon a bill in equity for the distribution of the funds of a mutual benefit' society among the members, a decree of distribution will not be granted unless it is made clearly to appear that the opera- tions of the society have entirely ceased, that there are no beneficiaries entitled to the funds, and that its objects have been abandoned," or that the by-law is so unreasonable as to 1 ■;..,. § 106. 6 Koehler v. Brown, 2 Daly 78. •Abels v. McKeen, 18 N. J. Eq. 'Roper v. Burke, 88 Ala, 198; 8 So. 462. Rep. 139; Kuhl v.Meyer, 42 Mo. App. 3 Morton v. Smith, 5 Bush (Ky.) 474. 467. 'Ludlam v. Higbee, 11 N. J. Eq. 312. 250 JURISDICTION OF COURTS OVER SOCIETIES. be void. A society may not, by a change in its by-laws, arbi- trarily repudiate an obligation created under them, but where a change is regularly made in its by-laws, and the motive which influences the change is an honest one to promote the welfare of the society, a court will not inquire into the wis- dom of the change so made. 1 A court of equity is slow to interfere with the internal regulations and. mere police courts of a society incorporated for benevolent and charitable ob- jects, and will not apply the harsh remedy of injunction, ex- cept in cases clearly made out by proof, and where all other remedies are exhausted. It will not restrain the officers of such a society from enforcing its by-laws, unless they are clearly so unreasonable as to be null and void. 2 § 12S. Rights of members in the property and funds of a society. — Where the society is organized for purposes other than profit, there may be property belonging to it, derived from the payment of dues or fines, or consisting of the fur- niture of its rooms, but the possession of such property is a mere incident, and not the main purpose or object of the society. A member has no severable proprietary interest in it, and no right to any proportionable part of it, either during the continuance of his membership, or upon his withdrawal. He has merely the enjoyment and use of it while he is a mem- ber, but the property remains with and belongs to the society, while it continues to exist, like a pew, the ultimate and domi- nant property in which is in the corporation or congregation, and not in the pew-holder; and when the body ceases to exist, those who may then be members become entitled to their pro- portionate share of its assets. 3 The legal title to all of the per- sonal property of an unincorporated society is vested in all of its members, just as the title to partnership property is vested in all the partners; but there is this difference, that a member of such a society, or his legal representative, has no right to call for an accounting and a division of the property. Upon the sale of land belonging to a voluntary society which is Supreme Lodge v. Knight, 117 3 Whits v. Brownell, 3 Daly (N. Y.) Ind. 489; 20 N. East. Rep. 479; see 329; In re St. James Club, 13 Eng. § 25 et seq. ; § 126. L. & Eq. 529. ' 2 Hussey v. Gallaher, 61 Ga. 86; Kerr on Injunctions, Chap. 23, 24, 28; see § 126. JURISDICTION OF COURTS OVER SOCIETIES. 251 unincorporated, with no rules or provisions as to the dis- position of its property, the members at the time of the sale are entitled to divide the proceeds in equal shares. 1 It is well settled that where members have, contrary to the constitution and government of a voluntary society to which they belonged, severed their connection therewith, they can not invoke the aid of a court of equity to take the property of the society from those who adhere to its organization, objects and government. A court of equity will not, at the instance of the minority, compel the majority of the owners of the furniture of an Odd Fellows' hall to purchase the interests of the minority therein, nor to remove and sell the same, and divide the proceeds among all the owners, where it appears that the furniture is being used for the xery purposes for which it was originally purchased. 2 A court of equity has power to place the property of an unincorporated society in the hands of a receiver, order the same to be sold, and the proceeds divided among its mem- bers; but it will not exercise this power unless equity clearly requires it. A bill in equity praying for such relief, brought by a minority of the members against a majority, will be dis- missed where the evidence fails to show that the property is being mismanaged or wasted. 3 AVhere it is shown that the payment of salaries to the officers of a society seems to have lii-eii regulated rather by the condition of the expense fund in the treasury than by the compensation actually earned; where the system of paying so-called compensation is but a disguised scheme for a division of profits among its officers; where it appears that the affairs of the society have been operated for the profit of its officers, the courts will, upon application, in- terfere to protect the interests of the members. 4 A society may expend money belonging to it in any measures calculated to promote the object of its organization, and a member has no right to interfere with such an expenditure.' Where tWO benevolent SOCietieS, one of men and the other of women, having separate organizations but the same objects. 'Brown v. Dale, 25 Eng. Rep. * State v. Association, 42 Oh. St 579; (Moak)776. Mc< arthy's Appeal, IT W.N.C.(Pa.) * Robbing v. Waldo Lodge, 7s Me. 182. 565] T At 1. Rep. 540. 'Ingham v. Reform Club, 12 Phila. 'Hinkley v.Blethen, 78 Me. 221; 3 264; 34Leg.Int.132. Atl. Rep. 655. 252 JURISDICTION OF COURTS OVER SOCIETIES. united in purchasing a cemetery, each society contributing a moiety of the purchase money, and for a time mutually par- ticipating in the use and profit of the property, although the title was taken to the officers of one of them, a subsequent go- ing over of a majority of the members of the other society to that one will not deprive such other society of its rights of property resulting from the payment of half the price, and the same will be declared and enforced by decree of court. 1 "Where certain members of Teutonia Lodge withdrew from the juris- diction of the grand lodge of the state, surrendered their fra- ternal charter and formed a new lodge, adopting the same name, and other members continued steadfast in their alle- giance, and the charter was duly delivered to them as the lodge, that body which continued true to its allegiance and held the charter, was, as to certain property of the original lodge taken by the members who withdrew, adjudged to be Teutonia Lodge and, as such, to be entitled to the property of the society. 2 The seceding members of an incorporated society, forming a new society, can not maintain a suit for the recovery of debts due to the society from which they seceded. 3 In cases of per- sonal chattels, in which the remedy at law by damages would be utterly inadequate, and leave the injured party in a state of irremediable loss, equity will interfere and grant full relief, by requiring a specific delivery of the thing which is wrong- fully withheld. This may occur where the thing is of pe- culiar value, as being ancient, or the production of some dis- tino-uished artist, or a family relic or ornament. This rule has been held applicable to the personal property of societies; and where a highly ornamented silver tobacco box had been for many years handed down from a certain officer of the society to his successor, and a person retained possession of it after his term of office expired, and refused to deliver it to his successor in office, unless the society would pass his accounts, the court without measuring the value of the box, decreed that it be delivered up to the proper officer. 4 'Ladies Benevolent Society v. So- 3 Smith v. Smith, 3 Desau. (S. C.) ciety, 3Tenn. Ch. 100. 557. - Altaian v. Benz, 27 N. J. Eq. 331; 4 Fells v. Read, 3 Ves. Jr. 70; Beas- see also McFadden v. Murphy, 149 ley v. Allyn, 12 W. N. C. 90. Mass. 341; 21 N. East. Rep. 868; Gor- man v. O'Connor, 155 Pa. St. 239; 26 Atl. 379; see § 129. JURISDICTION OF COURTS OVER SOCIETIES. 253 A person who has been expelled from the " Society of Believers," commonly called Shakers, can not maintain an action for services rendered the society prior to such expul- sion, or for his expenses of support since separation.' In a social partnership, where an absolute community of property with right of survivorship, on the one hand, and care by the community of every member through life, on the other, is the fundamental and pervading principle, if one member be un- justly expelled by an usurped, though unquestioned, authority, not having under the clear terms of the association any right to expel him, the court will not oblige him to return to the association, there not being on its part an offer of full and sat- isfactory reconciliation and reception, but will interfere with the fundamental and pervading principle; and though the ex- pelled member brought nothing into the community, will give to him a separate and individual part of the property. And where payment for the party's services at the ordinary rate of services like his, during many years that he was a mem- ber, would give to him more than his numerical proportion or share of the whole capital - stock, and where the question of profits was a little obscure, the court, regarding this as the simplest and most natural justice, gave to him his numerical share or proportion of the whole capital stock, from whatever source arising, as the same existed at the time he was expelled, irrespective of the amount which he found in the association when he became a member. 2 § 12l». Revocation of the social and fraternal charter of a subordinate by the supremo body. — Where a subordinate lodge is incorporated under the laws of the state, its suspen- sion by the grand kxlge has no effect on its legal existence, 1 Grosvenor v. United Society, 118 ileges, benefits and advantages con- Mass. 78; Waite v. Merrill, 4 Me 102. templated by the association, be dis- 2 Nachtrieb v. The Harmony Set- charging the duties incumbent mi tlement, 3 Wall. Jr. 66. In a case him as a member of it," the courl re- broughl by another complainant fused to grant the complainant any against these same defendants, there relief, but dismissed the i>ill with being imperfect evidenceof any ex- costs. Lemiz v. The Harmony So- pulsion, and the defendants by their ciety, 8 Wall. Jr. 87; Scriberv. Rapp, answer, "conceding the complain- 5 Watts 851 860; Bee Burt v.' Oneida ant's perfect right and liberty to re- Community, 16 N. Y. Supp. 2^'J; 13T turn to the enjoyment of all the priv- N. Y. 346. 251 JURISDICTION OF COURTS OVER SOCIETIES. and gives to the representatives of the grand lodge no right to the possession of the property of which it is the owner, and in which the grand lodge has no right, title or interest. A pro- vision of the constitution of the grand lodge, that in case of failure by a subordinate lodge to do certain things, it " shall be deemed an extinct lodge, and its charter shall be forfeited," applies only to the fraternal existence and social charter of a subordinate lodge. If it be incorporated, its corporate exist- ence can only be dissolved in the manner prescribed by the laws of the state. 1 The Independent Order of B'nai B'rith, organized for benevolent purposes, has numerous lodges in different states. The primary or subordinate lodges are grouped into districts, over which are district grand lodges composed of delegates elected by the subordinate lodges. Above these is a " Constitution Grand Lodge." There is also an appellate court for the settlement of controversies arising within the order. Among the general laws is one which re- quires each subordinate lodge to obey the ordinances, laws and resolutions of the " Constitution Grand Lodge," its district grand lodge, and the final decisions of the appellate court, under penalty of suspension and forfeiture of its charter. These charters are paper documents emanating from, and issued by the district grand lodges to the subordinate lodges within their respective territorial limits. Jedidjah Lodge of Baltimore was within the limits of dis- trict ISTo. 5, and received a charter from the grand lodge of that district. In December, 1853, Jedidjah Lodge was incor- porated under the act of the Maryland legislature of 1852, and in February, 1870, District Grand Lodge No. 5, was incor- porated under the general corporation law of Maryland of 1868. A bill was filed in July, 1884, by District Grand Lodge No. 5 against Jedidjah Lodge, alleging that the complainant had forfeited the charter of said Jedidjah Lodge under the laws and constitution of the order, and claiming that by reason thereof the funds of said Jedidjah Lodge belonged to the com- plainant. The supreme court of Maryland held that the charter granted by the state to the Jedidjah Lodge could not be forfeited by the grand lodge, whether acting in its con- ventional or corporate capacity, that the charter could be 1 Merrill Lodge v. Ellsworth et al., 78 Cal. 166; 20 Pac. Eep. 390. JUKISDICTION OF COURTS OVER SOCIETIES. '2o') annulled by the legislature, or forfeited under such proceed- ings for that purpose as are authorized by statute or by the common law, and in no other mode, and by no other agency; that the Jedidjah Lodge held the funds in controversy, and had the right to hold them, under the corporate powers conferred by the state charter, and so held them entirely unaffected by the forfeiture of the documentary or conventional charter granted to it by the district grand lodge, by virtue of which forfeiture alone the complainants claimed such funds. 1 The terms of the laws of the supreme lodge or council of a society, providing that on suspension of one of the local organ- izations its property shall be forfeited and vest in the secretary of the supreme body, are void, in that they seek to confiscate, without judicial process, property held and owned absolutely by the local organization. 2 § 130. Mutual benefit societies as charitable organiza- tions. — It was held by the Supreme Court of Ohio that a ben- efit society which extends relief only to its own sick and needy members, and to the widows and orphans of its deceased members, is not "an institution of purely public charity." and that its moneys held and invested for such purposes are not exempt from taxation. 3 And in Iowa it is held that a build- ing owned by a benefit society, and leased for pecuniary profit, is taxable, although built with a fund which was exempt, and into which the rents are paid. Its status as taxable property became fixed when it was used for business purposes and became productive. 4 A mutual benefit society is a private, not a public charity. 5 The distinctive characteristics of a pub- 1 District Grand Lodge v. Jedidjah ' Fort Des Moines Lodge I. O. O. F. Lodge, 66 Md. 236; 3 Atl Hep- L04; v. The County of Polk, 56 [owa 84; Goodman v. Jedidjah Lodge, C>7 Md. City of Indianapolis v. The Grand 117; !i Atl. Hep. 13. Master, etc., 85 I n.l. 518; Morris v. ' Wicke v. Monihan, 180 N. Y. 232; Lone Star Chapter, 68 Texas 698. 29 N. East. Rep. 139; affirming 8 N. s SaltonstaU v. Sanders, n Allen Y> Supp. 121; citing Austin v. Sear- 456; Delaware Institute v. Delaware ing, 16 N. V. L12; see Wells v. Monir Co.. '.)! Pa. St. 168; see Bauer v. Sam- ban, 139 N. Y. 161; 29 N. Bast. Rep. sou Lodge, 102 End, 862; Miner v. 232. Lssociation, 68 Mich. 838; 39 X. V.*. 8 Morning Star Lodge, I. O. O. F. Rep. 858; 6 West. Rep. 117: Burd v. HaysUp, Treasurer, 28 Oh. St. 144; Orphan Asylum v. School District, see Saltonstall v. Saunders, 11 Allen 90 Pa. St. 89. 456; Delaware Institute v. Delaware Co., 94 Pa. St. 163. 256 JURISDICTION OF COURTS OVER SOCIETIES. lie charity are that its funds are derived from gifts and devises, and not from fees, dues and assessments, and that it is not confined to privileged individuals, but is open to the indefinite public. A masonic lodge is not a charitable or benevolent institution within a statute providing that the property "of all benevolent, charitable and scientific institutions incorpo- rated in this state " shall be exempt from taxation. 1 A masonic lodge is a charitable institution, and its property is exempt from taxation, under a section of the statutes pro- viding that the property of charitable institutions, used for their legitimate purposes, shall be exempt from taxation. 2 In passing upon the question whether a masonic hall was exempt from taxation under a statute exempting "every building erected for the use of any benevolent or charitable institu- tion," it was said by the supreme court of Indiana : " It is not essential to charity that it shall be universal. That an insti- tution limits the dispensation of its blessings to one sex, or to the inhabitants of a particular city or district, or to the mem- bership of a particular religious or secular organization, does not, we think, deprive it either in legal or popular appre- hension of the character of a charitable institution. If that only be charity which relieves human want, without discrimi- nating amongst those who need relief, then indeed it is a rarer virtue than has been supposed. And if one organization may confine itself to a sex, or church, or city, why not to a given confraternity ? So narrow a definition of charity * * is not, that we are aware of, ever attached to it, and we are not at liberty to circumscribe the effect of the statute, and defeat its intention, by affixing to its terms an unusually limited meaning." 3 The reserve fund of a mutual benefit society is subject to a taxation, and its contingent liability to holders of certificates is not such an indebtedness as may be deducted from the credits of the society subject to taxation. 4 1 Bangor v. Masonic Lodge, 73 Me. to unincorporated associations, see 428. authorities in Treasurer v. Atwater, 8 Mayor v. Solomon's Lodge, 53 Ga. 30 Oh. St. 77; Liggett v. Ladd, 17 93. Ore. 89; 21 Pac. Rep. 133. 3 City of Indianapolis v. The Grand 4 Kansas Mutual v. Hill, 50 Kans. Master, etc., 25 Ind. 518; Burdine v. 636. Grand Lodge, 37 Ala. 478; Bequests CHAPTER IX. JURISDICTION OF COURTS OVER SOCIETIES-PART III. § 131. Religious societies. 132. Ecclesiastical jurisdiction — Civil rights. 133. Secession in religious society — Division of property. 134. Property and trusts of religious societies. 135. Trustees and officers of religious societies. § 131. Religious societies. — It is not proposed to discuss at length in this work the subject of religious societies, but so many of the principles which govern the courts in their treat- ment of such societies are applicable to societies at large, that it is necessary to refer, at least, to the jurisdiction of courts i >vef them. Churches in this country are, in a legal point of view, no more than other societies voluntarily organized by its citi- zens. § 132. Ecclesiastical jurisdiction — Civil rights. — Civil courts in this country have no ecclesiastical jurisdiction. They can not reverse or question ordinary acts of church discipline, and can only interfere in church controversies when civil rights, or rights of property are involved. When a civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunal tries the civil right, and nothing more, taking the ecclesiastical decisions out of which the civil right has a risen as it finds them, and accepting those decisions as matters adjudi- cated by another jurisdiction. The civil courts act upon the the< >ry that the ecclesiastical courts are the best judges of morel y ecclesiastical questions, and of all matters which concern the doctrines and discipline of the respective denominations to w Id eh they belong. When a person becomes a member of a church he becomes such upon the condition of submission to its ecclesiastical jurisdiction, and however much he may be dis- satisfied with the exercise of that jurisdiction, he has no rie used as a parsonage by the Tenable v. Coffman, 2 W. Va. society, and that, when the society 310; Harper v. Straus, 14 B. Mon. should cease to use it as Such, it should (Ky.) 48; see Smith V. Pedigo (Ind.), revert to testator's heirs. II, hi. that 88 N. Hast. Rep. 777. the devise did do! vest until the death Watson v. Jones, SOU. S. 679. of testator's wife, and that the society, 4 Evangelical Ass'n Appeal, 85 Pa. having been incorporated during hei- st. :il(i; Banks v. Phelan, 4 Barb. (N. life, was competent to take under it. Y.) *<». though not incorporated at the time A will giving testator's wife the of testator's death. Longhead v. use of land for life, and devising it to Church, 129 N. Y. 811; 29 N. East. a religious society by the words, "At Rep. 249; 12 N. Y. Supp. 207. the death of my wife, I give and de- 26i JURISDICTION OF COURTS OVER SOCIETIES. the property in opposition to the will of the majority of those interested. 1 Where a religious society purchases land, and the title vests in it in fee, as a corporation, the majority of the so- ciety has a right to control its use and occupation. They can not be deprived of this right by any supposed error of doc- trine. It is incident to the very nature of such corporation to hold such property at the will of a majority, if the charter of incorporation does not otherwise provide. They may occupy and manage such property as they please, so long as they ad- mit the minority to the same benefits as themselves." Individuals may dedicate property, by way of trust, to the purpose of sustaining and propagating definite religious doc- trines, and it is the duty of the court to see that the property so dedicated is not diverted from such trust. It is not in the power of the majority of a congregation to carry the property so confided to them to the support of a new and conflicting doctrine. 3 Where a fund is bequeathed to an ecclesiastical society, the interest of which is to be applied for the purpose of maintain- ing a free school in one of the districts, an agreement by the society to apply the fund to the support of the ministry is a fraud on third persons, and void. 4 A court of equity will not interfere to prevent the misuse or abuse of a trust of a religious nature, unless there is a real and substantial departure from the purposes of the trust, which amounts to a perversion of it. 6 A complaint for the recovery of real estate, stating in substance that plaintiffs are members of a certain religious society and sue for the benefit of themselves and all other members ; that the society is in full membership with a certain national church, and was organized to teach the gospel according to the rules, discipline, and doctrine of that church; that the society was incorporated; that it purchased the property in question to be used as a par- sonage, with funds contributed by its members and others; and that the defendants, who were members also, procured the 1 Henry v. Dietrich, 84 Pa. St. 286; White Lick v. White Lick, 89 Ind. Mason v. Finch, 28 Mich. 282. 136. 2 Keyser v. Stausifer, 6 Oh. 363; 4 Bailey v. Lewis, 3 Day (Conn.) Calkins v. Cheney, 92 111. 463; see 450. § 15. » Happy v. Morton, 33 111. 398. C 3 Watson v. Jones, 80 U. S. 679; JURISDICTION OF COURTS OVER SOCIETIES. 205 name of the corporation to be changed for fraudulent pur- poses, and diverted the property from its intended use, avers a good cause of action. An allegation that the plaintiffs accepted one doctrinal standard and the defendants another, is sufficiently definite, though it does not show the difference between the two confessions of faith. 1 Where a number of persons contribute to the erection of a church edifice upon the agreement that it is to be used by a certain religious society, and, when not in use by it, by other denominations, and for " lectures, concerts," etc., it is not nec- essary for all the persons contributing to the erection of the building to join in an action to restrain a sale of the property for mercantile purposes. Where a church edifice has been erected by voluntary contributions, and upon the promise and agreement that the building is to be used for certain specified purposes, the contributors have a right to insist that the prop- erty be used for the purposes named, and may enjoin a sale of the building, where no adequate cause therefor is shown, and the effect would be to divert the funds from the use intended, and apply them elsewhere. 2 An eleemosynary charity is, in the general scope of its benevolence, essentially unsectarian, and can only be made sectarian by having such limitations and restrictions placed upon it by the donor as make it so. The mere making of an ecclesiastical organization the trustee for an ordinary eleemosynary charity does not of itself give a sectarian character to the charity, and if no limitations or re- strittions are imposed to the contrary, the ecclesiastical body may continue in possession of the charity as its trustee so long as it continues to be essentially and characteristically the same organization, without reference to changes or modifications which it may make in matters of mere detail, or of relatively subordinate importance, connected with its faith, dootrine and practices. 3 AV hen a society, of a particular religions sect or denomination, is formed with a strictly sectarian or denominational mime 'Baker v. Ducker, 79 Cal. 365; 21 136; Attorney Genera] v. Moore, L9 Pac. Rep. 764. N.J. Eq. 503; Watkins v. Wilcoxi 66 2 Avery v. Baker, 27 Neb. 388; 43 N. Y. 654; Presbyterian Congrega- N. W. Rep. 174. tion v. Johnston, l Watts & Ser. 9. 3 White Lick v. White Lick, 89 Ind. 26G JURISDICTION OF COURTS OVER SOCIETIES. descriptive of the fundamental doctrines of the sect to which it belongs, the presumption is that it was constituted for the purpose of promoting the vital and fundamental doctrines of such sect or denomination. In such cases, where a conveyance is made to, or a trust created for the benefit or use of such relig- ious society, by its denominational name, with no other par- ticular designation in the deed of the tenets or doctrines which it is to be used to advance and support, the denominational name may be a sufficient guide as to the nature of the trust, so far as respects doctrines which are admitted to be funda- mental. And in such case, those having control of property held in trust for the benefit of such religious society may be restrained from applying the property, or the use of it, to the promotion of religious tenets and doctrines clearly opposed and adverse to the fundamental doctrines and faith of such sect or denomination at the time, and immediately after, such trust was created. 1 Where the original trustees, appointed by the founders of a religious charity or trust, applied the fund to the support of certain religious doctrines, and that applica- tion has been long continued, and has always been acquiesced in by the founders of the charity or trust, a court of equity will not permit such application to be changed or interfered with, unless such change is clearly required by the plainly expressed intention of the donor. 2 The religious tenets of a donor in trust to a religious corporation may be shown, as well as other circumstances, to aid in the construction of ambiguous provisions. 3 §135. Trustees and officers of religious societies. — There is one principle common to the trustees of all incorpo- rated churches. They have the possession and custody of the temporalities of the church. They are considered, virttite officii, entitled to the possession, and are lawfully seized of the grounds, buildings, and other property belonging to the church. Though they hold the church property in trust for the congregation, still it is their possession, and the courts are bound to protect them against every irregular and unlawful intrusion made against their will, whether by the pastor, 1 Hale v. Everett, 53 N. H. 9. 8 Kniskern v. Church, 1 Sand. Ch. 2 Hale v. Everett, supra. (N. Y.)439. JURISDICTION OF COURTS OVER SOCIETIES. 267 members of the congregation or by strangers. 1 A court of chancery has jurisdiction to compel the persons having charge of the temporalities of a church, incorporated or otherwise, to the faithful performance of their trust, and also to prevent the diversion of the property from its original purpose. 2 A court has jurisdiction to compel the trustees of a church, who have violated their trust by appropriating the funds to the propa- gation of doctrines differing from the legitimate doctrines of the church, to deliver up the church property to other trustees of the church, who will properly apply them, and who have been duly elected by those entitled to elect trustees. 3 A court of equity will entertain jurisdiction to compel the trustees of a church to permit clergymen who adhere to the principles of the church, to minister to the congregation in the church edifice, without regard to the comparative numbers of the respective parties in the congregation. 4 Whenever the trustees of a religious society organized under the general law concerning its incorporation, do any act which obstructs the enjoyment of the property for the purposes and in the mode authorized by the usages of the church as an organized body, they are guilty of a violation of that trust, which will be cor- rected by a court of chancery. A trust of this character is not distinguishable, in this, from any other trust over which courts of chancery exercise a supervisor power. 6 Trustees are seized for the use of the body; and each member of the church becomes entitled to a beneficial interest in the property of the church, so long as his or her connection or membership continues. All the members of the body become beneficiaries in such property in an equal degree, notwithstanding some of them may have contributed a larger sum than others toward the common property." Aliens may be trusteesand incorpora- tors in a religious corporation. 7 The court has no authority to control the discretion of the trustees of a church in the 'German Congregation v. Presler, ■ Brunnenmeyer v. Buhre, 83 111.188; 17 La. Ann. 127. Ferraria v. Vasconcellos, :ii ill. 25. 8 Bowden v. McLeod, 1 Edwards * Brunnenmeyer v. Buhre, supra; Ch. (N. Y.) 588; Wilson v. Island Ferraria \. Vasconcellos, supra. Church, 2 Rich. (S. C.) Eq. L92. ' Canimeyer v. Church. 2 Band. Ch. 3 Gable v. Miller, 10 Paige (N. Y.) (N. Y.) 186. 627; Watson v. Jones, 80 U. S. 679. ♦Skilton v. Webster, Brightley's Repts. (Pa.) 203. 263 JURISDICTION OF COURTS over societies. management of its funds, so long as they do not violate their charter; they are responsible to their constituents alone. 1 A majority of the members of the church can not control the action of the trustees, in regard to its property, against the usage and rules of the organization. 2 Where the trustees of a church corporation executed a mortgage on a church prop- erty to secure a legitimate debt, it was held that there was no equity in refusing to enforce the mortgage, under color of pro- tecting a charitable use. 3 1 Wardens v. Barksdale, 1 Strobh. Sutter v. Trustees, 6 Wright (Pa. ) (S. C.) Eq. 197. 510. 2 Brunnenmeyer v.' Bulire, supra; 3 Magie v. Church, 13 N. J. Eq. 77. People v. Steele, 2 Barb. (N. Y.)397; PAET II. THE LAW OF MUTUAL BENEFIT INSURANCE. THE LAW OF MUTUAL BENEFIT INSURANCE. CHAPTER X. CERTIFICATE OF MEMBERSHIP. § 136, 137. Generally. 138, 139, 140. When the contract is complete; delivery of certificate. 141. Where executed. 142. Delay of society in accepting application. 143. 144. Construction of the contract. 145. Construction given to the contract by the society. 146. Construction of application and certificate. 147. Where terms of a certificate are inconsistent with a by-law. 148. By whom certificate must be signed. 149. Delivery of certificate to beneficiary not necessary. 150. Contract must be accepted in its entirety. 161. Certificates are valued policies of insurance. 152. Reformation of certificate. 158. Reformation; inserting name of beneficiary. 154. Novation of the contract. 155. In good standing. 156. Suicide. 157. Known violation of law. § 136. Generally. — An ordinary life insurance policy con- tains the whole eontracl of insurance, 1 bul the certificate of membership in a mutual benefit Bociety is only, a part of the written evidence of the contract; In such a society, the charter, constitution and by-laws in force at the time of the admission of the member are terms of an executory contract to which he assents when he enters it. and are, therefore, a pari of the contraol of insurance, whether they are referred to in the certificate of membership, or not. 1 In some societies, 1 Union Mutual v. Mowry, 96 U. S. buque Mutual, 18 Iowa, 822; David- 544. son \. Old People's Mutual, Bfl Minn. •Supreme Commandery v, Ains- 808; Bfl N. W. Rep. 808| Hellenberg worth, 71 Ala. 436; Sineral v. Du- v. I. O. O. B., M N. V. 580; Masonic (27 lj 272 CERTIFICATE OF MEMBERSHIP. the issue of certificates of membership, as a part of the con- tract of insurance, is not contemplated. The charter, con- stitution and by-laws of such societies are made to contain the whole plan of insurance, designating who shall be the bene- ficiaries of its members, fixing the amount of the benefit fund, and setting forth the terms of the entire contract. 1 In such cases, membership in the society carries with it a specified amount of life insurance. The certificate of membership is, in any event, a mere fragment of the contract, and it may be said, without much extravagance of expression, that whatever vitality it possesses is derived from the charter, constitution and by-laws of the society. The contract of mutual benefit insurance is usually between the society and the member, and not between the society and the beneficiar}^. In such case, the charter, constitution and by-laws with regard to the classes of persons who may take the fund on the death of the member, and the interests and amounts which they shall take, may be changed from time to time, with the consent of the member, so as to limit, abridge or annul the prospective interest of the person designated as the beneficiary; and such changes are not subject to objection as impairing vested rights, or the obligation of contracts. 2 Where the constitution declares that the by-laws may be amended at any time, a designated bene- ficiary can not complain that a by-law in force when the certificate was issued, providing that the member might surrender the certificate with the consent of the beneficiary, and receive a new one, was amended so as to omit the requirement of his consent. A beneficiary has no vested rights in such a certificate, not being a party to the con- tract, and he can not recover on the original certificate when it has been surrendered and a new one issued. 3 Cer- tificates of membership usually provide for the payment Mutual v. Burkhart, 110 Ind. 192; 'Baldwin v. Fraternity, 47 N. J. Supreme Council v. Smith, 45 N. J. Law, 111; Dolan v. Court of Good Eq. 466; 17 Atl. Rep. 770; Supreme Samaritan, 128 Mass. 437; Grand Lodge v. Nairn, 60 Mich. 44; Van Lodge v. Eisner, 26 Mo. App. 108; Bibber v. Van Bibber, 82 Ky. 350; McClure v. Johnson, 56 Iowa 620. Splann v. Chew, 60 Texas 535; Miller 2 §§ 211, 212, 213. v. Assurance Co., 42 N. J. Eq. 459; 3 Byrne v. Casey, 70 Texas, 247; 7 Atl. Rep. 895; Railway Association 8 S. W. Rep. 38; Catholic Knights v. v. Robinson, 147 111. 138. Franke, 137 111. 118. CERTIFICATE OF MEMBERSHIP. 2TS of the benefit fund, on condition that the member shall have complied with the constitution and by-laws of the society up to the time of his death. The constitution and by-laws referred to in such a provision are those in force at the time of the is- suing of the certificate, and the society has no right, by amend- ing or repealing any of them, without his assent, to impose any new conditions affecting the contract to his injury, or, by a new provision, passed after the making of the contract, to forfeit his rights under it. The rights of the members stand entirely free from such control. In a contract of mutual benefit insurance the member acts for himself, and not as a part of the society; his rights rest upon his contract of in- surance, not upon his contract of membership in the society. A corporator in a mutual benefit society, like a stranger, may enter into a contract of insurance with it, and his rights under the contract will be as fully protected as those of a stranger. 1 The provisions of the charter, constitution and by-laws, so far as they relate to this contract, can not be altered so as to affect it, without the consent of the assured member. 2 But an amend- ment to the by-laws made merely for the purpose of regulating the mode of transacting its business, adding no new condition to, and subtracting nothing from the contract of insurance already issued by the society, is binding on him. 3 Where there is nothing in the original contract, which, in terms or by im- plication, authorizes any change in its provisions or condi- tions, by-laws subsequently passed, do not become a part of that contract. 4 Of course, he may consent that they shall •See ?' i''-. Insurance Co. v. Con- App. 627; Eastman v. Provident Mu- nor, 17 Pa. St. (5 Harris) 186: Willcuta fcual (N. B.), 20 Cent. Law .1. 266; v. N. \\ . Muni;, I. 81 End. 800; New Schuni v. Fond, 11 Wis. 875; Bol- England Mutual, etc., v. Butler, 84 land v. Taylor, ill End. 121; Bauer Me. 461; Middlesex, etc, Co., v, v. Samson Lodge, 102 Ind. 262; N. Swan, 10 Mass.884; Protection Life v. W. Association v. Wanner. 24 III. 7'.) 111. 861; X. W. Ben. Assn. App. 857; Richmond v. Johnson, 28 \. Wanner, 24 III. App. '■'•'>'. Minn. 149; Grand Lodge v. Sater, 44 See .'.' 16 to 19; Morrison v. In<. Mo. App. 445. Co.,59Wis. 162; 18 N. W. Rep. 18; ' Georgia Masonic v. Gibson, 52 Ga. Gundlach v. Association, 49 How. Pr. 640; Walsh v. Ins. Co., 80 Iowa 145; 190; Pulford v. Fire Department, 81 Treadwayv. Bamilton, 29 Conn. 68. Mich. 158; Becker v. Farmers Mu- *§§25to28; Bobbs v. Association, tual. 48 Mich. 610; 12 N. W. Rep. 82 low;, 107; 17 N. W. Rep. 988; *7i: Bradfield v. Union Mutual. '.) Courtney \. Association (Iowa), 58 Weeklj Not joI Cases(Pa.) 186 j By- N.W. Rep. 288. singer v. Supremo Lodge. 4:2 Mo. 18 274 CERTIFICATE OF MEMBERSHIP. modify it, but in that case they become effective by reason oi his consent, not by reason of their enactment. It will be pre- sumed that an amendment to the by-laws was not intended tc affect a contract of insurance previously issued by the society, and it will be so construed as to give it a retroactive force only where the intention to have it so operate is clear and un- doubted. 1 § 137. While members are presumed to know, and to con- tract with reference to existing by-laws only; while a society has no power, by laws of its own enactment, to disturb or di- vest rights which it has created, or to impair the obligations of its contracts, or to change its responsibilities to its mem- bers, or to draw them into new and distinct relations, still, members may contract with societies with reference to laws of future enactment, and may agree to be bound and affected by future laws, as they are bound and affected by those then in existence; and they may consent that laws of future enact- ment shall enter into, and form a part of their contracts, modi- fying or varying them. "Where a contract of insurance is issued, conditioned that it shall be subject to such by-laws as may be enacted by the society, by-laws subsequently passed become a part of the contract. Where, for instance, the con- tract provided no forfeiture, if the member should die by his own hand, but provided that any violation of the " require- ments of the law now in force, or hereafter enacted, governing the order, or this class, shall render this certificate null and void," and that the obligation of the society should depend upon the member's " full compliance with all the laws of the order now in force, or that may hereafter be enacted; " where the certificate was accepted by the member in writing, " sub- ject to the laws of the order now in force, or which may here- after be enacted by the supreme commandery," it was held that, by force of these stipulations and provisions, a by-law, enacted by the society after the certificate was issued and ac- cepted, providing that a certificate of this class should be for- feited if the member, whether sane or insane, should take his own life, entered into and formed a part of the certificate, avoiding it in the event that the member, whether sane or in- sane, should take his own life. 2 A person accepting directly, 1 § 27. worth, 71 Ala. 436; see Borgards v. 2 Supreme Commandery v. Ains- Ins. Co., 79 Mich. 440; 44 N. W. Rep. CERTIFICATE OF MEMBERSHIP. 275 or bv assignment from the assured member, a certificate in a mutual benefit society, declaring that its constitution and by- laws are a part of the contract, is bound by them. He is not justified in supposing that, because each of the conditions an- nexed to the certificate refers to a by-law, the by-laws contain no further conditions. 1 § 138. When the contract is complete; delivery of certifi- cate. — The application for insurance is a mere proposal which the society is at liberty to accept or decline. When the society by some act of its proper officers accepts it, the minds of the parties meet and the contract is made. But it is evident that the insurer may accept it conditionally, upon such terms as it may see fit to impose, and, in such case, the last act required by the acceptance to be done, must be done, before the negotiations ripen into a contract. If the applica- tion is accepted, subject to the payment of a membership fee or an assessment, the payment must be made before the con- tract is complete, and upon such payment or the tender of it, within a reasonable or the stipulated time, the contract is in force. A contract of insurance may be valid before actual delivery of the policy. Where the minds of the contracting parties have met upon a distinct proposition made by the one and accepted by the other, chancery will decree its execution, and where the minds of the parties have thus met, an agent may not refuse to deliver a policy on account of the changed condition in health of the assured. 2 Thus, when an applica- tion is sent through the local agent to the home office, and the company accepts it, and sends a policy to the agent for delivery to the applicant, it is the duty of the agent, unless it is otherwise agreed between the parties, or he is otherwise instructed by the company, t<» deliver the policy, upon tender of the premium, even though the applicant may have become dangerously ill. 3 It is the duty of an applicant for insurance to communicate to the society any material change in his 856; Korn v. Society, 6 Crunch L92; tacky Mutual v. .Tmks. 5 Iiul. 90; Hutchinson v. Supreme Tent, 22 N. Crittenden v. Ins. Co.. II Midi. 142; Y. Supp. 801: see §§ 26, 27. Schwartz -v. Ins. Co., 21 Minn. 215; 1 Miller v. Association, 42 N. J. Eq. is Minn. 149; Yonge v. Society, 30 459; 7 Atl. Rep. 895. Fed. Rep. 903; Ballocb v. Los. < ,,., 26 * Fried v. Ins. Co.. 50 N. Y. 248; X. J. Law (2 Dutcher) 268 278. Cooper v. Ins. Co., 7 New 116; Ken- 'Schwartz v. Ins. Co., supra. 276 CERTIFICATE OF MEMBERSHIP. health, in the interval between the making of the application and the acceptance of it, 1 and where the certificate is delivered and an assessment or membership fee is accepted in ignorance of the fact that there has been a material change in the health of the applicant, the contract is null and void. 2 But if the minds of the parties have met, though the certificate has not been issued and the entrance fee or assessments have not been paid, it is immaterial that there has been a change in the health of the applicant since the acceptance of the application. 3 The insurer may transmit its certificate to its local agent with instructions, general or special, and may direct him to deliver it to the applicant, upon certain payments, provided the latter is in good health when the payments are made. In such case, the ill health of the applicant is a good excuse for the re- fusal of the agent to make the delivery. The constitution of a society provided that upon examination of an applicant, and approval of the application by the supreme lodge, and the signing of the certificate of membership, and the forwarding of it to the subordinate lodge, the contract should be complete. A certificate was forwarded to the subordinate lodge and re- tained by it on the ground of fraud in the application. While the lodge held the certificate the member died. There was no evidence of fraud in the application made to the society, and it was held that the beneficiary might recover on the certifi- cate without producing it in evidence. 4 A supreme lodge ex- ecuted a certificate of membership and sent it to a subordi- nate lodge to be countersigned by the subordinate lodge, as required by the by-laws, and delivered to the member. It was not countersigned or delivered to the member, but was in the custody of the subordinate lodge when the member died. The question for the court to decide was, whether the certificate Avas so far perfected, in accordance with the laws of the order, as to entitle the beneficiary to recover the fund. The court 'Whiting v. Ins. Co., 129 Mass. Ch. 132; Piedmont Ins. Co. v. Ewing, 240; Whitley v. Ins. Co., 71 N. C. 92 U. S. 377. 480; Piedmont Ins. Co. v. Ewing, 29 3 Franklin Ins. Co. v. Colt, 20 Wall. U. S. 377; Ins. Co. v. Higginbotham, 560; Day v. Ins. Co., 1 McArthur 95 U. S. 380. 598. 2 Canning v. Farquar, 16 L. R. Q. 4 Lorcher v. Supreme Lodge, 72 B. D. 727; Whitley v. Ins. Co., supra; Mich. 316; 40 N. W. Rep. 545. British Equitable v. Ins. Co., 38 L. J. CERTIFICATE OF MEMBERSHIP. 277 said : " It is manifest that the only object of the countersign- ing would be to show that the certificate had reached the in ember by the regular channel. It was not intended and could not give additional force to the agreement of the su- preme lodge to pay the money. It imposed no obligation or duty upon the subordinate lodge, nor did it in any way indi- cate the direction or want of direction on the part of (the member). It was nothing more than the performance of a duty required by a principal from his agent, to show that the agent had performed a ministerial act. * * * Upon what principle should an accident which prevented countersigning and actual delivery to (the member) relieve the supreme lodge from the performance of their contract ? Delivery to an agent for delivery to a party in interest is a completed delivery from the time the agent has received the instrument. The princi- pal can not take advantage of the failure of the agent to per- form an act over which the party having the beneficial interest has no control.' " A member of a local council in California sent his application for insurance to the supreme court of American Legion of Honor at Boston, Mass. The application was returned to the local council for correction of a clerical irregularity in the cer- tificate of the medical examiner. The irregularity was cor- rected, and the application again sent to the supreme council. It was never received at the office of the supreme council, and no certificate was ever issued to the member. The secretary of the local council wrote several times to the secretary of the supreme council, making inquiries about the application, but received no answer. The member soon afterward died. From the time of sending on his application, he was treated as a beneficiary member by the local council, and was called on to pay assessments as other beneficiary members. He paid three assessments, all that were levied, and the monev was forwarded to the supreme secretary. The monev was received without objection, and no notification was ever given that he was not considered a beneficiary member by the supreme council until after Ins death. A by-law of this society provided ; " Applicants will not be subject to assessments or entitled to benefits until their exami- 1 Supreme Lodge v. Martin, 12 Ins. L. Jour. (Phil. Com. Pleas.) 628. 27S CERTIFICATE OF MEMBERSHIP. nations are approved, but will become beneficiary members on the day of the approval by the medical examiner in chief, and they must be credited with their assessments on the date of approval, as above." The superior court of San Francisco, in deciding the case, said : " The certificate is not the contract. It is only the evidence of it. The medical examiner in chief has no right to arbitrarily reject an application made in good faith, and after compliance with the requirements of defend- ant. He has no power to change the by-laws. He is merely an executive officer, authorized to see that applicants are quali- fied. In this case it is conceded that the applicant was quali- fied in every respect. It was the duty of the examiner in chief to approve the application. ' That which ought to have been done is to be regarded as done, in favor of him to whom and against him from whom performance is due.' This is a favor- ite maxim of the law." ' While an acceptance of the applica- tion must be signified by some act of the society, there can be no rule laid down defining just what act or acts will con- stitute such an acceptance. The facts and circumstances of each case must be considered in order to determine whether there has been any act or outward expression indicating that the minds of the parties have met upon the proposition made by the applicant." Where a society accepted the payment of assessments with knowledge of the fact that no formal application for member- ship had been made by the person paying them and that no examination had been made, as required by its laws, it was es- topped to dispute his membership. 3 When a contract of in- surance has been completed and sent by mail, a recovery may be had thereon though it does not reach the destination until after the death of the insured. 4 A certificate of membership is void as a policy of insurance if executed by the society after the death of the member and in ignorance of that fact. 6 1 Oliver v. Am. L. of Honor, 10 P. 3 Burlington Relief v. White (Neb.), C. L. Journal 481; Am. L. Rev., 1883, 59 N. W. Rep. 747. p. 301. 4 Dailey v. Preferred Masonic 2 Diboll v. Ins. Co., 32 La. Ann. 179; (Mich.), 57 N. W. Rep. 184. Gay v. Ins. Co., 51 Mich. 245; Fried 5 Giddings v. N. W. Mutual, etc., v. Ins. Co., 50 N. Y. 243; Faughner 102 U. S. 108; Insurance Co. v. Ew- v. Ins. Co., 86 Mich. 536; 49 N. W. ing, 92 U. S. 377; Insurance Co. v. Rep. 643. Young, 90 U. S. 152; Markey v. Ins. CERTIFICATE OF MEMBERSHIP. 279 § 139. An application for insurance, or an offer to insure, sent by mail, is a continuing proposition which may be accepted by the other party within a reasonable time, before notice of withdrawal ; and where the party to whom the prop- osition is made unqualifiedly accepts it by letter, the contract becomes complete on the mailing of the letter of acceptance. 1 In such case the contract is complete without manual delivery of the policy. The unconditional acceptance of an application, and the transmission of a proper policy to an agent for deliv- ery without instructions, are equivalent to a delivery to the member. 2 "Where a person made application for insurance, and the application set out that the policy would not take effect until the membership fee was paid, but the agent of the society told the applicant that he could pay the fee either at that time, or when the policy was delivered, and the applicant elected to pay at the latter time, but died before the policy was received, it was held that the policy never took effect, and the insurer was not liable. 3 Deceasod aoplied for membership in a subordinate lodge of the Knights of Honor, his proposition fee being paid. The medical examiner recommended him for membership. All forms were complied with, and he Avas elected a member by the lodge, but died two days later, without having been initiated. The laws of the order required an applicant, within a certain time after his election, to present himself for initia- tion, or forfeit his election, and the benefit certificate from the Co., 103 Mass. 92; Ins. Co. v. Kenne- s Whitaker v. Ins. Co., 29 Barb, dy, 6 Bush. 450; Ins. Co. v. Willets, (N. Y.) 312; Southern Ins. Co. v. 24 Mich. 208; Misselhorn v. Mutual Kempton, 56 Ga. 339; New England, Reserve, etc., 30 Fed. Rep. 545; Rog- etc., Co. v. Robinson, 25 Ind. 537; In- ers v. Ins. Co., 41 Conn. 97; McClave surance Co. v. Colt, 20 Wall. 560- v. Association. 55 N. J. L. 1-7. Cooper v. Ins. Co., 7 Nev. 122; Hei- 'Tayloe v. Ins. Co., 50 U. S. (9 man v. Ins. Co., 17 Minn. 153. How.) 390; Hamilton v. Ins. Co., 5 3 Ormond v. Life Association, 96 Barr. (Pa.) 339; Mactier v. Frith. 6 N. C. 158; 1 S. E. Rep. 796; Wein- Wend. (N. Y.) 103; Northampton Ins. feld v. Association, 53 fed. Rep. 208; Co. v. Tuttle,40N. J. L. 103; 39 N. J. Kohen v. Association, 28 Fed. Rep. L. 486; Alabama, etc., Ins. Co. v. Her- 705; Wood v. Ins. Co., 32 N. Y. 619; ron. 56 Miss. 643; Hallock v. Ins. Co., Baker v. Ins. Co., 43 N. Y. 884; Mis- 20 N. J. L. 278; Shattuek v. Ins. selhorn v. Association. 80 Fed. Rep. Co., 24 Cliff. 598; Sheldon v. Ins. Co., 545; Giddings v. Ins. Co., 103 U. S. 25 < 'nun. 207; 05 Am. Dec. 505; N. E. 110. Ins. Co. v. Robinson, 25 Ind. 536. 2S0 CERTIFICATE OF MEMBERSHIP. supreme lodge was to be issued only on application from the subordinate lodge, after the applicant had received his degree. The application contained an agreement that the payment of the proposition fee or the entertaining of the application, unless the applicant should be duly elected " and initiated," should not constitute membership, or give any rights of a member. It was only on the death of a "member who has obtained the degree of the subordinate lodge " that the supreme lodge could order payment to the beneficiary. It was held that deceased was not a member of the lodge. The constitution and by-laws requiring an applicant for member- ship to be initiated in addition to paying his proposition fee and being elected, before acquiring any rights as a member, are reasonable, and not contrary to law, notwithstanding the ceremony of initiation is secret. 1 Where the application states that the certificate shall not be in force until it is actually delivered to the applicant, no binding contract is made until the certificate is delivered. Where a certificate states on its face, that it shall not be binding until it is delivered to the member while in good health, it does not become binding by delivery to the beneficiary after the death of the member. 2 Where the contract provided that it should not become effective until the first assessment levied after its execution had been paid by the member, and the society neglected to give him notice of the next assessment levied by it, and he died eighteen days after it had been levied, it was held that the society could not, to defeat the contract, rely on its failure to levy the assessment on him by proper notice. 3 § HO. It may be laid down as the settled law in fire in- surance that a contract of insurance is complete when the insurer offers to insure on certain terms, and the offer is ac- cepted by the applicant, and that the contract need not be in writing unless the law expressly requires it. 4 These principles 1 Matkin v. Supreme Lodge, 82 Ins. Co., 11 Paige Ch. 547; Walker v. Texas 301; 18 S. W. Rep. 306. Ins. Co., 56 Me. 371; Eames v. Ins. - McClave v. Association, 55 N. J. L. Co., 94 U. S. 621. There are at least 187; 26 Atl. Rep. 78. five essential elements in a contract of 3 Globe Ins. Co. v. Duffy, 76 Md. insurance, viz.: the subject-matter: 293; 25 Atl. Rep. 227. the risks insured against; the amount 4 May on Insurance, § 14-24; Ins. insured; the duration of the risk, and Co. v. Colt, 20 Wall. 5G0; Sanford v. the premium of insurance; and a con- CEKTIFICATE OF MEMBERSHIP. 2S1 have been held to apply in mutual benefit societies, in cases where the charter and by-laws contain the whole contract of insurance, and where there is no provision that the contract must be in writing. 1 When an accepted applicant for member- ship pays his membership fee, and promises in his written ap- plication to pay the further sum of one dollar and ten cents whenever any other member dies, or forfeit his claim to a benefit; and the by-laws provide that the association, within thirty days after satisfactory proof of his death, will pay to his widow as many dollars, not exceeding one thousand, as there are surviving members at the time of the death, the con- tract is completed, and is one of life insurance. "Where a cer- tificate stipulates that it shall not be in force until counter- signed by an agent, or an officer of a subordinate lodge, it is invalid until so countersigned, unless this requirement is waived by the society." § 141. Where executed. — Generally speaking, the validity of a contract is to be decided by the law of the place where it is made, and if valid or void there, it is valid or void every- where. 3 In Reimsdyk v. Kane et al., 4 Judge Story says the rule is well settled " that the law of the place where a contract is made is to govern as to the nature, validity and construction of such contract" unless it shall appear from its tenor that it was entered into with a view to the laws of some other state. Iluberus, in his De Conflietu Legum," says: " The general rule is that contracts are to be interpreted according to the laws of the country where they are made, but if, from the terms or nature of the contract, it appears it was to be executed in a foreign country, or that the parties had respect to the laws of another country, then the place of making the contract lie- comes immaterial, and the obligation must be tested by the tract deficient in any of these is in- tinental Ins. Co. v. Webb, 54 Ala. 688; complete. Tyler v. Ins. Co., 4 Robt. Hardie v. Ins. Co., 26 La. Ann. 842; 151. Badger v. Ins. Co., 103 Mass. 344; see 1 Oliver v . A m. L. of Honor, 1 Par. Norton v. Ins Co. , 36 C >nn . 51 13; Myers Coast Journal 481; Cooper vi Ins. Co.. v. Ins. Co., 27 Pa. St. 268; Paine v. 7 Nev. 121; Sheldon v. Ins. Co., 25 Ins. Co., 51 Fed. Rep. 689. Conn. 219; Alabama Ins. Co. v. * There are a few exceptions to this Mayes, 61 Ala. 163; Rhodes v. Ins. rule. Co., 5 Lans. 71. 4 1 Gallison, 374. - Prall v. Society. (53 N. Y. 608: Mc- 5 Fitch v. Remer. 1 Bias. 337. Cully v. Ins. Co., 18 W. Va. 782; Con- 6 Vol. 2, book 1 , tit. 8. 232 CERTIFICATE OF MEMBERSHIP. laws of the country where the duty was to be performed." A policy issued from the office of a society in Wisconsin was held to have been executed in Oregon, because the policy re- quired that it should be countersigned by the agent in Oregon, before it should be valid and binding. 1 In Hyde v. Goodnow, 2 under the provisions of the application and policy, which con- tained the stipulation that it should not be binding until the application and premium note were deposited in the office of the company and approved by its directors, it was held that when the application was approved and the policy deposited in the mail at the place of the company's office, addressed to the defendant, the contract was then and there executed, and became binding on the parties thereto. 3 The transmission of a policy by mail to the applicant or to an agent for delivery to an applicant, is the completion of the contract at the place where this act is performed. A policy which does not become a binding contract until its delivery, is governed by the laws of the state in which it was delivered to the insured bv an a^ent of the company, although it was executed and dated at the office of the company in another state. 4 § 142. Delay of society in accepting an application for insurance and issuing a certificate. — As has been heretofore said, 6 societies may decide for themselves whom they will admit as members, and they may also determine whether or not they will enter into contractual relations with one who applies for insurance. An applicant may have all the neces- sary qualifications prescribed for membership in a society, and may perform all the acts required to be performed in order to entitle him to admission and insurance, and yet be rejected. 1 N. W. Mutual v. Elliot et al., 5 Fed. Eep. 902; North Hampton Ins. Fed. Rep. 225; see also Pomeroy v. Co. v. Tuttle, 40 N. J. Law, 103; 39 Insurance Co., 40 111. 400; Thwing N. J. L. 486; Tayloe v. Ins. Co.; 9 v. Insurance Co., Ill Mass. 109; Har- How. 390; Adler v. Stoffel, 78 Wis. die v. Insurance Co., 26 La. Ann: 242; 33; 46 N. W. Eep. 891; Pace v. Pace, Insurance Co. v. Kennedy, 6 Bush. 19 Fla. 438; Pomeroy v. Ins. Co., 40 450; Giddings v. Ins. Co., 102 U. S. IU. 398. 108; Continental Ins. Co. v. Webb, 4 Knights Templar v. Berry, 50 Fed. 54 Ala. 688; Wall v. Society, 32 Fed. Rep. 511; Assurance Society v. Clem- Eep. 273; Voorheisv. Ass'n,91 Mich, ents, 140 U. S. 226; 11 S. Ct. Eep. 469; 51 N. W. Eep. 1109. 822. 2 3N. Y. 269. 5 §§29, 30. 3 SeeYonge v. Equitable Life, 30 CERTIFICATE OF MEMBERSHIP. 2S3 And since he has no legal claim upon the society until he is accepted as a member and an insured person, mere delay in passing upon his application will give him no rights and afford no presumption of its acceptance. In one case it was said: 1 " While receipt of the application may cast a moral duty upon the company to act promptly, yet delay does not operate in the same way as an acceptance of the application. Suppose the company had delayed acting for a year, could it be claimed that the policy was in force? The proposition which the ap- plicant made was for a policy to become operative when the instrument was executed and delivered. No negligence, no delay, reasonable or unreasonable, on the part of the insurance company, could make a contract in face of the stipulation." : And in another case it was said : " "We are not aware of any authority for the proposition that mere delay, mere inaction, can amount to an acceptance of a proposal to enter into a contract. The opposite is the true doctrine, that if no answer is given to a proposition for a contract, within a reasonable time, the proposition is regarded as withdrawn. The princi- ple is stated in Hallock v. Conn. Ins. Co. 3 ' A contract arises when an overt act is done, intended to signify an acceptance of a proposition, whether such overt act comes to the knowl- edge of the proposer or not, and unless a proposition is with- drawn, it is considered as pending until accepted or rejected, provided the answer is given in a reasonable time.' If the ap- pellant was dilatory in acting on the proposal, the deceased could have quickened its diligence by demanding prompt action; or, if not assenting to the delay, he could have re- tracted his proposal, and reclaimed the money he had advanced and his note. He had no right, without an inquiry as to the cause, without any action on his part, to rely on the supine- ness of the appellant, no greater than his own, as an acceptance of the proposal." 4 1 Misselhorn v. Mutual Reserve, etc., 61 Ala. 103: see Otterbein v. Ins. Co., 30 Fed. Bep. 545. 5*3 Lowa 37 I: Harp v. Ins. Co., 49 Md. *SeeKohcn v. Mutual Reserve, 28 SOT; Ins. Co. v. Johnson, 23 Pa. St. Fed. Rep. 705; Supreme Lodge v. 72; Bentley v. Ins. Co., 17 N. Y. 421; Grace, 60 Texas 569. Flanders on Insurance, 108; Titus 36 N. J. L. 268; 27 N. J. L. 64.5; v. Ins. Co., si N. y. 410; Ins. Co. v. 72 Am. Dec. 379. Beatty, 119 Pa. St. 6; 12 Atl. Rep. 007. 4 Alabama, etc., Ins. Co. v. Mayes, 2S4 CERTIFICATE OF MEMBERSHIP. In holding that an acceptance of the proposition for insur- ance is not to be presumed merely from the lapse of about six months without a reply to the proposition, another court said : '■ " What is the true effect of the delay ? It can not of itself make a contract. A proposal can not become a contract by delay in rejecting or answering it. * * A neglect or delay that has properly a tendency to mislead another, and which is incompatible with honesty, may be charged as a ground of liability; as where one knows that another is acting as his agent in a particular matter without or beyond his authority, and does not promptly disavow his acts. But in this case the plaintiffs had in their own hands the power of correcting the delay; for undue delay in accepting a proposal may be and ought to be treated as a rejection of it, and the proposer may refuse to be bound by a tardy acceptance. A proposal not answered remains a proposal for a reasonable time, and is then regarded as withdrawn. Both parties are interested in its acceptance, and both are expected to attend to it with reasonable diligence." When there is anything left open for future adjustment, either as to the amount or duration of the risk, or the consideration to be paid, negotia- tions are incomplete, and no contract or obligation exists. 2 Where an application is never received, 3 or never acted upon, there can be no contract. 4 Possibly a society may, under some circumstances, be liable for neglect of its agent to for- ward an application for insurance within a reasonable time, but however that may be, it is certain that it is not liable on a contract of insurance, but only in an action based upon such negligence. 5 § 143. Construction of the contract. — The provisions of a life insurance policy are construed and applied like the terms of any other contract: 6 but, where they are vague, ambiguous, insurance Co. v. Johnson, 23 Pa. Texas 569; Armstrong v. Ins. Co., St. 72. 61 Iowa 212; 16 N. W. Rep. 94; Win- 2 Haskins v. Ins. Co., 78 Va. 700- nesheik Ins. Co. v. Holzgrafe, 53 '707; Haden v. Association, 80 Va. 111. 516. 683. 5 Walker v. Ins. Co., 51 Iowa 679; 3 Atkinson v. Ins. Co., 71 Iowa 340; 2 N. W. Rep. 583. 32 N. W. Rep. 371. 6 Conn. Mutual v. Pyle, 44 Oh. St. 4 Markey v. Ins. Co., 103 Mass. 78- 19; 4 N. East. Rep. 465. 92; Supreme Lodge v. Grace, 60 CERTIFICATE OF MEMBERSHIP. 285 inconsistent'or uncertain in their meaning, that interpretation will be given to them which is in favor of the insured. This rule is placed upon the ground that limitations upon the force of the principal obligation of the contract, inserted by the insurer in his own words, for his own benefit, must be clearly and unequivocally expressed. Where, in a certificate of mem- ship, there are two inconsistent stipulations covering the same subject-matter, the one general and providing, among other things, that upon certain conditions, the policy shall become absolutely void, and the other separate and distinct, and pro- viding, upon the very same conditions, that the society may, by proper steps, avoid the policy, the latter stipulation will govern. Thus, a specific stipulation in a separate clause of a certificate of membership, providing that if the assured shall become intemperate to a certain degree, the society may can- cel the policy, and thus absolve itself from liability, will con- trol a general stipulation that such a degree of intemperance shall work an absolute forfeiture. 1 When a party uses an expression of his liability having two meanings, one broader and the other more narrow, and each equally probable, he can not, after an acceptance by the other contracting party, set up the narrow construction. 2 Only a stern legal necessity will induce such a construction as will nullif}^ the contract of insur- ance. 3 A policy of life insurance, while not an evidence of debt for the absolute payment of money, is a chose in action governed by the principles applicable to other agreements involving pecuniary obligations.' Certificates of membership in mutual benefit societies are, in effect, policies of life insurance, and in most respects, are governed by the same rules which prevail in policies of insurance/ The certificate and by-laws of a so- ciety should be construed liberally, with a view to effectuate ■N. W. Mutual v. Hazelett, 105 National Bank v. Ins. Co., 95 U.S. Ind. 212; 4 N. East. Rep. 582; 55 Am. 673; Niagara Lis. Co. v. Scammon, Rep. 192. Ilia 111. 644. "Burkhard V. Ins. Co., 102 Pa. St. :< Franklin life v. Wallace, 93 Ind. 262: Breasted v. Farmers' Co., 4 Seld. 7; Bliss on Life Ins.. g 385. 399; Moulor v. Ins. Co., Ill U. s. 885; * Hutson v. Merrifield, 51 Ind. 24. Hoffman v. Ins. Co., 32 N. Y. 412; 6 Elkhart Mutual Aid v. Houghton, Symonds v. Ins. Co., 23 Minn. 491; 98 Ind. 149. Supreme Lodge v. Abbott, 82 Ind. 1; 2S6 CERTIFICATE OF MEMBERSHIP. the contract and to carry out the object of its organization. 1 The stipulations of a written contract are not the less binding because made between a corporation and one of its members; nor are the rules of construction in such cases different from those which obtain in contracts between corporations and strangers. It has been frequently held that where parties have, by their own acts, placed a construction upon doubtful and ambiguous provisions of a contract of insurance, the courts will carry that construction into effect. But the construction given to any of the provisions of the contract of insurance by the officers of the society is not binding upon the courts, and the members can not be bound by any acts which may have been done by them under such a construction. 2 In "Wiggin v. Knights of Pythias, stipra, the court said : " These words of the by-laws become part of the contracts for life insurance, and in the courts must receive the ordinary interpretation put upon the contracts containing them. * * These benevolent associations or fraternities, not more than other parties to con- tracts, can not be allowed to construe the words they use in making agreements otherwise than according to their plain and unambiguous meaning in the English language they em- ploy, whether the words of the contract itself or of the rules and regulations which become, by the principles they insist on, embodied in the contract as a part of it. They can not be permitted to interpret the contract as they please, and become their own judges of what they mean by the use of the words employed that have either a technical or well-defined signifi- cation, known of all men who use the language. Legislatures and parliaments can not do that, and even they are bound by the common meaning of the words they use in their statutes which become part of a contract." The opinion of an officer of a society, as to the interpretation to be given to its laws, is not admissible in evidence, in absence of evidence that he was under its laws, a judicatory for the purpose of making such interpretation. 3 The law governing the distribution of the 1 Erdmann v. Mutual, etc., 44 Wis. 2 Manson v. Grand Lodge, 30 Minn. 376; Covenant Mutual v. Sears, 114*509; Wiggin v. Knights of Pythias, 111. 108; American Legion v. Perry, 31 Fed. Rep. 122; see § 145. 140 Mass. 580; Elsey v. Association, 3 Davidson v. Supreme Lodge, 22 142 Mass. 224; Ballou v. Gile, 50 Wis. Mo. App. 263. 614; Splawn v. Chew, 60 Texas 532. CERTIFICATE OF MEMBERSHIP. 2S7 benefit fund is to be found in the constitution, by-laws and certificates of the society, but when a dispute arises as to the interpretation of that law, the law of the domicile, and not that of the place where the property may chance to be, governs such interpretation. § 144. Where in the body of a certificate of membership, reference is made to the indorsements, they may be considered in connection with the policy, in determining when the cer- tificate is payable, where that is left doubtful in the body of the instrument. Where such a certificate was indorsed : " Mutual assurance on the life of Due at the death of members $1," and the body of the certificate contained expressions such as, " should the assured come to his death by the hands of the law " or " should die by suicide, or without heirs or assigns " only $50 should be paid, it was held that, taking into consideration these expressions, with the indorse- ments, the intention was manifest that the policy was to become due on the death of the assured. 1 The by-laws of a benefit association provided that, upon the death of a member, and in order to make up the amount to be paid to his bene- ficiary, each member should pay one dollar, and that the bene- ficiary should be entitled to receive from the association the amount collected on the assessment levied therefor. In con- struing these by-laws, the court held that the beneficiary was only entitled to receive the amount actually collected on an assessment made for his benefit, and not a sum equal to one dollar from each member. 2 In construing the following clause in a certificate of membership : " P. N., having complied with the conditions of membership, is entitled to the benefit of said association, in the sum of one dollar for each contributing member," the court held that "contributing members." and members in good and regular standing who had not forfeited their membership, were synonymous and convertible terms. 3 1 St. Clair Co. Ben. Soc. v. Fietsam, 66 Md. 240; Farmers' Mutual v. Sny- Adin'r. 97 111. 474; see Hygura v. der, 16 Wend. 481; Ferrer v. Ins. Co., ./Etna Ins. Co., 11 Iowa 21 ; Wright v. 47 Cal. 416; Kingsley v. Ins. Co., 8 Mutual Benefit Association, 43 Hun Cush. 393. (N. Y.)61. The indorsement was held i In re La Solidarite Mut. Ben. not to be a part of the policy in Ailni'rs Ass'n, 68 Cal. 392. of Stone v. Casualty Co., 34 N. J. L. 3 Neskern v.N. W. Assn, 30 Minn. 371; see Bassell v. Ins. Co., 2 Hughes 406. 531; Planter's Ins. Co. v. Rowland, 288 CERTIFICATE OF MEMBERSHIP. A provision in a certificate that " no question as to the validity of an application or certificate of membership shall be raised, unless such question be raised within the first two years from and after the date of such certificate of membership, and durino- the life of the member therein named," embraces the defense of fraud of the insured and beneficiary in obtaining the certificate. 1 Provisions of the constitution and by-laws of a societ}^, allowing benefits " in case of sickness," and providing that when " any member takes sick," he shall be entitled to benefits, " if it be so that he is not able to attend to his daily labor," do not extend to a case of permanent bodily injury, which does not affect the general health of the person injured. 2 A member of such a society had his thigh bone broken, which caused a shortening of the leg and the eversion of the foot. For twenty-six weeks the society paid him his allowance of 85 per week, and at the expiration of that time, to wit, on October 8, 1877, refused to pay him any further weekly allow- ances. For about sixteen months he was able to do very little work, and could not perform the duties of a coachman, as he had done for years prior to his injury. On February 11, 1870, he brought suit for weekly benefits from October 8, 1877. The court held that he was not entitled to weekly benefits under the constitution and by-laws, as the incapacity to work, because of the effect of the injury, was not a sickness within their meaning. 3 Insanity has always been regarded as a dis- ease, and comes strictly within the meaning of the term " sick- ness." Where, therefore, by the laws of a society, benefits are promised on account of sickness, a member who has become insane is entitled to sick benefits. 4 A certificate provided for the payment of five hundred dol- lars on the death of the member, and printed under this agree- ment was the following : " One-fourth only of the above sum payable if death occur after three calendar months and within six calendar months, from date; one-half only of the above sum payable if death occur after six calendar months and within one year; and the full amount only if death occur after 1 Wright v. Association, 118 N. Y. 4 McCullough v. Association, 133 237; 23 N. E. Rep. 186; affirming 43 Pa. St. 142; 19 Atl. Rep. 355; Pel- Hun 61. lazzinio v. Society, 16 Cm. Law * Kelley v. A. O. H., 9 Daly 289. Bull. 27; Burton v. Eyden, L. R., S Q. "Kelley v. A. O. H., stipra. B. 295. CERTIFICATE OF MEMBERSHIP. 280 one year, except in case of consumption, when but one-half the amount which would otherwise be due would be payable if death occur during the first } r ear. No benefits will be due or payable if death occur within three calendar months from date." A member whose life was insured May 4, 1885, died July 2, 1885. In a suit on the policy the court said : " It is contended on the part of the plaintiff that the policy is for $5< M I and that that amount is not qualified by the provision quoted, and in the second place that the provision is repugnant to the main body of the policy. It is quite true that the policy is for 8500, but it is equally true that the $500 written in the policy precedes and is in connection with the conditions to the effect that one-fourth only is payable if death occur after three months and within six months, and that no benefits will be due or payable if death occur within three months. These provisions are clear and distinct and are not ambiguous in meaning, and the court has no power to strike them out or to separate them from the other provisions of the contract, and then compel the pirties to execute it, for by doing so it would be making a contract for the parties different from that which they had made for themselves. Nor do we understand these provisions to be repugnant to or inconsistent with the other provisions of the policy." ' Where the by-laws of a so- ciety provide funeral benefits for such deceased members only as were entitled to sick benefits, and deny sick benefits to members thirteen weeks in arrear, when taken sick, a mem- ber who is thirteen weeks in arrear when taken sick can nor acquire, by payment of arrears, a right to a funeral benefit, although claiming no sick benefit. 2 In a society there were two kinds of benefits, sick benefits payable to the member and mortuary benefits payable to the beneficiary of the contract of insurance. A by-law provided that when a member had been delinquent for three months and was restored to membership by paying his past dues, he should "not be entitled to benefits for one month thereafter." The word u benefits," it was hel Minn. 12; 27 X. Fed. Rep. 468; Thompson, Receiver, v. W. Rep. 199; Rawson v. Lyons, 23 Ins. Co., 186 U. S. 387; 10 Sup. Ct. Fed. Rep. 107: Griswold v. Bazard, Rep. 1019. Relief will not be denied, ~*"» Fed. Rep. 185; Ahlborn v. Wolff, simply because there is a conflict in 118 Pa. St. 24:2; 11 Atl. Rep. 799; the evidence upon the question of a Cummins v. Monteith, 61 Iowa .ill: mistake, if the mistake is established 16 N. W. Rep. 591; Nelson v. Davis, in a clear and convincing manner. 40 Ind. 366; 1 Story's Eq., Sec. 155; Hutchinson v. Ainsworth, ?:! Cal. 29S CERTIFICATE OF MEMBERSHIP. As a general rule, a mistake must be mutual to be reformed, but when persons are dealing together, and have entered into a contract, and, in reducing the contract to writing, or execut- ing or performing the same, one person makes a mistake which is known to the other, it is the duty of the person hav- ing knowledge of the mistake to inform the other at the time, and this is true regardless of whom the mistake favors. Thus a member paid two dollars to a society entitling him to a cer- tificate for one thousand dollars, but the society issued a cer- tificate for two thousand dollars instead of one thousand, which the member had contracted for and directed to be issued to him. When the member received the certificate, he either accepted it by mistake, believing it to be for one thousand dollars, or he knew of the mistake on the part of the society and with such knowledge recaived and kept the certificate. In either event the society was entitled to a reformation of it. 1 "When an agreement has been satisfactorily established, if it appears that a mistake in reducing it to writing was known to one of the parties, who, with knowledge of the ignorance of the 452; 15Pac. Rep. 82. A bill inequity Goldsmith v. Ins. Co., 18 Abb. N. C. to reform a written instrument will 325; Ben Franklin Ins. Co. v. Gillett, not lie where the only evidence of a 54 Md. 212; Franklin Ins. Co. v. mutual mistake is that complainants, Martin, 40 N. J. Eq. 574; Ins. Co. v. being unable to understand English, Wilkinson, 13 Wall. 222. Compare relied upon statements of the defend- Parsons v. Bignold, 13 Simon's Ch. ants, which were in fact untrue, as to 513. In the absence of satisfactory the meaning of the document. Fehl- proof of fraud, or misrepresentation berg v. Cosine, 16 R. I. 162; 13 Atl. on the part of the society, the mem- Rep. 110; Daniel v. Ins. Co., 34 N. J. ber who is guilty of laches in having Eq. 30: Harrison v. Ins. Co., 30 Fed. accepted and acted on the policy for Rep. 862. A court will only decree years can not have the contract the reformation of an instrument to changed to conform to his recollec- enable a party thereto to assert or tion of the terms agreed upon. Zal- mamtain some right thereunder, lee v. Ins. Co., 12 Mo. App. Ill; and it will refuse the reformation Massey v. Ins. Co., 70 Ga. 794; of a policy of insurance when it Steines v. Ins. Co., 34 Fed. Rep. 441; appears, that, by reason of the lapse Fowler v. Ins. Co., 28 L. J. Ch. 225. of time, no action may be main- ' Gray v. Supreme Lodge, 118 Ind. tained thereon for any cause when 293; 20 N. East. Rep. 833; Snell v. reformed. Thompson v. Ins. Co., Ins. Co.,98U.- S. 85, 88; Thompson 25 Fed. Rep. 296; see Spare v. v. Ins. Co., 136 U. S. 287; 10 Sup. Ins. Co., 17 Fed. Rep. 568. An in- Ct. Rep. 1019; Mtna Life v. Brodie, surance policy may be reformed to 5 Can. Sup. Ct. 1. correct a mistake made by an agent. CERTIFICATE OF MEMBERSHIP. 299 other, nevertheless kept silent when he should have spoken, the party having knowledge will be estopped to defeat a re- formation by alleging that he knew that the instrument was different from the agreement, and that the mistake was not mutual. 1 When a mutual mistake has been made in reducing a contract to writing, the part} 7- , if entitled to relief at all, is entitled to have the contract reformed so as to speak the truth and to have it enforced according to the terms as in fact agreed upon. Where a certificate was by mistake issued for two thousand instead of for one thousand dollars, it was held not to avail the beneficiary, that, after the death of the mem- ber, she offered to pay or allow to be deducted from the two thousand dollars an amount equal to the assessments paid by the deceased member on the contract of insurance for one thousand dollars ; and it was further held that the beneficiary could not defeat a reformation of the contract by showing that while relying upon the certificate and expecting to re- ceive the full sum of two thousand dollars, she contracted debts and spent sums of money which she would not have con- tracted nor expended had she had knowledge or notice of the alleged mistake. 2 A society has the power to correct a mistake by issuing a new certificate in place of the old one, even though the member can not prove sufficient facts to com- pel it in equity to make the correction. 3 § 153. Reformation of certificate, inserting name of beneficiary. — A certificate of membership in a mutual benefit society may be reformed, after the death of the member, by inserting the name of a beneficiary, when it appears that the secretary of the association and the assured both understood at the time of the application, that the proposed name should be entered upon the record without further direction, and where it was the duty of the secretary to enter upon the records the names of the beneficiaries of the members. 4 A certificate is 'Roszell v. Roszell, 109Ind. 35 I: 10 "Ford v. U. S. Mutual. 148 Mass. N. East. Rep. 114; Peasley v. Me- 158; l'.t N. Bast. Rep. 169; Mead v. Fadden, 68 Cal. 6U; lOPac. Rep. 179; Davison, 8 A.dol. & E. 803; Spauld- Town of Essex v. Day, 52 Conn. 488; ing v. Conant, 146 Mass. 292; 15 N. 1 Atl. Rep. 620: James v. Cutler. 54 East. Rep. 688. Wis. 172; ION. W. Rep. 147. 4 Scottv. Provident Mutual. 68 X. "Gray v. Supreme Lodge, 118 Ind. H. 556; I Atl. Rep. 793; 2 New Eng. 293; 20 N. East. Rep. 833. Rep. 286; see Globe Ins. Co. v. Boyle, 300 CERTIFICATE OF MEMBERSHIP. admissible in evidence in an action upon it, though it does not name the beneficiary, and the application may be admitted to show who the beneficiary really is. 1 § 154. Novation of the contract. — The constitution and laws of the Supreme Lodge of the Ancient Order of United Workmen, a corporation under the laws of Kentucky, pro- vided that in certain events the subordinate divisions known as " Grand Lodges " might be set apart from the supreme lodo-e. and thereafter collect and disburse their own benefi- ciary funds. Plaintiff, as a member of the grand lodge of Massachusetts, received a benefit certificate under the seal of the supreme lodge. Afterward the grand lodge was set 21 Oh. St. 119; Newman v. Associa- the record book as the beneficiary tion, 76 Iowa 56. The opinion in to whom the benefit is payable, Scott v. Provident Mutual, supra, is and that (the member) understood as follows: ''The defendants con- that her name would be so entered tracted to pay a sum not exceeding without further direction given him, $'2,000 as a benefit, upon due notice of it was the duty of the secretary to the death of (the member), and the enter it; and the accident or mistake surrender of his certificate of mem- was one which equity will remedy, bership, ' to such person or persons as The accident could not be said to have he may, by entry on the record book arisen from the negligence or fault of the association, or on the face of of (the member), so as to preclude re- this certificate, direct the same to be lief. Story Eq. Jur., § 105. Nor paid.' The bill alleges, and the de- would it be the case of the non-exe- murrer admits, that at the time he cution of a power as distinguished made application for membership, he from a trust, where equity does not stated to the association, which afford relief. Idem, §§ 169, 170. As means to its proper officer or officers, equity interposes only as between the that it was his intention that the original parties and those claiming benefit should be paid to the plaintiff, under them in privity (1 Story Eq. to whom he was then, and at the Jur., §§ 105, 165) objection may be time of his decease, betrothed. The obviated by an amendment joining prayer of the bill is for a reformation (the member's) administrator as co- of the contract by inserting in the plaintiff. She may then prosecute membership certificate the name of this suit in his name, giving him in- the plaintiff as beneficiary, and that demnity, if he requires it, against the benefit may be paid to her. Sec- costs and expenses. The bill should tion 3 of article 4 of the by-laws also contain a prayer that the plaint- makes it the duty of the secretary to iff s name may be inserted in the keep a record of the members of the record book as (the member's) bene- association and the persons ' to whom ficiary." the relief is to be paid.' If the fact ' Norristown v. Ins. Co., 132 Pa. St. is found at the trial term that the 385; 19 Atl. Rep. 270; see Thompson, parties understood direction as given Receiver, v. Ins. Co., 136 U. S. 287. to enter the plaintiff's name upon CERTIFICATE OF MEMBERSHIP. 301 apart, and a proper proportion of the beneficiary fund turned over to it. Later the grand lodge was incorporated under the laws of Massachusetts, and assumed and promised to pay " all the obligations and liabilities of, and beneficiary and other claims against, said association, whether already accrued or hereafter payable." After this change the member paid his assessments to the new corporation, and was recognized as a member in good standing until his death. It was held that this effected a complete novation of the contract, and the new corporation was liable on the certificate. 1 § 155. (< In good standing." — In an action on a certificate of membership, reciting that the deceased is a k ' beneficiary member in good standing " in the society, and that, upon his death, a sum named will be paid, *' provided he be in good standing when he dies," the certificate is proof of the good standing of the party named at the time it issued, and such standing will be presumed to have continued, in the absence of contrary evidence. In such case, the burden is on the soci- ety to show that by reason of his conduct, or his failure to comply with the regulations or requirements of the society, the deceased member had lost his good standing." "Where the contract of insurance is issued upon the express condition that the member shall keep his pledge of total abstinence and com- ply with the laws of the societ}*-, and provides that if he die in good standing, his beneficiary shall be entitled to the bene- fit fund, the violation of the pledge of total abstinence alone forfeits the rights of the beneficiary to recover the sum pro- vided for. In such a case it may be shown by parol that he violated his pledge, and the trial and conviction by the society for such violation need not be shown in order to defeat a re- covery. 8 Where the by-laws of an unincorporated society pro- vide that a member shall forfeit his rights in the benefit fund in case he shall neglect his Easter duty of confession, he is not 1 Bums v. Grand Lodge, 153 Mass. Mo. App. 463; OTirady v. Knights, 173 ; 26 N. East. Rep. 443. 62 Conn. 223; 25 Atl. Rep. Ill ; High 2 Stewart v. Association, 36 Mo. Court v. Zak, 136 III. 185. App. 319; Supreme Lodge v. John- 3 Royal Templars v. Curd, 111 111. son, 78 Ind. 110; Mills v. Rebstock, 284; Hogins v. Supreme Council, 76 29 Minn. 380; Millard v. Supreme Cal. 109; 18 Pacific Rep. 125; Smith Council, 81 Cal. 340 ; 22 Pac. Rep. v. Association, 36 Mo. App. 184. 864; Mulroy v. Knights of Honor, 28 302 CERTIFICATE OF MEMBERSHIP. in good standing unless be regularly performs such duty ; and his neglest of such duty may be shown in an action by the beneficiary on his certificate. 1 Where the constitution and by-laws of an unincorporated mutual benefit society provide that its members shall pay clues and assessments for insurance according to a certain plan, and that each member shall be a communicant in the Roman Catholic church, and shall yearly go to confession to a priest of that church, and receive the holy communion, which pro- visions of the constitution and by-laws were well known to the member at the time he entered into the contract of insurance, the member must not only pay his dues and assessments, in order to remain in good standing in the society, but must also perform his duty of confession and communion, or forfeit his rights under the contract. 2 It was urged in this case that these provisions for yearly confession and communion were contrary to the constitution of the United States, and the constitution of the State of Kentucky, upon the subject of freedom of religious worship, but the court held that they were clearly legal and binding upon members of an unincorporated society who had agreed to be bound by them. In People v. Benevolent Society, 3 it is suggested in the opinion that provisions of a by- law requiring the practice of religious duties, such as confession and communion, according to the practice and teachings of any particular faith, as conditions of membership in an in- surance society, are not obligatory upon members, because they are contrary to the provision of the constitution of the state of New York, Article I, Sec. 3 : " The free exercise and enjoy- ment of religious profession and worship, without discrimina- tion or preference, shall forever be allowed in this state to all mankind." But the decision is placed upon other grounds — ■ that the proceedings of expulsion were invalid, and that a religious society could not be organized under the act providing for the incorporation of charitable and benevolent institutions. A limitation of relief in case of disability to members in good standing requires only that they shall be in good standing when disabled. 4 'Matt v. Society, 70 Iowa, 455; 30 431, but not reported in Kentucky N. W. Rep. 799. Reports. 'Hitter v. St. Aloysius Society, 8 24 How. Pr. 216. Kentucky Court of Appeals, reported 4 McMahon v. Supreme Council, 54 in Albany Law Journal, vol. 27, p. Mo. App. 468. CERTIFICATE OF MEMBERSHIP. 303 Where a contract provides that a fund shall be paid to the beneficiary of any member in good standing at the time of his death, and that a member shall be deemed in good standing for the purpose of the benefit fund, who at the time of his death was not indebted to the society, the payment by the beneficiary of past due assessments a few hours before the death of the member entitles him to the fund, though the member is not reinstated to membership thereby for failure to comply with the by-laws with reference to reinstatement to the privi- leges of membership. 1 § 156. Suicide. — -Contracts of insurance usually stipulate that the insurer shall be exempt from liability in case of the death of the insured by suicide. Courts have spent much time and great labor in endeavoring to determine the meaning of the words in which this exemption has bsen expressed. It is generally agreed that the terms "die by his own hand," "suicide," "self-murder," and the like are synonymous.' There is, however, not only an irreconcilable difference in the opinions of courts as to their proper msaning, but also a no- ticeable want of harmony in the opinions of the judges of the different courts which have passed upon the subject. It would require too much space to follow the courts and the judges who have written dissenting opinions through their courses of rea- soning and processes of distinction on the question Avhether the insanity of the insured at the time of his suicide takes the case out of the exemption from liability which the insurer has provided for, but it will be sufficient here to state that there are authorities holding that it does, 3 and others holding 1 O'Grady v. Knights, 62 Conn. 223. acter, the general nature, conse- Ineonsistent provisions of the by-laws quences and effect of the act, even were construed in this case. though lie knew and intended that 2 Schultz v. Ins. Co., 40 Oh. St. his death should result from his act. 217; Phadenhauer v. Ins. Co.,7Heis- Life Ins. Co. v. Terry. 82 U. S. 580; kell (Tenn.)567; Breasted v. Ins, Co., Conn. Mutual v. Groom, 86 Pa. St. 8N. Y. 299; Cooper v. Ins. Co., 102 92; Eastabrook v. Ins. Co., 54 Me. Mass. 227. 224; Breasted v. Company, 8 N. Y. a A policy of insurance which stip- 299; Van Zandt v. Ins. Co., 55 X. Y. ulatos that it shall be void if the in- 169: distinguishing Life Ins. Co. v. sured shall die by suicide is not for- Terry, supra and Breasted v. Com- feited by reason of the fact that he pany, giipra; Schultz v. Ins. Co.. 40 destroyed his life while insane and Oh. St. 217; Phadenhauer v. Ins. Co., unable to understand the moral char- 7 Heiskell (Temi.) 567; Newton v. Ins. 301 CERTIFICATE OF MEMBERSHIP. that it does not. 1 A condition that the policy shall be void if the insured shall " die by his own hand or act, voluntary or otherwise" does not cover the case of his death by accident or unintentional self-killing. It does not apply where his death resulted from his accidentally and innocently taking poison while sane. a Conditions in the contract, providing that it shall be void if the insured shall "die by his own hand or act, sane or insane," or " die by suicide, sane or insane," have been in- serted to avoid the question of the insanity of the insured if he should commit suicide. They have been sustained at least to this extent that the contract is avoided if the insured knew what he was doing, realized the consequences of his act, and intended to take his life. 3 Co., 76 N. Y. 426; Phillips v. Ins. Co., 26 La. Ann. 404; Waters v. Ins. Co., 2 Fed. Rep. 892; Suppiger v. As- sociation, 20 111. App. 595; John Hancock Ins. Co. v. Moore, 34 Mich. 41; Scheffer v. Ins. Co.. 25 Minn. 534; Association v. Waller, 57 Ga. 533; Merrittv. Ins. Co., 55 Ga. 103; 59 Ga. 564; Hathaway v. Ins. Co., 48 Vt. 335; Knickerbocker Ins. Co. v. Peters, 42 Md. 414; Adkinsv. Ins. Co., 70 Mo. 27; Michigan Mutual v. Nau- gle, 130 Ind. 79; 29 N. East. Rep. 393. 1 Where the policy provides that it shall be void if the insured shall die by suicide it is avoided by his self- destruction, even though he was at the time impelled by an insane im- pulse which he was unable to resist, and was unable to judge between right and wrong. Borradaile v. Hunter, 5 M. & G. 639; Cooper v. Ins. Co., 102 Mass. 227; Dean v. Ins. Co., 4 Allen, 96; Clift y. Schwabe, 54 Eng. Com. L. Rep. 437; Streeter v. Society, 65 Mich. 199; 31 N. W. Rep. 779; Sabin v. Union, 90 Mich. 177; 51 N. W. Rep. 202; Bil- lings v. Ins. Co., 64 Vt. 78; 24 Atl. Rep. 656. 2 Keels v. Association, 29 Fed. Rep. 198; Penfold v. Ins. Co., 85 N. Y. 317; 39 Am. Rep. 660; Equitable Life v. Paterson, 41 Ga. 338; Edwards v. Ins. Co., 20 Fed. Rep. 661; Pierce v. Ins. Co., 34 Wis. 389; Shank v. Society, 84 Pa. St. 385; Lawrence v. Ins. Co., 5 111. App. 280; 8 111. App. 488; 9 Ins. L. J. 313; N. W. Ins. Co. v. Hazlett, 105 Ind. 212; Michigan Mutual v. Naugle, 130 Ind. 79; 29 N. East. Rep. 393. 3 Bigelow v. Ins. Co., 93 U. S. 284; Riley v. Ins. Co., 25 Fed. Rep. 315; Adkins v. Ins. Co., 70 Mo. 27; 35 Am. Rep. 410: Pierce v. Ins. Co., 34 Wis. 389; 5 Big. L. & A. Cas. 498; Su- preme Commandery v. Ainsworth, 71 Ala. 436; 46 Am. Rep. 332; Mal- lory v. Ins. Co., 47 N. Y. 52; 7 Am. Rep. 410; Suppiger v. Association, 20 111. App. 595; Sabin v. National Union, 90 Mich. 177; 51 N. W. Rep. 202; Streeter v. Society, 65 Mich. 199; 31 N. W. Rep. 779. " Shall un- der any circumstances, die by his own hand." A proper construction of this proviso requires that the words "under any circumstances" be disregarded as too general and in- definite. Schultz v. Ins. Co. 40 Oh. St. 217. " Shall die by his own hand or act, voluntary or otherwise." The words ' ' or otherwise " were held of uncertain meaning and void. Jacobs v. Ins. Co., 1 McArthur 632; 5 Big. CERTIFICATE OF MEMBERSHIP. 305 It is proper for the parties to stipulate in the contract that a limited and fixed amount shall be paid in case the insured shall take his life while insane. 1 The suicide of the insured does not avoid the contract unless it is expressly so stipulated. 2 But a certificate obtained by a sane person in anticipation of suicide for the purpose of providing for his creditors and fam- ily, although it contains no clause avoiding it in the event of suicide, is fraudulent in its inception, and can have no bind- ing force. 8 In the absence of evidence to the contrary it will be presumed that death by drowning was the result of acci- dent and not of suicide, and where there is no evidence as to the cause of the death of the insured, the presumption is that it was from natural causes, and not an act of self-destruction. 4 But where the evidence is equally balanced as to whether the death was by suicide or not, it is error to instruct the jury that if the evidence leaves the matter in doubt, the presumption is that the death was produced by natural causes, and not by self-destruction. 5 The burden is upon the society to prove that the deceased committed suicide, if it alleges such to be the fact, but if the plaintiff in the proofs of death has stated that the death was by suicide, it is incumbent on him to satisfy L. & A. Rep. 42; contra, Penfold v. was insane. See Hartman v. Ins. Ins. Co., 85 N. Y. 317. " Die by self- Co.. 21 Pa. St. 468; Bank v. Ins. Co., destruction, felonious or otherwise" 5 Big. L. & A. Cas. 4TS. includes all cases of voluntary self- 3 Smith v. Benefit Society, 22 N. Y. destruction, sane or insane. Riley St. Rep. 852; 51 Hun 575; 123 N. Y. v. Ins. Co., 25 Fed. Rep. 315. "Die 85. by suicide, felonious or otherwise, 4 Mallory v . Ins . Co., 47 N. Y. 52; sane or insane," expressly excludes a 2 Ins. L. J. 839; Pierce v. Ins. Co., 34 limitation to a case of self-murder. Wis. 389; Shank v. Society, 84 Pa. Pierce v. Ins. Co., 34 Wis. 389. St. 385; Lawrence v. Ins. Co., 5 111. ' ' Salentine v. Ins. Co., 24 Fed. Rep. App. 280; 8 111. App. 488; Wright v. 159; see Frey v. Ins. Co., 56 Mich. Ins. Co., 29 Up. Can. C. P. 221; 29. Washburn v. Society, 10 N. Y. Supp. 'Darrow v. Society, 116 N. Y. 537; 366; Knickerbocker Ins. Co. v. Jor- 22 N. East. Rep. 1093; 42 Hun 245; dan, 7 Cin. Law Bull. 71; Travelera Mills v. Robstock, 29 Minn. 380; 13 N. Ins. Co. v. McConkey, 127 U. S. 661: W. Rep. 162; Fitch v. Ins. Co., 59 N. 8 Sup. Ct. Rep. 1360; 17 Ins. L. J. 585; Y. 573; Patrick v. Ins. Co., 4 Hun Cronkhite v. Ins. Co., 75 Wis. 116; 263; Horn v. Association, 7 Jur. N. 43 N. W. Rep. 731; Accident Ins. S. 673. It may be, however, that Co. v. Bennett, 90 Tenn. 256; 16 S. some distinction should be made be- W. Rep. 723. t ween a case where the insured was 5 Guardian Mutual v. Hogan, 80 sane at the time and a case where he 111. 47. 20 306 CERTIFICATE OF MEMBERSHIP. the jury that he was mistaken in the statement, and that the death was from natural causes, or was caused by accident. 1 Where, in an action on an accident policy to recover for the death of the insured, there is but little evidence to justify a jury in deciding which one of several theories as to the cause of death is the correct one, but what evidence there is supports the theory of suicide, rather than accidental death, a verdict for plaintiff must be set aside. 2 Where the verdict of a coro- ner's jury, finding that the deceased had come to his death by suicide, was annexed to the proof of death, it was held that the burden was on the insurer to prove the suicide of the deceased. 3 § 157. Known violation of the law — Unlawful act. — Contracts of insurance usually provide that the society shall not be liable in case of the death or injury of the member while engaged in, or in consequence of any unlawful act, but in such cases, the contract is not avoided by the mere fact that, at the time of his death, the assured was violating the law, if the death occurred from some cause other than such viola- tion. 4 It is sufficient to relieve the society if the known viola- tion of law was such as to proximately lead to the death of the assured by bringing him into danger of losing his life. 5 In Cluff v. Ins. Co. 6 it was held that in order to avoid the contract of insurance on the ground that the insured died while violating the law of a state, the company must prove that the assured died while engaged in a voluntary criminal act. 7 This decision is criticised in Bradley v. Mutual Benefit, supra, and Bloom v. Franklin Life, supra, and its soundness denied. In the latter case, the court holds this to be the law : "A known violation of a positive law, whether the law is a 1 Keels v. Association, 29 Fed. Rep. 20 Neb. 620: 31 N. W. Rep. 122; 19S; Mutual Ben. Ins. Co. v. Newton, Harper's Admr. v. Phoenix Ins. Co., 89 U. S. 38; Dennis v. Union Mutual 19 Mo. 506; Bradley v. Mutual Bene- (Cal.), 24 Pac. Rep. 120. fit, 45 N. Y. 422; Murray v. N. Y. 5 Merrett v. Preferred Masonic, 98 Life. 96 N. Y. 614. Mich. 338; 57 N. W. Rep. 169. 6 Bloom v. Franklin Life, 97 Ind. 3 Goldschmidt v. Ins. Co., 102 N. 478; Insurance Co. v. Seaver, 86 U. Y. 486; 7 N. East. Rep. 408; see S. 531. United States L. Ins. Co. v. Vocke, 6 99 Mass. 317. Adm'r Kielgast, 129 111. £57; 22 N. 7 Harper v. Ins. Co., 19 Mo. 506; East. Rep. 467; see § 326. Overton v. Ins. Co., 39 Mo. 122; 4 Griffin v. West. Mut. Ben. Ass'n, Wolff v. Ins. Co., 5 Mo. App. 236. CERTIFICATE OF MEMBERSHIP. 307 civil or a criminal one, avoids the policy, if the natural and reasonable consequences of the violation are to increase the risk; a violation of law, whether the law is a civil or a criminal one, does not avoid the policy, if the natural and reasonable consequence of the act does not increase the risk." A person insured in a mutual benefit society, entered the office of the state treasurer, obtained, by a show of arms, a sum of money, and was shot and killed while making his escape, but before he had reached the outer door of the capitol. It was held that, as he had obtained the money, and was making his escape when shot, he was not at the instant of death, violating any law, so as to forfeit a certificate of membership containing a clause providing for a forfeiture, in case the insured should " die while violating any law." ' A policy contained a provis- ion rendering it void, if the insured should die " in consequence of his violation of any law." The insured was killed by II. shortly after having illicit intercourse with the wife of H., and it was held that, even if the act of the insured was a violation of the law, he did not die in consequence of it, within the meaning of the policy, and the policy was not avoided thereby. 3 Where a person who is insured deserts from the army, and is shot by a sheriff, who is attempting to arrest him, as alleged in self-defense, it can not be held, as matter of law, that he was engaged in an unlawful act, within the meaning of a pol- icy of accident insurance, providing that no claim shall be made " when the death or injur} 7 may have happened * * while engaged in, or in consequence of, any unlawful act." Upon this point the court said : " Nor can it be held, as a matter of law, that (the deserter) was engaged in an unlawful act, within the meaning of this policy. If he had been shot in the act of deserting, this claim might be made with some reason and propriety, but such was not the case here. Neither was he shot because he was a deserter, nor because he was in a house of ill fame. He was shot, if (the sheriff) is to be believed, because he did not throw up his hands when commanded to, and was in the act of drawing a pistol. He was killed, if (a 1 Griffin v. Western Mutual, 20 Supreme Ct.), 572; 3 Hun 515; see Neb. 620; 31 N. W. Rep. 123. Gresham v. Ins. Co., 87 Ga. 497; 13 2 Goetzmann v. Conn. Mut. Life S. East. Rep. 752. Ins. Co., 5 Thompson & Cook (N. Y. 308 CERTIFICATE OF MEMBERSHIP. witness) is to be believed, without provocation, and in a wanton and murderous manner, as soon as his head appeared in the door. Whether he was doing anything unlawful at the time of the shooting was a question for the jury, to be determined by them under all the circumstances of the case." ' Where persons are by law prohibited from walking on a railroad track, it is an unlawful act, within the meaning of a policy, to use such a track as a highway. 2 The common law definition of an affray does not involve an agreement to fight, and, where the common law on this subject is in force, an insured may possibly engage in an affray, without having agreed to fight, and without any culpable fault on his part. He may engage in an affray in defense of his person against the assaults of his adversary or adversaries, and thus receive accidental injuries without any fault or wrong on his part, and without being guilty of an unlawful act. 3 In an action on an accident insurance policy, containing a condition that the insurers would not be liable for a death by an accident caused by a violation of law, a recovery can not be had in a state where horse-racing is a misdemeanor, for a death by accident while engaged in a horse-rase. While the insured and another were engaged in horse-racing, their sulkies came into collision, and the insured jumped to the ground. He was entirely clear from the sulky, harness and reins, and started forward to stop his horse. In attempting to do so he was killed; and it was held that his dea'th was caused by a violation of the law, although his opponent may have disregarded the rules of the course, and may have intentionally sought to run him off the track. 4 Under a policy stipulating that the insurance does not extend to injuries received while engaged in, or in conse- quence of, any unlawful act, the fact that the assured was killed while living in a state of fornication with his mistress does not prevent a recovery, where it does not appear that the infliction of injury is a natural and necessary consequence 1 Utter v. Ins. Co., 65 Mich. 545; 32 Ind. 133; see Gresham v. Ins. Co., 87 N. W. Rep. 812. Ga. 497; 13 S. East. Rep. 752. 2 Neill v. Ins. Co., 31 Up. Can. C. 4 Travelers' Ins. Co. v. Seaver, 86 P. 394. U. S. (19 Wall.) 531. 3 Supreme Council v. Garrigus, 104 CERTIFICATE OF MEMBERSHIP. 309 of the unlawful association as its probable and natural result. 1 Fornication, or "being in a state of fornication," however immoral and wrong, must be accompanied with circumstances of notoriety or publicity to make it an unlawful act. A woman whose life was insured procured an abortion to be performed on her and died from the effects of the miscarriage. The court held that there could be no recovery, because the act which caused her death was unlawful. 2 A person who walks from one town to another on Sunda} 7 , for the purpose of hunting, violates the statutes of Vermont, which forbid hunting on Sunday, or traveling on Sunday except from necessity or charity; and an injury occasioned by his slipping on frozen ground, while returning home from hunting on Sun- day, is not covered by an accident insurance policy, exempt- ing the company from liability where a " violation of law " is the act, cause or condition, " wholly or partly, directly or indirectly," producing the injury, or where the injury is " effected by any such act, cause or condition, or under its in- fluence." * In New York suicide is not a crime, though an attempt to commit suicide is. The fact that a member killed himself, is not, therefore, in that state a defense to an action, under the provision of the contract that it should be void if he should " die in violation of or attempt to violate any crimi- nal law." * It seems to be well settled that acts which are crim- inal by the common law and the laws of all civilized countries will be presumed to be criminal by the laws of the states of the union, and it will be presumed that the insured knew that an act of this character was criminal at the place where he committed it. 5 A defense that the injury was sustained while violating the law, contrary to the provisions of an accident policy, need not be established beyond a reasonable doubt. A preponderance of evidence is sufficient. 6 "Accident Ins. Co. v. Bennett, 90 39 Minn. 312; 39 N. W. Rep. 312. Tenn. 256; 16 S. W. Rep. 723. 5 Cluff v. Ins. Co., 13 Allen 308; ' Hatch v. Ins. Co., 120 Mass. 550. Bradley v. Ins. Co., 3 Lans. 341; 45 3 Duran v. Ins. Co., 63 Vt. 437; 22 N. Y. 422. Atl. R'p. 530. 6 N. Y. Ace. Co. v. Clayton, 59 Fed. 4 Darrow v. Society, 116 N. Y. 537; Rep. 559; Rothchild v. Ins. Co., 62 22 N. East. Rep. 1093; affirming 42 Mo. 356; Mathews v. Huntley, 9 N. H, Hun 245; see Kerr v. Association, 146; Welch v. Jugenheimer, 56 Iowa 310 CERTIFICATE OF MEMBERSHIP. 11; 8 N. W. Rep. 673; Blaeser v. Ins. Co., 37 Wis. 31. Good health, free from disease, serious illness; see Peacock v. Ins. Co., 20 N. Y. 296; S. C, 1 Boswell 338; Grattan v. Ins. Co. 92 N. Y. 274; Smith y. Ins. Co., 49 N. Y. 211; Ferguson v.' Ins. Co.. 32 Hun 306; Conn. Ins. Co. v. McMurdy, 89 Pa. St. 363; Illinois Masons v. Win- throp, 85111. 537; Goucher v. Associa- tion, 20 Fed. Rep. 596; Conver v. Ins. Co., 3 Dillon 216; Brown v. Ins. Co., 65 Mich. 306; 32 N. W. Rep. 612; 8 West. Rep. 775; Morrison v. Odd Fellows Mutual, 59 Wis. 170; Ala- bama Ins. Co. v. Johnston, 80 Ala. 467; Galbraith v. Arlington Mutual, 12 Bush (Ky.) 29; Powers v. Asso- ciation, 50 Vt. 630; Schwarzbach v. Union, 25 W. Va. 622; N. W. Mu- tual v. Heimann, 93 Ind. 24; Conti- nental Lis. Co. v. Yung, 113 Ind. 159; 15 N. East. Rep. 220; 12 West. Rep. 715; Moulor v. Ins. Co., Ill U. S. 335: Conn. Mutual v. Trust Co. 112 U. S. 250; Maine Association v. Parks, 81 Me. 79; Singleton v. Ins. Co., 66 Mo. 63; 27 Am. Rep. 321; Mutual Benefit v. Wise, 34 Md. 599; Campbell v. Ins. Co., 98 Mass. 381; Vose v. Ins. Co., 6 Cush. (Mass.) 42; Piedritzki v. Supreme Lodge, 76 Mich. 429; 43 N. W. Rep. 373; Ins. Co. v. Francisco, 84 U. S. 672: see § 399. Sober and temperate, intoxicating liquors; see N. W. Ins. Co. v. Bank, 122 U. S. 501; iEtnalns. Co. v. Davey, 123 U. S. 739; S. C, 38 Fed. Rep. 650; Knickerbocker Ins. Co. v. Foley, 105 U. S. 350; Brockway v. Ins. Co., 9 Fed. Rep. 249; Meacham v. Associa- tion, 120 N. Y. 237; McGinley v. Ins. Co., 77 N. Y. 605; S. C, 8 Daly 390; ^■Etna Ins. Co. v. Deming, 123 Ind. 384; John Hancock Mutual v. Daly, 65 Ind. 6; Hartwell v. Ins. Co.. 33 La. Ann. 1353; United Brethren v. O'Hara, 120 Pa. St. 256; Union Mu- tual v. Reif, 36 Oh. St. 596; Mowryv. Ins. Co., 9 R. I. 346; Ins. Co. v. Stibbe, 46 Md. 302; Newman v. Association, 76 Iowa 56; 33 N. W. Rep. 662; Grand Lodge v. Brand, 29 Neb. 644; 46 N. ;W. Rep. 95; Mair v. Ins. Co., 37 L. T. Rep. 356; Shader v. Ins. Co., 66 N. Y. 441; Miller v. Ins. Co., 31 Iowa, 216; 34 Id. 222; 39 Id. 304; Van Valkenburg v. Ins. Co., 70 N. Y. 605; 9 Hun 583. Medical attendance, attending physi- cian; see Edington v. Ins. Co., 67 N. Y. 185; Cushman v. Ins. Co., 70 N. Y. 72; Price v. Ins. Co., 17 Minn. 497; 10 Am. Rep. 166: Cobb v. Asso- ciation, 153 Mass. 176; 26 N. East. Rep. 230; Monk v. Ins. Co., 6 Robert- son (N. Y.), 455; Metropolitan Ins. Co. v. McTague, 49 N. J. Law, 587; 9 Atl. Rep. 766; McCollum v. Ins. Co., 55 Hun 103; Dentz v. O'Neill, 25 Hun 442; Phillips v. Ins. Co., 9 N. Y. Supp. 836; Scoles v. Ins. Co., 42 Cal. 523; Raid v. Ins. Co., 58 Mo. 421; Brown v. Ins. Co., 65 Mich. 306; 32 N. W. Rep. 613; 8 West. Rep. 775; Hutton v. Society, 1 Foster & Finn, 735; World Mutual v. Schultz, 73 111. 586; O'Hara v. United Brethren, 134 Pa. St. 417; Miller v. Ins. Co., 14 Out. App. 218. CHAPTER XL WHO MAY BE A BENEFICIARY— INSURABLE INTEREST.— PART I. § 158, 159. Classes of beneficiaries specified in the charter. 160. The terms of the charter are to ba liberally construed. 161. Any person belonging to a specified class may be the beneficiary. 162. Effect of amendment of the organic law of a society. 163. When an unincorporated lodge may be the beneficiary. 164. When a divorced wife may be the beneficiary. §158. Classes of beneficiaries specified in the charter. — The laws providing for the organization of mutual benefit societies usually specify the classes of persons who may be made the beneficiaries of the insurance. In the absence of such restrictions any person may be designated to take the fund, who is capable of taking it under the terms of the con- stitution and by-laws of the society, subject to the law of insurable interest in the life of the member. This doctrine of insurable interest has given rise to much controversy in suits upon ordinary contracts of insurance, but an extended notice of the law on that subject is not necessary in a work on mutual benefit societies. "Where the organic law of a societv, or the charter procured from the state under that law pre- scribes what classes of persons may become beneficiaries of its insurance, it is not in the power of the society or one of its members, or both, to enlarge or restrict these classes. 1 Where the statutes under which a mutual benefit society is incorpo- rated, or its charter adopted under such statutes, designate certain classes of persons who may be the beneficiaries of its funds, a person who does not belong to any of such classes is not entitled to take the fund. The society has no authority to create a fund for a person who does not belong to one of such classes, and the member has no power or right to desig- 1 Kentucky Masonic v. Miller's Mutual v. Rolfe, 76 Mich. 146: Hy- Adm*r, 13 Bush (Ky. | l s '.»: Rindge singer v. Supreme Lodge, 4:2 Mo. v. Ins. Co., 146 Mass. 280; Michigan App. 62'] L3, 20, 215, 239. (311) 312 WHO MAY BE A BENEFICIARY INSURABLE INTEREST. nate such a person as his beneficiary. Neither the act of the society in issuing a certificate payable to such a person, nor the act of the member in appointing him, can deprive the beneficiaries designated by law of their right to, and interest in the fund. The designation of such a person is void, and in determining who is entitled to the fund, the question will be considered just as if no designation whatever had been made. AVhen the charter of a society names certain classes of per- sons, to whom alone the benefit fund may be paid, and gives to the member the right to select and appoint the person or persons of those classes to whom it shall be paid, if no one is selected, it is payable to one of the classes named. And, where the member has named a person not within the class to be benefited, and the corporation has issued the certificate to the person so designated, these acts will not deprive the proper person or class of persons of the right to and interest in the fund. Where the charter provides that the benefit shall be payable to the " widows, orphans, or other relatives of de- ceased members, or persons dependent upon deceased mem- bars," the designation of a parson who is neither related to nor dependent upon the member^ will not deprive his widow, children or depen lents of their right to the fund, but it will be paid to them as if no designation had been made. 1 In Ohio, the law provided for the organization of mutual benefit societies " for the payment of stipulated sums of money to the families or heirs of deceased members." A certificate of membership in a society organized under this law was issued, payable to the assured member, " or any person desig- nated by his will, or his heirs if no person is designated herein, or by will." It was held that the assured was not thereby authorized to constitute by testamentary appointment, as bene- ficiary of such insurance, a person who was not of the family 1 Supreme Council v. Perry, 140 East. Rep. 443; Keener v. Grand Mass. 589; 5 N. East. Rep. 636; Brit- Lodge, 38 Mo. App. 544; Gibson v. ton v. Supreme Council, 46 N. J. Eq. Society, 8 Ky. L. Rep. 520; Kentucky 102; 18 Atl. Rep. 675; Park v. Grangers v. McGregor, 7 Ky. L. Rep. Welch, 33 111. App. 188; Palmer v. 750; Alexander v. Parker, 144 111. Welch, 132 IU. 141; 23 N. East. Rep. 355; 33 N. East. Rep. 183; Sargent v. 412; Rindgev. Association, 146 Mass. Supreme Lodge, 158 Mass. 557; 33 N. 286; 15 N. East. Rep. 628; Burns v. East. Rep. 650. Grand Lodge, 153 Mass. 173; 26 N. "WHO MAY BE A BENEFICIARY INSURABLE INTEREST. 313 of the assured, or who would not, upon his death, become his heir. 1 The law of Michigan authorizes the organization of societies to secure " to the family or heirs of any member upon his death" a certain sum of mone}\ This language of the law* excludes as beneficiary a person who is not related to the assured, but who was an old army comrade and intimate friend living with him. 2 Where the object of a society is to pay the " legal heirs and beneficiaries " of a deceased member a benefit fund, 3 or " to assist the widows, orphans, or other dependents of deceased members," * the designation by a member of his estate as his beneficiary is invalid as contrary to the charter. A society incorporated " for the payment of stipulated sums of money to the family or heirs of deceased members " is not authorized to issue certificates of membership payable to the named beneficiary " or assigns " — " to himself or assignees " — " to his estate " — " to his executors or administrators " or to any person, whether a relation or not, who is not of his family or heirs. 5 A by-law of a corporation made in contravention of the terms of the charter, specifying the classes of persons who may be made beneficiaries, is ultra vires and void." A by-law of an incorporated society, prescribing how the members shall direct the payment of the benefit fund, is not inconsistent with a provision of the charter that such fund shall be paid " as the member may direct," provided the rule prescribed by the society is reasonable for that purpose. 7 § 159. Where the charter does not designate who may become beneficiaries under a contract of insurance issued by the society, 8 or where the charter provides that devisees or legatees of a deceased member, 9 or his assigns, 10 may be made 1 National Mutual v. Gonser, 43 6 Briggs v. Earl, 139 Mass. 473: 1 Ohio St. 1; 1 N. E. Rep. 11: State v. N. East. Rep. 847; Bee §§ 13, 20. Central Ohio Mutual. 29 Ohio St. 399; 7 Coleman v. Knights of Honor, 18 State v. People's Mutual, 42 Ohio St. Mo. App. 189. 579. 8 Elkhart Mutual v. Houghton, 108 8 Mutual Benefit v. Hoyt. 46 Mich, Ind. 286; 2 N. East. Rep. 7i»:;. 473; see Britton v. Supreme Council, ' Bloomington Mutual v. Blue, 120 46 N. J. Eq. 102; 18 All. Rep. 675. 111. 121; 11 N. East. Rep. 881 : Lamont 3 Basye v. Adams. 81 Ky. 371. v. Grand Lodge. 31 Fed. Rep 177: 4 Daniel's Executor v. Pratt, 143 Martin v. Stubbings, 12(1 111. ::s: : is Mass. 216; ION. East. Rep 106. N. East. Rep 657; Lamont v. Asso- 5 State v. Association. 38 Oh. St. elation, 30 Fed. Rep. si 7. 381 : State v. Association, 42 Oh. St. ,0 Massey v. Association, 102 X. Y. 579. 311 WHO MAY BE A BENEFICIARY INSURABLE INTEREST. beneficiaries, or where it provides that the fund shall be pay- able as the member may direct, 1 a contract may be issued in the first instance pa} r able to any one who is competent to take the fund under the laws relating to the insurable interest of the beneficiary. Where, by the terms of the charter of a so- ciety, the fund is payable " to the legal heirs or beneficiary of a deceased member," the insured has the right to designate any person as his beneficiary, and to exclude any number or all of his heirs.* § 100. Who may be a beneficiary ; the terms of the char- ter are to be liberally construed. — In determining whether the beneficiary designated by a member in a given case is capable of taking the fund under the charter of the society, courts will give as broad and comprehensive a meaning as possible to the terms of the charter in which the general ob- jects of the society and the classes of persons to be benefited are set forth. 3 A. became a member of an incorporated society, the charter of which set forth its object to be " the maintenance of a society for the purpose of benefiting and aiding the widows and orphans of deceased members." It was provided in article nineteen of its constitution that the benefit fund, at the death of a member, should ; ' be paid to such person, or persons, as the deceased may have designated to receive the same, as appears on the books of the lodge of which he is a member." A. borrowed, from his sister, the amount of money which the society would be liable to pay at his death. He designated her on the books of the lodge as the person to whom payment should be made by the society, and she paid his dues to the society. At the death of the 523; 7 N. East. Rep. 619; 34 Hun 254; 366; 13 111. App. 510; Mass. Foresters Eckert v. Society, 2 N. Y. Supp. 612. v. Callahan, 146 Mass. 391; Marsh v. 1 Sabin v. Grand Lodge, 134 N. Y. Supreme Council, 149 Mass. 512; 21 423; 31 N. East. Rep. 1037; 28 N. Y. N. East. Rep. 1070; Klotz v. Klotz Weekly Dig. 309; Ingersoll v.Knights, (Ky.), 22 S. W. Rep. 551. 47 Fed. Rep. 272; Gentry v. Supreme 2 Basye v. Adams, 81 Ky. 368. Lodge, 20 Cent. L. J. 393; Tennessee 3 Martin v. Stubbings, 126 111. 387; Lodge v. Ladd, 73 Term. (5 Lea) 716; 18 N. East. Rep. 657; Bloomington Barton v. Provident Mutual, 63 IN.H. Mutual v. Blue, 120 111. 121; 11 N. 535; Mitchell v. Grand Lodge, 70 East. Rep. 331 ; Bennett v. Van Riper, Iowa, 360; 30 N. W. Rep. 865; Su- 47 N. J. Eq. 563; 22 Atl. Rep. 1055; preme Lodge v. Martin, 12 Ins. L. J. Masonic Association v. Bunch, 109 628; Highland v. Highland, 109 111. Mo. 560; 19 S. W. Rep. 25. WHO MAY BE A BENEFICIARY INSURABLE INTEREST. 315 member, the benefit fund was claimed by his sister, and also by his widow and children. The supreme court of Pennsyl- vania held that the amount due from the society must be paid to the sister of the deceased member, and in the opinion said : " The learned court below was of opinion that there was a fatal conflict between the charter and the constitution in re- spect of the persons who may receive benefits from the defend- ant company, and for that reason alone refused judgment to the plaintiff (the sister). The second section of the charter, upon which this conclusion is based, is in the following words : ' The purposes of this corporation shall be the maintenance of a society for the purpose of benefiting and aiding the widows and orphans of deceased members.' Const-ruing these words. the learned court below held that it was not within the power of the defendant to stipulate for the payment of the benefits to any person, other than the widow and orphans, who might be designated as the recipient by the deceased under article 10 of the constitution. We think this is too narrow and strained a' view to take of the second section of the charter quoted above. While it is true that the general purpose of the corpo- ration is there stated to be the maintenance of a society for benefiting and aiding widows and orphans of deceased mem- bers, it must be observed that this is only the statement of a general purpose. It is only the recital of an object sought to be accomplished, and which, doubtless, is accomplished in the great majority of cases, even though in exceptional cases the benefits may, by special contract, be paid to other persons than the widow or orphans. There is no prohibitory or restrictive language excluding from the powers of the corporation the right to contract specially with the member for the payment of benefits to other persons than his widow or orphans. Nor is such a contract to be held void by reason of any necessary implication from the language of the charter. For the widow and orphans may be much benefited, ami in many ways, by a contract designating another beneficiary, as. for instance, if the member, in his lifetime, desiring to establish a home for his wife and children, which they might hold after Ins death, bor- rowed money for that purpose, and so used it. and, to secure the loan, designated the lender as the beneficiary of his mem- bership, certainly his widow and orphans would be materially 316 WHO MAY BE A BENEFICIARY INSURABLE INTEREST. benefited by such an arrangement. Or if, having a home, he met with disaster, and was about to lose it by judicial sale, and should save it by a similar provision, his widow and orphans would be thereby benefited. Or if, having property and also debts, but not to the point of insolvency, he could borrow money by means of a membership with such an association, and he should become a member for that very purpose, the creditor possibly paying the dues, and he could to that extent diminish his indebtedness during his life, and thus leave that much more of his property to his widow and orphans, undoubt- edly they would be thereby benefited. Or he might borrow the money and give it directly to his wife or children during his life, pledging his membership to the lender as above, and then also they would receive the full advantage of the trans- action without waiting until his death. Many more illustra- tions of a similar character might easily be suggested, but it is unnecessary. They all prove the same proposition, to wit, that it is entirely possible to benefit the widow or orphans by means of such a membership, though neither of them is the designated beneficiary, and hence there is no necessary conflict between the second section of the charter and the nineteenth article of the constitution. " But again, the member may be unmarried, or he may have become a widower and without children during his life, though at the time his membership commenced, he may have had both a wife and children. Surely, in such a case, it would not be contended that the company could resist payment if the action were brought by an administrator, even though the money was needed only for the payment of debts, or if brought by a designated beneficiary, who had loaned money on the faith of the membership. Further discussion does not seem to be re- quired." ' The laws of Michigan provide for the organization of mutual benefit societies to secure to " the family or heirs of any member, upon his death," a certain sum of money. An old man became a member of a society organized under this act, and designated as his beneficiary a young woman who was not related to him, but who had lived with him for many years in the same household, and had been treated by him as if she were his daughter. In deciding that such a designation J Maneely v. Knights of Birmingham, 115 Pa. St. 305; 9 Atl. Rep. 41. WHO MAY BE A BENEFICIARY INSURABLE INTEREST. 317 was within the terms of the above law, the supreme court of Michigan said: ".Now this word 'family' contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relations, or any group consti- tuting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shak- ers. We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice. It seems to us that the cir- cumstances constitute a case within the meaning of the legis- lature." ' § 161. A person belonging to any specified class may be the beneficiary. — Where several classes of beneficiaries are named in the charter or organic law of the society, a member may take out a certificate payable to one class to the exclusion of the others, or to a person of one class to the exclusion of the other persons in that class. He may determine what per- son or persons in any of the classes shall be the beneficiary in his particular case. Where the object of the society is to afford "aid and benefit to the widows, orphans, heirs or devi- sees of deceased members," he may make his certificate payable to the widow, omitting his children, or to one of his children, omitting the others and the widow. 2 Where the fund is to be paid to the widow for the use of herself and the dependent children of the deceased member, there is a reasonable discre- tion in the member to make such discriminations in the amounts which the widow and each of the children shall have as will accord with their necessities. 3 § 1G2. Effect of amendment of the organic law of a soci- ety. — Where the law relating to the classes of beneficiaries who may take the fund of a society has been changed after the organization of the society, so as to include other benefi- 1 Carmichael v. Association, 51 N. W. Rep. 890; see Thomas v. Mich. 494 Where an uncle and niece Leake. 67 Texas 469; 3 S. W. Rep. lived in one household, they were 70S; Masonic Mutual v. McAuley, 3 held to constitute a family. Folmer'a Mackey (D. C.) 70; Basye v. Adams, Appeal, 87 Pa. St. 133. 81 Ky. 368. 'Spry v. Williams, 82 Iowa, 61; 47 3 Roberts v. Roberts, 64 N. C. 695. 318 WHO MAY BE A BENEFICIARY INSURABLE INTEREST. ciaries than those first enumerated, the designation by a member of a beneficiary from an added class of beneficiaries is a designation to which the society has a right to assent, and does assent by issuing a certificate to the member payable to such beneficiary, with knowledge that the beneficiary is one of the added class. A mutual benefit society was incorpo- rated under a law providing for the accumulation of a fund " for the purpose of assisting the widows, orphans, or other parsons dependent upon deceased members." Afterward the law was so amended as to read " for the purpose of assisting the widows, orphans, or other relatives of the 'deceased^ or any person dependent on deceased members." The society did not adopt the statute amending the act under which it was incor- porated. A person who became a member after the amend- ment of the law designated, as his beneficiary, his mother, who was not then, or at any time afterward, dependent on him for support. Subsequently the member married, and died in good standing in the society, leaving his widow and his mother surviving him. It was held, under these facts, that the amending statute needed no formal adoption by the soci- ety, that the designation of his mother was such as he could legally make at that time, as the law which permitted a rela- tion, merely, not being necessarily a dependent, to be desig- nated, was in force when he made his designation, and that his mother was entitled to receive the fund. 1 An act author- izing- mutual benefit societies to insure the lives of members for the benefit of creditors does not affect a certificate issued prior to the act by a society organized under a prior law, pay- able to the creditor of a member, and which was void when issued. In order to make such a certificate valid, it must appear distinctly that the society was such a corporation as could avail itself of the privileges of that act, and, if it could, that it had done so. 2 Although a society may have the capacity, under an amend- ing statute, to enlarge the classes of persons who may be made 1 Massachusetts Order v. Callahan, 2 Skillings v. Association, 146 Mass. 146 Mass. 391; 16 N. East. Rep. 14: 217; 15 N. East. Rep. 566; see Su- Marsh v. Supreme Council, 149 Mass. preme Council v. Perry, 140 Mass. 512; 21 N. East. Rep. 1070; Harding 580. v. Littlehale, 150 Mass. 100; 22 N. East. Rep. 703; see § 230. .WHO MAY BE A BENEFICIARY INSURABLE INTEKEST. '319 the beneficiaries of its insurance, it may refuse to e::tend its liability; and if it so refuses, a beneficiary appointed from the added classes will have no right to the fund. In such a case, the question is not what contract the society might have made, but whit contract it did make. 1 Where a law providing for the organization of mutual benefit societies is amended so as to exclude certain classes of persons from becoming benefi- ciaries, the amendment does not apply to a certificate issued prior to its passage. 2 § 162a. Where a law provides that no benefit society shall issue a certificate " unless the beneficiary under said certificate shall be the husband, wife, relative, legal representative, heir or legatee of such insured member," and a certificate issued before the passage of the act, in favor of a beneficiary not in- cluded in the above description, was forfeited for non-payment of an assessment, a reinstatement after the act took effect did not bring the certificate within the provision and prohibition of the law. The reinstatement was not the making of a new contract; it was simply a cancellation of the forfeiture whereby the holder was restored to membership under the contract already existing. 3 § 103. When an unincorporated lotl^e may he the bene- ficiary. — Where the contract provides that the benefit fund shall be paid to such person or persons as the assured shall des- ignate, and there is nothing in the statutes of the state in which the contract was issued restricting the member in the selection of* his beneficiary, an unincorporated lodge which is a part of the unincorporated society issuing the contract is a proper beneficiary. 4 'Supreme Council v. Smith, 45 N. uals, or a corporation de facto, could J. Eq. 466; 17 Atl. Rep. 770; Britton not be designated by the assured as v. Royal Arcanum, 46 N. J. Eq. 102; his beneficiary. He had become a 18 Atl. Rep. 675. member of a subordinate lodjjje, or- 2 Smith v. Pinch, 80 Mich. 332; 45 ganized and conducted for the bene- N. W. Rep. 183. fit of those who joined it. As such 3 Lindsey v. Society, 84 Iowa, 734; member he had received a certificate 50 N. W. Rep. 29; see §§ 291, 294 or policy of insurance, of no value 4 Bacon v. Brotherhood, 46 Minn, except when countersigned, as it had 303; 48 N. W. Rep. 1107. The court been, by its officers; he had accepted said: " We see no good reason why and participated in benefits con- the lodge in question, whether de- ferred upon those only who held a clared a simple association of individ- membership, and by reason of such 320 WIIO MAY BE A BENEFICIARY INSURABLE INTEREST. § 164. When a divorced wife may be the beneficiary. — It has been held in ordinary life insurance that a policy orig- inally valid does not cease to be so by the cessation of the bene- ficiary's interest in the life insured, unless such be the necessary effect of the provisions of the contract itself ; that a wife, hav- ing an insurable interest in the life of her husband, is not af- fected by a decree of divorce, in her right in an insurance pol- icy on his life, payable to her by name or as his survivor. 1 In such a case she takes by contract, and not by reason of the re- lation of husband and wife, or by reason of her status at the death of the insured. But if the policy is payable to her merely under the designation of " my wife," it would seem that the terms of the policy itself would cut off the interest of a divorced wife in its proceeds, since at the death of the in- sured she would not answer the description of the designation. Where the charter of a mutual benefit society declares its ob- ject to be " for the purpose of defraying the expenses of the sickness and burial of its members, and ' rendering pecuniary aid to the families of deceased members, or to their heirs," the wife of a member who has been designated by him as a bene- ficiary, loses her rights as such by obtaining a divorce from him.' 2 It has been held that when the contract of insurance stipulates that the beneficiary must have an insurable interest in the life of the member that interest must exist at the death of such member. 3 Accordingly a divorced wife who has re- married, and has no living issue by the member, is not, under membership; and when called upon field v. Turner, 75 Texas, 324 ; 12 S. to designate a party to whom the W. Rep. 626 ; Heyman v. Meyerhoff, amount of his policy should be paid 16 W. N. C. (Pa.) 212. In Tyler v. in case of his death, had named the Association, the court declined to de- lodge. The assured, under such cir- cide whether the validity of a de- cumstances, could not have ques- scription is to be determined at the tioned the capacity of such body to outset by the relation then existing take under his designation, and it between the member and the bene- foliows that one who claims under ficiary, but held that to make the de- him can not." scription available at the death, there 1 Bliss on Life Ins. at § 30; May on must then be such a relation to the Ins.at§107;Conn.Mutualv.Schaefer, deceased as is contemplated by the 94 U. S. 457; Phoenix Ins. Co. v. contract of the society. Dunham, 46 Conn. 79; McKee v. 3 But see Dalby v. Ins. Co., 15 C. Ins. Co., 28 Mo. 383. B. 365; Conn. Mutual v. Schaefer, 2 Tyler v. Association, 145 Mass. 94 U. S. 457. 134; 13 N. East. Rep. 360; Schon- WHO MAY BE A BENEFICIARY INSURABLE INTEREST. 321 such a contract, entitled to the benefit fund. 1 When the status of the beneficiary under the contract is the main, if not the sole inducement to the insurance, as where the certifi- cate is in favor of the wife of the member and she is desig- nated mainly by that relationship and description, the rights of such beneficiary lapse if that status does not exist at the time of the death of the member. 2 Where the common law is in force a divorce a mensa et thoro does not change the property rights of the parties. Its only effect is to compel the parties to live apart, and to deprive the husband of his control over his wife. On the death of the husband after a decree a mensa et thoro, the wife becomes his widow, and, as such, succeeds to all the rights in his property, which the law gives to a widow in the property of her deceased husband; and where she was made the bene- ficiary of his life insurance before such a divorce, she is after his death a proper beneficiary, even when the benefits are by law restricted to " the widows, orphans, or other persons de- pendent upon deceased members." 3 A divorced wife is enti- tled to no share in a benefit fund payable to the member's heirs. 4 1 Order v. Koster, 55 Mo. App. 186. 4 Schonfleld v. Turner, supra; Ty- 2 Order v. Koster. supra. ler v. Association, supra, 3 Supreme Council v. Smith, 45 N. J. Eq. 466; 17 Atl. Rep. 770. 21 CHAPTEK XI. WHO MAY BE BENEFICIARY— ASSIGNEE OF CONTRACT— PART II. § 165, 166. When the contract of mutual benefit insurance is assignable. 167. Equitable assignment. 168. Limitation on the right to assign. 169. The consent and approval of the society may be required. 170. Rights of tbe assignee of a certificate. 171. Assignment after death of the member. 172. Assignment by the beneficiary. 173. Designation of new beneficiary is not an assignment of the cer- tificate. 174. Law governing the validity of an assignment. § 165. When the contract of mutual benefit insurance is assignable. — Where a certificate of membership is made payable to the member himself, his legal representatives, his executors and administrators, or his estate, as is permitted by the organic law of mutual benefit societies in some states, he may assign the certificate, provided the assignment is made in good faith, and provided further that in doing so he does not violate the contract of insurance, or the law of the state in which the assignment is made. 1 But where the statute under 1 It is a point upon which the au- 282; 52 Am. Dec. 782, and note; Mil- thorities are in irreconcilable conflict, ner v. Bowman, 119 Ind. 448; 21 whether a life insurance policy, valid N. East. Rep. 1094. in its inception, supported by a suffi- There are other cases in which the cient insurable interest, may, before opposite doctrine is held. Lyon v. a loss occurs, be assigned to one who Rolf e (Mich.), 42 N. W. Rep. 1094; has no interest in the life assured. It Cammack v. Lewis, 15 Wall. 643; has been held that such an assign- Warnock v. Davis, 104 U. S. 775; 11 ment, if made in good faith and not Fed. Rep. 527; Franklin Ins. Co. v. prohibited by the terms of the con- Hazzard, 41 Ind. 116; 13 Am. Repts. tract, is valid. Olmsted v. Keys, 85 313; Franklin Ins. Co. v. Sefton, 53 N. Y. 593; Clark v. Allen, 11 R. I. Ind, 380, explaining Hutson v. Merri- 439; 17 Am. L. Reg. (N. S.) 83 and field, 51 Ind. 24; see Kessler v. Kulms, note; Fairchild v. Assurance Co., 51 1 Ind. App. 511; 27 N. East. Rep. 980; Vt. 613-624; Ashley v. Ashley, 3 Sim. Stevens v. Warren, 101 Mass. 564; 149; Succession of Hearing, 26 La. Langdon v. Union Mutual, 14 Fed. Aim. 326; Palmer v. Merrill, 6 Cush. Rep. 272; Missouri Ins. Co. v. Sturges, (322) ASSIGNEE OF CONTRACT. 323 which such a society is organized specifies certain classes of beneficiaries who shall take the fund, a certificate of member- ship is not assignable, during the life of a member to whom it has been issued, to a person not within the classes named as the beneficiaries of the society. Persons who are not capable of taking the fund by designation as beneficiaries in the first instance can not take it indirectly by assignment of the cer- tificate. These societies are intended to render assistance to the designated classes of persons, in a particular and special method, and their purpose would be defeated by permitting assignments of certificates to be made to other persons. 1 The charter of a society provided, " The business of said association shall be, to afford relief to the widows and children of its de- ceased members, and to such business it shall be limited and restricted." A policy issued by the society was made payable to the wife of the member, and, in case of her death prior to his, to his children. Afterward, the member became indebted to the society in a large sum of money, and assigned his policy to it as collateral security for the debt. In an action on the policy by the children, it was held that this assignment was void, as being in violation of the charter of the society, and in contravention of the sole objects and benevolent purposes for which it was organized. 2 A statute authorized the formation of societies for the purpose of rendering assistance to the widows, orphans, or other dependents of deceased members. A member of a society organized under this act took out a certificate payable to his wife. Afterward he and his wife together executed and delivered to a creditor, as collateral se- curity for certain debts, an assignment of all their right, title 18 Kan. 93; 26 Am. Rep. 701. Many fund to such purchaser, no stranger of the cases just cited are reviewed or volunteer can assail the validity of in Mutual Life Insurance Co. v. Al- the payment, even though the sale he leu. 188 Mass. 24; Price v. Supreme against public policy. Lodge, 68 Texas. 306; 4 S. W. Rep. Stoelker v. Thornton. 88 Ala. 341; 688; Schonfield v. Turner, 75 Texas, 6 Southern Rep. 680; see Jackson v. 384; L2 8. W. Rep. 626. Where the Anderson (Ky.), 8 8. W. Rep. 326. Bociety recognizes the validity of an 'Bay Be v. Adams, 81 Ky. 868; §§ L3, assignment by issuing a new oertifi- 2t>. 158, 159. cate, in which the purchaser is named -Dietrich v. Madison Relief Ass'n, as the beneficiary, and. upon the 45 Wis. 79. death of the assured pays the benefit 324: ASSIGNEE OF CONTRACT. and interest in this certificate. The court held that the as- signment was contrary to the charter and invalid. 1 Where, by the terms of the charter of a society, the benefit fund was payable to the " legal heirs or beneficiary of a deceased member," and a member had designated a beneficiary, and af- terward, for an existing debt and a certain sum in cash, had assigned the certificate, it was held that the assignee was not entitled to the fund, for whatever right or interest he acquired, if any, he took by virtue of the contract of assignment, and not as a designated beneficiary." § 166. The statute under which a society was organ- ized, provided for the formation of corporations for the pur- pose of furnishing " life indemnity or pecuniary benefits to the widows, orphans, heirs, or relatives by consanguinity or affinity, devisees or legatees of deceased members," and its constitution provided that a member might change his beneficiary at pleasure without the latter's consent. It was held that, as a creditor was capable of becoming a benefici- ary as legatee of the member, an assignment of the certificate by the member in his lifetime to the creditor as security ior the debt was, under the contract, valid and binding upon both the beneficiary and the society." 3 In Lamont v. Associa- 1 Briggs v. Earl, 139 Mass. 473; 1 N. other persons not within the purposes East. Rep. 847. But after the death of the statute. Aiken v. Association, of the member the right of the bene- 13 N. Y. Supp. 579; see §§ 169, 171. ficiary to the fund raised by an assess- 2 Basye v. Adams, 81 Ky . 368. ment upon the surviving members 3 Martin v. Stubbings, 126 III. 387; becomes vested, and the fund is sub- 18 N. East. Rep. 657. In Blooming- ject to his absolute disposal; and ton Mutual v. Blue, 120 111. 121, the where the beneficiary, who is also the controversy was between the so- widow of the deceased member, as- ciety and the beneficiary named in serts the validity of an assignment the certificate. The society denied made by him in his lifetime as col- its liability on the ground that the lateral security for a loan, the asso- beneficiary named was not within ciation can not defend an action the classes enumerated in its organic brought against it by the assignee on law. In the case just cited the so- the ground that the statute under ciety admitted its liability, and the which it was incorporated, strictly controversy over the fund was be- limits its purposes to giving aid to tween the widow, who was the desig- widows and orphans of deceased nated beneficiary, and the assignee, members, or other persons dependent who was the creditor of the deceased on them for support, and renders void member. Under the authority of all assignments made during the life- Bloomington Mutual v. Blue, supra, time of the member to creditors or the creditor was a proper beneficiary, ASSIGNEE OF CONTRACT. 325 tion, the court held that where the articles of association and by-laws of a society organized under the same statute above quoted, make the benefits payable to the person designated and as no manner or mode of chang- ing the beneficiary was specified in the contract in this case, the member had a right to make the change in any manner he chose. See \ 214. In Martin v. Stubbings, supra, the court said: " It is clear that the statute, by empowering a member to name as his beneficiary his legatee or devisee, without restriction, proceeds upon a policy much broader than do those statutes which limit the benefits to accrue upon the death of the mem- ber to his relatives or those in some way dependent upon him. Under the name of legatee or devisee the member is given the power to ap- point as his beneficiary any person, however related to him, or not related to him at all. He may, in the selec- tion of his beneficiary, be governed by considerations of affection or duty, or he may yield to the dictates of mere caprice, subject only to the lim- itation that the appointment be made by will. The legislature having thus enlarged the categoiy of those capable of being selected as benefi- ciaries so as to include all persons whom the member may see fit to select as his legatees or devisees, we can perceive no substantial rule of public policy which would be vio- lated by the adoption of a different mode of selection of a beneficiary. No substantial rights of any parly are I letter secure< 1 or protected by one mode of appointment than 03 another. The mode of selection is paere matter of form and does imt go to the sub- stance of the right to select heneli- eiaries. We are aware that upon the general proposition we are discussing the decisions of the courts are not altogether harmonious, and that some courts of high respectability have reached a different conclusion. Those decisions, bowever, so far as we have been able to examine them, seem to be based upon statutes essen- tially different from ours. Thus Briggs v. Earl, 139 Mass. 473, was a case arising under a membership cer- tificate where the purposes for which the society could be formed were strictly limited by statute to render- ing assistance to the widows and or- phans of deceased members and the persons dependent upon them. It was there held that an assignment of the membership certificate as secu- rity for a debt was invalid. In Diet- rich v. Association, 45 Wis. 79, the charter of the association declared that its business should be to afford relief to the widows and children of deceased members, and that to such business it should be limited and re- stricted; and it was held that an as- signment by a member of his mem- bership certificate to the association, to secure a debt which he owed to it, was void, by reason of the want of authority in the association to take it. Authorities of the class to which the foregoing belong manifestly have no application here. The assignment of the certificate of membership to a creditor is not within the strict lit- ter of the statute: but, in the absence of all negative words forbidding -the ap|>ointment of a beneficiary in any other mode than the one prescribed, the assignment to him is not neces- sarily unlawful and therefore void He was a person capable under the statute of becoming a beneficiary, and the absolute right of naming him a- such was in the member. His failure to adopt the mode prescribed 326 ASSIGNEE OF CONTEACT. by the member in his application for membership, or in his last will and testament, it is competent for such member by his own act, and with the consent of the society, at any time before his death, without the formalities of a will, to make a transfer and assignment of the benefit fund from the origi- nal beneficiary named to any other person he may select. 1 § 167. Equitable assignment, — Where, under the con- tract, the member may assign his certificate, a parol assign- ment accompanied by delivery, will vest in the assignee an equitable right, at least, to the fund. Assignments of written contracts are usually made in writing, but a merely verbal as- signment and delivery gives to the assignee an equitable right, when the contract contains no provision to the contrary. An assignment need not be in writing or in any particular form of words, if a consideration or an executed gift is proved, and the meaning of the parties appears. 2 But the intention of the member to clothe the assignee with his rights in the contract must clearly appear in such a case. 3 It was held that there was an equitable assignment of the certificate in the following- case : A member of a society was insured in the sum of by the statute, — that is, by executing act he revoked the appointment of a will making his creditor his lega- Mrs. Martin as a beneficiary to the tee, — was doubtless a matter to same extent. She, being no longer a which the society could probably ob- beneficiary, has no interest which ject; but the beneficiary named had can give her a standing to contest no rights in the certificate which the validity of the assignment to would justify her in interposing an the creditor; and the society having objection. She was to all intents and recognized the validity of said as- purposes a stranger to the transac- signment, and professed a willing- tion. Her rights could arise only ness to pay the money to him, there upon the death of the member, and was no error of which Mrs. Martin then only in case he had wholly can complain in the decree of the failed to make a valid* and effectual court ordering such payment to be appointment of another beneficiary made." in her place. The power of designat- '30 Fed. Rep. 817; see Blooming- ing his beneficiaries being wholly ton Mutual v. Blue, 120 111. 121; see under his control, he had the power §§ 178, 235. of determining who should not, as 2 Scott v. Dickson, 108 Pa. St. 6 well as who should, be such benefi- Chapman v. Mcllwrath, 77 Mo. 38 ciaries. In making the assignment St. John v. Ins. Co., 13 N. «Y. 31 of the certificate to the creditor, he Marcus v. Ins. Co., 68 N. Y. 625; May appointed him to receive the benefit on Insurance, §§ 389, 395. to accrue at his death to the extent 3 Palmer v. Merrill, 6 Cush. (Mass.) of the debt due him, and by the same 282; see § 214. ASSIGNEE OF CONTRACT. 327 82.500. The by-laws provided that this sum might be dis- posed of by will, and if not so disposed of, should belong to and be paid to his widow, or in case he had no widow, then to his legal heirs or representatives. The member by his will gave the fund to his two daughters, and this will remained in existence unrevoked at the time of his death. About live months before his death, he wrote to his wife, telling her that assessments upon his certificate were due, in the amount of $38, and that if she would pay the assessments and keep them paid up, the policy should be hers. In the letter he enclosed the following writing : " San Diego, Cal., Dec. 11, 1877. Know all men by these presents, that this is my wish, made in sound mind, that I revoke ail former life insurance policies, and do this day, Dec. 11, 1877, make my policy of the Con- ductor's Life and Benefit Association read for the benefit of Mrs. M. A. Swift in case of my death, and for her special benefit all that may be derived therefrom. Clark Swift." Upon the receipt of this, Mrs. M. A. Swift, his wife, paid up the assessments, and soon afterward the member died. The court held that these writings, in connection with the action of his wife, accomplished a transfer or assignment to his wife of all interest in the contract of insurance. 1 A member who has received a certificate payable to his heirs, 1 Swift v. Association, 96 111. 309. had no power to appoint a benefi- Mulkey. J., dissented from the rea- ciary in any other manner than that soiling and conclusion of the opinion, specified in the by-laws. The pay- and placed his decision on very ten- ment by her of assessments, though able grounds. The fund did not be- made in good faith, gave her no lit!. long to the member. He could con- to the contract of insurance. De trol its direction in the method, and Jonge v. Goldsmith, 86 N. Y. 614. to the extent provided in the by- The advancement of assessments un- laws. He had designated his chil- der the circumstances gave to the dren as his beneficiaries, and they wife an equitable lien on the fund had a right to the fund at his death, for the amount paid by her. hut she unless he bad made a change in ac- was entitled to nothing more. Dut- cordance with the contract of insur- ton v. Willner, 52 N". V. 312; Xa- ance. He could have made his wife tional Mutual v. Lupoid, 101 Pa. St. his beneficiary by later testamentary 111; Meier v. Meier. 15 Mo. App. 68; appointment, or by merely revoking WeiBert v. Muehl. si Ky. 3:36; Unity his will and leaving the beneficiary Mutual v. Dugan, 118 Mass. 319; to be designated by the by-law above Price v. Supreme Lodge, <">* Texas referred to, but under the contractile 361: 4 S. W. Hep. 633; Conn. Ins. Co. had no interest or estate in it, or in v. Burroughs, 34 Conn. 303. the fund, to be paid at his death, and 328 ASSIGNEE OF CONTRACT. administrators or executors, may assign it by parol to the mother of his illegitimate child, for its support. 1 A husband may make a gift to his wife of an insurance policy payable to himself, by delivery of the possession thereof, accompanied by such language as indicates an intention to part not only with his possession, but also with his property in the policy, but, as has been said, the intention to clothe her with his rights in the contract must clearly appear. The holder of an accident ticket payable to himself, as he was leaving home for a journey, laid it on the table in front of his wife, saying to her that " she should take it and take care of it, and if he got killed before he got back, she would be that much better off — three thousand dollars better off." He was accidentally killed the next day, and his wife claimed the insurance money, which had been paid to the administrator of his estate. But the court held that these facts were insufficient to establish a gift of the ticket to his wife, as against the creditors' of his estate; that in order to establish such a gift, it was necessary to prove that he had intended to part with both the possession of and his property in the ticket. 2 § 168. Limitation on the right to assign. — Where, by the charter of a society the benefit fund is payable to the assigns of the member, no limitation or condition may be placed upon the right of the member to assign his certificate. 3 But a by- law of such a society is not inconsistent with the charter, which provides that such an assignment, in order to be valid, shall be recorded in the books of the society. This is not a limitation upon the right to assign; it is a reasonable pro- vision for the protection of the society, and relates merely to the manner of the assignment." Where the charter is silent as to the assignment of a certificate, the society may provide in its by-laws or certificate for its assignment to proper bene- ficiaries, and may place upon its assignment such limitations and conditions as it may deem proper. 1 Brown v. Mansur, 64 N. H. 39; 5 8 Raub v. Masonic Mutual Relief Atl. Rep. 768; 2 N. Eng.Rep. 857. Association, 3 Mackey(D. C.), 68; see 2 Williams' Appeal, 106 Pa. St. 116; §g 13, 20, 158, 159. Linsenbigler v. Gourley, 6 P. F. 4 Coleman v. Knights of Honor, 18 Smith, 166; Crawford's Appeal, 11 Mo. App. 189. P. F. Smith, 52; Trough's Estate, 25 P. F. Smith, 115. ASSIGNEE OF CONTRACT. 329 § 1G9. The consent and approval of the society may he required. — A society may provide that its contract of insur- ance may be assigned and transferred only with the consent of the society indorsed thereon. In som3 cases it is held that one to whom such a contract has been assigned without such indorsement can not maintain an action against the society, after the death of the insured. 1 A society issued a benefit certificate which provided that no assignment thereof should be valid unless approved by the secretary of the society. The member assigned it without such approval, and the court held the assignment invalid. 2 The right of the contracting parties to thus prohibit an assignment of the certificate without the consent of the society, can not be seriously doubted; and in view of the restricted nature of mutual benefit insurance, the propriety, if not the necessity, of such a condition is equally clear. The personal character of each holder of a certificate, and the interest he may have in the life of the person thereby insured, are essential elements in the contract of mutual in- demnity. The obvious tendency of an unrestricted right to transfer would be to create interests directly hostile to those of the regular membership. It is, therefore, clear that the con- dition is an essential feature of the contract, and the society has a right to insist on the benefit of the protection which the condition was intended to afford it. 3 It has also been held that if the contract of insurance contains a clause declaring that it may be assigned only on the written approval of the society, but does not declare that a violation of the provision shall avoid the contract, such a violation docs not involve a forfeiture, and an assignee may enforce the contract, although the society has not consented to the assignment/ A clause in a certificate, providing for its forfeiture if assigned without the consent of the society, applies only to an assignment lie- fore the death of the member, and can not prevent an assign- ment by the beneficiary of the benefit fund after his death.' 'National Mutual v. Lupoid, 101 97; N. Y. Ins. Co. v. Flack. 3 Md. Pa. St. Ill; Ins. Co. v. Watson, 30 341; Risley's Succession, 11 Rob. (La.) Fed. Rep. 653; Ins. Co. v. Hamilton, 298. 5 Sneed (Tenn.) 209: Moise v. Mutual 3 National Mutual v. Lupoid, supra. Reserve, 45 La. Ann.; 13 So. Rep. * Marcus v. Ins. Co., 68 N, V. 625, 170. 6 Roger Williams Ins. Co. v. Car- 8 Harmon v. Lewis, 24 Fed. Rep. rington, 43 Mich. 252; Dogge v. Ins. 330 ASSIGNEE OF CONTRACT. Such a clause may be waived by the society, and the declara- tions and acts of its agents are competent as evidence of a waiver. 1 The mere written receipt of the society, given to one who is in fact the assignee of a certificate, for the payment by him of an assessment after the death of the member, is not, of itself, evidence that the society had recognized him as the assignee of the certificate and had waived such a provision. 2 Where the certificate provides that it may not be assigned without the consent of the society, the society alone may object to the want of consent and approval of an assignment. If it recognizes the equitable right of the assignee, the bene- ficiary can not insist upon an objection which the society has waived, and the proceeds of the policy must be distributed according to the equities of the parties. 3 §170. Rights of the assignee of a certificate. — A person accepting by assignment from a member a certificate of mem- bership in a mutual benefit society, is bound by the provisions and conditions of the constitution and by-laws of the society relating to the contract of insurance ; and this is especially true when the constitution and by-laws are made a part of the certificate by its express terms. 4 When the society has con- sented to the assignment of the contract of insurance it becomes in substance a new and binding contract with the as- signee on the basis of the old one. A void contract is not rendered valid by a mere assignment approved by the society. Such an assignment and approval do not create any new rights, but simply transfer subsisting ones. If the society, when it consents to the transfer, is aware of the invalidity of the contract, that fact may be shown as evidence of a waiver of its invalidity, but assent to an assignment, given in igno- rance of the truth, can not be regarded as affecting the society adversely. 6 When the assent of a society has been fairly pro- Co., 49 Wis. 501; Combs v. Ins. Co., 4 Miller v. Assurance Association, 32 N. J. Eq. 512; Aiken v. Associa- 42 N. J. Eq. 459; 7 Atl. Rep. 895; tion, 13 N. Y. Supp. 579; see note to Ins. Co. v. Garland, 108 111. 220; 9 § 165. 111. App. 571. 1 Pierce v. Ins. Co., 50 N. H. 297. 5 Eastman v. Ins. Co., 45 Me. 307. 2 National Mutual v. Lupoid, supra. Merrill v. Ins. Co., 48 Me. 285. 3 Brown v. Mansur, 64 N. H. 39; 5 Atl. Rep. 768; see Diffenback v. Vogeler, 61 Md, 370. ASSIGNEE OF CONTRACT. 331 cured and unreservedly given to an assignment of a certificate it may not be withdrawn against the will of the assignee. 1 A stipulation in a policy payable to one or his assigns, providing that a claim " by an assignee shall be subject to proof of in- terest," does not apply to one who holds it as collateral secu- rity for a debt, since the assignee is a mere trustee for the debtor, and must account for any surplus proceeds after pay- ing the debt and it is not necessary for such assignee to allege that he had an insurable interest in the life of insured. 2 § 1 71. Right to assign the benefit fund after the death of the member. — After the death of the member, when the right to the fund has become absolute in the beneficiary, this right may be assigned as any other chose in action. 3 Provis- ions of the charter restricting the classes who may become beneficiaries of the society do not apply after the right to the fund has vested in the beneficiary by the death of the member. 4 § 172. Assignment of the certificate by the beneficiary. — The beneficiary in an ordinary life insurance policy has a vested interest which may, generally speaking, be assigned by him, with the concurrence of all parties interested, so as to vest in his assignee the same substantial rights which he possessed in the contract. A large part of the law on the subject of the assign- ment of insurance policies has arisen from assignments made by beneficiaries. But, according to the general plan of mutual benefit insurance, the beneficiary has no vested right in the contract or the benefit fund. 6 The right of the beneficiary to take the fund is dependent upon his surviving the member while the designation is unchanged, and, in case of the prior decease of the beneficiary, no interest in the fund passes to his estate on the subsequent death of the member. 6 Ilis interest, during the lifetime of the member, is a mere expectancy, not property, and its value as the subject of an assignment would •Grant v. Ins. Co., 75 Me. 19(5. *BriggS v. Earl. 189 Mass. 47:5; 1 luii^s v. Ins. Co. (Cal.), 27 Pac. N. East. Rep. 847; Aiken v. Associa- Rep. ail. tion, 18 N. Y. Bupp. 579; see g 165 l;.._.r Williams Ins. Co. v. Car- note, §169. rington, 43 Mich. 862; Dogge v. Ins. 'See §§ 212, 213. Co., 49 Wis. 501; Greene v. Ins Co., iQqq g 202. 84 N. V. 572; Combs v. Ins. Co., 32 N. J. Eq. 512. 332 ASSIGNEE OF CONTRACT. be speculative and uncertain. It is very doubtful whether the mere consent of a member that his beneficiary might assign his interest in the contract of insurance would estop the member from afterward changing the designation of his beneficiary. § 173. The designation of a new beneficiary is not an assignment of the certificate. — Where the charter, by-law or certificate of membership provides that the member may change his beneficiaries by the indorsement of their names upon the certificate, a direction by the member, written on the back of his certificate, that the fund shall be paid to a certain person, is to be regarded as a designation of a beneficiary, and not as an assignment of the certificate. 1 And where a certificate of membership in a mutual benefit society is made payable to the member himself, and there is no provision in the contract specifying how he may change his beneficiary, an indorsement on the certificate showing that he desires the benefit fund Avhen collected to be distributed among certain beneficiaries, is not an assignment of the certificate, but is a change of bene- ficiaries which the member has a right to make, from the very nature of the contract. 2 An assignment is the transfer by one of his right or estate in property to another. It rests upon contract, and generally speaking, the delivery of the thing assigned is necessary to its validity. 3 But in such cases as have just been mentioned, the delivery of the certificate to the persons named is not necessary to give them the right to take the fund. This right does not rest upon contract, but upon the direction for the payment of the benefit fund. 4 A member may have no right or estate in the benefit fund, which he can assign, but he may, nevertheless, have the power to appoint a beneficiary to take the fund. This power of appointment of a new beneficiary, or right to dispose of the fund, may be exer- cised in any manner agreed upon in the contract of insurance. 1 Highland v. Highland, 109 111. 108 Pa. St. 6; In the matter of Webb, 366; see § 149. 49 Cal. 541. Notice by the assignee 2 St. Clair Co. Ben. Soc. v. Fiet- or the assignor to the company that sam, 97 111. 474; Milner v. Bowman, an insurance policy has been assigned, 119 Ind. 448; 21 N. East. Eep. 1094; may be sufficient to transfer the see §§ 212, 214. title. In re Styan, 1 Phillips' Ch. 3 Palmer v. Merrill, 6 Cush. (Mass.) 105; Chowne v. Baylis, 31 Beav. 351. 282; Dexter Savings Bank v. Cope- * Highland v. Highland, supra; St. land, 77 Me. 263; Scott v. Dickson, Clair, etc., S03. v. Fietsam, supra. ASSIGNEE OF CONTRACT. 666 If the contract provides that it may be clone by an assignment of the certificate, it may so be clone, but, in assigning the cer- tificate, the member does not transfer his right or estate in the certificate or the fund to his beneficiary; he executes a power. He does not really assign the certificate; he changes and designates his beneficiary. This distinction is of prime importance, for any words, or even some acts, which show the intent of the parties to make a complete transfer will work an assignment, but the power of appointment must be exercised as such, and the right to change the beneficiary must be exer- cised in the manner agreed upon in the contract of insurance, if that contract limits that right and prescribes a certain mode in which the change shall be made. § 174. Law governing the validity of an assignment. — The assignability of a contract is governed by the laAV of the place where it was made and is to be performed. If it is as- signable, an assignment, being incidental and collateral to the original contract, is governed by the law of the place where it was made. If an assignment of a contract of insurance is valid or void where it was made, it is valid or void everywhere. 1 1 Lee v. Ardy, L. R., 17 Q. B. Div. Ontario Rep. 442; Conn. Mutual v. 309; Newcomb v. Ins. Co., 9 Ins. L. Westervelt, . 52 Conn. 586; Mutual J. 124; Toronto Ins. Co. v. Sewell, 17 Benefit v. Bank, 68 Mich. 116. CHAPTER XII. CONSTRUCTION OF THE DESIGNATION OF THE BENEFICIARY. § 175. Rules of construction. 176. Provisions of the charter designating beneficiaries. 177. Beneficiaries designated by the by-laws or certificate. 178. Devisees; as designated in last will. 179-183. Wife, widow. 184. Fund payable to wife for the benefit of herself and children. 185. Wife and children. 186. Child. 187. Children born after issue of certificate. 188. Child, grandchild. 189-192. Heirs, heirs at law, legal heirs. 193. Orphans. 194. Family. 195. Dependents. 196. Relations, relatives. 197. Legal representatives. 198. The assured. 199. " Guardian " of member. § 175. Rules of construction. — It is well settled that in construing the terms in which the beneficiary of a contract of mutual benefit insurance has been designated, a liberal, rather than a restricted meaning should be given to the language or word employed. Where there is no fixed, legal or technical meaning which the court must follow in the construction of a term of a contract, the best construction is that which is made by viewing that term as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it. The result thus obtained is exactly what is obtained from the cardinal rule of intention. 1 Where, under the contract, certain classes of persons only may take the fund, a broad and liberal meaning should be given to the words in which the classes are specified. 1 Navigation Co. v. Moore, 2 Whart. 491. (334) CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 335 § 176. Provisions of the charter designating benefici- aries. — In contracts of mutual benefit insurance the person or persons who are to be paid on the death of the member are often not designated by name, but are described in the charter or by-laws of the society as a class, or as one of a class, of per- sons who are to be entitled to the benefit fund. In such cases parol evidence is admissible to show that the person suing is the one intended by the parties to be paid. 1 It is customary for mutual benefit societies to provide in their charters, by-laws, or certificates of membership how the benefit fund shall be disposed of, in case no designation shall have been made by the member, or in case the designated ben- eficial shall have died, or shall be from any cause incapable of taking the fund. These provisions are a part of the con- tract of insurance, and in construing the meaning of a designa- tion made by a member, or in seeking to determine who is entitled to the benefit fund, they must often be looked to as an important element of the question. A member was at the time of his death in good standing in a society, the object of which was, as declared by its charter, " to provide and main- tain a fund for the benefit of the widow, orphan, heir, assignee or legatee of a deceased member." By a provision of one of the by-laws, if a deceased member had no legal representatives, the fund should become the property of the society. He had named his first wife as the beneficiary of his certificate, and she died. He married again, and died intestate, without chil- dren, leaving his second wife. He never made another desig- nation of a beneficiary after he took out his certificate. Three separate claims were made to the fund; first, by the represen- tatives of the first wife; second, by the representatives of the husband; third, by the surviving widow. Thereupon the society filed a bill of interpleader, making these parties defend- ants that they might establish their several claims to the fund. The court held that the representatives of the first wile were •A contract of mutual benefit in- parol evidence is necessary to deter- suram-e which does not name the mine who is the beneficiary. I.'ail- beneficiary, but provides for the pay- way Association v. Loomia, 142 111. ment of the fund on the death of the 660; Kanz v. Great Council. 18 Mo. member to a certain class of persons, App. 341: Baker v. Johnson Co.. 33 is not a contract in writing, in apply- Iowa 151; "Works v. Macalister, 40 ing the statutes of limitation, since Mich. 84. 336 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. not entitled to the fund. 1 And it was held that the term legal representatives in the by-law, providing that " if a member has no legal representatives, such sum of money as they would have been entitled to shall become the property of the association," is to be taken as meaning those who are legal representatives in the contemplation of the charter and by-laws, to-wit, the persons named, " the widow, orphans, heir or legatee." The court said : " The fund is to go to some one of these parties. They are mentioned disjunctively; the money is to be paid to the widow, or the orphans, or the heir, or the assignee or leg- atee. ]STow, that means one of two things; either that it shall go to some one of these, to be selected by some authority, or else that they are to have precedence in the order in which they are named. But there is no authority provided for or indi- cated, in either the charter or the by-laws, by whom any one of these beneficiaries shall be selected; and, therefore, our con- clusion is that the order in which they are named is the order in which they are to benefit by this fund; first the widow; if there is no widow, then the orphans; if there is no orphan, then the heir, etc. In this case the question is between the widow and the personal representatives. The latter are excluded entirely by our construction of the by-laws, and, therefore, the decree will be that the widow shall take the fund." ' Where the charter of a mutual benefit society pro- vides that the benefit fund shall upon the death of a mem- ber be paid to his widow and children, they are entitled to the fund, although another person is named in the certifi- cate of membership as the beneficiary, and has paid all the assessments levied upon the member. The certificate must, in such a case, be construed in connection with the charter as a contract to pay to the widow and children of the member the amount of the insurance. If, for instance, a certificate in such a society is made payable to a creditor of the member, it is not void, but, the designation in the certificate alone being void, there remains a valid and subsisting contract of insurance, under the terms of the charter, in favor of the widow and 1 See § 202. Rep. 710; Jewell v. Grand Lodge. 41 2 Masonic Mutual v. McAuley, 2 Minn. 504; 43 N. "W. Rep. 88; Riley Mackey (D. C.) 70; see Rockhold v. v. Riley, 75 Wis. 464; 44 N. W. Rep. Association, 129 111. 440; 19 N. East. 112. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 337 children of the member. 1 The charter of a society provided : " Upon the decease of any member of this association, the fund to which his family is entitled shall be paid as may be desig- nated in the application for membership; this being changed by death, or otherwise impossible, it shall go — first, to the widow and infant children," etc. A member designated, as his beneficiary, his brother, who afterward died on March 7, 1880. The member died May 26, 1880, intestate and childless. His widow and not his administrator was entitled to the bene- fit fund. 2 The object of a society was "to establish a widows' and or- phans' fund " for the payment of a certain sum on the death of a member " to his family and those dependent upon him, as he may direct." A by-law provided that in case a member fails to direct, " by will, entry or benefit certificate," who shall receive such benefit, " the council shall cause the same to be paid to the person or persons entitled thereto." A member designated his children as beneficiaries. They died a short time before the father, and he gave no other direction, and left no children or other persons dependent upon him for sup- port, except his widow; and the court held that the widow was entitled to the benefit fund. 3 Where the charter of a mutual benefit society provides for the payment to the member's fam- ily or his appointee, of a certain sum of money upon the mem- ber's death, and that, "in case no direction is made by a brother, the same shall be paid to the person or persons entitled thereto," upon the death of a member, without having named a beneficiary, the benefits are payable to the wife and children, and not to the administrator of the deceased member. 4 Where the charter of a mutual benefit society provides that the fund due upon the death of a member shall be paid to his widow and children, and only gives the member the power to designate by will in what proportion it shall be divided be- tween them, there can be no assignment of a certificate or 1 Ky. Grangers' Mut. Ben. Soc. v. 9 Van Bibbers Adm'r v. Van Bib- McGregor, 7 Ky. L. Rep. (Sup'r Ct.) ber, 82 Ky. 347, affirming 5 Ky. Law 550; Gibson v. Ky. Grangers' Mut. Rep. 182. Ben. Soc, 8 Ky. L. Rep. (Sup'r Ct.) 3 Ballou v. Gile, Adm'r, 50 Wis. 580; see Rindge v. N. E. Mutual Aid 614. Society, 146 Mass. 286; 15 N. East. * Fenn v. Lewis, 81 Mo. 259; affirm- Rep. 628. ing 10 Mo. App. 478. 22 60S CONSTRUCTION OF DESIGNATION OF BENEFICIAEY. change in the beneficiary which will divest the widow and chil- dren of their rights. 1 In the absence of a valid designation of a beneficiary, the proceeds will be disposed of according to the charter of the society as if no designation had been made. 2 A society was incorporated under a statute, " to aid, assist and support members or their families in case of want, sick- ness or death," which statute authorized it to create, manage and disburse a fund sufficient to pay all losses and expenses incident to the corporation, for the relief of members and their families, under such conditions and regulations as might be adopted by the grand lodge; and it was provided that such fund might be set apart " to be paid over to the families, heirs or legal representatives of deceased or disabled members, or to such person or persons as such deceased member may, while living, have directed; and the collecting, managing and dis- bursement of the same, as well as the person or persons to whom, and the manner and time in which, the same shall be paid on the death of a member, shall be regulated and con- trolled by the rules and by-laws of the said grand lodge." The only by-law adopted by the society relating to this sub- ject provided that each member of the order should be entitled to a mutual aid certificate, which should set forth the name and good standing of the member, the amount of benefit to be paid at death, and to whom payable, and that such certificate should represent $2,000. In an action against the society for the amount of the benefit fund, on account of the death of a member, it did not appear that any certificate provided for by the by-laws above referred to was ever issued to the deceased member. The trial court and court in general term held that the issuing of such a certificate was a condition precedent to the liability of the society to pay the fund, and that the lack of such certificate was fatal to the plaintiff's action. 3 But the court of appeals held that those who were to receive the fund were, by the very terms of the act of incorporation, to be the families, heirs or legal representatives of deceased or disabled members, or such other person as the deceased member 1 Ky. Grangers' Mut. Ben. Soc. v. 26 N. East. Rep. 443; Arthars v. Baird, Howe, 9 Ky. Law Rep. (Supr. Ct.) 8 Pa. Co. 67; Shea v. Association, 198. 176 Mass. 289; 35 N. East. Rep. 855. 2 Park v. Welch, 33 111. App. 188; 3 Bishop, AdmYx, v. Grand Lodge, Burns v. Grand Lodge, 153 Mass. 173; 43 Hun 472. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 339 might, while living, have directed, and that in case no such direction was given, such payment was intended to be made to his family, heirs or legal representatives. " It is true," said the court, " the act and the constitution fail to state which it shall be in case no direction is given, whether it shall be the family, the heirs, or legal representatives; but we think this expression should be construed with reference to the general purpose of the corporation, and, having such purpose in view, Ave think it really was meant, and that it should be held, to include those who would take such property as in cases of intestacy." l § 177. Beneficiaries designated hj the by-laws or cer- tificate. — Where, by the laws of a society, the benefit fund is to be paid " to the widow, children, mother, sister, father or brother of a deceased member, and in the order named, if not otherwise directed by the member previous to his death," the relatives will take the fund in the order named, unless the member in his lifetime executed the power of direction, thus changing the order of payment.* By the provisions of the by- laws of a society, a member in good standing might surrender his certificate and have a new one issued, payable to such beneficiaries dependent upon him as he might direct, and, in the event of the death of the beneficiary named, and no other disposition being made, the benefit was to go to the dependent heirs of the deceased member. An insured member died. He left a will bequeathing the benefit fund to a person to whom he was engaged to be married, but to whose support he had contributed nothing, and who was not dependent upon him. He died without marrying this person, and left his mother, who was dependent upon him, as his next of kin. It was held under these facts that the disposal of the fund by will being invalid, the mother was entitled to it. 3 In McClure v. John- son, 4 the benefit fund was made payable to the " wife, husband, children, mother, sister, father or brother of such deceased member, and in the order above named," by the provisions of a by-law of the society, and there was no provision of the con- ' Bishop v. Grand Lodge, 112 N. Y. 8 Supreme Council v. Perry et al., 627: 20 N. East. Rep. 562, reversing 140 Mass. 580. 43 Hun 472. 4 56 Iowa 620. 2 Arthur v. Association, 29 O. St. 557, 340 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. tract of insurance, authorizing any other disposition of tl e fund. A member left a will by which he directed that the fund should be paid to a creditor, but the court held that he had no right to change the beneficiary, and that under this by-law his widow was entitled to the fund. Where the by- laws provide that each member shall designate in writing some person as nominee for the benefit fund, and that upon the death of a member the nominee so designated by him shall receive such fund, the society is liable only to the nominee of the deceased member, and where there is no nominee there is no liability. 1 Where the by-laws name a class of persons who shall take the fund in case the member selects and appoints nc one to take it, the rights of the persons named in the by-laws are not affected by an illegal or ineffectual designation of a beneficiary by the member. 2 Where the appointment of a beneficiary is revoked by his death prior to the death of a member, 3 and no other designa- tion is made, the by-laws often control the direction of the benefit fund. 4 By the provisions of a by-law of a mutual benefit society, at the death of a member the sum of twenty-five dollars was to be paid to his widow or relatives to provide for his decent interment. The widow of a deceased member, who at the time of his death, and for years previously, had not been liv- ing with him, and had incurred no expense toward his inter- ment, brought an action to recover this stipulated sum, and was met by an offer of the society to show that the amount had already been paid to decedent's son-in-law, at whose house he had died, and who had paid all the expenses of his funeral. The court held that the offer should have been re- ceived, and that being separated from her husband in pursu- ance of a mutual understanding and not by reason of coercion or ill-treatment, living apart from him at the time of his death, 1 Order of Mutual Companions v. 3 See § 202. Griest, 76 Cal. 494; 18 Pac. Rep. 652. 4 Riley v. Riley, 75 Wis. 464; 44 N. 2 Arthur v. Odd Fellows, supra; Su- W. Rep. 112; Given v. Odd Fellows, preme Council v. Perry, supra; Brit- 71 Wis. 547; 37 N. W. Rep. 817; see ton v. Supreme Council, 46 N. J. Eq. § 182. 102; 18 Atl. Rep. 675; Park v. Welch, 33 111. App. 188; Palmer v. Welch, 132 111. 141; 23 N. East. Rep. 412. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 341 and having borne no part of the funeral expenses, the widow was not entitled to the bounty of the society. 1 A society may waive the provisions of its by-laws or of its constitution re- lating to the persons who may become beneficiaries. 2 §178. Devisees; "as designated in last will." — The char- ter of a mutual benefit society provided in its sixth section that upon the decease of any member of the association " the fund to which his family is entitled shall be paid as may be designated in the application for membership. This being changed by death or otherwise impossible, it shall go, first, to the widow and infant children," and afterward in the order named. A member directed in his application that the benefit should be paid at his death as he might designate in his will. He died intestate, leaving a widow, but no infant children. The court held that the widow was entitled to the fund, and in so deciding said : " Appellants contend that this section (above quoted) applies only where a designation is made, and subsequent events render it impossible of fulfillment. But we think it has a broader and more comprehensive meaning, and that it applies as well where, by reason of the failure of the insured to make any designation at all, it becomes impossible to pay according to his direction, as in case of the death of a designated beneficiary; for, according to what seems to us the true construction of the language used, it is only in those cases where, pursuant to the charter, the insured has expressly directed otherwise, that the fund is not payable as pointed out by the terms of the sixth section." 3 A society issued a certifi- cate of membership, and agreed therein that on the death of the member in good standing it would cause an assessment to be made upon its members, and would pay the proceeds of such assessment, not exceeding $2,500, " as a benefit to his devisees, as provided in his last will and testament, or in the event of their prior death, to the legal heirs or devisees of the holders of this certificate." The member died in good stand- ing and intestate. The court, 4 in construing this contract, said: "The insured might die intestate. It could not have 1 Berlin Beneficial Society v. March, 3 Whitehurst v. Whitehurst, 83 Va. 82 Pa. St. 166. 153; 1 S. E. Rep. 801. * Johnson v. Supreme Lodge, 53 4 Judge Dyer, U. S. Cir. Ct., E. D. Ark. 255. Wisconsin. 342 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. been in contemplation of the parties that, in that event, there- was to be no beneficiary entitled to sue upon the contract. The certificate, fairly and reasonably construed, means, we think, that if the insured should choose to make a last will in which devisees should be named, then such devisees w T ere to become the beneficiaries entitled to receive and recover the sum collected by assessment on account of the certificate. But no obligation was imposed upon the insured to make a last will. He might, if he chose, leave his estate to be divided among legal heirs as the law should direct its division, and, in that event, as no devisees would exist, the benefits of the cer- tificate would accrue to the heirs. In other words, the effect of the contract is that if the insured has made no will, and if, therefore, no devisees are in existence, his legal heirs shall become the beneficiaries entitled to enforce payment in a suit upon the certificate. This view of the rights of the parties accords with the sense and meaning of the contract." 1 A mutual benefit society issued a certificate of membership in which it agreed to pay, or cause to be paid " as a benefit to the member's devisees, as provided in his last will and testa- ment, or in the event of their prior death, to the legal heir or devisees of the certificate holder" the amount derived from an assessment upon its members. In construing this contract the court said : " The substantial promise was to pay to dev- isees, if there were devisees to take, and, if not, then to pay to heirs. We think this the fair and reasonable construction of the agreement, which, in view of the purpose of the associ- ation, may well be adopted." a A certificate of insurance was issued by a society organized under the laws of Illinois for the purpose of securing " pecun- iary benefits to the widows, orphans, heirs or relatives by consanguinity or affinity, devisees or legatees of deceased members," and was made payable " to the devisees of Philip H. Worley." Worley died intestate, and suit was brought on the certificate by the administrator of Worley's estate. So far as appears from the reported case, no provision w T as made by the society, designating a beneficiary in case the member 'Smith t. Covenant Mutual, 24 s Covenant Mutual v. Sears, 114 III. Fed. Rep. 685; see Newnian v. Asso- 108; see Newman v. Association, 76 ciation, 76 Iowa 56. Iowa 56. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 343 should fail to make a designation — except as the express pur- pose of the law above quoted might be construed into such a provision. The court 1 held that the certificate was not a part of the assets of the estate, and not recoverable as such by his administrator. Expressions in the opinion of the court indi- cate that, in the view taken of the case, no recovery could be had upon the certificate. It was there said that neither the decedent nor the defendant corporation intended by their con- tract to provide for the widows, orphans, heirs or creditors of the decedent, but only for his devisees, and, as there were no devisees, there was no beneficiary in existence who could en- force the contract — that, as in no contingency was the insur- ance to be paid to any other persons than devisees, the ex- pression of one thing excludes other and different things; that the designation of devisees in the contract excluded the other classes — the widow, orphans, heirs and creditors. 2 It was held in one case that where the law provides for the organization of societies to " secure pecuniary aid to the widows, orphans, heirs and devisees of deceased members," the mem- ber may not by will make the fund payable to his executor; that the executor is not one of the class of beneficiaries named; that it is the intent of the law to place the fund beyond the reach of creditors. 3 But this would seem to be a very narrow construction to give to the language, and the courts of the state in which the law was passed have held that any one may become a beneficiary of a society organized under it who is c;i]>;ible of taking the fund under the laws relating to an insur- able interest in the life of the member. 4 § 179. Wife, widow. — In the absence of qualifying circum- stances, the beneficiary intended by a contract which provides for the payment of the benefit fund to the wife or widow of a deceased member, is the lawful wife of the member in case she 1 Judges McCrary and Love. 266; Supreme Council v. Priest, 46 s Worley, Adm'r, v. X. \Y. Masonic Mich. 429; Worley v. Association, 10 Aid Ass'n, 10 Fed. Rep. 227; see Jewell Fed. Rep. 227. v. Grand Lodge. 41 Minn. 504; 43 N. 4 See §§166, 235; Bloomington W. Rep. 88, and Relief Association v. Mutual v. Blue, 120 111. 121; 11 N. McAuley, 2 Mackey (D. 0.) 70. East. Rep. 331; Martin v. Stubbings, 3 Northwestern Masonic v. Jones, 126 111. 387; 18 N. East. Rep. <;:>7; T>1 Pa. St. 99; 26 Atl. Rep. 253, eit- Lamont v. Association, 30 Fed. Rep. ing Mullins v. Thompson, 51 Texas 817: Lamont v. Grand Lodge, 31 7; Brown v. Association, 33 Hun Fed. Rep. 177. 344 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. survives him. One Bolton, in 1847, deserted his wife, and in 1862, so far as the forms of law were concerned, married another woman, with whom he lived and cohabited, until ho died in June, 1879. In October, 1877, he became a member of a mutual benefit society, and in August, 1878, became a member of another such society, in each of which he continued in good standing until his decease. By the terms of his membership in these societies the benefit fund was "payable to the widow of the deceased member." After the death of the member, the woman with whom he went through the forms of marriage in 1862 collected the benefit fund in each society, and the wife whom he had deserted afterward brought an action to recover from her the sums received by her as benefits from the societies. The supreme court of Maine held that, the contract being in writing and unambiguous and being in terms payable to the widow, the legal widow was entitled to the benefit funds,- and that no evidence dehors the written contract was admissible to vary its construction and show that the woman with whom the deceased member went through the form of marriage, and cohabited, was intended. 1 The authorities cited by the court relate to testamentary devises, and in explanation of that fact the court said : " But even if this rule of construction govern- ing wills be different from that of other instruments in respect to the question under examination, it is a sufficient answer that a contract of life insurance like those in question, while it is not a testament, is in the nature of a testament; and in constru- ing it the courts should treat it, so far as possible, as a will.' 2 A member died in good standing in a mutual benefit society, the by-laws of which provided for the payment of a certain sum to the widow of a deceased member. After his death two persons claimed the fund as his widow. The facts shown by the evidence were these : The member, Jacob Eisner, was law- fully married to Yettel, one of the claimants, about 1S55, in 1 Bolton v. Bolton, 73 Me. 299; 5 Ves. 534,2 Jarm. Wills, Ch. 31; 1 citing Dorm v. Dorin, Eng. & Ir. Ap. Greenl. Ev. section 278. Cas. 568; Hill v. Crook, L. R. 6 H. L. *See Masonic Ins. Co. v. Miller. 13 Cas. 268; Gardner v. Heyer, 2 Paige Bush (Ky.) 489; Washington Endow. Ch. 10, 13; Cromer v. Pinkney, 3 Ass n v. Wood, 4 Mackey (D. C.) 19; Paige Ch. 461, 475; Collins v. Hoxie, McDermott v. Life Association, 24 9 Paige Ch. 81, 88; Hare v. Lloyd, 1 Mo. App. 73. T. & R. 693; Cartwright v. Vaudry, CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 345 Prussia. They lived together as husband and wife for several years, and had two children, a boy and a girl, the issue of this marriage. They were alive at the death of their father. About 1860, Jacob came to this country, leaving his family in Europe. About 18G7 he began to cohabit with the other claimant, Johanna, and lived with her, representing her as his wife, until his decease. All the parties were of the Jewish faith. Johanna knew that Jacob had a wife living in Europe, but was told that he had £*iven her a divorce according to the rites of the Jewish church. Jacob had several children by Johanna. There was no pretense, on the one hand, that a legal severance of the bonds of matrimony between Jacob and Yettel ever took place. There was no claim, on the other hand, that Johanna did not consider herself the lawful wife of Jacob, and it was conceded that, but for the impediment of the former marriage, the living together of Jacob and Johanna was of such a character as to create the relation of husband and wife. Many circumstances indicated, and the probability was great, that, when Jacob became a member of the order, he thereby intended to effect an insurance for the benefit of Johanna. " Conceding all this," said the court, " we can not see how the case of Johanna is helped. The contract is clear and unambiguous, and its terms are clearly stated. It ex | tresses conclusively, not the intention of Jacob, but the inten- tion of both the contracting parties. It designates the bene- ficiary. That beneficiary is the widow, who had lived with Jacob Eisner as a wife in lawful union. Under the evidence in the case, there is only one person who answers that descrip- tion, and we can not say that the court committed error in awarding the funds strictly in conformity with the express terms of the admitted contract." 1 The evidence in another case" showed that in 1869^ a man married a woman in London, and that she survived him when he died in 1883. This man, in 18&2, represented himself as a single man, and became a member of a mutual benefit society. Afterward, in 1882, a marriage ceremony took place between him and another woman, the plaintiff in the action, and they thereafter lived •Grand Lodge v. Eisner. 2t> Mo. N. Y. Weekly Di^. 348; 21 J. & S. App. 108. (N. Y. Sup'rCt.) 181. - technook v. Sons of Benjamin, 24 346 CONSTRUCTION OF DESIGNATION OF BENEFICIAEY. together as man and wife. The member notified his lodge that he had married, and that his wife's name was Kebecca. The secretary of the lodge, in conformity with the require- ments of the by-laws of the order, reported the facts so com- municated to the United States Grand Lodge of the order. After this notification the member continued to pay dues which he was required to pay quarterly, and died in good standing in December, 18S3. The contract was payable to his widow or heirs. It was held by the court that this evidence was not sufficient to establish that plaintiff had been accepted by the society as the beneficiaiy of the contract made with the mem- ber, and that such acceptance had become part of the contract to the exclusion of the lawful wife, whom he had married in 1S69, and to whom, by the provisions of the bj'-laws, the bene- fit fund was payable; and it was consequently further held that a direction of a verdict in favor of the plaintiff was erro- neous. 1 § ISO. Where the contract is payable in general terms to the wife or widow of a member, it seems to be legally possible for him to designate as his beneficiary a woman with whom he is living, although he may not be legally married to her, and if such designation is assented to by the society, and becomes part of the contract, she may after his death recover the fund. But in order that the woman thus designated may recover, she must assume the burden of proof and clearly establish, not only that such a designation was made, but also that it became a part of the contract that she should take the fund. Courts will not assist in encouraging concubinage, or permit the rights of a lawful wife to be taken away, except upon clear proof that the rights of some other woman have become fixed in the con- tract. The constitution of a society stated its object to be to " provide for the relief of widows, orphans and heirs of deceased members." The by-laws provided that the benefit fund should be paid over to the widow of the deceased mem- ber, in case he left a widow. The society issued to a member a certificate stating that, in accordance with the requirement of the " by-laws and articles of corporation," his wife, Mary Story, Avas designated as his beneficiary. She knew of the 1 See Keener v. Grand Lodge, 38 of Burmingham, 18 W. N. Cas. 280. Mo. App. 543; see Supplee v. Knights CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 317 insurance, and paid all assessments but two out of her own earnings. After his death, in an action by Mary Story to recover the sum due on the certificate, the defense was that the plaintiff was not the lawful wife of the member, as he had a wife Jiving at the time of his pretended marriage to plaintiff. It was held that the facts so set up did not constitute a defense to the cause of action. The court said : " We think (the certificate) operated as an assent by the association to the appointment of the plaintiff as beneficiary of the fund which should become payable on the death of (the member), and entitled her, upon his death, in the absence of any other or different appointment, to demand and receive it. It may be true that the by-law which prescribes the obligation and duty of the association, on the death of a member, contem- plated a payment to the person who should be the lawful widow of a deceased member. But this was not a limitation of the power of the company so as to prevent it from recog- nizing as the beneficiary, a person who might be designated by the member as holding to him the relation of wife. Such designation made during the lifetime of the member and assented to by the company, until changed by the mutual agreement of the member and the company, or at least until the arrangement was repudiated by one of the parties thereto, was binding. The non-disclosure by (the deceased member) of the prior marriage was not a fraud upon the association. Its obligation was not in any way enlarged by making the plaintiff the beneficiar}''. INTor did the appropriation of the fund for her benefit contravene the policy or objects of the association. The plaintiff had for sixteen years lived with him, believ- ing herself to be his lawful wife. They had children depend- ent upon them for support. It was a case where it was his duty to provide for them, and the provision he made through this insurance was in entire accord with the object of the defendant's organb-.at ion." ' But the doctrine of this case should not be extended beyond the substantial facts of it. 2 A man obtained a contract of insurance on his life, payable "to his wife, M., or to his heirs at law." At the time he was 1 Story v. Association. OoN. Y. 474; s Schnook v. Sons of Benjamin, seeVivarv. Supreme Lodge, 52 N. J. sit2>ra. L. 445; 20Atl. Rep. 06. 348 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. cohabiting with M., and had married her, but the marriage was void because he had a former wife living and undivorced. On a bill of interpleader it was held that M., and not the legal wife, was entitled to the fund. 1 §181. In a certain case 2 the testimony showed that the deceased member and the complainant had, for ten years prior to the death of the member, lived together as husband and wife, though no marriage ceremony had ever been performed; that they lived together as husband and wife continuously during those years in the same house, recognizing each other as such, and being so recognized by their friends and neigh- bors, he providing for her as husband, and she taking care of the household, duties. While in that relation, he took out an insurance in her name as Mrs. Nellie Brooks. The court held that the mere name in which he took out the contract of in- surance did not change the mutual relations of the parties, that they were, under the laws of Missouri, husband and wife, and that she had an insurable interest, and could maintain the action. §182. On July 5, 1870, a society issued to H. M. Case a certificate of membership. At the foot thereof, and under- neath the signature, appeared the following : "All pay- ments or benefits that may accrue or become due to the heirs of the person insured, by virtue of this policy will be payable to Mrs. H. M. Case or lawful heirs." At the time this certificate was issued to II. M. Case, he had a wife living by the name of Amelia M. Case, and a daughter by the name of Inez H. Case. His wife, Amelia M., died September 12, 1878, and subsequently, and on the 3d day of February, 1882, he was again married. Subsequently, and on May 29, 1885, he died, leaving Emma (his second wife) his widow, and Inez H., his only child and heir-at-law, surviving him. The daugh- ter sued the society for the benefit fund. The society paid into court the sum of $2,922.55 as the amount of benefits due under the certificate, and the widow, Emma, was made de- fendant. The court said : ' ; The question presented is whether the plaintiff or the defendant is entitled to the money so paid into 1 Overbeck v. Overbeck, 155 Pa. St. 5 Watson v. Association, 21 Fed. 5; 25 Atl. Rep. 610. Rep. 698. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 349 court. There was no new designation of a beneficiary after the certificate was issued, or after the death of the first wife. That which we have quoted at the foot of the certificate was the designation made at that time. It was " Mrs. H. M. Case, or lawful heirs," meaning Mrs. H. M. Case, or in case she was unable to take by reason of death or other disability, his law- ful heirs should become the beneficiary. It is now contended that Mrs. II. M. Case was the name of the defendant, his widow, and that, consequently, she is the beneficiary named in the certificate. We can not assume that he then contemplated the death of his wife, and his subsequent marriage to the de- fendant in this action. If Amelia M. Case was the person in- tended by the designation upon the certificate, then, on her death, the designation lapsed as to her, and his lawful heir, which was Inez II. Case, became the person designated as the beneficiary, and inasmuch as there has been no subsequent designation of any other person, it follows that she is entitled to the money. It is urged that, because the words " Mrs. II. M. Case" were used, it was intended that the certificate shoidd mean one person at one time, and another at another time; that it meant Amelia M. at the time it was issued, but that it meant the defendant at time of his death. Such, however, does not appear to us to have been the meaning of the instru- ment." ' But the contract may be so worded as to entitle the widow by the second marriage to receive the fund. Thus, in one case 2 the by-laws provided that, on the death of a member, " the person designated before death, or his widow, child, or children, mother, * * as the case may be, and in the order named," should receive the insurance. By the terms of the certificate the fund was to be paid to "Sarah Given, my wife." Sarah Given died, leaving her husband surviving her, and he afterward married again. He made no change as to his beneficiary, but died, leaving his widow by his second mar- riage, two childeren by his first and one by his second wile. It was held, that the appointment of his first wife as his bene- ficiary was revoked by her death, and that the widow by the second marriage was entitled to the insurance under the by- •Day. Guardian, v. Case, 43 Hun 71 Wis. 547; 37 N. W. Rep. 817; see (N. Y.) 179. § 177. . 8 Given v. Wisconsin Odd Fellows, 350 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. laws. In another case, 1 the certificate was payable to the member's wife, Elizabeth Riley, or to such other person as might be entitled to receive the insurance. She died, leaving her husband, and several children surviving her. The mem- ber afterward married again, and died without making any change in his certificate. In a suit upon the contract of insur- ance, this widow by the second marriage, and his children by his first wife claimed the benefit fund. The by-laws of the society declared that its object was to afford financial aid to the widows, orphans and heirs of deceased members, or to such person as might be designated by the member, and that, on the death of a member, his widow or designated heirs should receive the insurance. It was held that under the by-laws the widow, and not his children by his first wife, was entitled to the fund. § 183. Where a certificate is made payable to the widow of a deceased member, she does not forfeit her right to the benefit fund, by living in adultery. The analogy of a statute respect- ing the forfeiture of dower for the misconduct of the wife is not applicable to a case of this nature. She is entitled to the fund by contract, not by reason of the relation of husband and wife. 2 A woman who is married to a man, but illeg-allv, because he had a former wife living at the time, has an in- surable interest in his life. 3 But if there is a breach of war- ranty, by reason of the falsity of the statement in the appli- cation, that the assured and the beneficiary are husband and wife, there can be no recovery on the policy. 4 An applicant for insurance was required to state in his application the name of the person to whom he desired the fund to be paid, and the relationship of that person to him. He responded : " To my wife, Emily Louisa Vivar." By its certificate the society promised to pay the fund " to Emily Louisa Vivar, his wife, as directed by said brother in his application, or to such other person or persons as he may subsequently direct by will 'Riley v. Riley et al., 75 Wis. 464; 4 Holabirdv. Ins. Co., 2 Dill. 166; 2 44 N. W. Rep. 112. Ins. Law Jour. 588; Supreme Coun- 2 Shamrock Benevolent Society v. cil v. Green, 71 Md. 263; 17Atl. Rep. Drum, 1 Mo. App. 220. 1048. 3 Equitable Society v. Peterson, 41 Ga. 338; Durianv. Central Verein, 7 Daly 168. CONSTRUCTION OF DESIGNATION OF BENEFICIAKY. Ool or otherwise." It was held that under the language of the contract, the statement was a representation and not a war- ranty; that the relationship of the payee was not material, and was not deemed material by the society, and that she could recover the benefit fund, though the applicant knew that she was not his lawful wife.' The statements in the application were warranted to be true, and the application contained the following : " Write policy payable in the case of death * * * to Mrs. Fred. Martin, whose relation tome is that of wife."' Martin, the in- sured, was a single man. The court said : " We think this statement is neither a warranty nor a material representation. It was merely an indication of the person to whom the policy was to be payable in case of death. Even if marriage had not taken place, it may have been in contemplation, and the insertion of " wife " as beneficiary would thus have been reasonable, and also a matter of convenience, in case marriage should take place before expiration of policy. In any case it could add nothing to the gravity of the risk; neither could it lessen it. The representation was not material." 2 § 1S4. Fund payable to wife " for the benefit of herself and the children of said member." — A certificate of mem- bership in a mutual benefit society, the purpose of which is to pay death benefits to the widows and orphans of deceased members and to other persons shown to be dependent on mem- bers, was made payable to the member's widow* " for the ben- efit of herself and the children of said member." When the certificate was issued, the member had two children by a 1 Vivar v. Supreme Lodge, 52 N. J. Association, 21 Fed. Rep. 60S: Fitz- L. 445; 20 Atl. Rep. 36; citing Ins. patrick v. Ins. Co., 56 Conn. 116; Co. v. Day, 39 N. J. L. 89; Fitch v. Supreme Council v. Bennett, 47 N. Ins. Co., 59 N. Y. 557; Anders v. J. Eq. 39; 19 Atl. Rep. 785; Supreme Supreme Lodge, 51 N. J. *L. 175; 17 Council v. Green, 71 Md. 263; 17 Atl. Atl. Rep. 119; 2 Pars. Cont. 769; An- Rep. 1048; Britton v. SupremeCoun- dersonv. Fitzgerald, 4H.L. Cas. 184; cil, 46 N. J. Eq. 102; 18 Atl. Rep. Valton v. Association, 20 N. Y. 32; 675; Keener v. Grand Lodge, 38 Mo. Ins. Co. v. Martin, 40 N. J. L. 568; App. 543; Supreme Lodge v. Butch- see Durian v. Central Verein, 7 Daly inson, 6 Ind. App. 899; 33 N. East. 168. As to the effect of a falsr state- Rep. 816; Standard Life v. Martin, ment of relationship, see Vivar v. 133 lnd. 376; 33 N. Ea.st. 105. Supreme Lodge, supra; Durian v. ' Standard Life ▼. Martin, 183 Ind. Central Verein, supra; Watson v. '370; 33 N. East. Rep. 105. 352 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. former wife; and at his death he left them, and a child by his second wife who also survived him. At his death his eldest child had been married and had lived at her own home for four years. Upon these facts, the court said : " In the first place it is plain that the widow is not entitled to hold this money absolutely. Even under similar language in a will, the children would have a right which they could enforce in a court of equity. 1 There is nothing to show that it was in- tended that the sums to be devoted to the benefit of the children should be in the first instance determined by her in her discretion, subject to accountability. There are no words saying that it shall be at her disposal for their benefit, or that she is to miintain or support them. In the purposes of the (society), children are placed on an equality with widows. There is nothing showing any intention to have a permanent or continued trust. The words of the cer- tificate are simple. She is to take the money ' for the benefit of herself and the children.' In many of the cases under wills, there was something to show some discretion reposed in the primary donee, or some duty to support, or some power of disposal; but here there is nothing of the kind. Several of the cases under wills tend strongly to show that under lan- fua- 1 Roberts v. Roberts, Ext, 64 N. C. * See § 209. 695. 23 354 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. sequent marriage one child was born; it was held that the child of the assured by his wife, Sarah, was entitled to the whole insurance. 1 A member of a society took out a policy of insurance providing that the proceeds should " be paid to his wife, Maglien Koehler, and children." The member had children by a former wife, and one child by his wife, Maglien, and she had one child by a former husband. The question arose as to which of all these children were entitled to par- ticipate in the benefits of the policy. The supreme court of Iowa said : " If we were to construe these words as meaning Maglien Koehler and her children, it would include not only her child by her second marriage, but it would also include her child by her first marriage. Such a construction can not, we think, be the true one. It is not to be supposed that the de- ceased intended at that time to make (her child by her first marriage) the object of his bounty to the exclusion of his own children. The word " their" can not be held to be the proper one to designate the children, because it is an improper form of expression. In order to sustain the interpretation of the circuit court, it is necessary to make the instrument read as follows : ' to his wife, Maglien Koehler, and her children by him.' We do not think this is the plain and natural construc- tion of the language. We think it should be to his wife and his children. This, it appears to us, is not only the plain and obvious construction, but it accords with the grammatical sense of the words. If the words were ' his wife and children' there would be no doubt that the meaning would be his wife and his children. The name of the wife, Maglien Koehler, is thrown in as descriptive of the person and not as designating whose children are intended." 2 An insured was twice married and by both wives had chil- dren. After his second marriage he insured his life " for the benefit of his wife and their children." He died leaving sur- viving him his second wife, five children by her, and one child by his first wife. The court below held that this child by the first wife was entitled to share the proceeds of the insurance 1 Lockwood v. Bishop, 51 How. Pr. etc., 66 Iowa 325; see also to the same 221; see Grand Lodge v. Dater, 44 point McDermott v. Life Association, Mo. App. 445. 24 Mo. App. 73. 2 Koehler v. Centennial Mutual, CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 355 equally with the other children, and on appeal it was said : " Interpreting the policy in the light of the surrounding cir- cumstances, as such instruments, like other written instru- ments, are always to be interpreted, we think the court below correctly so held. At the time the policy was issued, she was a member of her father's household, and lived with him until his death. She was an afflicted helpless child, and wholly de- pendent upon him. Upon the second marriage the wife as- sumed toward her the relation of a mother, and for aught the record shows to the contrary, faithfully discharged the duties incident to that position during the remainder of her father's life. For years before his death * she was an object of great anxiety and solicitude to him. To the motherly care of his wife, as we have seen, he commended her in his will, con- fident that the trust would not be abused. It is incredible, in view of the facts in the case, that when insuring his life to make provision for his wife and their children, he intention- ally excluded from its benefit the one who, of all of them, was most likely to need it." ' In another case 2 during the life of his first wife, an insured took out two policies of insur- ance, payable to his wife, naming her, and providing that, in tbe event that she died before he did, the money should be paid to their children. She died leaving several children, and the insured married a second time. He afterward died, and a child was born to his second wife soon after his death. It was con- tended that " their children" meant not only the children com- mon both to the insured and to his wife, but also the children of either of them, and that therefore the child of the second 1 Stigler v. Stigler, 77 Va. 163; tween the children by the first wife Fauntleroy, J., dissenting. During and the child of the second wife by his second marriage, a policy was her former husband. It will be no- issued to an insured "for his wife ticed that there was no person who and their children." He died leav- strictly answered to the language of ing surviving him his second wife the policy, their children, but it was and his children by his first wife, substantially interpreted to. mean the He left no children by his second children of either of them. Green- wife, but she had a wrild by a former field v. Ins. Co., Bliss on Life Ins. husband, and there was also an ille- (2d ed.) j; 345; not reported in New gitimate child of the insured. The York Supreme Court Reports. supreme court of New York gave the ■ Evans v. Opperman, 76 Texas 293; widow one-half of tbe fund and tbe 13 S. W. Rep. 312. other half was divided equally be- 35 G CONSTRUCTION OF DESIGNATION OF BENEFICIARY. marriage was entitled to share in the proceeds of the policies. But the court said : " We do not assent to the proposition. It may be that, by an inaccurate use of the words, they may be sometimes employed in the sense contended for by appellee, and that under peculiar circumstances, as in the case of Stig- ler v. Stigler,' to which counsel refer, they were properly construed to have that meaning. We think, however, the ob- vious and more accurate meaning of the terms is the children of both the persons referred to. They could not have been intended to include any other children of the wife, because she could only have married again after the death of the husband, and after the policy had become her absolute property. If the husband had intended to embrace any child or children he may have had by a second wife, his meaning would have been clearly and accurately conveyed by providing that if his wife died first the policy should be payable to his children. By the use of the term ' their children,' we think, was meant the chil- dren common to both husband and wife, and that * (the child by the second marriage) was entitled to take nothing." A certificate of membership in a mutual benefit society pro- vided, if certain conditions were observed and performed, for the payment of the sum of $5,000 on the death of the mem- ber, " to be paid as a benefit to his wife, L. H., and children equally." The member, at his death, left his wife and five children, one of whom died after suit had been brought on the certificate in the name of all, leaving his mother and four brothers and sisters as his only heirs. The cause proceeded to judgment in the names of the widow and remaining children, , who recovered judgment for the full $5,000. The supreme court of Illinois held that the widow and remaining four chil- dren were entitled to the same sum as though she and all the children were suing, and that the judgment was not for too much. The court said : "It is insisted it was error of law to render judgment in favor of the widow and the four surviv- ing children, for the reason the benefit secured was to be paid to the widow and the children equally, of whom the proof shows there were five when the suit was brought. The. objection seems to be, it was not proper to render judgmeat for full value of the benefit on a declaration in favor of the widow and four children, with the name of the deceased child omitted. 1 77 Va. 163. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 357 It is not perceived there was any error in so rendering the judgment. There are two views, both of which sustain the ac- tion of the trial court : First, the benefit was, by the certificate, secured to be paid to the widow (by name) and children — that is to Laura Hoffman, and to a class of persons designated as children, and to be ascertained after the death of the holder of the certificate. At the trial it was found, from the proof, there were but four children surviving. They then consti- tuted all the class embraced in the term " children ' and it was entirely correct to render judgment in their favor, as was done. Second, were this not so, the judgment might be sus- tained for another reason. It provided by the certificate, that, in the event of the prior death of the beneficiaries named, the benefit should be paid to the legal heirs or devisees of the holder of the certificate. A correct reading of this provision would be, in case of the prior death of any one of the class designated to take the benefit, the heirs of the holder would take the share of the deceased party. Here the plaintiffs were the heirs of the holder, and they took the whole benefit, and the judgment in their favor was regular and authorized by law.' 1 ' A certificate was made payable to the wife and children of the member, and provided : " In case of the death of the said beneficiary before the death of the person whose life is assured, the amount of the assurance shall be paid at maturity to the heirs or assigns of the said person whose life is assured. The four children of the member died in infancy, and he died Leav- ing his wife and certain brothers and sisters. It was held that the widow was entitled to the full amount of the fund." 2 § 186. " Child." — In the construction of the designation of beneficiaries, the word "child" is not confined to persons under the age of majority, and where a certificate of insurance is payable to the children of a deceased member, his sons and daughters take the fund in equal proportions, without regard to their ages or their dependence upon the deceased for support. This rule may, of course, be modified by the provisions of the contract of insurance. It is a part of the general plan of mutual benefit insurance to enable the insured 1 Covenant Mutual Benefit Associa- 9 Schneider v. Ins. Co., 33 Mo. App. tion v. Hoffman, 110 111. 603. 64. 358 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. to assist his family, whether or not its members are of lawful age or dependent upon him, but, when consistent with its organic law, it is proper for a society to limit its benefits to minor chiklren, and to those who are dependent upon the members for support. Where there is no such limitation in the laws of the society, and in the absence of an expression by the member in his certificate of a purpose to limit the benefit to a particu- lar class of his children, it must be held, on the plainest prin- ciples, that the member intended to extend it to all his chil- dren in existence at the time of his death. It would be so held in the interpretation of a will; and a certificate of insurance, being a post-mortem provision for the persons endeared to the member, is to be interpreted upon similar principles. 1 What- ever may be the rule in ordinary life insurance, where the rights of the beneficiary named become vested on the execution of the contract, 2 it would seem that, under the general plan of mutual benefit insurance, where the children of the member are desig- nated as his beneficiaries, the children to whom the covenant extends are only the child or children living at the death of the member. 3 Where a certificate is made payable to the children of a member as a class, those of the class will take who are in being at the time when it becomes payable. 4 A contract of insurance is not void for uncertainty because the beneficiaries are designated as " the children of " the member or some other person. 5 Where a certificate was made payable to the wife if she survived her husband, otherwise " to their children for their use, or to their guardian if under age; " where the wife did not survive her husband, and he died leaving only a child by adoption, of full age, and the circumstances showed that the husband and wife intended that he should be included in the benefits, the adopted child was held to be entitled to all the proceeds of the contract. 6 1 McDermott v. Life Association, 24 4 United States Trust Co. v. Mutual Mo. App. 73; Felix v. Grand Lodge, Benefit Life Ins. Co., 115 N. Y. 152; 31 Kan. 81; see § 204. 21 N. East. Rep. 1025; Lane v. De 2 See Connecticut Mutual v. Bald- Mets, 13 N. Y. Supp. 347; Walsh v. win, 15 R. 1. 106; Continental Life v. Ins. Co., 133 N. Y. 408; 31 N. East. Webb, 54 Ala. 688; Continental Life Rep. 228; Appeal of Brown, 125 Pa. v. Palmer, 42 Conn. 60; Hull v. Hull, St. 303; 17 Atl. Rep. 419. 62 How. Pr. (N. Y.) 100; see § 188, 6 Brooklyn Life v. Bledsoe, 52 Ala. 201. 538. 3 §§ 187, 201. * Martin v. Ins. Co., 73 Me. 25. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 359 § 187. Children born after the issuing of the certificate of membership. — In ordinary life insurance, where the pro- curing of a policy in favor of a certain person is in the nature of an irrevocable and executed voluntary settlement on him, subject to the performance of certain conditions, and where the interest vests in the beneficiary at the moment of the issue of the policy, a contract payable to the wife and children of the insured does not extend to a child born after its execution, but only to those in being at that time. 1 The general object of a mutual benefit society, as expressed in its charter or by- laws, may make applicable to the contract of mutual benefit insurance, the doctrine in respect to testamentary bequests to children, payable infuturo, viz.: That the bequests are pay- able to them as a class, and that the class will open to let in after-born children to participate. A widower having four children applied to a mutual benefit society for membership, and in his application directed that in case of his death all benefits should be paid to his four children, whose names were therein given. He afterward married and died, leaving another child by his last wife. The certificate issued to him was made payable at his death "to his children." The object of the society was to establish a benevolent relief fund to pro- tect families of deceased members, and to assist them in dis- tress, and, by the terms of its constitution, the benefit fund, on the death of a member, was payable " to his family or his heirs." The supreme court of Texas held : (1) The right to take under the certificate must be determined by its language and not from the terms used in the application for member- ship. (2) The certificate, which on its face inured to the benefit of his heirs, extended the scope of the benefit, and by accepting it the member must be held to have approved its terms." (3) The object of the society being benevolent, its consent that the benefit should exclude an infant born after membership, can not result from construction, but must appear in some clear and explicit way. (4) The child born after the issuance of the benefit certificate was entitled to share in the benefit, equally with each of the four children named in the application. In construing the contract of insurance, the 1 Connecticut Mutual v. Baldwin. 15 ■ Sec £ 146. E. I. 100; 33 Atl. Rep. 105. 360 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. court said : " The case presented would be that of an applica- tion for a certificate for the benefit of certain named parties, and the issuance of a certificate for the benefit, not only of these, but of other beneficiaries also. "What would be the effect of such a transaction I The applicant would not be bound to accept it, but if he did, the beneficiaries would be those des- ignated in the certificate, and not those named in the appli- cation. It would be a case where a proposition for a contract was made by one party to another, which was accepted in a materially modified form. The party proposing would not be bound to accede to the altered contract, but if he did, it would be binding upon him according to its modified terms. Thomas did accept a certificate different from that for which he applied, and it would seem that the effect of the contract was to entitle all of his children to participate in the relief fund upon his death, and not those only who were alive at the time the certificate was issued. '• But the appellee contends that we must construe the appli- cation as explanatory of the certificate, and must modify the legal sense of the word ' children,' so as to make the applica- tion and the certificate harmonize with each other; that Thomas having applied for a certificate for the benefit of all his children then in existence, and the society having issued him a certificate for the benefit of ' his children,' we must conclude that the certificate was intended to accord with the application, and this would exclude any child born to the applicant in the future. There would be some force in this suggestion, if we are to look to the application and the certifi- cate as alone constituting the contract between the parties. But in all cases of contracts formed by reason of obtaining membership in a mutual aid society, its constitution and by- laws enter into the contract, and it must be read in the light afforded by these in order to arrive at a true construction of its terms. Article 2, section 3, of the constitution of the society states that one of its objects is ' to establish a benev- olent and relief fund for the protection of the families of de- ceased members, and so assist them in distress and in sickness.' Article 3, section 2, makes the benefit money payable on the death of a member to ' his family or his heirs.' By-law num- ber seven is to the same effect. These and other provisions CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 3G1 of these instruments show conclusively that one of the main objects of the society is to confer its benefits upon the entire family of a member, and not to restrict them to a portion, to the exclusion of the remainder. * * It may be that a member, with the express consent of the society, could di- rect his benefit money to be paid to a portion of his family, to the exclusion of the remainder, but the consent of the society would have to appear in some clear and unmistakable way. It would not appear from doubtful words, much less from those whose legal construction would evidence a dissent from the member's request, and issuance of a certificate more in accord with the spirit and intention of the constitution and by- laws of the society. * * We think the certificate on its face includes after-born children, and that it is more in conso- nance with the spirit and intention of the constitution of the society to so construe it, than to exclude from its benefits the after-born children of the applicant." ' But where the beneficiaries named in the certificate are the member's three children, all he then has, an after-born child can not claim a share of the fund, on the ground that the ob- ject of the society, as expressed by its laws, is to afford aid to the "widows, orphans and heirs, or devisees" of a deceased member, for the member has a right to designate the benefi- ciaries within any one or more of these classes. 2 § 188. Child, grandchild. — It may be laid down as a gen- eral rule that the word ''child" does not embrace a errand- child. 3 But to this rule there are two classes of cases which form exceptions : First, where the will or writing would oth- erwise be inoperative, or the manifest intention would be de- feated; second, when the will or writing shows, by other words, that the word was not used in its ordinary and proper •Thomas v. Leake, 67 Texas 469; atta, 21 N. J. Eq. 84; Mowatt v. 8 S. W. Rep. 708; see Rickei v. Carow, 7 Paige 828; Cutter v. Charter Oak, etc., 27 .Minn. 198. Doughty, 2:5 Wend. 522; Thompson •Spry v. Williams, 82 Iowa 61; 47 v. Ludingten, L04 Mass. 198; i Roper N. W. Rep. 890. mi Leg. 69; I Kenl 845; Continental •Churchill v.Churchill, 2 Met. 469; Ins. Co. v. Webb, 54 Ala. 688; Kus- Hughea v. Hughes, L2 B. Mon. 121; sell v. Russell, 64 Ala. 500; United Hallowell v. Phipps, 9 Wharton (Pa.) stairs Trust Co. v.Ins. Co., 1 15 N. Y. 876; Jackson v. Staats, 11 Johnson 152; 21 N. East Hep. 1025; Lane v. (N. Y.) 337; Feit's Executor v. Van- DeMete, 18 N. Y. Supp. 847. 362 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. sense, but in a more extended sense. In Duvall v. Goodson, 1 the charter of the Kentucky Masonic Ins. Co., providing that, if the member " should leave no widow or child then (the fund) to be appropriated according to his will, or if he makes no will and leaves no widow or child, it shall vest and remain in the company," was the subject of construction, and the court held that where a member died leaving no widow or children, but leaving a grandchild, the word "child," in the charter em- braced grandchild, as to hold otherwise would defeat the manifest intention of the members of the company. 3 In Con- tinental Life v. Palmer, 3 the policy was payable to the wife, if she survived her husband; if not, to their children. The hus- band survived the wife, and one of the children died during the life of the father, leaving issue. It was held that the issue took the interest to which his father would have been enti- tled, if he had survived the insured. 4 . 1 79 Ky. 224. her intention it would have been easy 2 SeeEobinson v. Duvall, 79 Ky. 83; to express it in unmistakable terms, see §§ 186, 201, 204. Had the policy been payable to her 3 42 Conn. 60; 5 L. & A. Cases 87. "surviving children," or to those 4 In this case the court said : This << wno should be living " at the death instrument, being testamentary in its f the insured, it would have re- nature, should be interpreted by the moved all doubt. But supposing, as same rules. Therefore, as in wills of she doubtless did, that all her chil- doubtful meaning, one construction dren would survive, the policy was being in harmony with the statute made payable to them generally, and the other contrary to it, prefer- And now a contingency has arisen ence is given to the former, so this which manifestly was not contem- con tract shall receive an interpreta- plated. If the natural presumption tion. if possible, which will dispose of can not be regarded as a legal pre- the fund according to the law of de- sumption, and the law, to meet the scent. We think there is no dim- contingency, is compelled to interpo- culty in so interpreting it. There is late in the contract a provision, either a natural presumption that the par- limiting the payment to the surviving ties so intended it. When we con- children, or including as payee the sider that it was a mother who made issue of a deceased child, we think this contract, and who probably paid both reason and justice require the the premiums, we can not possibly latter. It requires no argument to presume that she, had her attention show that it is just. Its reasonable- been called to it, and had she known ness is equally apparent when we that the child of one of her children consider the nature and object of the would become an orphan before the estate, and the relation to it of the policy became payable, would inten- parties concerned. There is another tionally deprive such child of all in- view which may be taken of this terest in the policy. Had such been case, and which will lead us to the CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 363 Where a life insurance policy was issued on the life of the hus- band for the use of his wife, and, if she died before him, the amount of insurance was payable " to her children for their use, or to their guardian if under age," and the wife died before her husband, it was held that a grandchild of the insured, the issue of one of the children who had died before his mother, was entitled to a share under the policy.' The court said : " By the policy in question an irrevocable trust was created in behalf of Mrs. Hull and her children. The same principles should be applied in its construction which govern testamentary disposition of property. The intention is clear that in the event of Mrs. Hull's death before the falling in of the policy, it was to enure to the benefit of her children gen- erally. There is no limitation to class or condition, nor to living or surviving children. Evidently this phraseology was intended to include the children of a deceased child." 2 The by-laws of a mutual benefit society provided that on the death of a member a sum of money should be paid " to the widow of such member, if there be one; if he leaves no widow, then to the child or children or to their lawful guardian for them, share and share alike. Should the deceased member leave no widow, child or children, the money shall be paid to such per- son as he may have designated in writing." In construing the meaning of the words " child or children," the supreme court of Rhode Island held that they must be taken in their same result. The moment this policy 364; Redfield on Wills, 390; Keller was executed and delivered, it be- v. Gaylor,40 Conn. 343; Conn. Mutual came property, and the title to it v. Burroughs. 34 Conn. 3G5j and the vested in some one. * * The other cases: Park, C. J., dissented, payees consist of two parties, the wife ' Hull v. Hull, 62 How. Pr. mo. It and the children. * * Each party will be observed that this decision took a conditional, not an absolute, is placed upon grounds which do not right to the whole policy. It was exist under the general plan of mu- not a condition precedent, bujt subse- tual benefit insurance, namely; An quent. The title vested in point of irrevocable trust, and the vested in- right immediately, hut was liable to terest of the beneficiaries at the mo- be divested upon the happening of a inent of the issuing of the policy, subsequent event. That such a right 2 But see Palmer v. Horn, si x. v. is recognized as property, and is 576; Magaw v. Field, 48 N. Y. 668; transmissible to heirs, is a proposition Sherman v. Sherman, 3 Barb. (N. Y.) abundantly established by the an- 887; in which cases it was held that thorities; citing Winslow v. Goodwin, the children under the provisions of Met. 363; Fearne on Remainders, certain wills took as class) - 3G4 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. primary meaning, and could not be extended to include grand- children. 1 § 189. Heirs, legal heirs, heirs at law. — The word " heirs " is frequently used in the statutes providing for the organization of mutual benefit societies and in the certificates of insurance issued by such societies to indicate a class of per- sons who may, or the persons who shall receive the benefit fund on the death of the member. It often becomes necessary, therefore, to determine who are the heirs of the deceased member. At common law one's heirs are the persons who would inherit his real estate by right of blood. The statutes of adoption and those of descent have, in every state, to a greater or less degree, enlarged the meaning of the word, so that it may include persons not of the blood of the intestate. At common law the word had no reference to the distribution of any personalty, and this rule has not been disturbed by statute in some states. In those states, therefore, where this common law rule obtains, the word " heirs " in a statute set- ting forth a class of persons who may take the fund, or in a certificate designating the persons who shall take the fund on the member's death, might, possibly, be taken to mean the person or persons to whom the real estate of the member would pass, under the statutes of descent, whether such per- sons be akin to him, or not. But in this connection, reference may be made to the well settled principle that the word " heirs " is flexible, and that in the construction of wills, in the case of personalty, it is taken to mean next of kin. 8 In most states, however, the statutes provide not only who shall in- herit the realty of an intestate, but also who shall be the heirs of 1 Winsor v. Odd Fellows, etc., 13 241; Irwin's Appeal, 106 Pa. St. 176, R.I. 149; see also, Lane v. De Mets, 182; Eisman v. Poindexter, 52 Ind. 13 N. Y. Supp. 347, distinguishing 401; Welsh v. Crater, 32 N. J. Eq. Continental Life v. Palmer, snpra. 177; Hascall v. Cox, 49 Mich. 435; 2 Vaux v. Henderson, 2 Jac. & but see Tillman v. Davis, 95 N. Y. Walker's Chancery Rept. 388; Ward 17, where the authorities defining v.Saunders, 3 Sneed (Tenn.) 387; "heirs" and "next of kin" are col- Hodge's Appeal, 8 Weekly Notes of lated, and the English doctrine, and Cases, 209; Gittings v. McDermott, 2 that of some states, holding that M. & K. 69; Mace v. Cushman, 45 those words include a widow, is dis- Me. 250; Houghton v. Kendall, 7 Al- approved. Bishop v. Grand Lodge, len 72; Sweet v. Dutton, 109 Mass. 112 N. Y. 627; 20 N. East. Rep. 562; 589; Furguson v. Stuart's Ex'rs, 14 Walsh v. Walsh, 20 N. Y. Supp. 933; Ohio 140; Eby's Appeal, 84 Pa. St. see §§ 176, 197. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 3G5 his personal property. "When the same persons are the heirs of both the real and the personal property, the question as to who are the heirs, and, hence, the beneficiaries in a contract of mutual benefit insurance, is in no way complicated by the statutory provisions, but where, under the same facts, the per- sonal property descends to other persons than those who in- herit the real estate — where the heirs of the personal prop- erty are not the same persons who are the heirs of the real estate, the first question to be determined is, who are to be taken as the beneficiaries, the heirs of the personalty,- or the heirs of the realty? In the case of Alexander v. Association, 1 a member died holding certificates of membership in a society for $8,500, pay- able to his heirs at law. He left no child or descendant of a child; but left a widow, father and mother, one sister and three brothers. The charter of the society recited that it was formed " to secure pecuniary aid to the widows, orphans, heirs or dev- isees of deceased members." Section 1 of chapter 39 of Statutes of Illinois provides as follows : " Second. Where there is no child of the intestate, nor descendant of such child, and no widow or surviving husband, then (the estates, both real and personal, of intestates shall descend) to the parents, brothers and sisters of the deceased and their descendants," etc. "Third. "When there is a widow or surviving husband, and no child or children, or descendants of a child or children of the intestate, then (after the payment of all just debts) one- half of the real estate and the whole of the personal estate shall descend to such widow or surviving husband as an abso- lute estate forever, and the other half of the real estate shall descend as in other cases, where there is no child or children, or descendants of a child or children." The question for de- cision was, who are the heirs of the decedent, and the benefici- aries of the certificates 2 Under the third clause just quoted, the widow takes as the heir of her deceased husband. 3 It was held in the courts below that the "widow is the sole heir at law to the personal property of the deceased, and the other heirs at law, the father, mother, l>r< ithers, etc., have no right, title or interest in said fund, or any part thereof," and the supreme 1 126 111. 558; 18 N. East. Rep. 556. 'Sutherland v. Sutherland, 69 111. 481; Rawson v. Rawson, 52 111. 62. 366 CONSTRUCTION OF DESIGNATION OF BENEFICIAKr. court of Illinois affirmed the judgment. 1 It is manifest that, in such a case as the one under consideration, it is necessary to hold either that the heirs of the real estate are the benefici- aries, that the heirs of the personal estate are the beneficiaries, or that the heirs of the real and personal estate are entitled to the fund. Of course the fund was no part of the estate of the intestate, but if it had been, it would have been a part of his personal estate. The fund is personal property. As was said by the court in the opinion : u In placing a construction on the contract of the parties it must be remembered that in the use of the words named in the policies it will be presumed the parties had in view the disposition of personal assets, and not real property, as they were dealing only with the disposition of personal assets." Where a member has made his heirs the beneficiaries of his insurance, it is natural to conclude that the heirs of his per- sonal estate are entitled to the fund. 2 By the statutes of descent of Tennessee, the real estate of an intestate owner is inherited " by all the sons and daughters of the deceased, to be divided amongst them equally." By the statutes of dis- tribution, thepersonal property of an intestate owner is to be distributed " to the widow and children or descendants of chil- dren representing them, equally, the widow taking a child's share." A member of a society died leaving surviving him a widow, three children and two grandchildren, the children of a son who died before him. He also left a certificate of insur- ance payable to his " legal heirs." In certain litigation which arose concerning the benefit fund, it became necessary for the supreme court of Tennessee to decide who were the beneficiaries 'See also Lawwill v. Lawwill, 29 tificate was payable to the heirs of 111. App. 643. a member, and he died leaving a 2 See Richards v. Miller, 62 111. 420; widow, but no children, the word Rawson v. Rawson, 52 111. 62; Weisert " heirs" was construed to mean those v. Muehl, 81 Ky. 336; Houghton v. designated by the statutes of dis- Kendall, 7 Allen 72; Sweet v. Dut- tribution to take the surplus per- ton, 109 Mass. 589; Mace v. Cushman, sonal property of the decedent. John- 45 Me. 250; N. W. Masonic v. Jones, son v. Supreme Lodge, 53 Ark. 255; 154 Pa. St. 99; 26 Atl. Rep. 253; Bishop 13 S. W. Rep. 794; Young Men's As- v. Grand Lodge, 112 N. Y. 627; 20 sociation v. Pollard, 3 Ohio Circuit Ct. N. East. Rep. 562; Britton v. Supreme Repts. 577; Leavitt v. Dunn (N. J. Council, 46 N.J. Eq. 102; 18 Atl. Rep. Err. and App.), 28 Atl. Rep. 590; 675; Codman v. Krell, 152 Mass. 214; Lyons v. Yerek (Mich.), 58 N. W. 25 N. East. Rep. 90. Where a cer- Rep. 1112. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 3G7 named in the certificate, and that court held that the widow, children and grandchildren, the distributees of the personal estate of the intestate under the statutes of distribution, were the beneficiaries and were entitled to the fund.' Where the heirs at law of the member are his beneficiaries, the word "heirs" means the distributees under the intestate law of the domicile of the member. 2 Where the statutes of a state pro- vide different courses of descent for ancestral and non-ancestral property, every reason and analogy point to the proposition that a benefit fund derived by contract from a mutual benefit society shall go to those persons who are the heirs of the non- ancestral property of the decedent. 3 § 190. The word "heirs" has a technical signification, and where there is nothing in the context to show that it was used in any other sense, it will be presumed that in the certifi- cate the term " legal heirs," " heirs at law," or " my heirs," was used in its strict and primary sense. In certain contin- gencies, brothers, sisters, parents, and even remote kindred are heirs at law, but it would be absurd in the extreme to suppose that a member of a mutual benefit society, who has designated his " legal heirs " as his beneficiaries, intended that all his kindred should take. The legal presumption in such a case would clearly be that he intended those to whom the law would give his property if he died intestate; and, hence, it is the actual capacity of inheritance at the time of the death of the owner of the property, and not the fact that a particular person might have inherited from him, under a state of facts which did not exist, which determines who is an heir of a de- cedent. 4 It is to be presumed that the member knows who are meant by the words " heirs," "heirs at law," and "legal heirs," and when he accepts a contract containing any of those terms, in the absence of anything in the contract mani- festing a different intention, courts will presume that he adopted the legal meaning which those words have when used in statutes, deeds and other instruments of writing by persons skilled in the use of legal terms. When any of these words 1 Gosling, Guardian, v. Caldwell, 69 3 Jamieson v. Association, 12 (.'in. TYnn. (1 Lea) 454. Law Bull. 272. 2 N. W. Masonic v. Jones, 154 Pa. * Phillips v. Carpenter, 79 Iowa St. 99; 26 Atl. Rep. 253; 32 W. N. 600; Silvers v. Association. 94 Mich. Cases, 169. 39; 53 N. W. Rep 935; Gauch v. St. 368 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. are used in any legal instrument, there is a presumption, more or less strong according to the circumstances, that they are employed in a technical sense. But where the context determines the sense in which they are used in a contract, effect must accordingly be given to them. When, under the law of a state, the widow is an heir of her deceased husband, and, under the facts of a case, is his sole heir at law, it is im- material as showing the intention of the deceased member that he made his certificate payable to his " heirs," and not to his " heir " at law. By the use of the word " heirs " the member meant what he said — that whoever might prove to be his heirs, and nemo est haeres viventis, should have the ben- efit fund. His heirs might be one or more persons. His widow might, and might not be one of them. 1 The fact that she is the beneficiary directly named in other policies of insurance on her husband's life does not change the rule of construction. 2 A provision in a certificate for the pay- ment of the fund to his heirs at law is a very natural one for a member to make. If he have a wife, but no child, he may well intend by the certificate of insurance, and by the use of the words " heirs at law," " heirs " or " legal heirs," to pro- vide for children who may be afterward born to him, or, in the event that no living child or descendant of a child shall sur- vive him, his widow shall take the fund as sole surviving heir. A divorced wife is entitled to no share of a benefit fund pay- able to the member's heirs. 3 Where the certificate was pay- able to "his legal heirs," and the member left a wife and child, it was held that the fund went to the child, since that sec- tion of the law of descent which provided that " if the intestate leave no issue, the one-half of his estate shall go to his parents, and the other half to his wife" was the only instance where the rights given to the widow under the statutes of Iowa par- took of the nature of heirship. The court said : " No one having children speaks of his wife, in contemplation of her survivorship, as his heir; but it is believed it is universal that Louis Mutual Life, 88111. 251; Elseyv. 262; Loos v. Ins. Co., 41 Mo. 538; Odd Fellows Ass n, 142 Mass. 224; 7 Lawwill v. Lawwill, 29 111. App. 643. N. East. Rep. 844; 2N. Eng. Rep. 667. 2 Alexander v. Association, supra. 1 Jameson v. Knight Templar As- 3 Schonfield v. Turner, 75 Texas sociation, 12 Cir . Law Bull. 272; 324; 12 S. W. Rep. 626; Tyler v. As- Alexanderv. Association, supra; see sociation, 145 Mass. 134; 13 N. East. Mace v. Cushman, 45 Me. at page Rep. 360; see § 164. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 369 she is referred to as widow, and the children as heirs. While technically, and in the single instance stated, a widow may become a legal heir of her deceased husband, our conclusion is, under the facts of the case, that whether used in their tech- nical or general sense, the words 'legal heirs' were not in- tended, and should not be construed, to include (the widow)." ' The words "my legal heirs," "my heirs at law," "my heirs," as used in wills, have frequently been the subject of judicial construction. The meaning of these words when taken alone is usually plain enough, but the contention always is that, from the context, it is evident that they were used in some other than the ordinary sense. In a will, the testator usually makes provision for several persons, and, in several clauses of the instrument, gives and bequeaths his property. In such cases, the context often controls the meaning of words used. But in mutual benefit insurance, such words and phrases are used only in answer to such questions as, " To whom shall the benefit fund be paid ? " " Whom do you designate as your beneficiaries ? " etc. The answer is usually short, and to the point; " my heirs," " my legal heirs," etc. The other provis- ions of the contract relate to matters entirely apart from the disposition of the fund. When we come, therefore, to place a construction upon this designation of the beneficiary, we are seldom met with other provisions of the certificate upon the same subject, from which the theory may be drawn that the member intended to use the words in a different sense than the ordinary one. Generally there is no ambiguity in the con- tract, and recourse must be had to the statutes alone to find out who are the legal heirs of the intestate. The interpreta- tion £iven by the courts to such terms and words, when used in wills and controlled by other words, will, now and then, be of the first importance in determining the proper construction to be given to the designation of beneficiaries made by a mem- ber of a mutual benefit society. But so many of these decis- ions have direct application to the statutes of the states in which they are rendered, that no attempt will be made to review them here. It is evident that the laws of the different states must determine the question as to who are the heirs of an 1 Phillips v. Carpenter, 79 Iowa 600; 44 N. W. Rep. 898; see Gauch v. Ins. Co., 88*111. 251. 24 370 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. intestate, and that the persons who will take the fund under a designation of " my heirs," in one state may have no interest in the fund under the laws of some other state. Thus, in Indi- ana a certificate payable to the u legal heirs" of a member, when he leaves a widow and children at his death, is payable to all of them. His widow, in such case, is included in the word " heirs." ' In Illinois, in such case, she is not included among the beneficiaries. 2 § 191. The designation of the beneficiary as set forth in the certificate must be construed with reference to the law under which the society is organized, the charter, the con- stitution and the by-laws. The provisions of these form the context which may control the meaning of the designation. From this fact, it is evident that it is often necessary to do more than to resort to the statutes of the state to determine who, under their provisions, are the legal heirs. It is not always by any means a plain question of statutory provision, but, on the contrary, it is often a matter involving a nicety of distinction and a careful consideration of the whole contract of insurance, in connection with the statutes to declare who are the beneficiaries of the contract under the designation of " my heirs." By the charter of a mutual benefit society, the persons whom the insured could designate as beneficiaries were limited to his widow, his orphan children and other persons dependent upon him, and the by-laws of the society provided that if the assured made no designation the amount should be 'Wilburn v. Wilburn, 83 Ind. 55; ion would be, in case of the prior Johnson v. Alexander, 125 Ind. 575; death of any one of the class desig- 25 N. East. Rep. 706; see Young nated to take the benefit, the heirs Men's Association v. Pollard, 3 Oh. of the holder would take the share Cir. Ct. Repts. 577; Kaiser v. Kaiser, of the deceased party. Here the 13 Daly 522; Day v. Case, 43 Hun plaintiffs (the widow and four chil- I79_ dren) were the heirs of the holder, 2 Gauch v. Ins. Co., 88 111. 251; and they took the whole benefit, and but in The Covenant Mutual Benefit the judgment in their favor was Association v. Hoffman et al., 110 111. regular, and authorized by law." 603, it was provided by the certifi- See note to § 204; Phillips v. Car- cate that, in the event of the prior penter, 79 Iowa 600; Johnson v. death of the beneficiaries named, Knights, 53 Ark. 255; Walsh v. the benefit should be paid to the Walsh, 20 N. Y. Supp. 933; Bishop v. legal heirs or devisees of the holder Grand Lodge, 112 N. Y. 627; 20 N. of the certificate. The court said: East. Rep. 562. "A correct reading of this provis- CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 371 paid to his widow, or, if he left no widow, to the guardian or trustee of his minor children. The insured at the time of making his designation had a wife and two daughters, and in his application for membership in answer to the question " To whom will you have your death loss paid ? " answered, " To my heirs," and, in reply to a request to state the relationship of any of the persons to whom payable, answered, "Wife or daughters." The wife survived the insured. Upon these facts the supreme court of Massachusetts held that " the meaning is sufficiently plain that he intended that the payment should be to his widow, or, if he left no widow, to his surviving daugh- ters. * * The intention that the mone}^ should be divided between the widow and surviving children is not in accord- ance with the purpose of the association. * * If there was any designation, it was to the widow, or, if there should be no widow, to the surviving daughters. If there was no valid designation, the widow is entitled to the money. It is, there- fore, unnecessary to consider the several objections presented to the sufficiency or validity of the designation. In any aspect of the case, the money is to be paid to the widow." ' In Kentucky Masonic v. Miller's Administrator, 2 the charter of the society provided that the benefit fund should be paid to the widow and children of the deceased member, according as the will of said deceased member should direct, or, if he should leave no widow or child, then to be appropriated according to his will. A. member took out a certificate payable to his "heirs, or as lie may direct in his will." He died intestate leaving a widow and no children, and his widow and not his administrator was held to be enti- tled to the funds. The court said: " The charter prescribes who may become members of the company, and their obliga- tions, and who shall be beneficiaries of the membership after the death of the member, and it is not in the power of the company, or of the member, or of both, to alter the rights of those who, by the charter, are declared to be beneficiaries, ex- cept in the mode and to the extent therein indicated." 1 Addison v. New England Com- 8 13 Bush (Ky.) 489. mercial Traveler's Ass'n. 144 Mass. 591; 12 N. E. East. Rep. 407. 372 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. § 192. The words " heirs " and " next of kin " may be so used, in association with other language, and under such circum- stances, as to show an intention to include others than blood relations. A member of a mutual benefit society had no near relative by blood except a brother, of whom his wife knew nothing, and who was living in Europe. The member was on the most cordial terms with his wife, whom he had married more than twelve years before, and by whom he had one child and af- terward had another. He was a foreigner, and presumably not well acquainted with the English language. He was illiter- ate, for in his application for insurance he designated as his beneficiaries "my leagal heiros." He afterward made a will, giving all his personal estate to his " beloved wife," but left little provision for her when he died, except such as the certifi- cate might afford her. He left no children, father, mother, brother or sister surviving him, except the brother who claimed the fund under the term " my leagal heiros." The court said : " All this is entirely inconsistent with the theory that he used the phrase " legal heirs " in its ordinary accepta- tion; but he intended thereby to designate his wife and chil- dren, if he should leave any; and this is the meaning often attached to the phrase by the unlearned, especially when only personal property is concerned. 1 §193. Orphan, orphans. — The word "orphan" is fre- quently used in the laws providing for the organization of mutual benefit societies, and in the contracts of insurance issued by them. It is not so used in a technical sense, as meaning a minor or an infant who has lost both of his parents. It may be stated that from the various provisions of the char- ter, by-laws and certificates, it will appear that the word " or- phans," as used by societies means children of a deceased mem- ber, whether their mother is living or not, and whether they are over or under the age of majority. The charter of a so- ciety declares one of its objects to be to assist " the widows and orphans of deceased members," and to establish a " widows' and orphans' benefit fund." The constitution provides that from this fund a sum of money shall be paid to a member's family, or to those dependent on him, as he may direct. A certificate 1 Kaiser v. Kaiser, 24 N. Y. Weekly Dig. 410; 13 Daly 522. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 6 id was issued to a member, payable to his wife " for the benefit of herself and the children of said member." It was held that under these provisions the benefit fund was payable equally to his widow, his child by her, and his two children by a pre- vious wife, one of whom was twenty-three years of age — all the children being orphans within the meaning of the charter. 1 But, of course, the word may be so used as to exclude the idea that an adult child is intended to- be embraced within its meaning. Thus, in Ilammerstein v. Parsons, 2 the by- laws of the society provided for the payment of the benefit fund to the widow of a deceased member; " should there be no widow, then the said amount shall be paid to the lodge of which the deceased was a member for the use or benefit of his orphan child or children in equal shares. In case there should be no widow, child or children, or designated person or object, the amount shall be paid to his executor or administrator." The deceased member left no widow, and the fund was claimed by his children who were all adults at the time of his death. .The court said : " We are clear that the plaintiffs are not orphan children within the meaning of that section. The entire context of the section shows that the words, ' orphan children,' relate to a class of persons who are not sui juris, otherwise the interposition of the lodge as a trustee, in case the beneficiaries are orphans, would be wholly meaningless. * * The rules expressly provide that in a certain contin- gency the benefit shall be paid to the executor or adminis- trator of the deceased. This is the contract between the parties, and the question for the determination of the court is, not whether a payment to the adult children of the deceased is more in harmony with the object of the association, but whether the contingency upon which the fund thus became payable exists. If it does exist, then the personal representa- tive named, and not the adult children, is the proper party plaintiff. * * The words, 'child or children,' necessarily relate to the child or children mentioned in the preceding clause, namely, 'orphan child or children.' The section will admit of no other intelligent construction. The last clause does not purport to create any right in any class of children, 1 Jaekman v. Nelson, 147 Mass. * 29 Mo. App. 509. 300; 17 N. East. Rep. 529. 374 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. but merely undertakes to prevent a lapse of forfeiture in cer- tain cases, and it is evident that it was not designed that the fund should lapse if the deceased left adult children, and yet vest in the personal representative if he left no children at all." § 194. Family. — The laws of Michigan provide for the or- ganization of mutual benefit societies to secure to " the family or heirs of any member, upon his death," a certain sum of money. An old man became a member of a society organized under this act, and designated as his beneficiary a young woman who was not related to him, but who had lived with him for many years in the same household, and had been treated by him as if she were his daughter. In deciding that such a designation was within the terms of the above law, the supreme court of Michigan said : " Now this word ' family ' contained in the statute, is an expression of great flexibility. It is applied in many ways. It may mean the husband and wife having no children and living alone together, or it may mean children, or wife and children, or blood relations, or any group constituting a distinct domestic or social body. It is often used to denote a small select corps attached to an army chief, and has even been extended to whole sects, as in the case of the Shakers. We discover nothing in the statute implying a narrow sense, and we should not be inclined to attribute one where the result would cause injustice. It seems to us that the circumstances constitute a case within the meaning of the legislature." ' In Supreme Lodge v. Nairn, 2 it was held that an army comrade and intimate friend of a member of a so- ciety, who had lived at his house for several years, and had become physically disabled and dependent on others for sup- port, did not fall fairly within the designation of the word " family " as used in the statute. 3 1 Carmichael v. The N. W. Mut. him and supported by him, consti- Ben. Ass'n, 51 Mich. 494; see Fol- tute a family. Marsh v. Lazenby, mer's Appeal, 87 Pa. St. 133. 41 Ga. 153. A widowed daugh- 2 60 Mich. 44. ter and her minor children, being 3 See Thompson on Homesteads incapable of supporting themselves and Exemptions, §§ 48, 68, where the and living together with her father, following and many other cases are constitute a family. Blackwell v. cited, which bear more or less upon Broughton, 56 Ga. 390. And so, the question under consideration, in New York, do a widower and An unmarried man, and his indi- a grown-up daughter, living together, gent mother and sisters living with Cox v. Stafford, 14 How. Pr. 519, and, CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 375 A society was organized to assist " the widows, orphans, or other dependents of deceased members," and a by-law pro- vided for the payment of the fund, in certain events, to the family of a deceased member. A member made his mother his beneficiary. She was not living with him, but was living with her husband in another town and county. It was held that she was not one of the members of his family, within the meaning of the by-law, for so broad a construction would make the by-law overreach the scope of purposes of the organization. 1 The constitution of a society provided that " this association shall have for its object the payment to the family of the deceased member " of a certain sum of money, and that said sum " shall be paid to his legal representatives, or to such person or persons as he may have designated or appointed in writing. * * Provided, alvxiys, that when such member shall leave a widow or children, he shall have no power to deprive her or them of the benefits specified in this article, by will or otherwise, but the same shall be paid to her or them absolutely." A member procured an insurance in favor of his niece with whose family he was living, but at the time of his death he had a married daughter living apart and independent of him. In deciding that the niece, and not the daughter, was entitled to the fund, the court said : " The whole instrument is to have such fair and rational construction as to make all its provisions operative and efficient. As was said in 1 Kent's Commentaries, 463, ' the principle undoubtedly is, that the sound interpretation and meaning of a statute, on a view of the enacting clause and proviso taken and construed together, is to prevail. If the principal object of the act can be. accomplished, and stand under the restriction of the pro- viso, 1 lie same is not to be held void for repugnancy.' * * in Wisconsin, do an unmarried son Bailey v. Cummings, U. S. Cir. Ct. wlio supports his dependent mother, East. Dist. Mo. ; see Bouvier's Law and minor and dependent brothers Dictionary, title, "Family;" Strawn and sisters, all living together. Con- v. Strawn, 53 111. 263. naughton v. Sands, B2 Wis. 387; see 'Elsey v. Odd Fellows Mutual. 1 19 alsoGreenw Iv.Maddox, 27 Ark. Mass. 024: 7 N. East. Rep. su ; see fi.'is. An unmarried man supporting Marsh v. Supreme Council, 149 Mass. a widowed sister, with or without 512; 31 N. East. Rep. 1070; Brooklyn dependent children, is the head of a Ass - n v. Hanson, 6 N. Y. Supp. 161; family. Wade v. Jones, 20 Mo. 75; see § 231. 376 CONSTRUCTION OF DESIGNATION OF BENEFICIAKY. Undoubtedly it has been the controlling idea of this association from the outset to provide for the families of members. This is manifest from the declaration of the object of the organi- zation in (certain articles of the constitution). Benefits were to be paid ' to the family ' in the first instance, and ' to the widow, orphans or family ' in the second. * * (The niece) was within the circle of the family of (the member), and under his contract with the association and a rational interpretation of the charter, she has a right to the fund in controversy." l Two brothers, married and living with their wives and chil- dren, are children of the same parents, but not members of the same family in the sense in which the word " family " is used in the charter of a mutual benefit society. 2 The words " family " or " other dependents " of a deceased member, as used in a law setting forth the classes of persons to whom a fund shall be paid, do not include one knowingly occupying the relation of mistress or concubine, though named in the cer- tificate as bearing the relation of wife, and being dependent on the member for support. 3 A divorced wife is not a part of the family of a member. 4 Where a member of a society designates his "family" as his beneficiary, and his family at the time consists of himself and his wife and daughter, the wife and daughter' are the beneficiaries; but where the daughter dies before her father, and the wife is the only member of his family who survives him, she takes the whole fund, and the daughter's children take nothing. 5 § 195. Dependents. — The statutes of many states and the charters and by-laws of many societies provide for the pay- ment of benefits to those dependent upon the member. The courts have not as yet been called on in many cases to con- strue the meaning of the term " dependents," as designating a class of beneficiaries. It was said arguendo in Ballou v. Gile, 6 " We think the true meaning of the word ' dependent,' in this ' Folmer's Appeal, 87 Pa. St. 133; 3 Keener v. Grand Lodge, 38 Mo. see Supreme Council v. Green, 71 App. 543. Md. 263; 17 Atl. Rep. 1048. 4 Schonfield v. Turner, 75 Texas 2 Supreme Council v. Smith, 45 N. 324; 12 S. W. Rep. 626. J. Eq. 466; 17 Atl. Rep. 770; see 5 Brooklyn Masonic Relief Ass'n v. Britton v. Supreme Council, 46 N. J. Hanson, 6 N. Y. Supp. 161; Eq. 102; 18 Atl. Rep. 675. 6 50 Wis. 014. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. Oil connection, means some person or persons dependent for sup- port in some way upon the deceased." It is evident that the facts in each individual case can alone determine whether or not the beneficiary is such a dependent as is meant by the terms of the contract of insurance. Of course, a liberal con- struction should be given to the terms of this contract, and a dependence founded upon a moral duty of one to provide for another should be as clearly recognized as that which arises from a legal duty. 1 But whether a person may appoint as the beneficiary of such a contract of insurance a person not related to him in any manner, but one whom he is supporting merely through the promptings of affection and charity, has never been decided. A sister can not, as a matter of law, be said to be dependent upon her brother, nor can a mother be said to be dependent upon her child, and one may or may not be dependent on his brother. 2 A woman to whom a member of a mutual benefit society is eno , as , ed to be married can not be said, as a matter of law, to be dependent upon such member. She does not come within the class of persons whom, if able, he is bound by law to support. The mere engagement to marry imposes no obliga- tion upon him, except to carry out his contract with her. 8 Where the betrothed was, during the entire period of her en- gagement, working for her own living, earning during part of that time more than her intended husband, and receiving noth- 'Carmichael v. N. W. Mut. Ben. 83 N. East. Rep. 183; reversing 42 III Ass'ii. 51 Mich. 494. App. 455: Supreme Council v. Perry, ^Supreme Council v. Perry, 140 140 Mass. 580; 5 N. E. Rep. 034; Mass. 580; 5 X. East. Rep. 634; El- Palmer v. Welsh, 132 III. Ml: 28 X. ■n v. Odd Fellows' .Mutual, 142 East. Rep. 412; 88 111. App. 188. In Mass. 224; T X. East. Rep. 844; Su- Chrisholm v. National Ins. Co., 52 preme Council v. Smith, 45 N. J. Mo. 213, S. C, 14 Am. Rep. 414, a Eq. 166. A single woman, depend" contract of marriage existed between ent on her brother for her support plaintiff and one Clark, and the and education, has a sufficient inter- company made and delivered to est in bis life to entitle her. to insure plaintiff its policy of insurance it. Lord v. Dall, 12 Mass. 115. The whereby it insured the life of (lark mere relationship of brother is not for five thousand dollars. The pol- Buch as will support a policy of life icy was issued and delivered to plaint- insurance. Lewis v. Ins. Co., 39 iff and made payable to her as the Conn. 104; Bevin v. Ins. Co.. 28 intended wife of Clark, and she paid Conn. 844. the annual premium. After she had 3 Alexander v. Parker, 144 111.355; paid another premium, but before 378 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. ing from him except occasional presents of clothing and money, she is not dependent on him.' But if as a matter of fact, the fiancee of a member is sup- ported partly by her own labor and partly by money given to her by him, she is such a dependent as will entitle her to the fund. 2 The law of Missouri provides for societies for the relief and aid of the families, widows, orphans, or other dependents of the deceased members. The words " other dependents " are inserted to include persons who, not being either members of the family of the deceased, nor his widow or orphans, are yet dependent upon him in some manner. Any other construction would require the court in each case to enter into an investi- gation of the fact how far the widow or orphans, or any other member of the family, was self-supporting; which, in itself, instead of furthering the objects of these associations, would soon encompass their complete destruction. 3 This is in accord with the construction placed upon the statute by the supreme court of Michigan, in Supreme Lodge v. Nairn, 4 where it is said : " The laws of that state (Missouri) expressly forbid cor- porations of this sort from paying benefits to any but the member's family or dependents. * * The intent of the prohibition is clearly to shut out all persons who are not actual relatives, or standing in place of relatives in some permanent the contemplated marriage, Clark ant making it. There is no pretense died. The court, upon these facts, that there was any concealment of said : " The insurance was not a facts at the time of making the con- mere wagering contract and, there- tract. Upon the facts there was no fore, can not be said to contravene hesitation in entering into the agree- any principle of public policy. The ment and obtaining the premium plaintiff had an interest in the life and issuing the policy. Had the de- of Clark; a valid contract of mar- fendant been as wilting* to observe riage was subsisting between them, and fulfill its obligations as it was to Had he lived and violated the con- receive premiums, then this case tract she would have had her action would have never occupied the time for damages. Had he observed and of the courts. Trenton Mutual v. kept the same, then as his wife she Johnson, "4 Zab. 576. would have been entitled to support. ' Alexander v. Parker, supra. In my opinion she had such an in- 2 McCarthy v. Order of Protection, terest as was entirely sufficient to 153 Mass. 314; 26 N. East. Rep. 866. render the contract valid. The de- 3 Grand Lodge v. Eisner, 26 Mo. fense in this case is devoid of merit, App. 108. and is not creditable to the defend- 4 60 Mich. 44. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 379 way, or in some actual dependence on the member." A per- son whose only relation to the deceased member was that of a creditor, is not a person dependent upon him, within the meaning of a statute providing for the organization of societies " for the purpose of assisting the widow, orphans, or other de- pendents of deceased members." ' A law of the corporation required applicants to enter upon their applications " the name or names of the members of their family, or those dependent upon them," to whom they desired the benefit paid. It also provided that members in good standing might surrender their certificates, and have new ones issued, payable " to such beneficiary or beneficiaries, de- pendent upon them, as they may direct." It was held that the right of substitution of beneficiary is not restricted by the latter clause to persons actually dependent upon the member for support, but that any member of the family may be substituted. 2 A woman knowingly occupying the rela- tion of mistress or concubine, and being dependent on the member for support is not a " dependent " contemplated by a law setting forth the classes of persons to whom the benefit fund of the society may be paid. 3 But where the constitution and by-laws of a society establish three classes of beneficiaries, — the family of the member, relations by blood, and those de- pendent on him for support — a named beneficiary, designated as the member's wife, who is dependent on him for support, and who is innocent of any wrong, is entitled to payment on the member's death, though she was not in fact his lawful wife, because he had been guilty of bigamy in marrying her. 4 § 196. Relations, relatives. — The words "relation" and " relative" are very broad and comprehensive terms, and may include any and every relation which arises in social life. Lit- erally, it takes in every kind of connection, and would have so wide a range as to be open to objection as indefinite and vague. To avoid this consequence, recourse is had to the stat- utes of distribution^ and it has been long settled that a bequest 1 Skillings v. Mass. Bon. Ass'n, 146 3 Keener v. Grand Lodge, 88 Mo. Mass. 217; 5 N. Eng. Rep. 718; 15 N. App. 543. East. Rep. 566. ' Supreme Lodge v. Hutchinson. G - Marsh v. Supreme Council, 149 Ind. App. 3'J'J; 33 N. East. Rep. 816. Mass. 512; 21 N. East. Rep. 1U7U. 380 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. to relations applies to the person or persons who would, by virtue of those statutes, take the personal estate under an in- testacy, either by next of kin or by representation of next of kin. 1 The terms are defined by lexicographers as signifying " persons connected by consanguinity or affinity," and rela- tionship is described as "kindred, affinity or other alliance." The most common use of the terms is to express some kind of kindred either of blood or affinity, though properly by blood. 2 The supreme court of Pennsylvania has decided that, in a will, the terms " my nearest relations or connections " do not in- clude the testator's wife. 3 Where only persons related to or dependent on the member could take the fund under the con- tract, and he designated by name as his beneficiary the wife of his grand-nephew, who was not dependent on him, it was held that she was properly included in the phrase " related to the member," though she was not related to him by blood. 4 A son is a relative by affinity of his step-father, after his own mother's death, within the meaning of the charter of a society providing for the payment of benefits to relatives of the mem- bers. 5 A sister is a "relative" who may be a beneficiary. 6 § 197. Legal representatives. — The strict and technical meaning of the words " legal representatives " and " personal representatives " is executors or administrators, and, in a con- tract of insurance, where these words are used to designate its beneficiaries, they must be given that meaning, unless there is something in the context or surrounding circumstances to in- 1 Smith v. Campbell, 19 Ves. 400; this association will be best attained 2 Jarman on Wills, 4th Am. Ed. 45. by the adoption of a common, though 2 Davies v. Baily, 1 Ves. Sr. 84; it may be an inexact interpretation Garrick v. Lord Camden, 14 Ves. of the words " related to " as used in 372; Paine v. Prentiss, 5 Met. 396; the article above referred to, rather Dickinson v. Purvis, 8 S. & R. 71; than by a restricted meaning that Kimball v. Story, 108 Mass. 382; Drew may not have been known, and is v. "Wakefield, 54 Me. 291; Supreme certain to defeat the purpose of this Council v. Bennett, 47 N. J. Eq. 39; deceased member; and that no rule 19 Atl. Rep. 785. of legal construction will be violated 3 Storer v. Wheatley, 1 Pa. St. 506; by giving it such meaning." see Esty v. Clark, 101 Mass. 36; 2 6 Simcoke v. Grand Lodge, 84 Iowa Williams on Executors, 1004; 2 Jar- 383; 51 N. W. Rep. 8; see Spear v. man on Wills, 49. Robinson, 29 Me. 531. 4 Bennett v. Van Riper, 47 N.J. 6 Anthony v. Association, 158 Mass. Eq. 563; 22 Atl. Rep. 1055. The court 322; 33 N. East. Rep. 577. said : "It seems that the objects of CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 381 dicate that they were used in a different sense. 1 A certificate of membership payable to the legal representatives of the insured member, is prima facie the same as if made payable to himself. But where the charter of a society provides that certain persons only may be beneficiaries, as for instance, the widows, orphans and heirs of deceased members, the term " legal representatives " as designating beneficiaries will be construed with reference to the charter, as meaning those who are the legal representatives of the member in contemplation of the charter. 2 A certificate made payable to the wife and children of the member or their representatives was held to be for the benefit of the only child of the last survivor of the children of the in- sured, the wife having died and the other children having died without issue. The court said: " Here (the certificate) is payable to the children or ' their representatives.' This ex- pression shows that the possibility of the death of some or all of the children during the life of the insured was not over- looked, and that such an event was intended to be provided for. And when we consider the nature and design of life in- surance, and the relation of the parties, we think the policy should be construed as if it were payable to such of the chil- dren as should survive the insured, and the surviving issue of such as might die during his life." 3 Where, by an article of the by-laws of a society it is provided that the benefit fund may be disposed of in a certain manner by the member, but, •if not so disposed of, it shall go to the heirs and legal repre- sentatives of such member, by the words " heirs and legal representatives," as applied to personal property, is evidently meant next of kin, as ascertained by the intestate laws. 4 The charter of a society stated : " The general nature of its •They have frequently been j^iven 286; Greenwood v. Holbrook, 111 N. a different meaning. 2 Rinlf. Wills, Y. 465. 401; Warnecke v. Lembea, 71 111. 91; ' 2 Relief Association v. McAuley, 2 Farnam v. Farnam, 58 Conn. 202; 2 Mackey (D. C.) 70; see § 176. Atl. Rep. 325; 5 Atl. Rep. 682; Davies 3 Robinson v. Duvall, 79 Ky. 83; v. Davies, 55 Conn. 319; 11 Atl. see Benefit Association v. Hoffman, Rep. 500; Cox v. Curwen, 118 Mass. 110 111. 603; see §§ 186, 188. 196; Halsey v. Patterson, 37 N. J. 4 Bishop v. Grand Lodge, 112 N. Y. Eq. 445; Coster v. Butler, 63 How. 627; 20 N. East. Rep. 562; 3 Hodges' Pr. 311; Lee v. Dill, 39 Barb. 516, Appeal, 8 Weekly Notes of Cases 521; Drake v. Pell, 3 Edw. Ch. 266, (Pennsylvania) 209; Elsey v. Odd Feb 382 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. business, and its general purpose, is the insuring the lives of the members upon the plan of paying to the representatives of every deceased member a certain sum, to be assessed upon and received from the other members of said association." There was nothing in the entire contract of insurance, limiting the beneficiaries to any particular classes of persons, and the word " representatives" was construed as meaning and including any person whom the member might designate, or, if he should fail to designate any one, the person to whom the by-laws should direct the fund to be paid. 1 Where a certificate provides for the payment of the benefit fund to the " heirs or representatives " of the member, the money will be paid to the heirs or next of kin, if it appear from the context that the object of the member was to make pro- vision for his family, and not that the money should go to his executors or administrators to be administered as ordinary assets of his estate. The intention must control in the con- struction of the meaning of such words, and that intention is to be gathered by a view of the context and circumstances, and the purposes to be attained. The general object of the society, as declared in its charter or constitution, may throw light upon their proper meaning. It was held, in one case, that since " where it is meant that the money resulting from the policy shall descend and be used as common assets, the invariable language is ' to pay to the assured, his executors, administrators or assigns,' the changing of the language and usino- terms of different expression clearly import that the money was intended for the benefit of his heirs, or next of kin, and that it was not to be administered on as assets by the exec- utor or administrator." The only child and sole heir of the assured was given the money, under a designation of " heirs or representatives," and it was held that the word " representa- tives " used in the policy in conjunction with the word "heirs" could not divest her title or divert the money to an- other source. 2 In Wason v. Colburn, 3 a different conclusion was announced. An endowment policy was payable " to the lows' Mutual, 142 Mass. 224; 7 N. 2 Loos v. Ins. Co., 41 Mo. 538. East. Rep. 844; see § 189. 3 99 Mass. 342. 1 Walter v. Benefit Society, 42 Minn. 204; 44 N. W. Rep. 57. CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 3S3 said assured, or in case of prior decease, to his heirs or rep- resentatives." The court held that the policy was primarily intended to be for the benefit of the assured himself, being an endowment policy for the period of ten years. In case of his decease within that period, it was made, by its terms, payable " to his heirs or representatives." Upon his death, intestate, within the ten years, his administrator, who was his per- sonal representative, became entitled, by well settled princi- ples of law, to collect the amount due, and hold it as part of the estate of the intestate. The court referred to Loos v. Ins. Co., supra, and afterward said : " The term ' representatives ' legally indicates administrators, and we can not construe it as excluding them." Words are not always used in the same sense, and, in cases of doubtful phraseology in written instruments, it is the prov- ince of courts to ascertain the sense in which they were used. For this purpose they may not only examine the context, as in the cases just reviewed, but they may also consider the cir- cumstances and conditions surrounding either of the parties to the contract at the time it was executed. Thus, where the aged and heavily indebted father of a family dependent on him for support, had taken a certificate of insurance, payable to his "legal representatives," the court held that the fund was pay- able to his widow and children, stating that it would be pre- sumed under the circumstances that he intended by that term to describe them, rather than his executors or administrators. 1 Where a member procures a contract of insurance to be made pa\ T able " to his heirs, executors, administrators or assigns," and there is nothing in the contract showing a con- Tiaiv intent, the fund is payable upon his death to his admin- istrator or executor for the payment of his debts and for dis- tribution under the law. 2 § 198. The assured. — The promise of a company was to pay a certain sum to the "assured, his executors, administra- tors or assigns * * for the express benefit of C. M. R — . w i I'e of the said assured, and their children." In discussing the 1 Griswold v. Sawyer, 125 N. Y. 41 1 ; 5 Rawson v. Jones. 52 Ga. 458: Bur- 26 N. East. Rep. 464; Andrews and roughs v. State Mutual, 97 Mass. 859; Gray, JJ.. dissenting; reversing 8 N. Brown v. Mansur, 64 N. H. 31); 5 Atl. Y. Supp. 517. R-p. 768; 2 N. Eng. Rep. 857. 381 CONSTRUCTION OF DESIGNATION OF BENEFICIARY. meaning of these words, the court said : " It is argued, the word ' assured,' as used in the policy, is to be understood, the parties for whose benefit the policy was taken. Such con- struction can not be maintained without doing violence to the words employed. The sum insured is for the benefit of C. M. R— , wife of the ' assured ' and their children. Plainly, the word ' assured ' as there used, and elsewhere in the policy, means the husband, with whom the contract was made, and no reasoning, however subtle, can make it even appear to mean anything else." ' In another case the court said : " The policy recites that the consideration was paid by the plaintiff, and the promise therein is to pay the assured. The term 'assured' can mean none other than the party paying the con- sideration and asking for the insurance for his benefit." a In Hogle v. Ins. Co., 3 the insurance money was payable to " the assured, his executors, administrators or assigns," and the court held that the word " assured " meant, not the person whose life was insured, but the person for whose benefit the insurance was made, and so held, though the policy speaks of the "assured," his executors, etc. 4 § 199. " Guardian " of member. — A subdivision of an application was as follows: " Name and relationship of per- son to whom benefit is to be paid" (after which was written the name of the beneficiary.) Relation (after which was writ- ten the word "guardian." In commenting upon this desig- nation, the city court of New York said : " The term ' guard- ian' after the word 'relation' in the application has no significance in this case. The applicant was twenty-four years of age, and in sound health at the time of making the 1 Mass. Mutual v. Robinson, 98 111. whose life is insured, and the term 324; " heirs of the insured," see the ' assured ' to the person or persona Whitehead v. Ins. Co., 33 Hun 425. for whose benefit the insurance is ef- * Smith v. Ins. Co., 5 Lans. 545. fected. Where a person insures his 3 6 Robertson 567; 4 Abb. N. S. 346. own life, without naming any other 4 See Connecticut Mutual v. Luchs, person to receive the money, he 108 U. S. 498; 2 Sup. Ct. Rep. 949; would, if such nomenclature were Brockway v. Ins. Co., 29 Fed. Rep. adopted, be at once the insured and the 766. In Bliss on Life Insurance at assured. Such a distinction in the use section 5, it is said: " There has re- of language would be a matter of cently been some attempt to give great convenience. * * but it can more precision to the nomenclature hardly be said to be fully estab- of life insurance, by applying the lished." term, the ' insured ' to the person CONSTRUCTION OF DESIGNATION OF BENEFICIARY. 385 application. It was known to all that the plaintiff could not have been the guardian of the applicant in the legal, but rathsr in the popular sense of that term, which means ' one who guards, preserves or secures.' (Webster's Diet.) The plaint- iff kept a boarding house, and the applicant boarded with her, and in this limited sense ' she guarded, preserved and secured ' him. The term as used in the application means this, or nothing. The loss was payable to the plaintiff, and the action was properly brought in her individual name." l 1 Carraher v. Insurance Co., UN. Y. St. Reporter 665. 25 CHAPTER XIII. CONCERNING BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. § 200. Estate of the member as a beneficiary. 201. When the member becomes a beneficiary by inheritance. 202. Death of beneficiary during life of member. 203. Death of one of two named beneficiaries; survivorship. 201, 205. Interest of beneficiary vests on death of member. 206. Death in common disaster; survivorship; presumption. 207. Death of member and beneficiary at same instant. 208. Agreement between member and beneficiary as to disposition of fund. 209. When beneficiaries take equally. 210. In what proportions heirs take the fund. § 200. Estate of the member as a beneficiary. — When a contract of insurance is made payable to the estate of the member, the fund will, generally speaking, go to his adminis- trator or executor upon his death as general assets of the estate, for the payment of debts and for distribution according to the rules established by the statutes of distribution of the domicile of the intestate, or according to the terms of his will. 1 But in Clinton v. The Hope Insurance Company, 2 the designation of the beneficiary was "the estate of Daniel Ross." The court, in giving the rule to determine the effect of these terms, said: "If the name of the person for whose benefit the insur- ance is obtained does not appear upon the face of the policy, or if the designations used are applicable to several persons, or if the description of the assured is imperfect or ambiguous so that it can not be understood without explanation, extrinsic evidence may be resorted to to ascertain the meaning of the contract; and when thus ascertained it will be held to apply to the interests intended to be covered by it, and they will be deemed to be comprehended within it, who were in the minds of the parties when the contract was made." 3 1 Daniel's Ex'r v. Pratt, 143 Mass. 2 45 N. Y. 461. 216; 10 N. East. Rep. 166; Basye v. s May on Insurance, §§ 91, 445. Adams, 81 Ky. 368. (386) BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. 3S7 In this case the subject of the insurance was a cotton mill, and parol evidence was admitted to show who was intended by the designation " the estate of Daniel Ross," and that the insurance was taken out for the benefit of his widow and heirs. The admission of this evidence was placed upon the ground that the words used in the policy were intended to designate the persons holding the legal title, and that to speak of the prop- erty left by a deceased person, including the real property, especially before final settlement of his affairs, as his estate, if not an accurate, is not an unusual designation. A policy of life insurance was issued " for the benefit of the estate of the insured." Under a statute of Florida, 1 it was held that wherever the contract does not describe a person or persons, class or classes, in such terms as to show affirmatively that the beneficiaries are not the children, husband or wife of the as- sured, it inures to her or their benefit. Speaking of the term " for the benefit of the estate of the insured," the court said : " This language must be given such meaning as conforms to the intention of the parties, and this intention must be determined by the acts of the parties and surrounding circumstances. * * There is nothing in this bill to show the existence of a creditor of Pace at the date of the contract. It does appear that he had an only child, the plaintiff, then not five years of age. The term estate here in its strict legal signification em- braces neither the administrator, the heir nor the creditor of the assured. It means the effects, personal and real, left by the decedent, when given a signification with reference to a period subsequent to his death, and that is the date when the benefit was to accrue. Such literal legal signification would be absurd. The word benefit in a policy of insurance must be interpreted with reference to persons, not things. An insur- ance may be for the benefit of the person owning the house, 'Section 22, page 534, McClellan's clared in the policy; and the proceeds Digest: " Whenever any person shall thereof shall in no case lie liable to die in this state, leaving insurance on attachment, garnishment or anj legal his or her life, the said Insurance shall process by anj creditor or creditors inure exclusively to the benefit of of the person whose life was so in- his or her child, or children, husband snivel, unless said policy declares thai or wife, in equal portions, or to any said insurance was effected for the other person or persons, for whose benefit of such creditor or creditors. " US3 and hciielit said insurance is de- 338 BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. not for the house. To benefit stocks and stores was not the intention of the parties. Without entering into any elaborate discussion of the subject we will simply state that the cases having a bearing upon the subject, 1 show that these and similar terms, under the circumstances of this case, are so interpreted as to benefit the surviving members of the family rather than for the benefit of the creditor or administrator, and that in this instance the beneficiary intended was the infant child. In the interpretation of contracts of this character the courts go a great way in this direction. This, we think, would have been the construction of this policy, independent of the policy of the statute, which, as a matter of course, should have some effect in controlling our action in this matter." 2 Where the constitution of an unincorporated voluntary so- ciety provides in effect for the creation of a trust fund, from which upon the death of a member a payment of $10,000 is directed to be made to such person or objects as he may have designated in writing, or if no such written disposition has been made by him, then to certain specified persons, such fund forms no part of the estate of the deceased member, and his personal representatives can not maintain an action to recover it. 3 Where a certificate of insurance on the life of a wife is made payable to her children, and she dies before any children are born, her executor may not maintain an action at law for the amount of the insurance. The fact that she had power to change the beneficiary during her life, but did not exercise it, does not make the contract a part of her estate: 4 The proceeds of a policy of life insurance for the benefit of the wife of assured, and in case of her death before him, " for his own order," become, on the death of assured after his wife's death, assets of his estate, to be administered for the benefit of his creditors and distributees. 5 § 201. When the member becomes a beneficiary by inher- 'Loos v. Ins. Co., 41 Mo. 538; see 798. But the society might be liable § 258; Clinton v. Ins. Co., 45 N. Y. 454; for the assessments paid, with inter- Globe Ins. Co. v. Boyle, 21 Oh. St. est, since no liability ever attached 119. on the contact. * Pace v. Pace, 19 Fla. 438. 6 Boyden v. Ins. Co., 153 Mass. 544; 3 Swift v. San Francisco Board, 67 27 N. East. Rep. 669; see Bancroft v. Cal. 567. Russell, 157 Mass. 47; 31 N. East. Rep. 4 McElwee v. Ins. Co., 47 Fed. Rep. 710. BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. 3S9 itance. — A benefit certificate is often made payable to the wife and children of the member. As any one or all of such designated beneficiaries may die before the member, it becomes important to determine whether the member himself becomes a beneficiarv by inheritance from any beneficiary so dying. Generally speaking, it may be said that he does not. Under the general plan of mutual benefit insurance, the beneficiary has no vested right in the benefit fund, and the persons who may be beneficiaries are limited so as to exclude the member and his estate from taking the fund. 1 But these features of this general plan are changed in some societies; and if the ben- eficiary so dying had a vested right in the fund, and if the estate of the member may under the contract take the fund, then the case does not differ from ordinary life insurance, and. according to the weight of authority, the member becomes a beneficiarv under the contract, where he is the heir of the de- ceased beneficiary. A mutual benefit society issued to A. a certificate of membership which entitled " his wife, her heirs or assigns, upon the death of said A. to $3,000." The wife died intestate during A.'s lifetime leaving children, and after- ward A. died without having in any manner changed the des- ignation of his beneficiarv. It was held that as A. survived his wife, he or his estate was entitled to a share as her heir. The supreme court of Pennsylvania says : " The fact that this association has some features to distinguish it from a life insurance company does not establish any error in this judg- ment. The husband inherited from his wife." s It is held in some courts that a certificate of membership, as between the member and the society, is strictly and only a contract for the payment of money upon the happening of a contingencv. un- certain only as to the time when it will occur, and is subject to the general rules which govern in the interpretation of con- tracts. But when considered with respect to the rio-hts of 1 See § 202. prior to his. Hutson v. Menifield. 51 • Mutual Aid Society v. Miller, 107 Ind. 24: Harl.-y v. Heist, 86 bid. 196; Pa. St 162; see Anderson's Appeal, Glanz v. Gloeckler, mill. App. 4^4: 85 Pa. St. 202: De' 1280- was in favor of the survivorship of 1282; 2 Kent, Coinm., 572. 398 BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. § 207. Death of member and beneficiary at the same instant of time-. — Where the by-laws provide that the fund shall be paid to the heirs of the member in case the beneficiary named in the certificate shall die before the member, the death of the member and the beneficiary at the same instant of time renders the latter as incapable of taking the fund as if he had died first, and the member's heirs are entitled to it. 1 § 208. Agreement between member and beneficiary as to the disposition to be made of the fund. — Parol evidence is admissible to show that the beneficiary designated in a cer- tificate, in consideration of such designation, promised the member that, after deducting from the benefit fund whatever sum of money might be due him from the member at the lat- ter's death, he would pay the remainder to the heirs of the member. Such oral testimony is not in conflict with the writ- ten contract of insurance. It does not vary or control the contract between the deceased and the society, but shows another and an independent contract between him and the beneficiary. It is not offered to show that the beneficiary is not to receive the money, but to show what he is to do with it after he has received it.' 2 Money left to a beneficiary to pay the debts of the insured is impressed with a trust which equity will enforce. It is always a question, however, to be decided by an inspection of the contract of insurance, whether the member may, during life, so far control the fund by the crea- tion of a trust or otherwise ; as to make it applicable to the payment of his debts after his death. Where he has merely the right to provide a fund to be disposed of by the general terms of the contract, or by the naked power of appointment, among certain classes of beneficiaries, such as the families, heirs or dependents of deceased members, and he has no prop- erty rights in such fund, he can not deal with it as property, and impress it with a trust for the payment of debts, as the impress of a trust upon the disposition of property necessarily presupposes an ownership of the property. Where a person procures his appointment as beneficiary by promising to dis- 1 Paden v. Briscoe, 81 Texas 563; matter of Morian, 22 N. Y. St. Rep. 17 S. W. Rep. 42. 631; Boasburg v. Cronan, 7 N. Y. 2 Catland v. Hoyt, 78 Me. 355; 5 Supp. 5. Atl. Rep. 775; 2 N. Eng. Rep. 876; In BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. 309 tribute the fund among the creditors of the member after the death of the latter, and such a disposition of the fund is con- trary to the terms of the contract, equity will lay hold of the fund and distribute it among those empowered and entitled to take it. 1 § 209. When beneficiaries take equally. — Where a bene- fit is granted to several persons, and their respective propor- tions are not specified, the beneficiaries take equally. 2 Where a certificate of membership provides that the benefit shall at the death of the insured be paid to his Avife and children, such benefit is payable to his wife and children equally. In such a case the wife is neither the inferior nor the superior of her joint beneficiaries, but is their equal, and the beneficiaries take by virtue of the contract, not by descent. 3 Where a certifi- cate of membership is made payable to the wife and children of the member, each child is entitled to receive his proportionate share of the benefit, although one of such children may never have lived with his father as a part of his father's family, and may also have received a portion of his father's estate prior to his father's death. The court, in thus deciding, said : k> It must be supposed that this grand lodge understood the lan- guage which it used in the contract, and that it intended to make just the kind of contract which it did in fact make, and that it intended to bind itself to perform just what it agreed to perform, and did not intend to be bound by any secret arrangements, or settlements, or understandings previously en- tered into, or at any time existing between any of the mem- bers of the family. We think this grand lodge is simply bound to pay in accordance with the terms of its contract; and its contract says that it shall pay the fund to the wife and children of (the member insured), which according to all well-settled rules of construction means the wife and children 1 Boasburg v. Cronan, 9 N. Y.Supp. Gould v. Emerson, 99 Mass. 154; Jack" 664. i n an v. Nelson. 1 i; Mass. 800; 1? X. ■ Wilburn v. Wilburn et al., 83 East. Rep. 529; Conn. Mutual v. Ind. 5."); Crockett v. Crockett. 2 Phil- Baldwin, 15 R. I. 100: Seyton v. Sat- Lips, 553; AJlen v. Hoyt, 5 Met. 824; terthwaite, 34 L. R. Ch. D. nil; see §§ 185, 204, 210. Grand Lo.l^e v. Sater, it Mo. App. 3 Felix v. Grand Lodge, A. O. U. 445; contra, Young Men's Associa- W. 81 Kan. 81; Wilburn v. Wilburn, tion v. Pollard, 3 Oh. Cir. Ct, Repts. 83 Ind. 55: Hamilton v. Pitcher, 5:5 577. Mo. 334; Cragin v. < ragin, (id Me. 517; 400 BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. equally." J In Hallan v. Gardner's Adm'r, 2 the superior court held that, when the charter of a society appoints the widow and children of the member as his beneficiaries, but does not specify in what proportions they shall take the fund under a certificate issued by it, they take equally. But the court of appeals of Kentucky held otherwise in a case involving this point. Thus, the charter of a society provides that " the fund created for the benefit of the widow and children of a deceased member shall be paid to them," but does not declare in what proportion each shall take. In McLin v. Calvert, 3 it was held that the statutory rule as to distribution of the sur- plus of personalty of an intestate's estate should obtain in the distribution of a benefit fund derived from this society. The court said : " It is most natural and reasonable, as well as just, that when the policy and charter fail to make a complete pro- vision for the distribution of the fund, the courts should adopt the statutory rule for the distribution of the surplus personalty of estates, and divide it as they would do if the money was the proceeds of a note or bond held by the decedent. * * This seems to us to be not only just, but what a large part, if not all, of those who insure for the benefit of their families, would understand to be the effect of the contract made with the insurance company; and in laying down this rule, we entertain little doubt that we are doing just what the insured would have directed to be done if the question had been pro- pounded to him." 4 Where a member has made the children of his brothers and sisters the beneficiaries of his certificate, they will take per capita and not per stirpes. 6 .Where the fund is directed to be divided equally between the member's wife and children, the wife does not take one-half, and the children the other, but she takes the same share in the fund as each of the children, and no more." 1 Felix v. Grand Lodge, A. O. U. B Malone v. Majors, 27 Tenn. (8 W. 31 Kan. 81; 1 Pac. Rep. 281; see Hump.) 577. §§ 185, 186. 6 In re Mary E. Morgan et al., 3 2 5 Ky. Law Rep 857. Demarest (N. Y.) 61; Lord v. Moore, 3 78 Ky. 472; Kelley v. Ball (Ky.), 20 Conn. 122; Myres v. Myres, 23 19 S. W. Rep. 581. How. Pr. 410; Bunner v. Storm, 1 4 See Continental Life v. Palmer, Sand. Ch. 35; Collins v. Hoxie, 9 Paige 42 Conn. 60; see also Young Men's 81; Lee v. Lee, 39 Barb. 172; Murphy Mutual v. Pollard, 3 Ohio Circuit 577. v. Harvey, 4 Edw. 131. BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. 401 § 210. In what proportion heirs take the fund. — When gifts by will to heirs-at-law are made to them simpliciter, the persons to take, and the proportion which they shall take, must be determined by the statute of descent and distribution. The will in such a case not only designates who are to take, but also the quantum of the estate taken. 1 For the purpose of ascertaining the persons who are the beneficiaries under a designation of "my heirs," it is necessary to consult the stat- utes of the state which cast the descent of the property of an intestate. But from this it does not follow that the statute determines the proportion of the fund which each heir shall take. When a member has made his certificate payable to his heirs, they do not take the fund by descent, but by contract. The statutes of descent and distribution cease to be of use, therefore, at the very moment when the heirs-at-law of the intestate have been found according to their provisions. Thev point out the persons whom the contract declares shall be the beneficiaries, but they do not determine the rights of such persons under the contract. 2 The rights of the benefi- ciaries in a certificate taken out by a member are such as the contract confers, and are not rights arising by opera- tion of statutory rules. The contract, and not the statute, fixes their rights, and they have such rights onlv as the contract of insurance vests in them. We are, therefore, to look to the terms of the agreement, and not to the pro- visions of the statute, to ascertain the rights of the parties. 3 Where a member of a society makes his certificate payable to his legal heirs, and dies, leaving a widow and children, the widow, where she is the heir of her husband and entitled to a larger part of his estate than any one of his children, is not the superior, or the inferior of her joint beneficiaries, but their equal'. This is in harmony with the general principle that when a benefit is granted to several, and their respective pro- portions are not specified, the beneficiaries take equally.'' 1 Rawson v. Rawson, 52 111. 62; Young Men's Association v. Pollard, Richards v. Miller, 62 111. 417; Bas- 3 Oh. Circuit Ct. Repte. r>77. kin's Appeal, 3 Pa. St. 304. * Wilhurn v. Wilbum et al., 83 2 See § 209. Ind. 55; Crocket v. Crocket, 2 Phillips 8 Silvers v. Association, 94 Mich. 558; Allen v. Hoyt, 5 Met. 834; Cragin 39; 53 N. W. Rep. 985; Wilhurn v. v. Cragin, 66 Me. 517; Jackman v. Wilburn et al., 83 Ind. 55; contra, Nelson, 147 Mass. 300. 26 402 BENEFICIARIES IN MUTUAL BENEFIT INSURANCE. In Gosling v. Caldwell, 1 the contrary doctrine was held to be the law. A member of a society died leaving a widow, three children and two grandchildren, the children of a son who died before him. His certificate was payable to his legal heirs. The court held that the widow, the three children and the two grandchildren were entitled to the fund, and that " the chancellor's decree, giving one-fifth of the fund to the grandchildren, must be affirmed." Nothing further is said in the opinion as to the quantum which each beneficiary shall take under such a designation, than the language above quoted. 2 In another case, the syllabus prepared by the court states that where the heirs of a member are made beneficiaries the money is payable in the proportions indicated by the statutes of dis- tribution of the surplus personal property of his estate, but no question as to the proportion which each of the heirs should take, was raised, by anything shown in the opinion. 3 1 69 Tenn. (1 Lea) 454. estate of the insured, to his legal 2 A statute of Tennessee provides representatives, or to himself, is not that where a husband takes out a stated in the opinion, but the case policy of insurance on his life, it seems to have been decided without shall on his death accrue to the ben- reference to this statute, both upon efit of his widow and heirs, to be this point and the further point divided between them according to that those who take the personalty of the law of distribution, free from the an intestate, and not those who in- claims of creditors. Whether that herit his realty, are the beneficiaries statute has any application to this under a designation of his "legal case, where the policy is payable to heirs," in a certificate of insurance, the "legal heirs "of the insured or 3 Leavitt v. Dunn (N. J. Err. & whether it is applicable only to cases App.), 2S Atl. Eep. 590. where the policy is payable to the CHAPTER XIV. CHANGE OF BENEFICIARY. § 211. Rights of beneficiary in ordinary contract of insurance. 212, 213. Beneficiary has no vested rights in contract of mutual benefit insurance. 214. Where no manner of changing beneficiaries lias been agreed upon. 215. Provisions of the charter concerning changes of beneficiaries. 216. A change may not be made when the charter forbids it. 217. Where terms of by-laws or certificate prohibit a change. 218. 219. When mode of changing is prescribed, it must be substan- tially followed. 220. Authorities holding prescribed modes of changing beneficiaries to be mandatory and exclusive. 221. Authorities holding such provisions to be directory merely. 222. Change of beneficiary ; general observations. 223. When the change is perfected. § 211. Vested rights of the beneficiary in an ordinary policy of insurance. — There is an irreconcilable conflict of the authorities upon the question of the rights and interest of the designated beneficiary in an ordinary policy of life insur- ance, and as to the extent to which the insured may control or change the ultimate destination of the proceeds of such a contract. The weight of authority is in favor of the doctrine that an ordinary life insurance policy is not the property of the assured, in any sense, but that such a contract, when once executed, vests in the beneficiary an absolute and indefeasible title to, and the whole beneficial interest in the policy and the money to become due under it. If a person insures his life for the benefit of another who is named as the beneficiary in the contract of insurance, the title of the beneficiary to the proceeds which may accrue from it is vested immediately upon the issuing of the policy, and there is no power in the person procuring the insurance to defeat that title by .assign- ing or surrendering it. Although there is no obligation upon him, in the absence of a covenant to that effect, to continue to (403) CHANGE OF BENEFICIARY. premiums on such a policy, yet if he does so, the benefit all accrue to the beneficiary. He brings the contract into existence, but it is held to be a contract between the company on the one part and his beneficiary on the other, to which he is, in some respects, a stranger. 1 "Where the facts in the particular case constitute a valid executed gift of the policy, the title is vested in the bene- ficiary as irrevocably as the title to any other personal property would have been under the same circumstances. When the policy has been delivered to the beneficiary, or to some one for him, 12 when payment of some of the premiums has been made by the beneficiary, 3 or when the beneficiary has taken out the insurance in the first instance for his own benefit, it is just and reasonable to hold that his rights are vested, indefeas- ible and irrevocable. But in some cases the broad doctrine is laid clown that the rights of the beneficiary are indefeasible, even though the person whose life is insured pays the premium and keeps possession of the policy. 4 In many courts, how- ever, this doctrine has found no favor, and decisions holding that the beneficiary has only an inchoate interest in the pol- icy, and that the ultimate enjoyment of its proceeds is depend- ent on the will and acts of the person procuring the insurance on his own life, are sustained by forcible arguments.* 1 2 Phillips Ins. p. 626, at sections 111. 573; 44 Am. Repts. 94; 10 111. App. 2058, 2059, 2060; Bliss on Life Insur- 484; N. A. L. Ins. Co. v. Wilson, 111 ance, at section 318; Chapin v. Fel- Mass. 542; Weston v. Richardson, 47 lows, 36 Conn. 132; Lemon v. Ins. L. T. R. (N. S.) 514; Com. Mutual v. Co., 38 Conn. 294, Rawls v. Ins. Co., Baldwin, 15 R. I. 106; Pace v. Pace, 27 N. Y. 282; Stillwell v. Ins. Co., 72 19 Fla. 438. N. Y. 385-391; Washington Life v. 2 Lemon v. Ins Co., supra; Criten- Haney, 10 Kan. 525; Pence v. Make- den v. Ins. Co., supra. peace, 65 Ind. 345; Wilburn v. Wil- 3 Pilcher v. Ins. Co., supra. burn, 83 Ind. 55; Hutson v. Merri- 4 Ricker v. Ins. Co., supra; Wes- field, 51 Ind. 24; Ricker v. Ins. Co., ton v. Richardson, supra; Glanz v. 27 Minn. 195; 6 N. W. Rep. 771; 38 Gloeckler, supra; Stilwell v. Ins. Co. , Am. Repts. 289; Allis v. Ware, 28 supra; Fowler v. Butterly, 78 N. Y. Minn. 166; 9 N. W. Rep. 666; Pil- 68; Weisert v. Muehl, 81 Ky. 336; cher v. Ins. Co., 33 La. Ann. 332; National Ins. Co. v. Haley, 78 Me. Crittenden v. Ins. Co., 41 Mich. 442 ; 268; Putnam v. Ins. Co!, 42 La. Ann. Brockhaus v. Kemna, 7 Fed. Rep. 739; 7 So. Rep. 602; Garner v. Ins. 609; Valley Mutual v. Burke, 12 Ins. Co., 110 N. Y. 266; Central Bank v. L. J. 337; 7 Vir. L. J. 173; Wilmaser Hume, 128 U. S. 195. v. Ins. Co., 66 Iowa 417; 23 N, W. 5 Charter Oak v. Brant, 47 Mo. 419; Rep. 903; Glanz v. Gloeckler, 104 Ganib v. Ins. Co., 50 Mo. 44; Clark CHANGE OF BENEFICIARY. 405 § 212. The beneficiary has no vested rights in a contract of mutual benefit insurance.— So far as outward appearances may indicate, there is little difference between an ordinary policy of life insurance and a contract of mutual benefit insur- ance. But it has been held Avith substantial unanimity, when- ever the question has arisen, that, in mutual benefit societies, the contract of insurance is between the society and the mem- ber, that the beneficiary acquires no vested right in the benefit fund which is to accrue upon the death of the member, until the death takes place, and that, during his life, therefore, the member may change his beneficiary without other limitations or restrictions than such as are imposed by the organic law, the articles of incorporation, the by-laws, or the certificates of the society. An analytical statement of the grounds upon which this rule rests seems never to have been made, and it is v. Durand, 12 "Wis. 248: Kerman v. Howard, 23 Wis. 108; Foster v. Gile, 50 Wis. 603; Landrum v. Knowles, 22 N. J. Eq. 594; Bickerton v. Jaques, 28 Hun 119; 12 Abb. New ( !ases, 25; Union Mutual v. Stevens, 19 Fed. Rep. 671; In Garner v. Gerrna- nia Life Ins. Company, 13 Daly 255, 17 Abb. New Cases 7, 32 Albany Law Journal 91, the common pleas court of New York says: " There may be many reasons why the right to trans- fer such an insurance from one bene- ficiary to another, even in the case of children, should exist. In the course of years this pecuniary condition may be materially improved by mar- riage, success in business or other causes, so that it may he more desir- able and just that others who have claims upon the insurer and who are in greater need should have the bene- fit of the sum secured by the insur- ance instead of those for whom it was originally intended. When, therefore, the insurer keeps the pol- icy entirely in his own |x>ssession, he alone paying the premiums, he should with the consent of the insurance Company have the same right to re- voke, alter or change it that he would have in respect to a will; for, like the provisions in a will, it is a gift that is to take effect upon his death. He may of course put an end to it by ceasing to pay the annual premium: but there is no reason why his right should be limited to this, and that where for reasons satisfactory to him, he desires to transfer the benefit to another, he should have to lose all the premiums he may have paid over a long course of years, and be compelled to pay for a new policy the increased premium consequent upon his increase of years." A careful analysis of all the cases cited in the notes to the above section will show that much of the apparent conflict of authority arises more from the different facts in each case than from any essential difference in prin- ciple. In some of the cases it is held that the particular circumstances clearly show the creation of an irre- vocable trust in favor of the benefi- ciaries, hut in others the rule is broadly laid down, irrespective of particular facts, that the whole bene- ficial interest vests in the beneficiary at the moment the policy is issued. 406 CHANGE OF BENEFICIARY. somewhat difficult to see why the insured should have any greater power to change his beneficiary under one system of insurance than under the other. It has been suggested that in the nature of a mutual benefit society there may be an in- herent power to change the beneficiary. By this it is probably meant that the plan of insurance and object of such a society may require that the power to change his beneficiary from time to time shall be reserved to each member. It is the the- ory of this plan that it is " the poor man's insurance," — that, while the benefit fund which the society will pay is compara- tively small, it is given for what it costs,— that there are no profits and no unnecessary expenses, — that the benefit fund shall be paid to the family, dependents or other beneficiaries of the member in such manner and to such extent as he may desire it to be paid, not only Avhen he takes out the certificate but at any time afterward when changes shall have taken place in his family, in his condition, or in his relations in life; and it is designed that changes in the designation of those whom he shall desire to be the objects of his provision,' may be made by the act of the member at any time, without other expense or formality than such as may be prescribed by the contract of insurance. It can not properly be said, however, that the power to change the beneficiary is inherent in such a society or that it is absolutely necessary for the carrying on of mutual benefit insurance. The law providing for the incorporation of such societies may prohibit a change in the beneficiary first agreed upon and designated, 1 or the articles of incorporation, by-laws, or certificate of membership may prohibit such a change. In both systems of insurance the rights and liabilities of the parties are fixed by the contract, and as a change of the bene- ficiary may be prohibited in contracts of mutual benefit insur- ance, so a power of disposition, or of appointment of a new beneficiary, may be reserved by the insured in an ordinary contract of life insurance. 8 In the contracts of mutual benefit 'See§§ 136, 172, 173; Presbyterian 2 Greeno v. Greeno, 23 Hun 482; Fund v." Allen, 106 Ind. 595; 7 N. Hutchings v. Miner, 46 N. Y. 456; East. Rep. 317; Kentucky Ins. Co. Hopkins v. Hopkins, 92 Ky. 324; 17 v. Miller, 13 Bush 489; Van Bibber v. S. W. Rep. 864. Van Bibber, 82 Ky. 347. CHANGE OF BENEFICIARY. 407 insurance which were first brought to the attention of the courts the power to change the beneficiary was expressly given to the member, and, as the insured was a member of the societ}?" issuing the contract, paid the consideration for it, and had by its terms dominion over it, it was but natural to hold that the contract was between the society on the one part and the member on the other. The prevalent dissatisfaction with the rule of ordinary life insurance, which vests in the bene- ficiary the interest in the proceeds of the contract, and the manifest hardship and injustice which this rule gives rise to in many cases, made the courts eager to construe the contract of mutual benefit insurance in this way; and it may now be laid down as the well settled doctrine of the law that, where the contract of mutual benefit insurance does not take away the power to change the beneficiary, the member has that right, and all that a beneficiary has during the lifetime of the member, owing to this right of revocation and change, is a mere expectancy, dependent upon the will and act of th< insured. 1 This expectancy is not property. 2 § 213. While policies of life insurance in ordinar}^ compa- nies are construed to be contracts between the company and the beneficiary, certificates of membership and policies of in- surance in mutual benefit societies are held to be contracts 1 This subject is discussed with Union Mutual v. Montgomery, 70 much force in Conyne v. Jones, 51 Mich. 587; 38 N. W. Rep. 588; Catho- 111. App. 18; Masonic Mutual v. Burk- lie Association v. Priest, 46 Mich. hart, 110 Ind. 189; 10 N. East. Rep. 429; 9 N. W. Rep. 481; Maryland 79; Splawn v. Chew, 60 Texas 532; Society v. Clendenin, 44 Md. 429: 22 Aid Society v. Lewis, 9 Mo. App. Am. Rep. 52; Sabin v. Grand Lodge, 412; Ballou v. Gile, 50- Wis. 614; 7 134 N. Y. 423; 31 N. East. Rep. L087; N. W. Rep. 561; Dietrich v. Madison 8 N. Y. Supp. 185; Schmidt v. Asso- Relief, 45 Wis. 84; Richmond v. ciation, 82 Iowa 304; 47 N. W. Rep. Johnson, 28 Minn. 447; 10 N. W. 1032; Masonic Association v. Bunch, Rep. 596; Eastman v. Provident 109 Mo. 560; 19 S. W. Rep. 25; Ben- Mutual, 20 Cent. L. J. 866; Gentry v. ton v. Brotherh 1. 146 11). 570. Supreme Lodge, 20 Cent. L. J. 393; 2 Masonic Mutual v. Burkhart, m- 83 Fed. Rep. 718; Presbyterian Fimd pro; Durian v. Verein, 7 Daly 168; v. Allen, 106 Ind. 583; 7 N. East. Tennessee Lodge v. Ladd, 5 Lea 716; Rep. 317: Hellenberg v. Independent Swift v. Association. 96 111. 309; Order, 94 N. Y. 580; Duvall v. Good- Knights v. Watson. 64 X. II. 517; 15 son, 79 Ky. 224; Johnson v. Van Atl. Rep. 125; 6 N. Eng. Rep. 888; Epps, 110 111. 551-558: Lamont v. Brown v. Grand Lodge, 80 Iowa 287; Grand Lodge, 31 Fed. Rep. 177; 45 N. W. Rep. 884. 4:08 CHANGE OF BENEFICIARY. between the society and the member whose life is insured. In Masonic Mutual Benefit Society v. Burkhart, 1 the court said : "The right to change the contract by mutual agreement of the parties is not derived from the charter and by-laws, but may be either directly or impliedly limited thereby. Unless the power to change is thus limited, the beneficiary named in a certificate of membership has no vested interest in the fund prior to the death of the member." Referring to the act of March 2, 1877, Rev. St. Ind. 1881, Sec. 3820, the court, in this case said : " That act declares that certificates of member- ship in charitable associations shall be regarded as contracts between the members and the association. Such certificates were contracts between the members and society before, precisely as they were after, the act. The statute was merely declaratory of what the law was in that respect from the be- ginning. Prior to the statute it was competent, however, for a charitable association, in its constitution and by-laws, to limit or prohibit the right to make changes in the names of beneficiaries after they had once been designated as such. Since the statute went into effect and became incorporated into the constitutions of such societies, no limitation or re- striction repugnant to its terms can be imposed upon the so- ciety and its members by any regulation of the association." In Holland, Guardian, v. Taylor et al., 3 it is said : " If then, the Royal Arcanum were to be treated as an ordinary life in- surance company, and the certificate as an ordinary life policy, it would be clear that * the assured had no authority, by will or otherwise, to change the beneficiary, or to, in any way, affect her rights without her consent. For many, and indeed, for most purposes, mutual benefit associations are insurance com- panies, and the certificates issued by them are policies of life insurance, governed by the rules of law applicable to such policies. There are, however, some essential differences usually existing between the contracts evidenced by such cer- tificates and the ordinary contract of life insurance. The most usual difference is the power on the part of the assured in mutual benefit associations to change the beneficiary. But, as in either case, the rights of the beneficiary are dependent 1 110 Ind. 189; 10 N. East. Rep. 79; 2 111 Ind. 121; 12 N. East. Rep. 116; 11 N. East. Rep. 449. 9 West. Rep. 60G. CHANGE OF BENEFICIAKY. 409 upon and fi^ed by the contract between the assured and the company or association, there seems to be no reason why the assured should have any greater power to change the benefi- ciary in one case than in the other, except as that power may be inherent in the nature of the association, or is reserved to him by the constitution, or by the by-laws of the association, or by the terms of the certificate." In The Presbyterian Mutual v. Allen, 1 it is said : " The weight of authority * * is in favor of the general doctrine that beneficiaries may be changed in cases where policies, like the one before us, are issued by such associations as the present, and that, in this respect, such policies are not governed by the general rule, which governs ordinary insurance contract." a A member of a mutual benefit society who has designated a person to receive the benefit to accrue upon his decease, may afterward designate another person. The one first designated can not claim as under a contract. 3 In societies where the cer- tificates are not contracts with the beneficiaries, the laws, rules and regulations in regard to beneficiaries may be changed during the continuance of the certificates, so as to limit and abridge their interests; and such limitations are not subject to objection as impairing vested rights, or the obligation of con- tracts. 4 Where the constitution of a mutual benefit society provides that its by-laws may be amended at any time, a bene- ficiary in a certificate of membership, having no vested rights in such certificate and not being a party to the contract, can not complain that a by-law in existence at the time the certifi- cate was issued, providing that the member may surrender the 1 10fi Ind. 593. in it. It is also held in this case, that ; In Block et al. v. Valley Mutual a member of such a society has no Insurance Company. 52 Ark. 201. 12 right to change his beneficiary— no 8. W. Rep. 477. it is held that, in the power of appointment or aubstitu- absonce of a statute making a dis- tion — unless it is reserved in the oer- tinction between a mutual insurance tificate. by-laws or charter, of the company and a mutual benefit soci- society. See also Johnson v. Hall, ety, the rights of a beneficiary must 55 Ark. 210; 17 S. W. Rep. B74. be ascertained by the terms of the 3 Deady v. Association, 49 N. Y. contract of insurance. re^ ar< i]ess of Super. Ct. 246. thecharacter of the society: and that, 4 Durian v. Central Verein, 7 Daly where a contract of mutual benefit 168; Southern Association v. Lau- insurance does not otherwise provide, denbach, 5 N. Y. Sup. p. 901. the beneficiary has a vested interest 410 CHANGE OF BENEFICIARY - . certificate and receive a new one, with the consent of the beneficiary, was amended, so as to omit the consent of the benefician r ; nor can the beneficiary recover on the original certificate after it has been surrendered and a new one issued. 1 A certificate stated that it was a contract with the member alone, and not with the beneficiary, and that, during his'mem- bership, he might substitute another- beneficiary by complying with the laws of the order on that subject. The member sur- rendered this certificate, and took out a new one, payable to other beneficiaries. The by-laws of the society, when the first certificate issued, provided for a change upon a surrender of the certificate, " with the consent of the beneficiary indorsed thereon; " but, before the second issued, the by-laws were amended by omitting the provision requiring such consent. It was claimed that, as the by-law existing when the certificate issued prohibited any change without the consent of the bene- ficiary, she took an interest in the certificate like an interest in an ordinary life policy, which could only be extinguished with her consent. The court said : " The contract was solely between her husband and the society. It reserved the right to change the beneficiary, if done in accordance with the by- laws of the order. The certificate bore notice of this upon its face. There was no agreement by the society, nor any prom- ise by the husband, that the laws should not be altered. In the nature of things they were liable to be altered. * * The laws of the order referred to therein evidently mean the laws existing when the change is made; not those existing when the original certificate issued." 2 Where a provision of the charter or a by-law of the society constitutes part of the con- tract of insurance, its alteration without the consent of the member insured does not affect his contract. 9 § 214:. When no manner or mode of changing the des- ignation of the beneficiary has been agreed upon in the 1 Byrne v. Casey, 70 Texas 247; 8 supra; Supreme Council v. Franke, S. W. Rep. 38; Supreme Council v. 137 111. 118; 27 N. East. Rep. 86; see Morrison, 16 R. 1. 468; 17 Atl. Rep. §§ 136. 137. 57; Supreme Council v. Franke, 137 3 Morrison v. Odd Fellows, etc., 59 111. 118; 27 N. East. Rep. 86; Isgrigg Wis. 162; Gundlach v. Association, v. Schooley, 125 Ind. 94; 25 N. East. 49 How. Pr. 190; Hysir.ger v. Su- Rep. 151; Catholic Knights v. Kuhn, preme Lodge, 42 Mo. App. 627; see 91 Tenn. 214; 18 S. W. Rep. 385. §§ 136, 137. 2 Supreme Council v. Morrison, CHANGE OF BENEFICIARY. 411 contract. — During his lifetime the member may change the designation of his beneficiary, or exercise the power of ap- pointment of a new beneficiary, without other limitations or restrictions than such as are imposed by the organic law, the charter, the by-laws, or the certificate. 1 Where, therefore, no provision is made in the contract of insurance for changing the designation of the beneficiary, the change may be effected in any manner which may be agreed upon by the member and the society. It is not necessary, however, in such a case that the society shall be consulted. It has the right to provide reasonable rules and regulations on the subject, but if it does not do so, the member may make such a change as he desires, in any manner he may choose to adopt, provided he does not, in other respects, violate the contract of insurance, or the law of the land. Where a certificate was made payable to the mem- ber himself, and no provision was made in the contract for changing the beneficiary, an indorsement on the certificate, showing that he desired the benefit fund when collected to be distributed among certain beneficiaries^ was held to be a suffi- cient change in the direction for payment of the fund. 2 Where no mode of changing the beneficiary is specified in the con- tract, though the practice is to require a surrender of the old certificate, and to issue a new one payable to the new benefici- ary, a paper signed by the member, expressing his surrender of the certificate, directing payment to new beneficiaries, and mailed to the officers of the association just before his death, is a valid change of beneficiary, and will protect the associa- tion in making payment accordingly. 1 If there is no provision of the charter, by-laws, or certificate of membership, governing the manner and mode in which such change shall be made, a designation of a new beneficiary may be made by the last will and testament of the member. When a power is reserved, and no mode of executing it is pro- vided, it may be executed by will. 4 When no such provision 'See §§166, 173, 212. 262; Masonic Association v. Bunch, 2 Masonic Mutual v. Burkhart, 110 109 Mo. 560; 19 S. W. Rep. 25. Ind. 1*9; 10 X. East. Rep. 79; 11 N. B Hirschl v. Clink. 81 fowa ~>00; 47 East. Rep. 44; St. Clair Co. Ben. Soc. N. W. Rep. 78; see Nally v. Nally, 74 v. Eietsam.97 111.474: Milm-r v. Bow- C;i. 669; see § 228. man. 119 Intl. 448; 21 N. East Rep. *See ?' 288 el aeq.; Kaiser v. Kai- 1094; see Eppinger v. Russell, 20 Fla. ser, 13 Daly 622; 24 N. Y. Weekly 412 CHANGE OF BENEFICIARY. is made, any mode of making the change or any form of words which may be selected to effect it, will be sufficient, if the intention of the member is clearly made known or set forth. Where a contract of insurance provides that the mem- ber may change his beneficiary at pleasure, but does not specify how such change shall be made, it merely expresses in direct language the construction which the courts would give to it unless restrictions were placed upon the right, and the member has control and dominion over the certificate, subject only to the provisions of the charter, concerning the classes who may become beneficiaries, and to the law of the land. He may, therefore, designate a new beneficiary by assignment of his certificate; ' and such an assignment may be made by delivery without writing, if it sufficiently appears that the intention of the member by the delivery was to make the assignee his new beneficiary. 2 The charter, by-laws, or certif- icates of membership usually provide, in a definite manner, how the changes of beneficiaries shall be made, but there is no presumption that the right of the member to make such changes has in any wise been abridged. When, therefore, a change of beneficiaries is shown to have been made by the member, it will be presumed, in the absence of evidence to the contrary, that no manner or mode of making a change is specified in the contract, and that the change was properly made. The burden is on the first beneficiary to show that the new designation is invalid. 3 On the other hand, there is no presumption that the member has exercised his right to change the beneficiary or appoint a new one, and the person named in the contract need not allege or prove that no other direction as to the payment of the fund had been made by him. 4 Dig. 410; Supreme Council v. Priest, 3 Hicks v. Perry, 140 Mass. 580; 5 46 Mich. 429; Hannigan v. Ingraham, N. East. Rep. 634; Presbyterian, etc., 8 N. Y. Supp. 232. Fund v. Allen, 106 Ind. 593; 7 N. 1 Schmidt v. Association, 82 Iowa East. Rep. 317; Masonic Mutual v. 304; 47 N. W. Rep. 1032; Martin v. Burkhart, 110 Ind. 189; 10 N. East. Stubbings, 126 111. 387; 18 N. East. Rep. 79; 11 N. East. Rep. 449; 7 Rep. 657; Milner v. Bowman, 119 West. Rep. 527. Ind. 448; 21 N. East. Rep. 1094; 4 Laudenschlager v. Association, SO § 165. Minn. 131. " a Marcus v. Ins. Co., 68 N. Y. 625; Brown v. Mansur, 64 N. H. 39; 5 Atl. Rep. 768; see § 167. CHANGE OF BENEFICIARY. 413 § 215. Provisions of the charter concerning changes of beneficiaries. — Where the charter of a society specifies the manner and mode of designating or changing the beneficiary, and the extent to which such changes may be made, these pro- visions must be strictly complied with, on the familiar ground that a corporation is the creature of its charter, and it is not within the power of the corporation or its members, or both, to waive a strict compliance with all such provisions. 1 Where its charter sets forth one condition on which a mem- ber may change the beneficiary of his insurance, the society may not, by the provisions of its by-laws or certificates, add other conditions to be performed before the right may be exer- cised. A charter gave the member a right, with the consent of the society, to make a change in his beneficiary. The by-laws provided that any member desiring to change his beneficiary should execute a certificate before a notary public or other proper officer, stating his name in full, number of his certificate, name and place of residence of the beneficiary whom he desired to sub- stitute, name or names of those whom he desired to supersede, etc. A member executed a certificate which complied with all the specified requirements of the by-laws, except that it did not give the names of the beneficiaries to be superseded. It was claimed that this defect rendered the attempted change of no effect, but the court held that the material question was whether a change of beneficiaries had been made by the mem- ber with the consent of the society, and if it had, it was imma- terial whether or not the requirements of the by-laws had been complied with. 8 A by-law of an incorporated society, prescribing how the members shall direct the payment of the benefit fund, is not inconsistent with a provision of the charter that such fund shall be paid "as the member may direct." provided the rule prescribed by the society is reasonable for that purpose. 3 § 216. A change of beneficiaries may not be made when the charter forbids it. — It is a well established principle that 1 Head v. Ins. Co., 2 Cranch 127: 49 Hun 336; 17 N. Y. Stat.' Reporter, 1 Phillips' Insurance, pg. 3; Leonard 525; 2 X. Y. Supp. 7'.». v. Ins. Co., 97 Lad. 299; Bayse v. 'Coleman v. Enights of Honor, 18 Adams, 81 Ky. 368; see § 158. Mo. Apr., 189; see § 165. • Mayer v. Equitable Association, 414 CHANGE OF BENEFICIARY. the provisions of its charter govern both the society and the member, and where its organic law, or its charter founded upon that law, prohibits a change in the beneficiary first agreed upon and designated, the member can not effect such a change. This prohibition is as effective when it is implied from the terms of the charter, as when it is contained in its express language. Thus, the charter of a society provides : " Upon the decease of any member of this association, the fund to which his family is entitled shall be paid as may be desig- nated in the application for membership; this being changed by death, or otherwise impossible, it shall go : 1st. To the widow and infant children. 2d. To his mother and sister," etc. A member in his application directed that the fund should be paid to his two sons, and subsequently, with the consent of the society, but without the consent of the original beneficiaries, he designated his wife as the beneficiary. The court upon these facts said : " We can see no way to avoid the conclusion that this charter provision requires the benefit to be paid to the person named in the application, or to those specified, in case of the death of those persons or of some oc- currence making it impossible to pay to them. Not only does the charter in direct terms declare that the benefit shall be paid to the persons thus named, but it also declares that if it becomes impossible to pay it to them, it shall go in the man- ner specified in the charter. The effect of these provisions is that the beneficiaries named must receive the money due on the policy, or it must be disposed of as provided by the charter creating the association. The provision respecting the mode of disposing of the benefit, deprives the insured and the insurer of any right to change the contract, as it leaves only two pos- sible classes of beneficiaries, those named in the application and those specified in the charter, as entitled to take, in case the designation in the application is ' changed by death ' or becomes ' otherwise impossible.' " 1 Where the charter of a mutual benefit society provides that the fund due upon the death of a member shall be paid to his widow and children, and only gives the member the power to direct by will in what proportion it shall be divided between them, there can be no 1 Presbyterian Fund v. Allen, 106 Ind. 593; 7 N. E. Rep. 317. CHANGE OF BENEFICIARY. 415 assignment of a certificate or change in the beneficiary, which will divest the widow and children of their rights. 1 § 217. Where the provisions of the by-laws or certificate prohibit the change. — The member assents to the terms of insurance as set forth in the by-laws and in the certificate issued to him. "Where, by such terms, the beneficiaries who shall take the fund, and the order in which they shall take it, are specified, the member has no power of direction. In Mc- Clure v. Johnson,'' the benefit fund was, by the provisions of a by-law of the society, made payable to the " wife, husband, children, mother, sister, father or brother of such deceased member, and in the order above named," and there was no provision of the contract of insurance, authorizing any other disposition of the fund. A member left a will by which he directed that the fund should be paid to a creditor, but the court held that he had no right to change the beneficiary, and that, under this by-law, his widow was entitled to it. § 218. When the mode of changing the beneficiary is specified in the contract, it must be substantially followed. — When a mutual benefit society has, under the powers and within the limits of its charter, provided in its by-laws a par- ticular method of changing a beneficiary, or has set forth in its certificate a way by which the change may be made, no change of beneficiary may be made in any other mode or manner. The reason for this rule is not difficult to discover. It is based upon the familiar maxim that the expression of one thing excludes other and different things. When a so- ciety frames a set of rules providing for the distribution of a fund, and for the rights of beneficiaries and members, it must be assumed that it excludes . every other mode and manner. Any other conclusion would lead to the most interminable confusion in the law applicable to the dis- tribution of the insurance money, and fritter away, in the expenses of uncertain litigation, funds created for the ben- efit of widows, orphans and heirs. But there is still another reason. It can not be said that a beneficiary named in a cert i (i- cate has no rights therein because he has no vested rights. The beneficiary has a right to the proceeds of the certificate 'Ky. Grangers' Mut. Ben. Soc. v. s 56 Iowa 620. Howe. 9 Ky. Law Rep. (Supr. Ct.) 198; see SS 158, 165. 416 CHANGE OF BENEFICIARY. of insurance, subject to the right of the member to change the beneficiary according to the terms of the by-laws and regula- tions of the societ} 7 , which are a part of the contract of insur- ance ; and the right of the beneficiary to have this contract carried out in the manner provided for is as binding upon the member as his right to change the beneficiary is binding upon the beneficiary and the society. 1 The power reserved to the member to change the beneficiary qualifies the right of the beneficiary in the contract. It makes the interest of the bene- ficiary a mere expectancy while the power to revoke the ap- pointment continues; but this expectancy becomes an absolute right upon the death of the member, unless he has in the man- ner prescribed defeated it by the affirmative act "of changing the beneficiary. It can not truly be said that the interests of a beneficiary may be brought to an end at any time at the will of a member. It requires more than the will and the intention of the mem- ber to accomplish the change as may be seen in the following case : A contract of insurance required that any member desiring to make a direction as to payment of the benefit fund, different from that stated in the certificate, might do so in a prescribed form, to be attested by the recorder of the lodge, and reported to the grand lodge, upon the surrender of the old certilicate. A member, believing himself to be dying, and desiring to change the designation from his sister to his wife, told a friend that he wished this change to be made, and asked him to have the forms gone through with. Before any- thing was actually done he died, and the benefit fund was declared to be the property of his sister. 2 It requires some affirmative act on the part of the member to change the desig- nation; his will and intention will not work the change. All tendency to confusion and uncertainty is avoided by requiring this change to be made in conformity with the terms of the contract. 'Mellows v. Mellows, 61 N. H. 137; Men's Mutual v. Brown, 33 Fed. Rep. Coleman v. Supreme Lodge, 18 Mo. 11; Supreme Council v. Smith, 45 App. 189; Holland, Guardian, v.Tay- N. J. Eq. 466. lor, 111 Ind. 121; 12 N. East. Rep. 2 Ireland v. Ireland, 25 N. Y. 116; Wendt v. Iowa Legion, 72 Iowa Weekly Dig. 335; 42 Hun 212; see 682: 34 N. W. Rep. 470; Stephenson Mellows v. Mellows, supra; Hall v. v. Stephenson, 64 Iowa 5U4; Hotel Merrill, 47 Minn. 260. CHANGE OF BENEFICIARY. -1] 7 As has been said, the power to appoint new beneficiaries is reserved to the member of a mutual benefit society, unless it is taken away by the express provision of the contract of insur- ance. 1 Where no mode of executing this power is provided, it may be executed in any manner which the member may choose to adopt. 2 But where the mode of executing the power is set forth in the contract, it is made a matter of substance, and, by every analogy to the law of general or special powers, it should be complied with. The authorities on this point are conflicting, but this seems to be the better rule. 3 This rule should not be applied with too much particularity and exactness in matters of detail but should be substantially followed. Thus, by the terms of a contract, the fund was pay- able to certain persons in the order named, " unless otherwise ordered in writing by the deceased member, such order to be signed by two witnesses." By his will the member gave to his mother certain property, " including whatsoever sum may be due me or my executor from the Odd Fellows' Mutual' Relief Association of the county of Strafford, as a member thereof." It was claimed bv his mother that the will, though inoperative as a bequest of a fund which was not the property of the testator, was an order for the payment of the fund to her, within the meaning of the contract. As it was signed by two witnesses, referred to the fund as the subject-matter of his power of appointment, though by an erroneous description. and declared that his mother should be the payee of a fund, of which the society was the proper payor, it was held by the court that it was a sufficient order, though not addressed formally to the society, and that the fund was payable to the mother.* 1 § 212. 1, 91 X. Y. 583; Olmstead v. Masonic -'14. Mutual. 37 Kan. 93: 1 1 Pac. Rep. 449; Holland v. Taylor. Ill Ind. 121; Maryland Mutual v. Clendenin, 44 12 K East Rep. 116; Wendtv. Grand Md. 433; Arthur v. Association. 29 Lodge, 72 Iowa 682; 84 N. W. Rep. Oh. St. 557; Sanger v. Rothschild, 123 470: Supreme Council v. Smith. 45N. N. Y. 577; 28 N. East Rep. 8; .Jinks v. J. Eq. 466; 17 Atl. Rep. 770; Renk v. Banner Lodge. 139 Pa. St. 414; 21 Atl. Herman Lodge, 2 Demarest (X. Y.) Rep. 4; Hall v. Association, 47 Minn. 409; Supreme Lodge v. Nairn, 60 85; 49 N. W. Rep. 524; Hotel Mens Mich.44; 26N. W. Rep. 826; Stephen- Mutual v. Brown, 88 Fed. Rep. 11; son v. Stephenson, 64 Iowa 584; 21 Rollins v. McHatton, 16 Colo. 203. N. W. Rep. 19; Volman's Appeal, 92 4 Dennett v. Kirk, 59 N. II. 10; but Pa. St. 50; Hellenberg v. District No, see Mellows v. Mellows, 61 N. II. 187. 27 418 CHANGE OF BENEFICIARY. § 219. It seems clear, however, that this rule should be held to apply only to those cases in which the original con- tract is in existence, and Avhere an attempt was made by the member to change the beneficiary of that contract. Where the original contract has been surrendered by the member and abandoned by both parties to it, the member and the society, it is difficult to see what rights remain to the beneficiary un- der it. The member and the society have a right to change the terms of the contract by passing new by-laws, or otherwise, without the consent of the beneficiary, 1 and it is certainly com- petent for them to agree to abandon the contract and substi- tute a new one on substantially the same terms. They are the contracting parties, and the beneficiary has no vested interest until the moment of the death of the member during the con- tinuance of the contract. Where the contract in which he had an expectant interest has been abandoned, and a new one has been taken out in its stead, payable to another, he has no legal ground of complaint. There is no longer a contract in which he is even contingently interested. In most of the cases where the original certificate had been surrendered, and a new one issued, payable to another person, the court considered the question raised by the first beneficiary, whether the change of beneficiaries had been made substantially according to the terms provided in the original contract. It would seem, how- ever, that the first beneficiary, having had no vested interest in the original contract, had no legal right to urge that ques. tion, and it would also seem in those cases that the real ques- tion for the court to decide was whether there had been an abandonment of the original contract, and not whether there had been an abandonment of one contract and the substitu- tion of another in the manner provided in the contract for the change of beneficiaries. The member and the society are the parties to a contract of mutual benefit insurance, and they may during the life of the member agree upon a change of If the contract had merely said, considered a valid order, but the will "unless otherwise ordered in writ- was undoubtedly an order " in writ- ing by the member," there might ing by the deceased member," for it have been some question as to took effect immediately upon his whether a will, taking effect only at decease, the death of the member, could be ' See § 136. CHANGE OF BENEFICIARY. 419 beneficiaries in any manner which, is satisfactory to both par- ties. When they have agreed upon a new beneficiary, a new contract is in force and, to the extent of the modification made, the old contract is abandoned and superseded.' When a society has accepted the surrender of a certificate from the member and issued a new one payable to a new bene- ficiary, or when a society has actually changed the beneficiary at the request of the member, all questions as to whether the manner and mode of changing beneficiaries provided in the contract have been followed are concluded and absolutely dis- posed of. 2 But where the society and the member did not, during the life of the member, agree upon a change of bene- ficiaries, where the original contract is in existence, and a right under it has accrued to some one, the original beneficiary will be heard to insist that he is entitled to the proceeds of it because the power of appointment of another person in his stead was not made by the member, one of the parties to it, according to its provisions. To this extent and no further does the rule ap- ply that when the mode of changing the beneficiary is specified in the contract, it must be substantially followed. 3 1 See §§ 222a, 223. But this decision is against the fun- 4 Titsworth v. Titsworth, 40 Kan. damental principle of mutual ben. lit 571; 20Pac. Rep. 213; Barton v. As- insurance, that the contract is be- sociation, 63 N. H. 535; Gladding v. tween the member and the society, Gladding, 3 N. Y. Supp. 880; Lamont a nd that the beneficiary has no vested v. Association, 30 Fed. Rep. 817; Sim- interest in the contract during the coke v. Grand Lodge, 84 Iowa 383; life of the member. This case, though 51 N. W. Rep. 8; Bowman v. Moore,87 an early one, hasneverbeeii followed. Cal. 306; 25 Pac. Rep. 409. In most s In Supreme Conclave v. Capella, of these cases it was held that there 41 Fed. Rep. 1, where it was held had been a substantial compliance that the original beneficiary may not with the terms of the contract rela- avail himself of his own misconduct tive to changing beneficiaries, but to allege that the insured did hot the logic of Ifrecasessustainsthedoc- comply with the requirements of the trine as laid down in the text. In contract, the court treated at some Coleman v. Supreme Lodge. 18 Mo. length the subject of changing the App. 189, it was held that the bene- beneficiary. It was there said that ficiary named in the old certificate the general rule that the member is was not deprived of her rights, and bound to make such change in the that the society was not made liable manner pointed oul in the contract, by the issue of a new certificate in is subject to three exceptions: First, place of the old n \ when the change If the society has waived a strict of beneficiaries had not been made compliance with its own rules, and. according to the prescribed manner, in pursuance of a request of the mem- 420 CHANGE OF BENEFICIARY. § 220. Authorities holding provisions of the contract, directing the mode of changing beneficiaries, to he manda- tory and exclusive.' — If the contract of a society points out the mode in which a change in the designation of the bene- ficiary is to be made, and that mode is not followed, an at- ber to have a change made, has issued a new certificate, the original beneficiary will not be heard to com- plain that the course prescribed by the contract was not pursued: citing Martin v. Stubbings, 126 111. 387: 18 N. East. Rep. 657; Splawn v. Chew, 60 Texas 532; Manning v. A. O. U. W., 86 Ky. 136; 5 S. W. Rep. 385; Na- tional Mutual v. Lupoid, 101 Pa. St. Ill; Brown v. Mansur, 64 N. H. 39; 5 Atl. Rep. 768; Knights of Honor v. Watson, 64 N. H. 517; 15 Atl. Rep. 125; Byrne v. Casey, 70 Tex. 247: 8 S. W. Rep. 38; Titsworth v Tits- worth, 40 Kan. 571; 20 Pac. Rep. 213. Second. If it be beyond the power of the member to comply literally with the contract, a court of equity will treat the change as having been legally made; citing Grand Lodge v. Child, 70 Mich. 163; 38 N. W. Rep. 1. Third. If the insured has pursued the course pointed out by the con- tract, and has done all in his power to make the change, but before the new certificate is actually issued, he dies, a court of equity will treat such certificate as having been issued, cit- ing National Association v. Kirgin, 28 Mo. App. 80; Mayer v. Association, 2 N. Y. Supp. 79; Supreme Lodge v. Nairn, 60 Mich. 44; 26 N. W. Rep. 826; Kepler v. Supreme Lodge, 45 Hun 274. Of the authorities cited to sustain the first exception, Martin v. Stubbings, National Mutual v. Lupoid and Brown v. Mansur, relate to the assignment of certificates, which is entirely different from appointing a new beneficiary; see g§ 166, 167, 169, 173, and they are treated of in their proper place. In Byrne v. Casey the right to make the change, not the manner in which it was made, was in question. In Knights of Honor v. Watson, the con- troversy was as to whether the new beneficiary was a proper one under the charter. Titsworth v. Titsworth sustains the exception. With respect to the other exceptions, it may be said, with all due deference to the learned judge who wrote the opinion, that the second is too broadly stated, and that they are not, properly speak- ing, exceptions to the general rule laid down, but are rather classes of cases in which, upon a proper show- ing, a court of equity will afford relief against the performance of im- possibilities, when the party seeking relief has done all that he can do in carrying out of the contract, or will consider that done which ought to have been done and which the mov- ing party tried in eveiy way required of him to cause to be done. No relief could be afforded in a common law action in either of the cases, and hence, they are rather matters of equity jurisdiction than exceptions to the rule; see § 223. 1 In the following cases the oi'iginal certificate was outstanding at the date of the death of the member and was not modified by the consent of the society, and the question was whether the change of beneficiaries was made by the member in such a way as to cut off the rights of the beneficiary named in the original contract. CHANGE OF BENEFICIARY. 421 tempt by a member to make such a change, and to dispose of the benefit fund by his last will is wholly ineffectual. 1 An association organized under the laws of Kansas for the purpose of giving aid to the widows, orphans and dependents of deceased members issued a certificate of membership pay- able to the member's wife, or her legal representatives. The wife died in the lifetime of the member. In the by-laws and certificate of membership no provision was made for a change of beneficiary, but section 76, chapter 93, Laws of V \nsas, 1871, provides that "in case any life insurance company organized under the laws of this state shall have issued, or may hereafter issue, any policy of insurance upon the life of any person or persons for another's benefit, and such beneficiary dies during the lifetime of the person or persons whose life or lives are assured by said insurance policy or policies, then it shall be lawful for such company to receive from the person or persons whose lives are assured an affidavit setting forth the facts in the case; and if it shall appear, from such affidavit that the affiants have theretofore paid the annual premium on such policy or policies, and intended thereby to insure for the bene- fit of the person or persons named in such policy or policies as beneficiary, that such person or persons are dead, and that said policy or policies have not been assigned or transferred to any person or persons, and nominating or appointing some other person or persons as beneficiary in place of the said de- ceased in said policy or policies named, it shall then be the duty of said insurance company to take up and cancel said policies at the request of said assured, and issue in like terms another policy or policies upon the life or lives of said insured for the benefit of the beneficiary in said affidavit nominated." The member after the death of his wife made no affidavit as prescribed in said section, nor did he take any steps to appoint any person as beneficiary in place of his deceased wife, except that he undertook to dispose of the benefit arising from his membership by will. The supreme court of Kansas held that 1 Renk v. Herman Lodge, 2 Dema- "Tollman's Appeal, 02 Pa. St. 50; rest (N. Y.) 409; Hellenberg v. I. O. B. Stephenson v. Stephenson, &l Iowa, ]•...!)! X. V. r.stc McCarthy v. Su- 534; 21N. W. Hep- l&i Mellows v. pivme Lodge, 153 Mass. 314; 26 N. Mellows, 01 N. H. 137; Olmstead v. Kast. Rep. 86G; Holland v. Taylor, Society, 37 Kan. 93; contra, Splawn 111 In.l. 121; 12 N. East. Rep. 116; v. Chew, 60 Texas 532; see g 220. 422 CHANGE OF BENEFICIARY. the will was ineffectual to dispose of the money payable on account of his death, or to divert the same from the legal rep- resentatives of his deceased wife, and, in deciding the question, said : " This statute applies to the defendant society. It was enacted prior to the making of the contract in question, and the parties must be held to have contracted with reference to it. It prescribes the manner by which the member may desig- nate a beneficiary where the one first appointed has deceased; and it appears to be the only mode prescribed. We think the maxim, expressib uniits est exclusio alferius, applies; and, as the prescribed mode has not been followed, no change was actualty made, and therefore the benefit must be paid according to the terms of the contract. The assured has no interest in the benefit resulting from his membership. In no event was it payable to him, nor could it become a part of his estate; and, having no interest in the fund, what was there for him to be- queath ? " l The by-laws of a society provided that a member who de- sired to change the beneficiary named by him might surrender his certificate duly indorsed, and procure a new certificate to be issued, payable to the new beneficiary. A member just before his death gave the following direction : " To Herman Lodge, etc., officers and members : Please take notice that I do hereby revoke the direction given in my benefit certificate in reference, as to whom the money should after my death be paid, and I do hereby order and direct that the money be di- vided as directed by me in my last will and testament, exe- cuted by me, on the 17th of October, 1882." This direction was signed by the member. The court held that it and his last will were inoperative and ineffectual, that the change could only be made by a compliance with the terms of the by-laws." A contract provided that the fund should goto cer- tain persons in the order named, " unless otherwise ordered in writing by the deceased member, such order to be signed by two witnesses and acknowledged before a justice of the peace." The member left a will by which he attempted to dispose of 1 Olmstead v. Society, 37 Kan. 93; 2 Renk v. Herman Lodge, 2 Dem- ref erred to and commented on in arest (N. Y.) 409. Titsworth v. Titsworth, 40 Kan. 571; 20 Pac. Rep. 213. CHANGE OF BKNEFICIAKY. 423 the fund. It was signed by two witnesses, but was not ac- knowledged before a justice of the peace, and it was held to be inoperative. 1 A certificate was payable to the wife, or to the children of the member, or if he left neither wife nor children, to such person " as he may have formally designated to his said lodge prior to his decease." He left neither wife nor children. By his last will he designated his brother as the beneficiary of the insurance, but the court held that this was not such a designa- tion as was contemplated by the contract and that the fund lapsed to the society. 2 § 220a. A member held a certificate payable to his daugh- ter. After his second marriage he inserted immediately after her name the words " and my wife." The by-laws of the society provided : "A member in good standing may at any time, surrender his relief-fund certificate, and a new certificate shall thereafter be issued, payable to such per- son or persons as the member may direct." The beneficiary could only be changed by surrendering the certificate to the society as provided in its by-laws, and his widow on his death 1 Mellows v. Mellows. 61 N. H. 131, tract, as mere matter of form, the In this case it was said : " The con- law would not treat as matter of sub- tract does not expressly allow the stance. But an acknowledgment of power of appointment to be exercised a substitutional orderbefore a jusl Lee by an order executed in a manner of the peace, might in fact be a ma- deemed by a court or jury, equiva- terial safeguard for the member lent in utility to the prescribed form, making it, and for the beneficiaries The object of the association is the named in the rules and displaced by payment of a certain amount of life the order; and the contract does not insurance, after the death of each authorize any tribunal to dispense member; and it may reasonably be with any proceeding exacted by the inferred that, for a substitutional ap- contract, asa substantial security of pointment, a written and acknowl- the rights of tbose parties. If ac- edged order signed by two witnesses knowledgment could be omitted as a is required, not merely as evidence useless form, there is no ground of satisfactory to the payer, but as such law on which two witnesses, or a a protection of each member and the signed writing, could be required, payees named in the contract, as the The will is not such an order as the law provides for an owner of property contract demands." See Planter's and for his heirs, in the execution of Ins. Co. v. Hank. 63 Ala. 585; Dane a will or codicil. It might be claimed v. Young, 61 Me. l»>a. thai anything shown by competent "Hellenberg v. I. O. O. B., 94 N. Y. evidence to have been regarded by 588; see § 287. the parties, when they made the con- 424: CHANGE OF BENEFICIARY. acquired no title to any part of the benefit fund on account of his alteration of the certificate. 1 Where a certificate provides that upon the death of the assured the sum mentioned will be paid to assured's wife as directed by the application, or to such person " as he may subsequently direct by change of benefici- ary entered upon the record of the supreme secretary," a mere delivery of the certificate by the assured, after the death of the wife, to a third person for the benefit of his son, is not a change of- beneficiaries. 2 The by-laws of a society provided that a member might change his beneficiary by surrendering his certificate, and re- ceiving a new one payable according to his directions, " said surrender and directions to be made on the back of the benefit certificate surrendered, signed by the member and attested by the reporter under seal of the lodge." The printed form on the back of a member's certificate was filled up and signed by him, making it payable to another person than the one named in the certificate, but it was not attested by the reporter. After the death of the member, the certificate was found thus indorsed among his papers together with a letter as follows : " Port Huron, March 25, 18S4. Keporterof Integrity Lodge, Knights of Honor, Sir: — I desire to have the beneficiary in my certificate of membership changed from Mrs. F. F. Rich- ardson to George K. Nairn, in trust; and in the event of my death, two thousand dollars to be paid to him. Harry Traver." Upon these facts, the supreme court of Michigan said : " In our opinion, Traver never surrendered this certificate, and never attempted to surrender it, within either the letter or the spirit of its conditions, and the right of Mrs. Richardson re- mains as originally provided for. * * We dispose of the case purely on legal grounds which leave us, in our opinion, no choice in the matter. The contract is one which the par- ties made on their own conditions, and every one is bound by them." 3 A certificate of membership stipulated that the su- preme lodge would pay a certain sum of money to such person or persons as the member might by will or entry on the rec- 1 Thomas v. Thomas, 15 N. Y. Supp. 3 Supreme Lodge v. Nairn, 60 Mich. 15; 131 N. Y. 205. 44; 26 N. W. Rep. 826. 2 Rollins v. McHatton, 16 Colo. 203; 27 Pac. Rep. 254. CHANGE OF BENEFICIARY. 425 ord of the lodge, or on the face of the certificate direct the same to be paid, etc. On the face of the certificate the mem- ber directed that the fund be paid to his sister. There was found in his pocket the day before his death, the following writing signed by him: "To my dear wife: I want you to have all my effects, everything. I give everything to my wife." The supreme court of Illinois held that, as the mem- ber had by previous indorsement disposed of the benefit fund by directing to whom it should be paid, in the precise mode in which the rules of the lodge required the direction to be made, this writing addressed to the wife did not operate to dispose of the benefit. 1 By section 7 of article 2 of the constitution of a society, it is provided that any member wishing to change his beneficiary must procure a blank form from the secretary, which, being filled out and properly attested, shall be returned to the secre- tary, when the necessary changes will be made on its books. A member named his wife as his beneficiary in his application for membership, and her name was so entered in the books of the society. Subsequently he executed a paper assigning his certificate to one of his creditors as collateral security for his debt, but the assignment was not made upon the prescribed blank, and the societ3 r had no notice of it until after the death of the member, when both the widow and the assignee claimed the benefit fund. The court held that the widow was entitled to it, and in its opinion said: "In the case of Lamont v. Association, 2 the assured had during his lifetime changed his beneficiary, and the change had been accepted by the company and entered on its hook's, and it was held that this transfer was operative, and divested the rights of the beneficiary named in tin- application; hut in that ease the provisions of section 7, article ■_'. had been substantially complied with. Here there has been do attempt to effectuate a change of beneficiary bv a compliance with the terms of this section 7. It will he noted that the constitutional provision for ;i change of bene- ficiary says it must he done on a prescribed form of blank, which is given in the by-laws, which also require the signature •Highland v. Highland, too 111. 8 30 Fed. Rep. 817. 300: see Elsey v. <>.M Fellows, 142 Mass. -2-24: 7 X. East. Rep. Ml. 42 O CHANGE OF BENEFICIARY. to be attested by an acknowledgment before a notary public or justice of the peace; and the application for membership signed by the assured in this case stipulates that the receipt of the parties to whom he designates his death loss to be paid shall be a full satisfaction of all claims that any of his heirs or assigns may have upon the association. Here is a very cogent reason why, if the beneficiary is changed, it shall be done according to the forms prescribed. This mode of transferring the fund or changing the beneficiary was undoubtedly adopted in order to secure certainty as to who was entitled to the pay- ment of the death loss, that the association might know on the death of a member whom they could safely deal with. There can be no doubt, I think, but that a voluntary association of this kind can prescribe the manner in which its benefits may be assigned or transferred and that these regulations become a part of the contract. * * A transfer, to be valid, must con- form to the mode in which the constitution and by-laws of the company say it may be changed. Any attempt to make such a transfer should be strictly construed. The application for membership designated the wife of the assured as his bene- ficiary, and she was so designated on the books of the associa- tion. This made a contract in her favor on which a suit could have been maintained for this death loss. The constitution and by-laws of the association provided a mode by which her right to this benefit fund could be divested; but, in order to so divest it, that mode must be strictly followed. It was not so followed, and hence I am of opinion that what was done in that direction was not operative to divest her of her right." ' j< 221. Authorities holding such provisions of the by- laws or certificate to be directory merely. — As has been said, the authorities are not by any means unanimous on this point, and those holding that such prescribed methods are directory merely are here given. A by-law of a society provided : *' Members may at any time, when in good standing, surrender their certificate, and have a new one issued, payable to such beneficiary or beneficiaries dependent upon them as they may direct, upon payment of a certificate fee of fifty cents." A member took out a policy payable to his father and mother. 'Hotel Men's Mutual v. Brown, 33 Fed. Rep. 11. CHANGE OF BENEFICIARY. 427 Without attempting to make any change of beneficiaries as provided in this by-law, he made a will bequeathing the pro- ceeds of his certificate to his wife and children, and soon after- ward died. The benefit fund was by agreement of parties placed in bank by the association, subject to the judgment of the court in the suit between the father and mother, on the one hand, and the executors of the will and guardians of the children, on the other hand. In discussing the above by-law and its effect on the change of beneficiaries, the court said : " A method by which he may accomplish the change to the satisfaction of the order is pointed out in the section last recited, but we. do not consider this as exclusive of all other ways of affecting the same object. The design of this section is to protect the interests of the corporation. The company are entitled to know who are the parties entitled to the benefit money, and this is an effectual and certain means of giving that information. But, like all such provisions in the by-laws of private corporations, it may be waived at the option of the corporation, being for its benefit alone. * * As a by-law of the order, this provision entered into the understanding between the company and the member effecting the insurance, and the rights of interested parties are not strengthened by the fact that the same provision is found in the certificate. It is still a condition for the benefit of the company, to be insisted upon or waived according to their election. The pro- vision in the by-laws of the Legion of Honor as to changing the beneficiaries of a benefit certificate is not peremptory, but merely points out a method which shall satisfy the company as to the parties entitled to receive the benefit money. The suit is not between the elaimanl of this money and thecorpo- ration by whom it is to be paid, and the latter does not object to the manner in which the change of beneficiaries was made. The exact case before us seems to be one of first impression; we have been furnished with no authorities precisely in point by the able and distinguished counsel who have represented the respective parties to the cause, although their briefs show great research for that purpose, nor have we been able to find any bearing upon the question. * * We think that as between the parties to this suit the change of beneficiaries was fully effected by the will." 1 . 1 Splavra v. Chew, 60 Texas, 532. 428 CHANGE OF BENEFICIARY. A member of a society had a certificate issued, payable to his brother, and left it in charge of the subordinate lodge to which he belonged. He afterward married, and wrote to the proper officer : " Please find inclosed my dues of lodge Xo. 2, A„ 0. U. W., three dollars; and in return please send my policy made out to Mrs. Josie A. Manning." By a law of the order it was provided: " Any member holding a beneficiary certificate desiring at any time to make a new direction as to its pay- ment, may do so by authorizing such change in writing on the back of his certificate in the form prescribed, attested by the recorder, with the seal of the lodge attached, and by the pay- ment to the supreme or grand lodge of the sum of fifty cents; but no change of direction shall be valid or have any binding force or effect, until said change shall have been reported to the supreme or grand recorder, the old certificate, if practicable, filed with him, and a new beneficiary certificate issued there- on." The member neglected to forward the requisite fee of fifty cents for making the change, and the proper officer of the lodge wrote to him, requesting him to furnish it. He died without having done so, and nothing was done in the matter prior to the member's death. Afterward the society issued to Josie A. Manning a certificate, and paid her the fund provided for. The court said : " The intention of the assured was to change the benefit. He so directed in writing, and now, be- cause he did not do so in the formal manner prescribed by the law for the benefit of the order, it is asked by a third party whose interest in the insurance was liable to end at any time at the will of the assured, that his intention shall be defeated, although the party for whose benefit the form was prescribed has seen proper to waive it. Such a rule would sacrifice sub- stantial justice to mere form; it would tend to defeat the benev- olent aim and purpose of the organization, and the desire and intention of the assured. Members of the order may be remote from their lodge; they may not have their certificates with them, and, therefore, be unable to make the indorsement thereon as directed, or to have it attested by the recorder of their lodge, or its seal attached thereto. If appellee chooses to waive these formalities, it does not lie in the mouth of a third party to complain." l 'Manning v. A. O. IT. W., 86 Ky. This case in effect declares that 136; 5 S. W. Rep. 385. the society may, after the death of a CHANGE OF BENEFICIARY. 420 § 222. Change of beneficiary— General observations. — The society lias a right to provide in its contracts a certain and uniform method of transacting its business, and, to require its members to change their beneficiaries in the pre- scribed manner. As we have seen 1 the member and the so- ciety may dining the life of the member waive these require- ments, and may agree upon a new beneficiary of the contract in any manner satisfactory to both parties. It does not fol- low, however, that after the death of a member, the society may waive these requirements and recognize as valid an at- tempted change of beneficiaries made by the member in a manner different from that set forth in the contract. The rights of the parties are controlled by the contract as it Avas at the date of the death of the member, and, after these lights have attached by the death of the member, no con- sent, or act of the society can defeat or even affect them. The beneficiary of a contract of insurance, who is affected by an attempted change of beneficiaries, may avail himself of the failure of the insured to comply with the terms of the con- tract specifying the manner in which it may be made, as well as the society which issued the contract. 2 The payment of the fund into court for the benefit of the person who may be declared to be entitled to it, in no way improves or prejudices the legal position of either the original or the substituted beneficiary. On the contrary, the party who would succeed as against the other must make a case which would entitle him to succeed against the society in a suit on the contract.' member, waive a want of compliance 'Wendt v. Iowa Legion, 72 Iowa on his part with the terms of the con- 682: 34 N. W. Rep. 1T(>: National tract, even though il refused to do so Mutual v. Lupoid, 101 Pa. St. Ill; in his lifetime, and that by such contra, Splawu v. Chew, 60 Texas waives and the issue of a newcertifi- 532; Manning v, A. O. U. W.,86 Ky. cate after his death, the original 186; S. W. Rep. 885; see § 221, beneficiary is deprived of his rights, 3 See £ 354; Wendtv. Iowa Legion, in spite of the fact thai the contract supra; Mellows v. Mellows, 61 N. H. expressly provides that no direction 137; Holland v. Taylor. Ill Iml. 121; for a change shall be valid until a 12 N. East. Rep. 118; Hotel Men- new benefit certificate shall have Mutualv. Brown, 38 Fed. Rep. 11: Ire- been issued. This certainly can not land v. Ireland. 42 Hun 212: Supreme be the law. See § 222: see § 227, Lodge v. Nairn, 60 Mich. 44; Stephen- note; see Hall v. Association, 47 son v. Stephenson, 64 Iowa, 584; Noll- Minn. 85. man's Appeal, 92 Pa. St. 50; Ballou 1 § 219. v. Gile, 50 Wis. 610. In Titsworth 430 CHANGE OF BENEFICIARY. § 222a. In some cases the attempted change of the bene- ficiary was not called to the notice of the society until after the death of the member, so that the consent of the society to the change was not an element in the questions before the court; ' and, with one exception, 2 such cases hold that the change, to be effectual, must be made in compliance with the terms of the certificate, or the by-laws of the society; that the right to object to the method and validity of the attempted change is not limited to the society, but that the beneficiary named in the certificate will be heard to show that his expect- ancy was not cut off by the deceased member in the manner prescribed in the contract. In one case the attempted change was called to the notice of some of the officers of the society and witnessed by them, but it was held to be ineffectual for want of compliance with the express terms of the contract, no new agreement between the member and the society being shown. 3 In Hotel Men's Mutual Benefit Association v. Brown, supra, stress is laid on the fact that the terms of the con- tract provide that the change must be made in a certain man- ner; 4 and in Splawn v. Chew, supra, attention is called to the fact that the provision of the contract is that a member may change his beneficiary in the manner prescribed. In the latter case it is held that such a provision is merely permissive. 5 In other cases 8 the contracts stipulate that "any member v. Titsworth, 40 Kan. 571, 20 Pac. District No. 1, 94 N. Y. 580; Splawn Rep. 213, where a new certificate had v. Chew, 60 Texas 532; Supreme been issued in place of the original, Council v. Smith, 45 N. J. Eq. 466; 17 it was said in the course of the opin- Atl. Rep. 770; Wendt v. Iowa Legion, ion: " The society has paid the supra; Mellows v. Mellows, 61 N. H. money into court, and has been re- 137; see § 219. leased from all obligations respect- s Splawn v. Chew, supra. ing it. This payment, however, is 3 Renk v. Herrman Lodge, 2 Dema- an admission on its part that the rest 409. benefit certificate was rightfully is- 4 See also Supreme Council v. sued, and hence all contention as to Smith, supra. whether its rules and regulations re- 6 See Titsworth v. Titsworth, 40 specting these matters had been com- Kan. 571; 20 Pac. Rep. 213, where plied with is out of the case and en- the reasoning and conclusion of tirely disposed of." See Splawn v. Splawn v. Chew, supra, is adopted. Chew, 60 Texas, 532. s Vollman's Appeal, 92 Pa. St. 50; 1 Holland v. Taylor, supra; Su- Stephenson v. Stephenson, 64 Iowa preme Lodge v. Nairn, supra; Hotel 534; Holland v. Taylor, 111 Ind. 121; Men's Mutual v. Brown, supra: Voll. 12 N. East. Rep. 116; Highland v. man's Appeal, supra; Hellenberg v. Highland, 109 111. 366. CHANGE OF BENEFICIARY. 401 may change " his beneficiary in the mode prescribed, and while the particular language is not commented upon, it is held that the change can not be effected by any other method. The case of Coleman v. Supreme Lodge, supra, holds that the pro- vision that "a member may change his beneficiary" in a pre- scribed manner, is exclusive of all other ways, on the familiar ground that the expression of one thing is necessarily the ex- clusion of another and a different thing. § 223. When the change of beneficiaries is perfected. — When a member has done all that he is required to do under the contract to effect a change of beneficiaries, the change will be deemed complete, even though some ministerial acts of the officers of the society are still to be performed. A by-law of a society provided that a " member in good standing may sur- render his benefit certificate and have a new one issued by paying a fee of fifty cents." A member, having met with a serious accident, sent a friend to a meeting of his lodge to have a change made in the designation of the beneficiary. This friend attended the meeting of the lodge, surrendered the cer- tificate to the secretaiy of the lodge, requested him to issue a new certificate payable to the member's wife, and paid the fee of fifty cents. A mfnute of the transaction was made in the record of the proceedings of the lodge for that evening. On the following day the member died. On the day following his death, the secretary of the lodge surrendered his certificate to the secretary of the supreme lodge, which alone could issue benefit certificates, requested a new certificate to be issued. naming the member's wife as the new beneficiary, and paid the fee of fifty cents therefor. This was done, and on the same day the secretary of the lodge delivered the new certificate to the new beneficiary. When the new certificate was issued neither secretary knew that the member had died on the pre- ceding day. In commenting upon these facts the court said : " Although the laws of the organization do not prescribe the precise manner in which a member of a subordinate association shall proceed in order to surrender a certificate and have a new one issued changing the beneficiary, yet it sufficiently appears that a member of the order, who is a member of a subordinate association, receives his certificate, settles his <\\Wi> and surren- ders his certificate through his subordinate association. In fact 432 CHANGE OF BENEFICIARY. there is nothing in the constitution and laws of this organiza- tion, which indicates that it differs at all in this respect from numerous other organizations of this kind, with which the courts have to deal judicially, which is composed of a supreme governing body, and subordinate associations or lodges. It is not necessary to set out the provisions of its constitution and statutes in detail ; it is sufficient to say that it is a reasonable conclusion from their provisions that (the member) could only surrender his benefit certificate for the purpose of having anew one issued, changing his beneficiary, through his subordinate association, and that he could not have done it by dealing di- rectly with the (supreme lodge). * * He made such a sur render to his association, paid the required fee, and the associ- ation made a record of it while he was yet alive. In doing this he did all that the laws of the order required to be done on his part in order to have a new certificate, changing the benefi- ciary. His right to make the change was absolute. There is nothing in the constitution and laws of the order which indi- cates that, he being a member in good standing, and the per- son whom he desired to be named as beneficiary in the new certificate being a person having an insurable interest in his life, either his subordinate association or* the national associa- tion had any negative upon his choice, or any right to refuse his request. What followed was therefore merely ministerial, and was not affected by his death. His power to make a change in the disposition of the fund being absolute, when he exercised this power as fully as he could exercise it under the laws of the organization, the contingent right of his wife to the fund in the event of his death attached, and the fact that the certificate was issued after his death is immaterial, since the certificate is not the right itself, but merely the evidence of the right. It is argued that the (subordinate lodge) was merely an agent of (the member) to transact this business for him with the national association. Why should we so hold ( It was not an agency selected by him, nor had he any choice in the selection of the agent. It is as much in conformity with legal analogy to say that the (subordinate lodge) was the agent of the national association as that it was the agent of (the member). Why should we resort to refinements of this kind for the purpose of defeating a disposition of a fund, made CHANGE OF BENEFICIARY. 433 in the very article of death, by the person who alone had the right todispose of it, which disposition, though not a will, was testamentary in its nature ? " ' In Knights of Honor v. Nairn.* it is said : The form of sur- render printed on the back (of the certificate) conforms pre- cisely to the clause also inserted in the constitution, requiring every surrender and new direction to be signed by the member, and attested by the renorter under the lodge seal, he being the officer into whose hands it must be placed for transmission to the home office for reissue. Under this arrangement, the purpose is evident that the corporation shall always be in written contract relations with a member who is alive and in good standing, which will show them the identity of the bene- ficiary to whom they are liable. It is possible, and we need not consider under what circumstances, that when a member has executed and delivered to the reporter his attested sur- render, in favor of a competent beneficiary, his death before a new certificate is rendered, may leave his power of designation so far executed as to enable a court of equity to relieve against the accident. But in the present case the facts show conclu- sively that (the member) did not mean to have any surrender made until after his death." An unmarried man took out a policy of insurance on his life, one of the conditions of which was: k ' This policy is issued and accepted upon the express condition that the assured may. with the consent of the company, at any time, assign it, or before assignment, change the beneficiaries therein, or make any other change.' 1 He named his sister as his beneficiary, and delivered the policy to her. Subsequently tie married, and, as an inducement thereto, he agreed that if the woman would marry him, she should be made the beneficiary of the policy. After the marriage, and when the next semi-annual premium fell due, the assured paid it, on condition thai the beneficiary should be changed from his sister to his wife. The sister had the policy, and would not give it up. 8 The agent was uncertain whether the change could be made without the pol- 1 National American Association v. 78; Schmidt v. Association, 82 Iowa Kirgin,28 Mo. App. BO; Fisk v. Equi- 804. table Aid Union. 116 Pa. St. (not re- ' 60 Mich. 44. ported): 11 Atl. Rep 84; Eirach] v. * See §226. Clark, si [owa 200: 47 N. W. Rep. 28 434 CHANGE OF BENEFICIARY. icy, but promised to notify the company and have the change made if possible. The officers agreed to attend to the matter, but overlooked it. After the death of the assured, the com- pany filed a bill to require the wife and sister to interplead, and have the question determined, as to who was entitled to the money. It was decided, upon these facts, that whether such change was to be effected by parol or in writing was a matter entirely between the assured and the company; and if the latter chose to dispense with any of the modes of effecting this purpose, this concerned no third party, nor could the company capriciously refuse the change. The marriage having been consummated on the inducement of the promised change of t the beneficiary under the policy, equity considers that done which ought to be done, and will give relief accordingly. 1 A member procured a certificate of insurance, making his betrothed his beneficiary. He retained the certificate in his possession, but afterward lost it. She married another man, and, within two years thereafter, he made a statement in writing of the loss of the certificate, and applied to the society for a reissue of the certificate, making his son the beneficiary. The society denied the application, on the ground ' that the certificate was not surrendered, although lost, and that the rules of the society required the change to be indorsed on the original certificate, to be attested by the recorder of the sub- ordinate lodge, with the seal of the lodge affixed. By the ad- vice of the officers of the subordinate lodge through whom he made the application, he attempted to make the change of beneficiary by giving a power of attorney to another to collect the amount which should accrue under the certificate. After his death, the society conceded its liability upon the certificate, and the court was asked, in equity and good conscience, to determine whether the original beneficiary or the son of the deceased was entitled to the fund. Upon these facts the court said: "He * did all that he could, and all that he was re- quired in equity to do, to change the donee in the certificate named to that of his son. The rules of the order allowed him to do this, and it was not in the discretion of the order to pre- vent it. It was a right, under the rules of the order, of which he could not be deprived upon his complying with the condi- 1 Nally v. Nally, 74 Ga. 669; see § 214. CHANGE OF BENEFICIARY. 435 tions prescribed for such action, and which he performed so far as it was in his power to perform, and for these reasons, it would be most unjust and inequitable for a court to dis- regard such action, and such intention of the deceased, before he died. * * All contracts are presumably made in view of the law governing their construction, and the rules of evi- dence applicable when the contract is sought to be established and applied. The law never requires impossibilities, and the rules of the order which require the certificate to be sur- rendered when a change of the beneficiary was made that it might be indorsed upon the certificate, could only be con- strued as requiring that to be done when the certificate was in existence. The existence of the right to share in the bene- fits of the order, and to direct who should receive the fund in case of the death of the member, was a right vested in the member as soon as he became entitled thereto, and the certifi- cate was only evidence of the existence of that right, and where that evidence was lost the right remained, and its ex- istence could be established by any other competent evidence, and the same is true of the existence of the change directed by the member of the beneficiary. (The member) did all he could in making the change, and it should have been allowed and done by the order." ' The only mode for changing the beneficiary of the contract of insurance was by directing such change in writing on the back of the certificate, in a prescribed form attested by an officer of the society. A member, immediately before his dea th, desiring to change the beneficiary of his certificate which had been lost or mislaid with out his fault, after una vailing search 1 Grand Lodge v. Child, 70 Mich, tor's right attaches when the surren- 163; 38 N. W. Rep. 1; 14 West. Rep. der of the old one is accepted, and 454: see Supreme Conclave v. Cap- the new one is made out, and no de- pella, 41 Fed. Rep. 1: Marsh v. Su- livery is necessary to enable it to be preme Council, 149 Mass. 512; 21 N. enforced against the company. Bast. Rep. 1070; Isgrigg v. Schooley, Bliss on Life Insurance, 202, 206, 125 Ind. 94; 25 N. East Rep. 151; 214, 496, 497, 512. 574; May on In- Grand Lodge v. Noll, 90 Mich. 37; Burance, 61; Fried v. Ins. Co., 50 N. 51 N. W. Rep. 268; Rollins v. Mc- Y. 343; Cooper v. Ins. Co., 7 Nev. 116; Hatton, 16 Colo. 203. Kentucky Mutual v. Jinks. 5 Lid. 96; When a policy is given up to have Crittenden v. Ins. Co., 41 Mich. 1 1 J: another substituted to run in the Schmidt v. Association, 82 Iowa 304; name of a new beneficiary, the lat- 47 N. W. Rep. 1032. 436 CHANGE OF BENEFICIARY. for it, executed a will whereby he bequeathed the fund to the person whom he intended to substitute. On a bill of inter- pleader by the society it was held that a court of equity should recognize the disposition by will as a valid designation of a new beneficiary. 1 The decision was placed on the ground that as the certificate had been lost or mislaid without the fault of the member, it was impossible for him to name a new beneficiary in the prescribed manner, but that a court of equity could and should recognize the disposition by will. A member held a certificate payable to his widow. The by-laws of the society provided that a member desiring to change his beneficiary might surrender his certificate to his lodge to be forwarded under its seal to the supreme reporter, who should cancel the old certificate and issue a new one to such member, payable as directed by him; and they further required that the member should place his signature upon the new certificate, accepting it upon the conditions named therein. On March 8, 1887, the member signed on the back of his original certificate a surrender thereof, directed that a new one be issued, payable to his sister, and sent it to the re- porter of his lodge, who placed the seal of the lodge upon it and mailed it to the supreme reporter on March 10. A new certificate was issued to the sister on March 12. The member had died on March 10. It was held that the substitution of the sister had practically been completed before the death of the member, and that, as a member might accept a new cer- tificate without formally writing his name upon it, as required by the by-laws, the issuing and acceptance of the new certifi- cate would relate back to the time of the surrendering of the old one. 2 In a letter to the society a member inclosed his certificate and requested that a certain substitution of beneficiaries be made, but the society returned the certificate to him with di- rections to sign a formal revosation and appointment of bcne- 1 Grand Lodge v. Noll, 90 Mich. 37; N. East. Eep. 388; reversing 6 N. Y. 51 N. W. Rep. 268; citing Grand Supp. 51; see Schmidt v. Association. Lodge v. Child, 70 Mich. 163; 38 N. supra; Hirschl v. Clark, 81 Iowa W. Eep. 1. 200; 47 N. Y. Rep. 78. 2 Luhrsv. Luhrs, 123 N. Y. 367; 25 CHANGE OF BENEFICIARY. 437 ficiaries indorsed on it. He retained it without further action, and it was held that he had not changed his beneficiary. 1 The holder of a certificate applied for a change of his ben- eficiary, surrendered the certificate and a new one was issued to him payable to such persons as he might name in his will. No new beneficiaries were designated by his will, and it was held that the old contract was still in force, the change not having been perfected. 2 'Hallv. Association, 47 Minn. 85; - Grace v. N. W. Association (Wis.), 49 N. W. Rep. 524. 58 N. W. Rep. 1041. CHAPTER XV. CHANGE OF BENEFICIARY. § 224. Consent of society to the change. 225. When society is estopped to question the change. 226. A beneficiary may be estopped to assert that a change was not properly made. 227. Delivery or gift of certificate to the beneficiary; effect on the right to change beneficiaries. 228. Effect of an agreement between two members that each shall pro- cure a certificate for the benefit of the survivor. 229. A delivery of the certificate to the beneficiary is not necessaiy. 230. Who may be designated as a new beneficiary. 231. Does an inoperative change of beneficiaries revoke the original designation ? 232. Incomplete designation; failure to exercise the power of appoint- ment. 233. Change of beneficiary by suspended member in application for reinstatement. 234. Right of a member to change his beneficiary when the certificate is payable to his legal representatives. 234a. Fraudulent change of beneficiary. § 224. Consent of the society to the change.— The rules governing the consent of the society to the change of a bene- ficiary are the same as those governing its consent to an as- signment of the contract of insurance, and thev need not be discussed here in detail. 1 Where the by-laws of a society provide that no act of the member, done for the purpose of changing his beneficiary, shall entitle the beneficiary to any benefit, until such act has been ratified and approved by the society, the refusal of the society, based upon reasonable grounds, to approve a change, will bar a recovery by the new beneficiary." The charter of a society gave a member the 1 See § 169. Hotel Men v. Brown, 33 Fed. Rep. 1 1 : 2 Supreme Council v. Smith, 45 N. Daniels v. Pratt, 143 Mass. 216: Hel- J. Eq.466; 17 Atl. Rep. 770; National lenberg v. I. O. O. B., 94 N. Y. 583; Mutual v. Lupoid, 101 Pa. St. Ill; Jinks v. Banner Lodge, 139 Pa. St. Marcus v. Ins. Co., 68 N. Y. 625; 414; 21 Atl. Rep. 4. (438) CHAXGE OF BENEFICIARY. 439 right, with its consent, to make a change in his beneficiary, A by-law provided: " No change of beneficiary shall be effect- ual unless the certificate thereof shall have been filed, ex- amined and found correct, and the necessary change made in the record of the association before the receipt of notice of the death of such member." In certain litigation upon a cer- tificate of membership issued by it, the question was as to whether the consent of the society had been given to a change of beneficiaries. It was held that a declaration of the secre- tary that " the association has to inform you that it duly re- ceived a certificate made by C — S — , substituting your name as the beneficiary of his certificate of membership in this asso- ciation, said certificate is numbered 244," was evidence against the society sufficient to support a finding that the certificate of substitution had been duly filed, examined, found correct, and the necessary change made in the records, there being no evidence that these things were not done by the society. 1 § 225. When the society is estopped to insist upon a defector irregularity in a designation, disposition or sub- stitution. — The question as to the validity of a change made in the designation of a beneficiary has been discussed with reference to the rights of the person first designated. Another state of facts may arise, and the conflict of interest may be between the person in whose favor the designation was changed, and the society itself. Where the benefit fund will lapse to the society on failure of the member to desig- nate a beneficiary to receive it, the officers of the society, by recognizing and acquiescing in a change of the beneficiary which is not in conformity with the rules and provisions of the contract, may estop it from claiming the benefit fund on account of the invalidity of the change. A member of a mutual benefit society received a certificate payable to his wife, whom he had married many years before. At the time of the marriage she had a daughter who afterward lived with them, but they had no children. After the death of the wife, which occurred a few months after the issuing of the certificate, the member made a will, by which he left to his step-daughter all his property. His property consisted of his clothes, a little furniture and the insurance in question. After the will was drawn he caused a friend to write a letter on the back of it to 1 Mayer v. Equitable Association, 17 N. Y. St. Rep. 525; 49 Hun 336. 44:0 CHANGE OF BENEFICIAEY. one of the principal officers of the lodge, and delivered the will to this officer. He also told the reporter of the lodge of the contents of the will, and of his understanding that it con- veyed his insurance to his step-daughter. After the death of the memher, the society refused to pay the step-daughter, who had proved the will, upon the ground that the member had not complied with the requirements of an article of its con- stitution providing that, " in the event of the death of all the beneficiaries designated by the member, before the decease of such member, if he shall make no other disposition thereof, the benefit shall be paid to the heirs of the deceased member, and if no person shall be entitled to receive such benefit by the laws of the order, it shall revert to the widow and orphan benefit fund." So far as appeared the member had no rela- tions, and the society claimed that the death benefit lapsed to the " widow and orphan benefit fund." Upon these facts the court said : " The delivery of the will to Osborn, the proper officer of the lodge, and the contemporaneous statements made by the assured to Boyer, the reporter of the lodge, and the re- tention of the will by said lodge without any objection to the form or manner of designation, constitute a waiver of any de- fect or irregularity in such designation or disposition. If the paper was regarded as imperfect, it was the duty of the officers of the lodge to return it to the assured with notice of the de- fect." ' § 220. A beneficiary may be estopped to assert that the change was not perfected or properly made. — No maxim of the law is better established or founded upon more substantial justice than that which declares that no one shall take advan- tage of his own wrong, and where a member has not been able, through the misconduct of the original beneficiary, to perform all the requirements of the contract, but has done all that he could do to designate another person to take the fund, the original beneficiary will not be heard to insist that the change was not perfected or properly made. 2 Where a bene- ficiary obtained possession of a certificate under the agree- ment that she would send it to the society to have it made payable to her and another, and afterward refused to sur- 1 Kepler v. Supreme Lodge, K. of 2 § 223. H., 45 Hun (N. Y.) 274. CHANGE OF BENEFICIARY. 441 render it, it was held that she could not be heard to insist that a change subsequently made according to the agreement was invalid because the certificate had not been surrendered for cancellation according to the terms of the contract. 1 Where a member makes a change of beneficiaries by will, and that method is not a compliance with the contract, but the original beneficiary induces the member to rely upon her consent to and acquiescence in its provisions, and accepts benefits under it after his death, she is estopped to assert that the change is ineffectual. 2 By the laws of the corporation, a petition for substitution was required to have the seal of the member's subordinate council, and to be attested by the subordinate secretary. A member delivered his certificate and a petition for substitution to the subordinate secretary, who, acting in collusion with the original beneficiary, the member's wife, delivered the certificate to her, and forwarded the petition without sealing or attesting it. The corporation notwith- standing these omissions, recognized the petition as valid, and stood ready to make the substitution if it had received the certificate. It was held that the wife would not be heard to object that there was no valid substitution. 3 § 227. Delivery or gift of the certificate to the beneficiary; effect on the right to change beneficiaries. — The delivery of the certificate to the beneficiary named therein has no effect whatever upon the right of the member to change the desig- nation, as provided in the contract of insurance. 4 The benefit certificate issued by a society to a member, was made payable in the event of her death, to her husband, subject to change at her pleasure, on presentation of the certificate together with a new application to the supreme secretary. Notwithstanding the tact that the certificate was delivered to the husband, and the assessments thereon were paid by him, his wife had the 1 Supreme Cone-lave v. Cappella, 41 Mo. 560: 10 S. W. Rep. 25; Brown v. Fed. Rep. l: fegriggv. Schooley, 125 Grand Lodge, 80 fowa 287; 45N.W. Ind. 94; 25 N. East. Rep. 151. Rep. ss-4: Byrne v. Casey, 70 Texas 'Hainer v. Legion of Honor, 78 247; 8S. W. Rep. 38; Splawn v. Chew, Iowa •-H5; 43 N. W. Rep. 185; see tin Texas, 534; Manning v. Ancient j: •,>:;;. Order, 86 Ky. 136; 5 8. W. Rep. 385; 3 Marsh v. Supreme Council, 140 Society \. McYay. 92 Pa. St. 510; Mass. 512; 21 N. East. Rep. 1070. see Nally v. Nally, 74 (la. 669. 4 Masonic Association v. Bunch, 109 442 CHANGE OF BENEFICIAKY. right on presenting it to the supreme secretary to apply for and effect a change in the designation of the beneficiary named therein. When the husband accepted the certificate and paid the assessments thereon, he knew, or ought to have known, that he held it subject to the right of his wife to change the beneficiary to whom the insurance money should be paid upon her death. 1 A certificate upon the life of a son was made pay- able to his mother, and delivered to her. His father paid the assessments. Soon afterward he married, obtained possession of the certificate, and, without his mother's knowledge or con- sent, surrendered it, and took out another payable to his wife, and delivered it to her. In a few months and just before his death he surrendered the second certificate, procured a new one, payable as the original had been, to his mother, and de- livered it into her possession. This was done without the knowledge or consent of his wife. The certificate and by-laws of the society gave the member the right to surrender this cer- tificate and procure a new one at pleasure. It was held that, though the certificate was delivered as a gift to the wife, it was subject to the condition attached to the gift, that the as- sured might at any time surrender it, and name another bene- ficiary, and that the wife had no right to the fund upon her husband's death. 2 A certificate was made payable to the wife of the member. On a division of property between the two when they were divorced it was given to her as her own property, and for two years or more she paid all dues and assessments thereon from her own earnings. The constitution of the society provided that a member might at any time while in good standing sur- render his certificate and take a new one payable as he might direct, and that the beneficiary might be changed, as the mem- ber might thereafter direct, and that such change should be entered in the benefit certificate. He filed with the society an affidavit that his divorced wife refused to surrender the certifi- cate and procured a new one payable to his adult children by a former wife. It appeared that the divorced wife had three small children by him who were dependent on her for support. 1 Fisk v. Equitable Aid Union (Pa. Grand Lodge, 8 N. Y. Supp. 185; 6 St.), 11 Atl. Rep. 84. N. Y. St. Rep. 151; Sabin v. Phinney, 2 Appeal of Beatty, 122 Pa. St. 428; 134 N. Y. 422; 31 N. E. Rep. 1087; see 15 Atl. Rep. 861; see also Sabin v. § 228. CHANGE OF BENEFICIARY. 4:43 The court held that the divorced wife was entitled, as against the adult children, to the fund, and placed its decision on the sole ground, that the object of the society was to raise a widows' and orphans' fund and that it would be a perversion of the fund to appropriate it to adult children, excluding the widow and infant children. 1 A certificate was payable to the wife of a member, " or to the beneficiary or beneficiaries that he may hereafter have a certificate made in favor of, on sur- render of this certificate." When he obtained it the member handed it to his wife, and, during the next three or four years, frequently remarked that he had given her the insurance; that he wanted to keep it up for her benefit, and that he thought it was all he would leave her. It was kept in her bureau drawer, and was taken by the member, four years after its issue and surrendered to the society for a new one payable to other beneficiaries. After his death it was contended that having given and delivered the certificate to his wife, he could not repossess himself of it without her consent. The court said : " Assuming the certificate to be the subject of a valid gift from a husband to his wife, which we need not decide, the question remains whether a gift was in fact made. Such a gift should be evidenced by convincing, if not unmistakable proof, and of this we are not satisfied. The remarks of the husband that he had given the insurance to his wife were true when they were made, in the sense that she was then the designated benefici- ary; and they do not necessarily import more than this. After he had made the change he did not so state. * * Neither is the possession of the certificate conclusive. Posses- sion by the wife is presumed to be possession by the husband 'Leaf v. Leaf, 92 Ky. 166: 17 S. time change the beneficiary. In W. Rep. 354. The charter of the placing its decision on the objects of society provided that the fund should the society, the court does violence "be paid to his (the member's) family, to the very words of the charter, or as he may direct." In the state- The case of Manning v. Ancient Or- ment of the tacts in the case it does der, 86 Ky. 136:5 S. W. Rep. :'.s.">. not appear who paid the assessments cited by the court, is another one in after the new certificate was issued, winch the law was badly strained in The court in the opinion lays great order to give the fund to the person stress upon the fact that the di- whom the court thought ought to vorced wife paid several assess- have it, no matter what the facts and incuts, hut we have Been that she was the contract were, hound to know that he might at any 444 CHANGE OF BENEFICIARY. where they live together, unless it appears to be a possession to the exclusion of the husband. (The husband) had access to the certificate, and took it without asking, thus showing by his conduct that he, at least, supposed he still had control of it. We do not think a gift is proved." 1 A beneficiary who pays the assessments on a certificate vol- untarily and gratuitously, and not under a contract with the assured, acquires no vested interest therein as against a per- son afterward named as beneficiary by the member. 2 A member may change this beneficiary, though the latter has paid the assessments and has possession of the certificate. 3 But it has been held that where a person became a member of a society under an agreement with the beneficiary designated in his certificate that the beneficiary should pay all assess- ments, and he paid them under the agreement, the beneficiary acquired a vested interest in the certificate, and the member could not afterward make another designation. 4 A provision of the charter or of a contract of the society, declaring that a member shall have a right to make a change of his beneficiary without the consent of the latter, applies when the original designation is in the nature of an inchoate or an unexecuted gift, and where there is no agreement on the part of the mem- ber, the society and the beneficiary that no change shall be made. It does not prevent an express contract between the member, the beneficiary and the society that a vested right shall pass to the beneficiary. 5 § 228. Effect of an agreement between two members that each shall procure a certificate for the benefit of the sur- vivor. — When the contract of insurance provides that a mem- ber may at any time change the designation of his beneficiary and make a new direction for the payment of the benefit fund, a mutual agreement between two members that each shall pro- cure a benefit certificate for the benefit of the survivor in case of death, does not take away from either member the power of appointment of a new beneficiary. Where a husband and 'Supreme Council v. Morrison, 16 4 Maynard v. Vanderwerker, 24 N. R. I. 468; 17 Atl. Eep. 57; see Will- Y. Supp. 932. iams' Appeal, 106 Pa. St. 116. 5 Smith v. National Benefit Society, * Nix v. Donovan, 18 N. Y. Supp.435. 123 N. Y. 85. 3 Masonic Association v. Bunch, 109 Mo. 500. CHANGE OF BENEFICIARY. 445 wife become members of a society and agree that their respect- ive certificates shall be continued operative for the benefit of the survivor, and the by-laws of the society provide that any member holding a certificate, desiring at any time to make a new direction as to its payment, may do so in a certain man- ner, the power of appointment of a new beneficiary still re- sides in each member by virtue of the contract with the society. While the exercise of this power by the husband, for instance, is in violation of his agreement with his wife, it is one of the elements of the agreement under which the certificate was is- sued. The contract of insurance is executory on the part of the society during the life of the member, and its liability to pay the fund after his death is upon the last direction as to its payment, made in conformity with the terms of the contract. 1 § 229. A delivery of the certificate to the beneficiary is not necessary. — When a member of a society has appointed a beneficiary in any of the modes pointed out in the contract of insurance, it is not necessar}^ that the certificate of member- ship should be delivered to the beneficiary so named. The claim of the beneficiary in such a case is not based on a contract with him, but upon the appointment made by the member, or the direction given by him for the payment of the money. Where the benefit certificate of a member was made payable at his death to such person as he should direct on the face of the certificate, and the member on the face of the certificate directed that the benefit fund should be paid to a certain person, and retained possession of the certificate until his death, it was held that the beneficiary so designated took the fund by appointment, and that no delivery <>l' the certificate in the lifetime of the member was necessary." ^ 230. Who may be designated as a new beneficiary. — It is evident that where the classes of persons who may be made beneficiaries are limited by .the charter of a society, no one may be designated as a new beneficiary who might not have been designated originally.'* Where the organic law of a society, the statute under which it is incorporated, is amended 1 Sabin v. Grand Lodge, 20 X. Y. 300; 13 111. A pp. 510; see Scott v. Weekly Dig. 309; 6 X. Y. St. Rept'r Dickson, 108 Pa. St. 6. 151. 3 g 15S. 2 Highland v. Highland, 109 111. 440 CHANGE OF BENEFICIARY. by an act which does not require formal adoption by existing societies, and the powers of societies are thereby enlarged by adding to the persons who may become beneficiaries, a mem- ber may with the consent of the society make a new designa- tion which can only be lawfully made by virtue of the later statute. In such a case it can not be said that the society was exercising, and was only authorized to exercise, the more limited powers which it had under the earlier statute. 1 When the constitution of a society, which originally provided that a benefit should be paid only to the widow or children of a deceased member, had been legally amended so as to permit the amount to be paid to anyone designated by the member in his lifetime, the person so designated, and not the widow, was held to be entitled to the fund. 2 If the contract does not specify those who may be made the object of a member's bounty, he may designate any person as his beneficiary. 3 § 231. Does an inoperative change of the beneficiary revoke the original designation 'i — In one case it was held that where a member has in conformity with the law of the society designated the person to whom the fund shall at his death be paid, this original designation will remain in force, unless a valid and legal change is made in the designation of beneficiaries. An attempted change which is for any reason inoperative, invalid or illegal, does not operate as a revocation of the original designation. 4 In one case the society was or- ganized to assist "the widows, orphans, or other dependents of deceased members," and in certain events the fund was paya- ble to their family or heirs. The language of the court was as follows : " (The member) in his application for membership, designated his wife as the person to whom the benefit was to be paid upon his death. At a later day he attempted to change the designation from his wife to his mother. It is agreed that his mother was not living with him, but was living with her husband in another town and county. It is not suggested that she was dependent upon him. She was not one of those ' Marsh v. Supreme Council, 149 ■ Durian v. Verein, 7 Daly 168. Mass. 511; 21 N. East. Rep. 1070; 3 See §§ 159 et seq. ( atholic Order of Foresters v. Calla- 4 Elsey v. Odd Fellows, 142 Mass. ban, 146 Mass. 393; 16 N. East. Rep. 224; 7 N. East. Rep. 844; Grace v. 14; see § 162. Association (Wis.), 58 N. W. Rep. 1041 CHANGE OF BEXEFICTAKV. -±4:7 who would be his heirs, and she was not one of the members of the decedent's family within the meaning of the by-law. To give the word 'family' the broad construction claimed by the respondent would make the by-law overreach the scope of the statute, and violate its spirit and purpose. It follows that the attempted designation to the mother of the deceased mem- ber was illegal and invalid, and we need not discuss the question whether it was sufficiently assented to by the directors of the defendant corporation. As the assignment to the mother was invalid, we think the original designation to the wife remained in force. We can see no reason to suppose that the later assignment was intended to operate as a revocation of the designation to the wife, unless it took effect as a desig- nation to the mother. The scheme of the by-laws is that the beneficiary shall be designated by the member in his applica- tion for membership, and the benefit shall be paid to such beneficiary, unless there is a subsequent legal assignment. They make no provision for revoking a designation except by a legal assignment to some other person, assented to by the directors. We can not presume that the deceased member in- tended his assignment to operate as a revocation of the previ- ous designation in the event of its invalidity as an assignment to his mother, and there is no assent of the directors to any such revocation." ' In another case a member changed the beneficiaries of his certificate and made two hundred and fifty dollars of it pay- able to a Mrs. Lamprey, who was not a member of his family nor in any way related to or dependent upon him. At the time this change was made the constitution of the society authorized the issuing of a certificate to a member payable "to some member or members of his family, or person or per- sons dependent on him, as he may direct or designate by name." The society did not know, at the time of issuing the new certificate according to the direction of the member, that Mrs. Lamprey was neither a member of his family, aor dependent upon him. After his death the beneficiaries of the first certificate claimed that the change of beneficiaries was inoperative as to the two hundred and fifty dollars, made pay- 1 See Hicks v. Perry, 140 Mass. 580; 5 Court, 46 N. J. Eq. 102; 18 Atl. Rep. N. East. Rep. 634; Brittou v. Supreme 675; Park v. Welch, 33 111. App. 188. 4JrS CHANGE OF BEXEFICIAKY. able to Mrs. Lamprey, and they sought to have that sum divided among them. Upon this question the court said : " Whether Mrs. Lamprey is entitled to the benefit of $250, pay- able to her by the last certificate, is a question in which the other defendants have no interest. In no event are they entitled to it. They can receive no more than the sums made payable to them respectively. If the direction by which the sum of $250 was made pa} r able to Mrs. Lamprey was invalid because she was neither a member of F. P. Watson's family nor dependent upon him, the benefit to that extent lapses, if the society so elects, for want of a valid exercise of the power of direction. But the question whether it was valid can be raised by no one but the society, and it does not raise it. 1 By paying the money into court it has expressed its willingness to have paid it to Mrs. Lamprey. * * As the society promised to pay her that sum, and does not object to paying it, and no other person has the right to object, nor any interest in the money, she is entitled to a decree that it be paid to her." 2 In the ab- sence of a valid designation, or a valid change of beneficiaries, the proceeds of the contract will be disposed of as if no des- ignation or change had been made. 3 § 232. Incomplete designation; failure to exercise the power of appointment. — The by-laws of a society provided that the members might designate the person or persons to whom payment of the benefit fund should be made after death, but made no prevision as to the manner in which such designation should be made. On the back of its certifi- cates, however, it placed a blank form in print, with the places 1 Citing Brown v. Mansur, 64 N. the attempted assignment of it was H. 39; 5 Atl. Rep. 768. void, it still stood in force. But in 2 Knights of Honor v. Watson, 64 these cases, the original certificates N. H. 517; 15 Atl. Rep. 125; 6 N. had been surrendered and canceled, Eng. Rep. 888; see Luhrs v. Supreme and new ones had been issued in their Lodge, 7 N. Y. Supp. 487; Burns v. stead. The fact that the beneficiaries Grand Lodge, 153 Mass. 173; 26 N. under the new contracts were not East. Rep. 443. It will be observed entitled to take under the laws of the that there is an essential difference society, did not revive the old con- between these cases and Elsey v. Odd tracts. Fellows, etc., supra. In the latter 3 Parke v. Welch, 33 111. App. 188; case the original certificate payable Burns v. Grand Lodge, 153 Mass. 173; to the beneficiary named in it was 26 N. East. Rep. 443; Arthars v. Baud, outstanding, and it was held that if 8 Pa. Co. Repts, 67. CIIANGE OF BENEFICIARY. 440 designated for the signature of the member holding the cer- tificate, and for the name of a witness. The court held that the placing of this printed form in blank upon the back of the certificate pointed out the manner in which such designation should be made, and that where the member had merely filled up the blank in the form for designa- tion with the names of his three daughters, and had not signed such designation, nor had a witness sign it, the desig- nation was incomplete and invalid. 1 An association, organ- ized for " furnishing relief and assistance by means of mutual agreement and pa^mient of funds," and " to secure to depend- ent and loved ones assistance and relief at the death of a member," issued to a member a certificate providing " that a sum not exceeding $2,000 will be paid by the association as a benefit, upon due notice of his death and the surrender of this certificate, to such person or persons as he may, by entry on the record book of the association, or on the face of this certificate, direct the same to be paid, provided he is in good standing when he dies." The member died in good standing without designating a beneficiary as provided, or in any other manner. Upon these facts, the court held that the fund lapse* 1 to the society, and said : " The defendant promised to pay the benefit to no one save such person or persons as (the deceased member) should direct by entry upon the certificate or record book of the association. By the contract he had the mere power of appointing the person who should receive the bene- fit. He was bound by the rules of the association, and could not change the beneficiary in a way not in conformity with them. * * He had no personal interest in his membership, and his personal representative, as such, can take no interest in it after his death." * A certificate of membership in a mutual benefit society may be reformed, after the death of the member, by inserting the name of a beneficiary, when it appears that the secretary of the association and the assured both understood at the time of the application, that the proposed name should be entered upon the record without further direction, and 1 Elliott v. Whedber, '.»i N. C. 115; * Eastman v. Provident Mutual Re- see Hannifin v. Ingraham, 8 N. Y. lief Ass*n, f..' \. II. 565; 80 C. L. Supp. 282; Bellenberg v. I. O. O. B., Jour. 266; see Worley v. N. \Y. }];,- 94 N. Y. 588. sonic Aid, 10 Fed. Rep. 227 29 450 CHANGE OF BENEFICIAKr. where it was the duty of the secretary to enter and keep a record of the names of the beneficiaries. 1 And a certificate providing for the payment of the benefit to such person as the member " may, by entry on the record-book of the associa- tion, or on the face of this certificate, direct the same to be paid," will be reformed in equity, to conform to the inten- tion of the parties where the making of the entry is omitted, owing to the fact that both parties believed it would be payable to the member's administrator on his death, although this is a mistake of law and not of fact. 3 § 233. Change of beneficiary by suspended member on application for reinstatement. — In Davidson v. Supreme Lodge, 3 it was held that, under the provisions of the constitu- tion of the endowment rank, a member of the endowment rank of the Knights of Pythias, who becomes suspended by reason of the suspension of the section to which he belongs, may in his application for reinstatement designate a new ben- eficiary, and the lodge in re-admitting him, acquiesces in the change, notwithstanding he receives and countersigns a "clearance card" referring to him as the holder of his old cer- tificate which, by its terms, had become null and void by rea- son of the suspension of his section. In this case the contract provided that any member desiring to change his bene- ficiary might make a written request for that purpose to his section, and if it were approved it should be certified by the section to the supreme master of the exchequer, who should issue a new certificate in accordance with it. The de- cision is placed upon the ground that, as the section to which the member had belonged was not in existence be- cause of its suspension, the provisions for making the change did not apply, and, as the member was for the same reason out of the order, he was re-admitted on the same footing as any new member, and had the right to name a new ben- eficial in his application for membership. § 234. Right of a member to change his beneficiary 1 Scott v. Provident Mutual. 63 N. v. Courser, 64 N. H. 506; 15 Atl. Rep. H. 556; 4 Atl. Rep. 792; 2 N. Eng. 129; Stedwell v. Anderson, 21 Conn. Rep. 286; see Globe Ins. Co. v. Boyle, 139; Bank v. Ins. Co., 31 Conn. 517, 21 Ohio St. 119; see § 152. 529. 2 Eastman v. Provident Mutual, 62 3 22 Mo. App. 263. N. H. 555; IS Atl. Rep. 745; McCone CHANGE OF BENEFICIARY. 451 when the certificate is payable to his legal representa- tives. — Where a certificate of membership is made payable to the " legal representatives " of the member, or to his " exec- utors and administrators," as may be done under the char- ters of some societies, he may, with the consent of the society surrender the same and take out a new certificate payable to a third person. 1 § 234a. Fraudulent change of beneficiary. — One who has an insurable interest in the life of the member has a right to use all the persuasive arts at his command to induce the member to make him the beneficiary of his certificate. 2 When the beneficiary has no vested right in the benefit fund, a change of beneficiary works no fraud upon him or those claiming through or under him. A member of a mutual benefit society, knowing that the beneficiary named in his cer- tificate is greatly indebted, may in accordance with the laws and regulations of the society change the beneficiary entirely, or make the fund payable to a person in trust for the original beneficiary, and such change will constitute no fraud upon the original beneficiary or his creditors. 3 Where the member has a right to change his beneficiary, the original beneficiary will not be heard to assert that the member procured the certifi- cate from him by fraud and then designated another in his place. Having no vested right in the contract, he has no legal ground of complaint for such a fraud. 4 1 Johnson v. Van Epps, 110 111. 551; 3 Sehillinger v. Boes, 85 Ky. 357; 3 Petty v. AVilson, 4 L. R. Ch. Ap- S. W. Rep. 427. peals, 574; Harding v. Littlehale, 150 4 Brown v. Grand Lodge, 80 Iowa Mass. KM). 287. I'mgree v. Jones, 80 111. 181. CHAPTER XVI. DESIGNATION AND CHANGE OF BENEFICIARY. § 235. Designation by last will; where the right to devise the fund is conveyed by charter. 236. Designation of a new beneficiary or disposition of the fund by last will. 237. "When a designation or disposition by will is invalid. 238. 239. When a disposition by will is invalid; power of appointment reserved to the member. 240. Where the designation of a beneficiary is the execution of a power of appointment, it must be made according to the laws of the society. 241. Designation by special appointment. 242. A designation is not necessarily revoked by the subsequent mar- riage of the member. 243. When the power to designate or change the beneficiary is ex- hausted. 244. Time within which the power of appointment or the right to des- ignate a new beneficiary may be exercised. § 235. Designation by last will; where the right to de- vise the fund is conferred by the charter. — A society organ- ized under an act providing for the payment of benefits to devisees or legatees of deceased members, can not by provis- ions of its by-laws or certificates of membership, restrict or limit the right of a member to devise the fund or to appoint, designate or change his beneficiary by his will. A by-law or certificate of such a society, prescribing another mode of appointing, designating or changing a beneficiary, is subject to the right of the member to accomplish this object by his last will and testament. Thus in Kaub v. Association,' an associa- tion was organized under an act of congress, and a section of its charter provided that " the particular business and objects of such society or corporation shall be to provide and main- tain a fund for the benefit of the widow, orphans, heirs, as- signees or legatees of a deceased member, immediately upon !3Mackey (D. C.) 68. (452) DESIGNATION AND CHANGE OF BENEFICIARY. 453 proof of such death." Another section of the charter author- ized the directors to make by-laws, " not contrary to this charter, or to the laws of the United States." One by-law pro- vided : " No change of beneficiary can be made or recognized until submitted to and approved by the board of directors." A member named his sister as his beneficiary with the con- sent and approval of the board of directors. Afterward he made a will directing the fund to be paid at his death to his illegitimate son. The board of directors had no knowledge of this change, and, on the death of the member, the sister claimed the fund. The supreme court of the District of Colum- bia said : " The validity of this new designation is pre- sented as a question for the determination of the court. * * The power of the association to make by-laws was limited by the charter itself to such by-laws as should not be in violation of the laws and constitution of the United States. And this would have been the case even had it not been provided for in the charter. Now, one of the laws of the United States is this very charter, the second section of which provides that " the particular business and objects of such society or corporation shall be to provide and maintain a fund for the benefit of the widow, orphans, heirs, assignees or legatees of a deceased mem- ber, immediately upon proof of such decease." That provis- ion recognizes fully and completely the right of a member of the association to designate the beneficiary by his will, and that power can not be cut off- or diminished by a by-law. So far, then, as this by-law attempts to do so, it is itself inopera- tive. * * We must, therefore, give effect to the recogni- tion contained in that statute of the power to make a bequest, and we can not cut it down by any construction that we might give to this by-law." ' § 230. Designation of a new beneficiary or disposition of the fund by last will. — The mode of designating or changing the beneficiary by last will and testament has given rise to much controversy. Where the benefit fund is payable at the death of the member to his estate, and where there is nothing in the act under which a corporation is organized, or in the charter, constitution, by-laws, or certificate of membership, which takes away from him the right and power to dispose of 1 See § 178. 45i DESIGNATION AND CHANGE OF BENEFICIARY. the benefit fund by last will and testament in the ordinary manner, such a right certainly exists. We have seen in the preceding chapters that in very few societies is the estate of the member a proper beneficiary, and that, in most cases, the member has no propert} 7 ^ in the benefit fund. When he has, however, an interest in the fund, which may, at his death, be- come assets of his estate, he may dispose of the fund by will precisely as he may bequeath other property, unless he is pro- hibited from doing so by the contract of insurance. The right to make such a disposition of his property is given to a member by the laws of the land, and where it is claimed that the right to dispose of such a fund has been abridged, or en- tirely taken away by the terms of the contract of insurance, the burden of proving such an abridgment or abrogation is upon the person making such a claim. Yery clear and bind- ing provisions must be entered into by contract to deprive a member of such a right. 1 If the member has such an interest in the fund, and there is no provision in the charter, by-laws or certificate of membership abridging or abrogating, either in express terms or by necessary implication, his right to dis- pose of the fund by will, the member may so dispose of it, either by specific or general devise; and, where it has not been specifically bequeathed in the will, it will pass under a gen- eral residuary clause; and a will bequeathing all the estate of the testator, in general terms, will pass the fund. A benefit certificate payable to the member, is subject to bequest by him. 2 A member had issued to him a certificate stating that he 1 Catholic Ben. Association v. Priest, particular mode or manner of desig- 46 Mich. 429; Stoelker v. Thornton, nating a beneficiary was prescribed, 88 Ala. 241; 6 So. Rep. 680; Hanni- but there was printed on the cer- gan v. Ingraham, 8 N. Y. Supp. 232; tificate the following words: "All Hamilton v. McQuillan, 82 Me. 204; payments or benefits that may accrue 19 Atl. Rep. 166; Harding v. Little- or become due to the heirs of the hale, 150 Mass. 100. person insured, by virtue of this 2 Catholic Knights v. Kuhn, 91 policy, will be payable to , or Tenn. 214; 18 S. W. Rep. 385. In lawful heirs." These words were not Hannigan v. Ingraham, 8 N. Y. Supp. signed by the member, nor was the 232, the by-laws of the society de- blank space filled out. He made a clared that " its object was to aid and will designating the persons who benefit the families, of deceased should receive the fund, and the members of the brotherhood, in a court held the designation valid, simple and substantial manner." No DESIGNATION AND CHANGE OF BENEFICIARY. 455 was " entitled to participate in the guarantee fund, to the extent of $1 for each member of said association in good stand- ing at his death," not to exceed $1,000; " said sum of $1,000, or less, at his death, to be paid to ,\ ect to his will." He never filled the blank in the certificate^, "..inserting the name of a beneficiary, but in his application % stated : "I hereby authorize and direct that the amount of s id guarantee fund, to which I may be entitled shall, at my death, be paid subject to my will." He died leaving a last will whereby he gave, devised and bequeathed to his mother, after payment of all his debts and liabilities, all his estate and effects. The court held that, under the facts of the case and the peculiar terms of the contract, the fund formed a part of the assets of the estate and passed to his mother under the general terms of the will. 1 A testator gave to his wife " any money which he might die possessed of, or which might be due and owing to him at the time of his decease." Money pa} r able under a pol- icy of insurance on his life, in six months after his death, to his legal representatives, passed under this beqrest. 2 Where a power to change the beneficiary by the appointment of a new one is reserved to the member in the contract of insurance, and no mode of executing this power is provided, it may be exe- cuted by will. 3 Where, under the contract of insurance, the member may change his beneficiary, and there is no provision ■Winterhalterv. Workmen's Associ- ever it (might) consist or wherever ation, 75Cal. 245; 17Pac. Rep. 1. It situated, to be hers without restraint is to be noted" also in this case that the and absolutely." Upon the death of society admitted its liability on the the wife the insurance money became contract, and caused the mother and payable to his executor as assets of his the executor to interplead to deter- estate. The testator's interest in the mine whether the fund should be paid policy passed to the wife in herlife- directly to the mother or to the exec- time by the residuary clause of the utbr for due course of administration will, and after her death to her rep- ami distribution. resentatives. Had the testator died "Petty v.Wilson, 4 L. R. Ch. App. intestate the policy would have passed 574. A testator had insured the life to the administrator as assets: and as of his wife for his own benefit, with a a general rule whatever would thus provision that if he died before her pass may be devised. Keller V. Gay- the insurance money should be paid lor, 40 Conn, 843; 3 Ins. Law Jour, to their children. He died before her, 303. leaving no children, and by his will Mas. mi,- Association v. Bunch, 109 gave her " all the residue of his es- Mo. 0(30. tate, both real and personal, in what- 456 DESIGNATION AND CHANGE OF BENEFICIARY. of the charter, by-laws or certificate of membership, governing the manner and mode ir which such change shall be made, a designation of a new 1 ,eneficiary may be made by his last will and testament. 1 A rill making a disposition of a benefit fund, the disposition p ; ^g valid in other respects, is in no wise affected by th'^+act that it carries out the result attempted to be carried out s before its execution by illegal contracts for the sale of the certificate. 11 § 237. When a disposition or designation by will is in- valid. — "Where, by a provision of the charter, the fund is pay- able to certain classes of beneficiaries, not including devisees, and the member can have no interest in the benefit resulting from his membership; where it is not payable to him in any event, and can not become a part of his estate, there is no interest or right of property in the contract of insurance, which will pass by his will. 3 When, in the charter, by-laws or certificates of membership other ways of changing beneficiaries are named, a.nd no provision is made for changing them by will, the latter mode will be ineffectual, as against the rights of the beneficiary named in the certificate. 4 Where the contract provides that each member shall designate in writing some person as nominee for the benefit fund, and that, upon the death of a member, the nominee so designated by him shall receive such fund, a designation of the beneficiary during the lifetime of the member is contemplated, and may not be made by will. 5 Where the contract of insurance provides that the designation of the beneficiary shall be made during the life- time of the member and be approved by the directors, a designation by will is not valid. A designation which may be changed by a member at pleasure and approved or dis- approved by the directors after his death, is not within the 1 Kaiser v. Kaiser, 24 N. Y. Weekly N. W. Rep. 217; Bown v. Catholic Dig. 410; 13 Daly, 522; Supreme Coun- Mutual, etc., 33 Hun (N. Y.) 263; cil v. Priest, 46 Mich. 429: see § 214. Swift v. San Francisco Board, 67 Cal. 2 Stoelker v. Thornton, 88 Ala. 241; 567; Dennett v. Kirk, 59 N. H. 10. 6 So. Rep. 680. _ 4 See §§ 218, 219, 220. 3 Olmstead v. Masonic Mut. Ben. ' 6 Order of Mutual Companions v. feoc, 37 Kan" 93; 14 Pac. Rep. 449; Griest, 76 Cal. 494; 18 Pac Rep. 652; Renk v. Herman Lodge, etc. , 2 Dern- see also Hotel Men's Mutual v. Brown, arest (N. Y.) 409; Cath. Ben. As- 33 Fed. Rep. 11; Supreme Lodge v. sociation v. Priest, 46 Mich. 429; Nairn, 60 Mich. 44; Stephenson v. McClure v. Johnson, 56 Iowa 620; 10 Stephenson, 64 Iowa 534. DESIGNATION AND CHANGE OF BENEFICIARY. 457 meaning of the by-laws. 1 Where the designation must, under the contract of insurance, be reported to the society for registration on its books, prior to the decease of the mem- ber, the last will and testament will operate as a sufficient designation if it be brought to the notice of the society during the lifetime of the member. In such a case it will be good as a designation, although not yet operative as a will. 3 But where, in such a case, it is not brought to the notice of the society until after the member's death, it is ineffectual as a designation. A society agreed upon the death of a member to pay $1,000 to his wife, if living, if dead, to his children; and if there should be neither wife nor children, then to such person or persons as he may have formally designated to his lodge prior to his decease. He died without either wife or children, and did not in any manner designate to his lodge prior to his decease the person or persons to whom he desired payment to be made. He, however, left a will giving the money to be de- rived from the insurance to his brother. By the express terms of the contract, the society was not to be liable to pay until such formal designation was made by him to his lodge prior to his decease, and, as none such was made, no liability existed. 3 A by-law provided: "A member may at any time when in good standing surrender his benefit certificate, and a new certificate shall thereafter be issued, payable to such beneficiary or beneficiaries dependent upon him as such mem- ber may direct." In construing this, the court said: ".The contract clearly contemplated that the change should be made and perfected by the assured during his lifetime." 4 Where a member makes a change of beneficiaries by will, and that method is not in compliance with the contract, but the original beneficiary induces the member to rely upon her consent to, and acquiescence in the provisions of such will, and accepts 'Daniels v. Pratt, 143 Mass. 216; 3 Hellenberg v. I. O. O. B., mpra; 10 N. East. Rep. 166; Supreme Coun- see Arthur v. Association, 27 Oh. St. oil v. Perry, 140 Mass. 580; 5 N. East. 557; § 238. Rep. 634. 4 Holland v. Taylor, 111 Ind. 121; * Kepler v. Supreme Lodge K. of 12 N. East. Rep. 116; see McCarthy H., 45 Hun(N. Y.) 274; Hellenberg v. v. Supreme Lodge, 153 Mass. 314; 26 District No. 1. I. O. B. B. 94 N. Y. N. East. Rep. 866; Scott v. Scott, 20 583. Ontario 313. 45 S DESIGNATION AND CHANGE OF BENEFICIARY. benefits under it after his decease, she is estopped from after- ward asserting that the change was ineffectual, and from claiming the fund under the certificate. 1 § 238. When a disposition by will is invalid, power of appointment reserved to the member. — Where the charter, by-laws or certificates of membership give to the member the mere power of appointing a beneficiary by will, the power of appointment must be exercised as such, and the fund will not pass as a part of the member's estate under a residuary clause of his will, or under a will merely disposing of all the estate of the testator. The intention to execute a power of appointment by will must appear by a reference in the will to the power, or to the subject of it, or from the fact that the will would be inoperative without the aid of the power. 2 When the will of a deceased member affords no evidence of a design to execute the power by either of the modes laid down in this rule; when it neither refers to the power, nor to the sum of money which is the subject of it, nor is inoperative for want of prop- erty to give it effect as a testamentary act, it will not pass the title- to the fund. 3 An insured had four policies on his life, in one of which (the Globe) he reserved a power to appoint a new beneficiary. His last will contained the following clause : " My life being assured as follows : " (setting out the policies) " I wish to divide among my three children as follows : " (set- ting out names and amounts.) No act of the insured, except that provision of the will, was set up as an attempt to execute the. reserved power of substitution of a new beneficiary under the policy above referred to. The court said : " But I do not construe the will as an execution of the power. The tes- 1 Hairier v. Iowa Legion of Honor, v. Curry, 1 Swanst. 66; Standen v. 78 Iowa 245; 43 N. W. Rep. 185. It Standen, 2 Ves. Jr. 589; Webb v. is a principle that no one shall be Honnor, 1 Jac. & Walk. 352; Sugden permitted to claim under, and adverse on Powers, 301-303; 1 Story's C. C. to, a will. White v. Brocaw, 14 Oh. Rep. 427; 4 Kent Com. 327 et seq. St. 339; Havens v. Sackett, 15 N. Y. R Duvall v. Goodson, 79 Ky. 224; 365; Ditch v. Sennott, 117 111. 362; 7 Hellenberg v. Dist. No. 1, 94 N. Y. N. East. Rep. 636; 1 Jarm. Wills, 580; Md. Mut. Ben. Soc. y. Clen- 386; Bigelow Estop. 642; see §226. denin, 44 Md. 429; Arthur v. Odd * Burleigh v. Clough, 52 N. H. 267, Fellows, 29 Ohio St. 559; Greeno v. 280; Johnson v. Stanton, 30 Conn. Greeno, 23 Hun 478; St. John's Mite 297; Blaggs v. Miles, 1 Story 426; Ass'n v. Buchly, 5 Mackey (D. C.) Lovell v. Knight, 3 Sim. 275; Jones 406. DESIGNATION AND CHANGE OF BENEFICIARY. 4:59 tator treated as his own property four policies of life insurance, all of which belonged to the children of his wife. * * ISTone of these were subject to his bequest, yet he attempted to bequeath them all. No reference is made to the power of appointment reserved in the Globe policy. It is true that the policy is referred to by name; and, under some of the authori- ties a plain and unambiguous reference to the subject of the power has been held sufficient to treat the devise or bequest of the property as an execution of a power of appointment. But in all cases to which the attention of the court has been called, the intention of the testator has been the objective point of inquiry and construction. It is impossible to impute to this testator an intention to execute this power. His intention, on the contrary, clearly was to bequeath this particular policy with others as a part of his personal estate. This controlling intent is inconsistent with any idea of an execution of the power." ' A b} r -law of a society provided that the benefit fund stipu- lated for in a member's certificate "may be disposed of by his last will and testament, otherwise it shall belong to and be paid to his widow, or in case he leaves no widow, then to the heirs and legal representatives of the deceased, and, in the absence of such "will, and in case such member leave no widow, heirs or representatives, such premium shall revert to the company." The court held that the power reserved to the testator under this by-law to dispose of the amount payable at his death was in the nature of a power of appointment, and that the fund would pass only in pursuance of a clause expressing in clear and unmistakable terms the intention of the testator to divert it from the purposes to which by the by-laws of the association it was to be devoted, and would not pass as a part of his estate under the residuary clause of his will." The charter of a society provided as follows : "The fund created in section 9 for the benefit of the widow and children of the deceased member shall be paid to them by said company as soon as it can be collected, or to their trustee, in the discre- 'Eiseman v. Jmlah (U. S. C. C. is difficult, if not impossible, to under- West Disk of Tenn. I, 4 ( lent L. Jour, stand. 345. But 6ee Supreme Council v. 'Greeno v. Greeno, 23 Iluu 478. Firnane, 30 Mich. 82, a case which it 460 DESIGNATION AND CHANGE OF BENEFICIARY. tion of the company, subject, however, to be appropriated for their benefit equally, according to the will of the deceased member; or if he should leave no widow or child, then to be appropriated according to his will, or if he makes no will, and leaves no widow or child, it shall vest, and remain in the com- pany, and be added to its capital stock, or be appropriated as it may deem expedient." An insured member died leaving no widow and no child, and it was claimed that the contingency therefore existed, in which under the charter he had power to dispose of the proceeds of his membership by will, and that he had so disposed of the proceeds by the clause of his will dis- posing of his residuary estate. But the court held that the charter gave the member a mere power of appointment, in case he had neither wife nor child, that the assured had no interest whatever in the fund, and that, therefore, the fund did not pass under a will merely disposing of all his estate, but in which no mention was made of the fund to arise from his membership.' A testator made this provision in his will : " After the pay- ment of all my just debts and funeral expenses by my executor out of my estate, I devise as follows : I give and bequeath the entire residue of my estate to my three sisters, E. C. A., M F. S. and G. E,., and my esteemed friend M. V. L., each of them to have and receive a fourth part thereof absolutely." The testator left neither widow nor children, and, at the time of his death, was a member in good standing of an incorporated mutual benefit society, which by its charter provided for the payment of a certain sum of money upon the death of any member, " to the widow, child, children, or such person or per- sons to whom the deceased may have disposed of the same by will or assignment. If there be no widow, child or children, or the deceased shall have made no disposition by will or as- signment of the sum accruing upon his death, then the board shall appropriate such sum as may be necessary for funeral expenses, and all excess of money accruing from the death of such member shall go to the permanent fund of the associa- tion." In construing this provision of the charter, the court held that the fund was not assets of the estate of the deceased 1 Duvall v. Goodson, 79 Ky. 224. DESIGNATION AND CHANGE OF BENEFICIARY. 461 member, recoverable by his administrator or executor — that the widow, child or children of the member were the benefi- ciaries designated by it, subject to the right of the member to appoint other beneficiaries — that this Jim 1 disponendi given by the charter was a mere power of appointment; and the court further held that the will of the testator was not a valid exer- cise of the power, since the intention to exercise it was not ex- pressed, and it did not appear that there was no other estate upon which it might operate; that in the absence of a valid exercise of the power, there being no widow, child or children of the deceased, the excess of the fund afterpayment of funeral expenses, should go to the permanent fund of the society. 1 Where the by-laws of a society provide that the benefit fund is to be paid " to the widow, children, mother, sister, father or brother of the deceased member, and in the order named, if not otherwise directed by the member previous to his death," the relatives of the deceased will take the fund in the order named unless the member in his lifetime executed such power of di- rection or appointment, thus changing the order of payment, and the will of a member who died seized of real and personal property, devising and bequeathing to his children " my estate and property, real, personal and mixed," without referring to the power or the subject of it, is not such an execution of the power as will control the fund; and the other provisions of the section of the by-laws above quoted control the fund, and give it to the widow of the testator, who is named as the first in order, and, therefore, the preferred beneficiary.' § 239. The charter and constitution of a society declared its object to be "to establish a benefit fund, from which a sum, not to exceed $2,000, shall be paid, at the death of each mem- ber, to his family, or t<» be disposed of as he may direct," and the certificate to eacli beneficiary member provided "that, in] accordance with, and under the provisions of the laws govern- ingthe order, the sum of $2,000 shall be paid, * * as a benefit, upon due notice of his death, to such person or per- sons as he may by will, or entry in the record book of this lodge, or on the face of this certificate, direct." The court 'Maryland Mutual Benevolent So- 'Arthur v. Association, 2? Ohio ciety, I. O. R. M. v. Clendinen, 44 State, 007. Md. 129; 82 Am. Repte.52; Bee Mory v. Michael, 1* Md. 2-11. 4G2 DESIGNATION" AND CHA.NGE OF BENEFICIARY. held that, by the terms of the above contract, the benefit fund belonged to the members estate, and passed under the residu- ary clause of his will, disposing of " the balance of all my property of every kind." The learned chancellor quoted the contract, laying particular stress upon the words — " or to be disposed of as he may direct " — " as he may by will direct " — and said : " The right to the fund and the power of the bene- ficiary to dispose of it in his lifetime, and by will, could not possibly be recognized more clearly." " § 240. Where the designation of a beneficiary is the exe- cution of a power of appointment, it must he made accord- ing to the laws of the society. — This principle is aptly illustrated by the case of Sanger v. Rothschild. 2 A member directed that the fund should be paid at his death to his uncle and aunt. He afterward married. The by-laws in force at the time the member died provided that, on the decease of a member, a fund of $1,000 should be paid, first, to the widow; second, to the children, if there were no widow; third, to the pa- rents, if there were no widow or children; but they empowered a member to designate any beneficiary of the fund, provided he left at least one-half thereof to the widow, if any, and if not, then at least one-half to the children, if any. It was claimed that the laws operated on the designation of the uncle and aunt as beneficiaries, onlv so far as to cut down their right and interest by virtue thereof to $500, but the court held other- Avise, and said : " The laws * required that ' in any desig- nation which a member may make, at least $500 must be left to his widow.' This designation leaves nothing to the widow, and therefore is not, in form or substance, in conformity with the law. A married member of this association may exercise the power of designation given by the laws. But in the desig- nation he must leave his widow at least $500, and he may leave her more, as he may determine; and, unless he exercises the power of designation in this way, his designation is wholly in- effectual, and the widow will take the whole fund, as provided in the laws. The widow is entitled to at least $500, and in the absence of any designation by her husband of the amount she is to have, by what authority can her right be cut down to $500 or any sum less than her $1,000 ? " 1 Weil v. Trafford, 3 Tenn. Ch. 10-l. The act of levying an assessment is ministerial. — In making assessments upon its members, a society acts in a ministerial, not in a judicial, capacity. No presumption, there- fore, arises in favor of the regularity or legality of its assess- ment. Every fact authorizing an assessment to be made must exist, and every act required of the society must be performed, before i m assessment can be Levied, which a member musl pay, or forfeit his rights of membership.' 1 It may he stated, as a Fed. Rep. 840; Knights v. Supreme 'Shea v. Association, 160 M;is<. Commandery, 6 N. V. Supp. 427; 889; 35N. East. Rep. 855; see§§322, Evarte v. Association, 16 N. Y. 823. Supp. '-'7. ' Shea v. Association, supra. 1 Eaton v. Supreme Lodge, 22 Cent. Colby v. Lit'.- Indemnity Co. Law Jour. 560. (Minn.), 59 N. \V. Rep. 589. » People's Ins. Co. v. Allen, 10 'Hogan ▼. League, 99 Cal. 248; 83 Gray 297. Pac. Rep. 924; American Mutual v. 478 ASSESSMENTS. general proposition, that when a society relies upon the failure of a member to pay an assessment as a forfeiture of his member- ship and the benefits thereof, it must show that the assessment was made by the proper authority, for a proper purpose, in the manner indicated in the source from which it derives its power to make the assessment, and in accordance with the con- tract of insurance. 1 The contract of insurance may make the records of a society levying an assessment prima facie evi- dence of the legality of the assessment laid. In such case, the mere introduction of the records, or a properly certified copy, showing the levy of an assessment upon its members, and proof of the non-payment thereof, will cast upon the party suing upon the contract the burden of showing that because of some act or omission of the society, the assessment is invalid, or that the purpose of the assessment is illegal." The law or contract may also provide that the record of losses kept by the society shall be s prima facie evidence that such losses have occurred. 3 It has been held with much force of argument, and upon well founded principles, that where the records of a society show that an assessment was made upon its members, and that a forfeiture of the rights of a member was declared in his life- time for the failure to pay it, the record is at least prima facie evidence in respect to the rights of the beneficiary. 4 Helburn, 85 Ky. 1; 2 S. W. Rep. 495; question, otherwise than by such 8 Ky. Law Rep. 627. copy; and that said certified copy of 'American Mutual v. Helburn, the record was sufficient evidence of supra; Mut. Ins. Co. v. Houghton, the facts therein stated, for the pur- 6 Gray 77; see § 251. poses of the case, without any further i Williams v. German Mutual, 68 evidence of such matters. It is 111. 387. claimed this record was not compe- 3 People's Ins. Co. v. Allen, 10 Gray tent evidence of the existence of the 297; Susquehanna Mutual v. Gacken- conditions precedent to the making bach, 115 Pa. St. 492; 9 Atl. Rep. 90. of the assessments, for the non-pay- 4 Bagley v. Grand Lodge, 131 111. ment of which a forfeiture was de- 498; 22 N. East. Rep. 487. The court clared. Section 17 of article 9 of the said: " The (instruction) was in sub- constitution of the order made express stance, that it was not necessary for provision whereby a member might, the defendant to prove the deaths at his option, at any time change the of members, or that they were mem- beneficiary in the certificate held by bers of the order, or any other mat- him; and plaintiff had no vested in- ters set forth in the certified copy terest in the certificate of the de- of the record of the grand lodge ceased member, under whose certifi- of the call for the assessments in cate she claims, before the death of ASSESSMENTS. 479 Where under the laws of a society the duty of making an assessment is imperative under certain circumstances, and no form or mode of making it is prescribed, and no record of it is required to be kept, it is not necessary that such assessment be formally made by the society or that it be entered in its rec- ords, but it may be proved by parol that an assessment was actually levied. 1 In such a case there being no established rulo prescribing how an assessment shall be made, any action which clearly shows an intent to call upon the members to pay the stipulated amount into the benefit fund will be sufficient. The notice of the assessment may be made to supply all the deficiencies and irregularities of such an assessment, by stating when, where, and to whom it may be paid. 2 § 253. Custom in levying assessments. — Where the pre- tended assessment has not been made in accordance with the provisions of the constitution of the society, it is incompetent to show that it was made in accordance with the custom of the society, unless it is further shown that the member who failed to pay such pretended assessment had knowledge of the custom. 3 was in good standing when he died, and also of showing every dollar paid into the beneficiary fund, and paid out of that fund, during the same period of time. All this would be necessary in order to show what moneys had been received, and what payments had been made, by reason 'of which the beneficiary fund had fallen below $2,000, and a new assi ss- iintit thereby justified under the laws and regulations of the order. The record of the association is at least prima facie evidence in respect to tin* rights of its members, but probably subject to contradiction by proof of fraud, mistake, or other matter in rebuttal." ( Backdahl v. Grand Lodge, 46 Minn. 61; 48 X. W. Rep. 454. -Marsh v. Burroughs, 1 Woods 163; Citizens' Ens. Co. v.Sortwell, lOAllen 111): Fox v. ( ompany. 40 Ind. 81; Rutland v. Tin-all. 85 Vt 856. Underwood v. Iowa Legion of Honor, 60 Iowa lo4. such member. The assessments and the record were made, and the cause of forfeiture accrued, and the forfeit- ure was declared, in the lifetime of the deceased. He being a member of the association, the records made by it were evidence against him. The assessments were against him, and it was his right which was for- feited, if there was any lawful for- feiture, and not any right which was vested in plaintiff, and, if the forfeit- ure was valid, no right ever did vest in plaintiff. If the theory of plaint- iff i> correct, and it is required of defendant to establish, in the first in- stance, otherwise than by its record, and by direct and affirmative testi- mony all the conditions precedent to the call of the assessments, then the burden would be imposed upon it of producing the witnesses to prove the death of every member who had died since the incorporation of the order whose beneficiary certificate had been paid, and that every such member 480 ASSESSMENTS. § 254. Assessment for reserve fund. — The society stands in the relation of agent and quasi trustee for its members, and, as such, it is burdened with certain duties. It is obviously the duty of the officers of the society to observe and perform with care all the requirements of the laws, rules and regulations of the society and the provisions of the certif- icate of membership, relative to the levying of an assessment, so that, whether the burden of proof in the matter be upon the society or its adversary, in a legal proceeding, it can easily and certainly be shown that they have done all that the soci- ety has by law or contract been required to do and perform, and that the assessment is for a proper purpose. An assessment for an improper and unnecessary purpose is invalid, but, in determining what are proper and necessary purposes for which a mutual benefit society may levy an assessment, the laws and contracts governing the society should receive a liberal construction. But where such a soci- ety is not inhibited by its charter it still has no right to pro- vide, in its by-laws and contracts, for the accumulation of a reserve fund. 1 While it is not intended that such associations shall become great financial institutions with growing accumu- lations and holdings of large sums of money and investment securities, it is still proper that they should strengthen their financial ability to pay large losses in unusual emergencies, when authorized so to do by its charter. The legislatures of several states, recognizing the propriety of a reserve fund in such societies, have passed laws providing for such a fund, and regulating its management, investment and disposition. Cer- tainly, no just reason presents itself why such societies should not be permitted to hold a reserve or guarantee fund for the protection of its members. The board of directors, or other officers charged with the management of the affairs of a society, must of necessity be permitted to exercise their discretion to a great extent in the management of the reserve fund; and where such fund has not exceeded any limit which the law may have placed upon the amount which may be held as a reserve, it must be left to the discretion of such officers, whether they will pay a loss in whole or in part from this fund, or levy an 1 Kennan v. Bundle (Wis.), 51 N. W. Rep. 426; Rundle v. Kennau, 81 Wis. 212; 48 N. W. Rep. 516. ASSESSMENTS. 4S1 assessment upon the members to pay it. The idea of a reserve fund imports permanency to some extent, and if losses were required to be paid out of this fund, as they occurred, the fund would soon be depleted and destroyed, and the very ob- ject for which it was created would be defeated. A member can not, therefore, insist that the amount of money held in the reserve fund shall be applied to the payment of losses, before he be required to pay his assessment. The officers of the soci- ety may use a part or all of the fund to pay death losses, but they can not be compelled to do so. It is in their discretion to hold the reserve fund, and lay an assessment to pay the loss. 1 The validity of an assessment is not affected by the fact that the benefit has already been paid, where the payment w^as made out of the reserve fund created by initiation fees under authority of the charter, and the assessment is levied to reimburse such fund. 2 § 255. Assessment in anticipation of losses. — In order to determine whether assessments may be made in advance and in anticipation of losses, it is necessary to look to the pro- visions of the contract of insurance — the charter, by-laws and certificate of membership. Where the contract provides that, upon the death of a member, the directors shall examine into the loss, and, if they shall find the claim of the beneficiary of the member to be valid against the society, they shall levy an assessment upon the members to pay the claim, no assessment may be made in anticipation of losses. 3 When the laws of the society do not authorize an assessment unless the amount in the treasury is less than a certain stated sum of money, and there is more than that amount in the treasury, an assessment may still be levied, if orders have been drawn against the fund to pay death losses, sufficient when paid to reduce the amount below that sum. It is not necessary in such a case to await payment of the outstanding orders. Since the money has been appropriated to the payment of certain claims, it is 1 Crossman v. Mass. Mutual, 143 Pac. Rep. 924: Thomas v. Whallon, Mass. 435; 9 N. East. Rep: 753; 3 N. 31 Barb. (N. Y.) 172; Ins. Co. v. Eng. Rep. 517. Schmidt, 19 Iowa, 502; Pacific Mu- 8 McGowan v. Supreme Council, tual v. Guse, 49 Mo. 829; Rosenberger 28 N. Y. Supp. 177. v. Washington Fire Ins. Co., 87 Pa. 8 Hogan v. League, 99 Cal. 248; 33 St. 207. 31 482 ASSESSMENTS. not in the treasury so as to prevent an assessment to provide for the payment of a further claim which has been allowed. 1 § 256. Effect of the levy of an assessment to pay a death loss. — The mere levy of an assessment by a society upon its members to pay a death loss, unaccompanied by any act rec- ognizing the validity of the contract of insurance, is not a waiver of a forfeiture which has been worked in such con- tract; and the fact that, after the death of the member, the other members paid into the treasury of the society their vol- untary assessments to meet the amount of the insurance, gives the beneficiary no additional rights. 2 § 257. Notice of assas.iinent. — In beneficiary associations, where the time and frequency of payments depend on the mortality of members, and payment is to be made only upon notice that an assessment is required, no liability is imposed on a subordinate lodge, or a member of the society, until due notice in conformity with the laws of the order or society is given. The giving of notice is a condition precedent, and good standing is not lost by a failure to pay an assessment of which no notice was given through the fault or misconduct of a supreme lodge or society, or its officers. 3 The giving of the notice being a condition precedent, the facts showing that the notice provided by the contract of insurance has been given, should be set out in pleading, and proved at the trial, and an averment that legal notice of the assessment was duly given is a conclusion of law and insufficient. 4 Where the only means which a subordinate lodge, or a member of a benefit association has of knowing when an assessment is due to the order or association, is by a notice from the supreme lodge or governing body, unless notice is given, no rights are lost. When, in the contract, a notice is provided for, and not given, no tender of the amount of any assessment is necessary in 1 Eaton v. Supreme Lodge, 22 Cent. Rep. 450; Agnew v. A. O U. W., 17 Law Jour. 560. Mo. App. 254; Castner v. Farmers' 2 Swett v. Citizens Mutual, 78 Me. Ins. Co., 50 Mich. 273; 15 N. W. Rep. 541; 7 Atl. Rep. 394; Mayer v. Equi- 452; Bates v. Mut. Ben., 47 Mich. 646; table Reserve Fund, 42 Hun (N. Y.) Gellatly v. "Mut. Ben., 27 Minn. 215; 237; Bock v. A. O. U. W., 75 Iowa, 6 N. W. Rep. 627; Covenant Mut. v. 462; 39 N. W. Rep. 709. Spies, 114 111. 463; Mulroy v. Knights 3 True v. Association, 78 Wis. 287; of Honor, 28 Mo. App. 463. 47 N. W. Rep. 520; Farrie v. Supreme 4 Coyle v. Kentucky Grangers (Ky.), Council, 15 N. Y. St. Reporter, 155; 2 S. W. Rep. 676. Hall v. Sup. Lodge K. of H., 24 Fed. ASSESSMENTS. .483 order to prevent a forfeiture of membership. A member is entitled to notice of an assessment, before he can be declared in default for his non-payment.' Although the charter pro- vides for a forfeiture where the member has failed to pay within thirty days after notice has been "served on him or sent to him," the time does not begin to run until he has had actual notice. An allegation by the society that " it sent him notice" on a certain day, and that "he received the same," does not allege the time at which he received the notice, and is. therefore, not sufficient to show that there was a forfeit- ure. 3 Where the contract provides that notice of assessments shall be sent by the supreme council to the assessment col- lectors of subordinate councils, who shall notify the members; that the notice to members shall bear the date of the notice to assessment collectors; and that unless a member pay the as- s -vsment within forty days from the date of the notice he shall stand suspended, the member is entitled to actual notice of the assessment before his rights can be forfeited for non-pavment. s Where a contract provides that it shall be forfeited and void, unless payment of an assessment is made within thirty days from date of notice thereof, there must be actual notice to the member of the assessment before a forfeiture will result from non-payment. 4 Where, under such a contract, a notice which has been sent by mail, is received at the house of the member while he is so ill as to be unable to understand or transact any business, and he so remains until his death, no forfeiture arises, since the provision requires actual notice to the member.' The essential requisite of actual notice is information. 6 The charter of a society provided that members were to be •Hall v. Supreme Lodge, 24 Fed. 'Courtney v. Association, supra. Eep. 450; Covenant Mutual v. Spirs, 6 Knights v. Siipr.Mii.- Council, . 1 Bangs v. Mcintosh, 23 Barb (X. 5 Protection Life v. Palmer, 81 111. Y.i.-,<)1. 88; Wet more v. .Mutual Aid, 28 La. ■ Frey v. Mutual Ins. Co., 43 U. C. Ann. 770. (Q. B.) 102. Nat kraal Mutual v. Miller. 85 Ky. 3 Olmstead v. Farmers' Mutual, 88; 2 S. W. Rep. 900; see § 205. 50 Mich. 200. 4S6 ASSESSMENTS. finding of a waiver when it establishes an unbroken usage for years on the part of the society to give notices not so sealed, and on the part of all its members to treat such notices as sufficient. 1 § 259. The fixing of a precise time within which notices are to be sent to members can have no other purpose than to secure promptness in collecting assessments. Hence, the re- quirement as to the time within which notices shall be sent is to be construed as being in its nature directory, and not es- sential. 2 In the case of Ancient Order United Workmen v. Moore, 3 the principle is laid down that if ample notice is given, it is not necessary that the full time allowed by the charter shall intervene between the date of the assessment and the suspension of the rights under the benefit certificate. The constitution of a society provided that " written notices of as- sessment shall be made and sent by the financiers, bearing date of not later than the 8th of the month, in which the no- tice was issued by the supreme recorder, twenty days from the date of such notice by the financier, and not later than the 2Sth day of said month in which said notice of assessment was given, any member holding a certificate of the beneficiary fund, having failed or neglected to pay such assessment into the beneficiary fund, in his subordinate lodge, shall forfeit all his rights under such certificate." The court sa} r s : " Although the notice required to be given by the financier was not sent until the 9th or 10th of February, there was ample time, after it was sent, to pay the assessment before the 28th, and the law required it to be paid on that day, although there was not twenty days between the day the notice was sent, and the 28th day of the month." But in such a case as this, if the member were to die immediately after the 28th of the month, the question would become important whether the twenty days within which payment should be made runs from the 8th of the month or from the time of receiving the notice. § 260. Notice by mail. — Where notice through the mails is relied on, it must clearly be shown, both in pleading and evidence, that the communication was placed in the post office, 1 Heffernan v. Supreme Council, 3 1 Ky. L. Rep. 93; Court of Appeals 40 Mo. App. 605. of Kentucky. - Benedict v. Grand Lodge, 48 Minn. 471; 51 N. W. Rep. 371. ASSESSMENTS. 48 T properly directed, and stamped according to law. 1 Where such notice is relied on, it is not sufficient to show that three per- sons, members of the same family, were also members of the society, and that three notices were placed in one envelope, and directed to another of the three than the deceased. 2 Where the by-laws of a society provide for notice of assess- ments due, before there shall be a forfeiture of benefits, notice mailed to a member is not sufficient to sustain a forfeiture, without proof that it reached him. 3 Where a party is entitled to notice, and has not stipulated to have it transmitted b} T mail or otherwise, he is not bound by any notice until it is act- ually received by him. 4 Where the contract of insurance pro- vides that a notice of assessment shall be transmitted by mail by the society to the member, a change of residence, not made known to the society, is without effect upon it. The society performs its duty when it sends a notice of assessment to the address of the member as made known to it, and the notice is complete on the mailing of it. 5 ^Vhere the officers of a society testify that notices of a cer- tain assessment were sent out as usual, and, that they presume that one was sent to a certain member who has since died, but they do not profess to remember as a fact that such a notice was sent to him, or to have any record of the fact to confirm an impression based simply on their ordinary course of pro- ceeding, the liability to accidental omission in sending a large list of notices is too great to justify a court or jury in giving to such testimony sufficient weight to find therefrom that such notice had been sent, when it also appears from the evidence thai all other notices sent by them had been, but that this one had certainly not been received by the deceased. Where it is 1 N. W. Association v. Schauss, 148 ner v. Farmers' Mutual. ■"><> Mich. 273: III. 804; 35 N. E. Rep. 747: Haskins Supremo Lodge v. Johnson, 78 Ind. v. Society, 7 Ky. Law Rep. 871. 210: Merriman v. Association, 138 *Garretson v. Equitable Mutual, 74 N.Y.116,83N. East.Rep. 138, affirm- Iowa H9; 38 N. W. Rep. 127: see Car- ing 18 N. Y. Supp. 805; Shea v. Asso- butt v. Association, K4 Iowa 298; 51 ciation, 160 Mass. 389; 85 N. Bast. N. W. Rep. 148. Rep. 855; N. W. Association v. M. •< lorkle \. Association, 71 Texas Schauss. 1 1* 111. 304; 35 N. Mast. Rep. 14'.): 8 S. W. Rep. 516; Supreme 747. Lodge v. Dalberg, 37 111. App. 145. 5 Lothrop v. Ins. Co.. 2 Allen 'McCorlvle v. Association, supra; (Mass.) 82; Forse v. Supreme Lodge, Durhans v. Corey, 17 .Midi. 288; Cast- 41 Mo. App. 107. 488 ASSESSMENTS. shown that all notices of assessments, except the one in ques- tion, reached their destination, and that it certainty did not, a presumption arises that no notice was sent, and this presump- tion is not overcome by general testimony of the ordinary course of proceeding in sending the notice from the office. But in such a case the jury must pass' upon the question of notice. 1 1 Gunther v. Aid Association, 40 La. Ann. 777; 5 Southern Rep. 65; N. W. Association v. Schauss, 148 111. 304: 35 N. East. Rep. 747; Hast- ings v. Ins. Co., 138 N. Y. 473; 34 N. East. Rep. 289. In Jackson v. N. W. Mutual Relief Association, 78 Wis. 463, 47 N. W. Rep. 733, it was said: "The testimony that this package was never received by Mrs. Jackson or the plaintiff (h er husband, Wm. T. Jackson) seems to have been quite positive. The fact that it was not received is strong evidence that it was not sent. The by-laws of the company required that such notices should be sent to tbe address of the insured as found upon the books; and the address in this case was Cordelia Jackson, care of William T. Jackson. The secretary of the company testi- fied that it was his habit to send notices according to the address on the books, but that he had sometimes sent them addressed to tbe person in whose care they were required to be sent, if such person was the husband of the insured, to save time, and it appears tbat he had done so in some cases, and that he had sent notices relating to this insurance directly to the husband. The secretary was un- able to testify how this notice was actually addressed, whether to Cor- delia Jackson alone, to her in care of her husband, or to him alone. He had no recollection on the subject. There was no proof whatever that it was addressed to Cordelia Jackson, the only proper person to whom it could have been lawfully sent. The entire absence of testimony that the notice was directed to Mrs. Jackson is as fatal to the notice as if it had not been sent at all. The testimony as to the depositing of the notice in the postoffice is presumptive, rather than positive. The secretary, by the aid of another, made out notices of the assessment, as he testified, to all members in good standing, and placed them in a cupboard. He afterward compared them with the list of such members. They were then placed in a trunk or box, and an agent of the company went with it as it was conveyed to tbe postoffice, and saw them delivered, and he then signed the list on the books, to indi- cate their delivery at the postoffice. No person was able to testify that this notice was one of those delivered, or that Cordelia Jackson was one of such members in good standing, from actual view or inspection. It may perhaps be presumed that she was one of such members; but against such presumption, is the fact, that she never received such notice. * * * It follows, therefore, that, in making the list of members in good standing, it is at least possible that some of them may be omitted, by mistake or oversight, and that Cor- delia Jackson, in this instance, might possibly have been omitted. Do not these facts overcome the presump- tion that she was one of the members in good standing to whom a notice was made out and sent? It is suffi- ASSESSMENTS. 4S9 The by-laws of a society provide that the secretary shall give notice of assessments and of annual dues, " sending all such notices by mail to the last given postoffice address of each member, which shall be considered a legal notice." In con- struing this by-law the court said : " It is quite clear that (the member) was bound by the by-laws and that the by-laws made the sending by mail a legal and sufficient notification whether in fact the notice was ever received or not. The conventional mode, if followed, would be just as valid and effective to fix the rights of the parties in the one event as the other. There is nothing of harshness or unfairness in these terms. The great mass of commercial and financial business of the country is done through the mail, and it is not an unreasonable condition that notice so sent should be considered duly served, and the parties having made this one of the conditions of their contract, should be required to abide by it." ' Where the contract pro- vides that notice of an assessment shall be sent by mail to each member at his last or usual place of residence or business, it is not sufficient to show merely that a notice was mailed to a member, but it must be made to appear either that the notice was properly addressed or that it was actually received by him. 3 cient that it renders such fact uncer- Baekdahl, hut he swore to sending tain, and the testimony unreliable notices of this particular assessment and unsatisfactory. Both of these to all of the members of the lodge, questions were taken from the jury, as he supposed, and as lie evidently It is sufficient that the testimony intended to do, including notice to was not so conclusive upon these Backdalil. it he was not overlooked. questions as to warrant the court in From this the jury might find that instructing the jury that notice of notice was sent to Baekdahl." Skil- said assessment had been given to beck v. G-arbeck, 7 Q. B. 846; Ward v. Mrs. Jackson. In such a state of the Londesborough, 12 C. B. 252: IGreenl. evidence, the question of the notice Ev.,,; 40; - - ) Whart. Ev., ?' 1880. was a very proper one to be sub- 'Union Mutual v. Miller. 26 111. mitied to the jury." Wachtelv. So- App. 2:5<>: Forse v. Supreme Lodge, ciety, 84 N. Y. 28; Payn v. Society, 41 Mo. App. in?; Benedict v . (irand 17 Abb. N. C. 58; Castner v. Ins. Lodge, 48 Minn. 471; 51 X. W. Rep. Co.. .-.u Mich. 278; 15 X. W. Rep. 452. 871; Reichenbach v. Ellerbe, 115 Mo. In Baekdahl v. (Irand Lodge, 46 588. Minn. 61, 48 X. W. Rep. 154, it was 'Supreme Lodge v. Dalberg, :;? III. said: "The financier, whose duty it App. 146; Beel88DL 508; 28 N. East is to forward notices, could nol and Rep. ? s ~>: X. \V. Association v. would not testify, positively* and Bpe- Schauss, 148 111. 804; 85 N. East. Rep. cilically, that he mailed a notice to ?4?. 490 ASSESSMENTS. § 261. Depositing a letter in a postoffice properly addressed and stamped, is prima facie evidence, that it was received in due course of mail by the person to whom it was addressed. The presumption that it was received arises from the usual course of business and the probability that the officers of the govern- ment have done their duty. It is not a conclusive presumption of law, but a mere inference of fact, and when it is opposed by evidence that the letter was never received, it must be weighed with all the other circumstances of the case by the jury in determining whether the letter was actually received, and the burden of proving the receipt of the letter remains throughout upon the party who asserts it. 1 "Where actual notice of a fact is required and the receipt of the notice is disputed, the court will not be justified in instructing the jury that the receipt of a letter containing the notice may be inferred from so mailing the letter, but the question whether or not the notice was in fact received should be submitted to the jury to be determined from all the evidence, both positive and circumstantial. 2 Where, in such a case, the evidence shows that the member was absent at the time the notice was mailed to his residence, any pre- sumption of its receipt by him is rebutted. 3 1 Meyer v. Krohn, 114111. 574; 2 N. ''No life insurance company doing East. Rep. 495; Eckerly v. Alcorn, 62 business in the state of New York Miss. 228; Duringer v. Moschino, 92 shall have power to declare forfeited Ind. 495: Briggsv. Hervey, 130 Mass. or lapsed any policy hereafter issued 186; Kenney v. Altvater, 77 Pa. St. or renewed by reason of non-payment 34: Austin v. Holland, 69 N. Y. 571; of any annual premium or interest, Rosenthal v. Walker, 111 U. S. 185; or any portion thereof , except as here- 4 Sup. Ct. Rep. 382; Wade, Notice, inafter provided. Whenever any pre- SS 501; Wharton Ev. § 1323 and note; mium or interest due upon any such Benedict v. Grand Lodge, 48 Minn, policy shall remain unpaid when due, 471; 51 N. W. Rep. 371. a written or printed notice stating 2 Huntley v. Whittier, 105 Mass. the amount of such premium or in- 391: Home Ins Co. v. Marple, 1 Ind. terest due on such policy, the place App. 411; 27 N. East. Rep. 633. A where said premium or interest shall statement made by the writer of a be paid, and the person to whom the letter while writing it is not admissi- same is payable, shall be duly ad- ble as a part of the res gestce in proof dressed and mailed to the person of the sending of the letter and the whose life is assured, * * * at giving of notice. Home Ins. Co. v. his or her last known postoffice ad- Marple, supra. dress, postage paid by the company, 3 People v. Association, 8 N. Y. or by an agent of such company, or Supp. 675. person appointed by it to collect such The laws of New York provide : premium. Such notice shall further ASSESSMENTS. 491 "Where the only proof of service of notice is that a notice was found among the papers of the deceased just after his death and several days after the assessment was levied, there is no presumption that the notice was mailed on the day of its date, or that the envelope was properly addressed, or that the letter reached the member in due course of mail. 1 § 262. Date of notice given by mail. — In Protection Life Ins. Co. v. Palmer, Adm'r," one of the questions was as to the proper construction to be given to a clause in the con- tract of insurance, providing that the assured should, within thirty days from date of notice, pay to the company the assess- ment, and that a failure to do so should render the policy null and void. The evidence showed that a notice of an assess- ment was dated January 25, L873, and it was mailed to the assured on February 3, 1S73, but there was no evidence showing that he had ever received it. He died on March 5, 1873, with- out having paid the assessment. The company contended that the foregoine; clause of the contract of insurance meant that the payment should be made within thirty days from the date written on the paper as a date. But the court held, that the true object of the agreement was that the assured should be informed that an assessment had been made, which he was required to pay by the terms of his agreement; that the insur- ance company undertook and agreed that they would convey to him information of the fact that he had been assessed and the amount imposed, and that he agreed that, after they should put him in possession of the fact, he would pay the amount within thirty days. And the court further held that the time Btate that, unless the said premium est become payable only ;it Btated or interest then due shall be paid to times and that the purpose of the act the company or to a duly appointed is to require notice to be given so that agent or other person authorized to policies may not lapse through for- collectsuch premium within thirty getfulnessor misapprehension. As- days after the mailing of such notice, Bessments in mutual benefit insurance the said policy, and all payments areuncertain in amount and time of thereon, will become forfeited and payment and can only become due void." It was insisted in MLerriman after notice and demand. Bence v. Association, 188 N. V. 116, 33 N. they are not within the purpose of East. Rep. 738, thai thisacl applied the act. to mutual hen. lit societies; but it was ' Phelan v. Ins. Co., 113 X. Y. 147; held that it clearly had reference only reversing 42 Hun 419. to policies where premiums or inter- - 81 111. 88. 492 ASSESSMENTS. within which payment is to be made is not to be computed from the actual date of the notice, or from the day it was mailed to the member, but, when sent by mail, from the time at which the notice would, in the regular mode of carrying the mail, be received by the member during business hours. The company was held liable on the policy. In discussing the questions involved in the case of The National Mutual v. Miller, 1 the court of appeals of Kentucky recognize this to be the true rule in determining the date of notice of assessments in like cases. Where the contract requires that payment shall be made within a certain time " from the date of the notice" of assessment, this does not mean the date written in the notice, but the date when the giving of notice is complete under the contract. 2 Where a contract provides that notice of an assess- ment " may be served either personally or by registered letter addressed to the assured at his postoffice address named in or on the policy, and no policy of insurance shall be suspended for non-payment of such amount until thirty da} T s after such notice has been served," service is complete and the thirty days begin to run as soon as the letter is mailed as provided. 3 Where an assessment is payable within thirty days from the " mailing of a registered letter to the member, containing a notice of such assessment," the period of time does not run from the date when the letter was deposited in the postoffice to be mailed and registered, but from the date when the regis- tration was completed by making the proper entries in the books of the postoffice, and the procuring of a receipt by the sender, as provided in the postal regulations. 4 A by-law of a society provides that a policy issued by it shall become void " if the assured shall neglect, for the term of thirty days, to pav * * any assessment * * when requested to do so by mail or otherwise." In construing this by-law, the court held that, by the neglect of the assured to pay the amount of an assessment for thirty days after a written request for pay- ment, prepaid, duly directed and deposited by the society in 1 85 Ky. 88; 2 S. W. Eep. 900; see N. W. Eep. 47; Elliott v. Kennedy, Mueller v. U. S. Association, 51 111. 26 How. Pr. 422; Forse v. Supreme App. 40. Lodge, 41 Mo. App. 107. 2 Til. Order v. Besterfield, 37 111. 4 Holbrook v. Ins. Co., 86 Iowa App. 522. 255; 53 N. W. Rep. 229. 3 Ross v. Ins. Co., 83 Iowa, 586; 50 ASSESSMENTS. 493 the postoffice, would, in due course of mail, reach the place of his residence as set forth in the policy, the contract was forfeited and rendered void, and that such neglect to pay worked a forfeiture of the policy whether he received such request or not. 1 A by-law of a society provided that, when- ever an}'" assessment should be levied, and notice thereof be forwarded to the insured by mail or otherwise, and the insured should for the space of thirty days after such notice refuse or neglect to pay the same, the policy might be declared void. In construing this by-law, the court said : " In contemplation of law the plaintiff had notice, when in the ordinary course of mail the notice should have reached (the member's postoffice address). It would greatly embarrass the defendant, if not render the transaction of its business impracticable, if it should be required to prove actual delivery of notice to the party assessed. By express stipulation it is agreed that the policy may be forfeited for refusal or neglect to pay an assessment within thirty days after notice thereof forwarded to the insured by mail. In mailing the notice the company did all it was required to do." 2 A certificate of membership provided that the member should be notified of each assessment " b} 7 " written notice deposited in the postoffice in the city of New Orleans, addressed to such address as has been left in writing at the office of the association with the secretary," and that " on his failure to pay said assessment within thirty days from the time that notice is given to him that said assessment is due, this policy shall become null and void." A notice in writing deposited in the postoffice in New Orleans addressed to such address as has been left, etc., is a sufficient notice of assessment, and no evidence will be admitted to show that the member did not receive the notice. 3 Where the contract pro- vides for notice of an assessment by mail to the last given address of the member and for forfeiture for non-payment within a certain time, the date of the notice is the time when it is received by him, or the time when he could have received it in the ordinary course of mail. 4 'Lothrop v. Greenfield Mutual, 2 Ann. 938; see also Yoe v. Association, Allen (84 Mass.) 82. 63 Md. 86. ' 2 Greely v. Iowa State Ins. Co., 50 4 U. S. Association v. Mueller (111.). Iowa 86; Mutual Reserve v. Hamlin, 37 N. East. Rep. 882; Mueller v. U. 139 U. S. 297; 11 Sup. Ct. Rep. 614. S. Association, 51 III. App. 40. 3 Epstein v. Mutual Aid, 28 La. 494 ASSESSMENTS. § 263. Date of assessment, date of notice. — A by-law of an association provided that " every member failing to pay his assessment, within thirty days from the date of such assess- ment, shall stand suspended." In construing this by-law, the appellate court of Illinois held that the duty of the associ- ation was complete upon mailing the assessment, and that the failure of such assessment to reach the assured, by reason of its miscarriage in the mail, or the absence of the assured, would not excuse the non-payment of the assessment within the prescribed time. The court said : " In the case of Protec- tion Life Ins. Co. v. Palmer, 1 where the policy is declared by its terms to be forfeited unless payment is made within thirty days from the date of notice, it is not unreasonable to hold that these words ' date of notice ' refer to the time when the knowledge of the facts contained in the letter reach the assured, for the word ' notice ' has a double meaning, and is often used to signify either the paper or other instrumentality used to give information, or the information itself. No such ambiguity can arise by the use of the word ' assessment.' It can not refer to two distinct periods. The date of the assess- ment means necessarily the time when it is made out by the secretary and mailed to the assured in accordance with the terms of the by-laws." 2 § 264. Notice by publication. — A contract of insurance provided that the society should notify its members of assess- ments by publication for five days in certain newspapers, and that the members should pay the assessments within thirty days after notification. The court held that under this contract the member was allowed the entire thirty clays, commenc- ing and counting from and after the last five days of publica- tion, and that the society could not claim the forfeiture of the policy for non-payment of assessment until thirty days after the last of the five days of publication had expired. 3 Under a clause in the charter of a society, directing the managers when they make an assessment to ; ' publish the same," and pro- viding that the member shall " within sixty days after such *81 111. 88. W. Life Ass'n, 86 Fed. Eep. 75; Yoe 2 Weakly v. N. W. Association, v. Association, 63 Md. 86; Mueller v. 19 111. App. 327; see Greely v. Iowa IT. S. Association. 51 111. App. 40. St. Ins. Co., supra; Epstein v. Mu- 3 Wetmorev. Mutual Aid & Ben., tual Aid, etc., supra; Stanley v. N. 23 La. Annual 770. ASSESSMENTS. 405 publication" pay their assessments on penalty of immediate forfeiture, actual notice of assessment to each member is not re- quired, but notice by publication is sufficient.' Where the articles of association provide that members shall pay their assessments " within thirty days after receiving notice thereof," on penalty of forfeiture for nonpayment thereof within that time, the society must show, before a forfeiture may be de- clared, that actual notice was given to the member, though a by-law provides that notice of assessments " shall be given by publication in one or more newspapers." That construction is to be given to inconsistent terms which is most favorable to the rights of the member. 3 § 265. Notice of date of payment. — A society sent out the following notice to its members : " Mortuary assessment Xo. 30 will be due and payable on or before the first day of May, 1872." Without having paid that assessment, the insured died on the night of May 1, 1872, before midnight. There was nothing in the contract providing at what hour the assessment should be paid, and no provision, as is generally the case in insurance contracts, that the policy should cease at noon on the day named, if the assessment should not be paid. The court held that the policy continued in force until midnight of May 1st, and that the society was liable. 3 Where a member is to make payment of an assessment within thirty days from date of notice thereof, the day on which he receives the notice will be excluded. 4 § 266. Service of notice. — In suits upon certificates of membership in a mutual benefit society, the controversy fre- quently turns upon the question whether the deceased mem- ber was so notified or informed of the assessment as to incur a forfeiture by reason of its non-payment. The notice given, in order to have such an effect, must be shown to have sub- stantially followed, in its form and manner of service, the rules prescribed in the contract of insurance. It is often in- sisted, however, that it is sufficient if it appear from the evi- 1 Pennsylvania, etc. v. Ins. Co., 127 3 Och v. Homestead, etc., bos. I o., Pa. St. 559; 18 Atl. Rep. 392; North- 4 Pittsburg Leg. Jour. 98. ampton Ins. Co. v."Stewart, 39 N.J. *Protection Life \. Palmer, 81 111. L. 486. 88; National Mutual v. Mill, i . 85 Ky. 2 Schmidt v. German Mutual. 4 Ind. 88; 3 S. W. Rep. 900; Wetmore v. Mu- App. 340; 30 N. East. Rep. 939. tual Aid, 23 La. Ann. 770. 496 ASSESSMENTS. dence that the deceased member had knowledge of the assess- ment, derived from any source, or that he had. such a knowl- edge as should have put him upon inquiry about it. This doctrine is not tenable. In discussing this question, the court of appeals of the State of Missouri said : " There are many cases where a person must, at his peril, act upon the knowl- edge of a particular fact, however derived, or upon such information as should reasonably put him upon inquiry. But wherever the special law of the notice prescribes the form and manner in which it is to be given, especially when a forfeiture may result, the party to be affected will, as a general rule, not be bound by a notice given in any other form or manner. Thus, when a man's rights are to be adjudicated in a court of justice, he is entitled to just the form, manner and time of notice that are directed by the statute; otherwise he will not be bound by the proceedings, although bodily present in the court room, seeing and hearing all that may be done. The indorser of a promissory note may have personal knowledge of the maker's intention not to pay, or of his failure to pay, at maturity. Yet the holder can not subject him to any liability without a notice of the dishonor, given in the form, time, and manner established by commercial law and usage. (The mem- ber) might have heard a rumor, or have been informed by a friend, that assessment number 72 had been declared, and must be paid by a certain time. But she had a right to disbelieve the rumor, or the friend, until a knowledge of the fact was brought home to her in the way for which she had stipulated in her contract with the association." ' Where it is shown that a deceased member of such a society knew of the assessment made upon the members, and expressed his intention to pay it, these are facts from which the jury may, but are not bound to infer that he was properly notified. 2 The object of stipulations as to the form and manner of service of notice of assessment is to point out to the member the way in which he is to expect the notice, and to protect him in his right to have knowledge and information of the time when, and amount which, he will be required to pay. The member 1 Siebert v. Chosen Friends, 23 Mo. Stewart v. Supreme Council, 36 Mo. App. 268. App. 319. s Siebert v. Chosen Friends, supra; ASSESSMENTS. 497 may waive compliance with these purely technical require- ments, and if he actually receives, without objection, the notice to which he is entitled, and acknowledges the receipt of the notice, or in any way acts upon it, but does not pay the as- sessment, he waives the right to service in the manner and form as agreed upon in the contract. A by-law of a society provided : " If the insured shall neglect for the space of ten days, when personally called on, or after notice in writing has been left at his last and usual place of abode or business, to pay an assessment, the risk of the company on the policy shall be suspended until the same is paid." A member was not per sonally called on for an assessment, and a notice in writing was not left at his last and usual place of abode or business, but he received a notice by mail, and had some correspondence with the society about the assessment. He did not pay the assessment, but made no objection to the way in which the notice reached him. In an action on the contract of insurance, it was held that any objection to the manner of receiving the notice had been waived by the member. 1 Upon this subject, the court said: "The object of this provision in the by-law is to bring the notice of an assessment to the knowledge of the insured. But this may be waived, and it does not preclude other methods of communication, provided the purpose of the by-law in this regard is accomplished. The objection now for the first time made is purely technical, and as he actually re- ceived the notice to which he was entitled, without objection, he has been in no way injured by this departure from the by- law, and he can not avail himself of it." From the authorities the doctrine is fairly deducible, that a member does not, by receiving and retaining a notice of an assessment, waive any objection to its sufficienc} 7 " under the contract of insurance; but that he does waive the question as to the sufficiency of the service of a proper notice upon him, by receiving it by some other method of communication than that agreed upon, acting upon it, and retaining it beyond a time when he might reasonably call the attention of the society to the irregularity and insufficiency of the service. When the evidence is conflicting concerning the service of notice upon a member, it is for the jury to decide whether or not such service 1 Hollister v. Quincy Insurance Co., 118 Mass. 478. 32 498 ASSESSMENTS. was made upon him. 1 Proof of the service or the giving of a notice involves proof of its contents. 2 Where a particular method of giving the notice of an assessment has been agreed upon and made a part of the contract, it is binding upon all parties unless waived. 3 Where a law or contract provides that notice of any fact shall be given and there is no qualification, personal service is meant. In the absence of any agreement with the member, or any provision in the charter or by-laws for a different mode of service, it should be made personally, as required at common law, when the object is to deprive a party of his rights or property; but if that method be dispensed with, then the service must be made in such away as will most likely effect the object of the notice. 4 Unless some special mode or form of notice be required by the contract, personal service will be sufficient; 5 and where by the contract payment must be made within thirty days after notice of an assessment has been published, personal service of notice of an assessment is sufficient. 8 § 267. Agreement of the society to give notice to the beneficiary. — Where the society knows that a person has an expectant interest in the fund to be paid under a certificate, and agrees to give him notice of assessments in time to enable him to pay them and prevent a forfeiture, and afterward fails to give him notice, it can not ignore the agreement and forfeit the contract in violation of it. 7 §268. Insufficient notice of assessment. — The notice must conform to the by-laws and the contract, or it is invalid. No forfeiture can be declared for non-payment of an assess- ment where the notice is insufficient. Where the contract of insurance provides that the member shall pay $2.50 quarterly for expenses, and that he shall forfeit his membership if the quarterly dues shall not be paid within thirty days after notice, a notice to pay 810 as annual dues, in advance, is 'Buckley v. Columbia Ins. Co., 83 County Mutual v. Knight, 48 Me. 75; Pa. St. 298. Williams v. German Mutual, 68 111. 2 Supreme Lodge v. Johnson, 78 387. Ind. 110; 11 Ins. L. J. 251. 6 Jones v. Sisson, supra. 3 Maginnis v. Association, 43 La. 7 Keeler v. Association, 20 N. Y. Ann. 1136; 10 So. Rep. 180. Supp. 935; Kenyon v. Association, 4 Wachtel v. Society, 84 N. Y. 28. 122 N. Y. 247; 25 N. East. Rep. 299; 6 Jones v. Sisson, 6 Gray 288; York 2 May. Ins. (3rd Ed.) § 360, C. ASSESSMENTS. 499 not a sufficient notice. 1 Where the charter and by-laws of a society provide that, when the board of directors shall order an assessment, the secretary shall prepare it, and that it shall be signed by him and a majority of the board, an unsigned and uncertified paper containing no headings to explain the figures set down in it, can not be treated as an official assessment for the purpose of forfeiting the policy of one who had not paid the amount of his assessment until after the expiration of the period fixed by that notice to him. 2 The articles of incor- poration and by-laws of a mutual benefit society required that assessments be made by the secretary, and the certificates of membership provided that assessments should be payable within thirty days after notice from the secretar} r . It was held that the notice contemplated was notice of the assessment; and that the certificate was not forfeited by neglect to pay assess- ments which were not imposed by the secretary, but by per- sons claiming to be managers, and where the only notice from the secretary was a notice of forfeiture. 3 The by-laws of a society provided that, upon the death of a member, the secretary should notify the members through local agents, and that each member should within ten days therea Iter pay his dues, and if he should neglect to do so for forty days, he should forfeit his membership. The court in construing this by-law held that it would be unjust and unreasonable to hold the mere notice to the local agents as notice to members, and that the provision must be construed to mean that, the local agents being notified, they must notify the members Avithin ten days thereafter, and, upon receipt of such notice, the members for the first time become legally bound to pay the assessments, and must pay within forty days. 4 "Where a notice shows that the assessment was levied by the societv, instead of by the board of directors, the notice is sufficient, as, in legal effect, it is the same thing. 5 A notice which con- tained only a fac simile of the seal of the lodge, was held •Mutual Endowment v. Essender, 4 Coylo v. Ky. Grangers (Ky.)« 2 S. 59 Md. 463. W. Rep. 67(5: District Grand Lod^e 2 Baker v. Citizens Mutual, 51 Mich. v. Cohn. 20 111. App. 335. 243. Williams v. German Mutual, 68 3 Bates v. Detroit Mutual, 51 Mich. 111. 289. 587. 500 ASSESSMENTS. sufficient notice of assessment, where it did not appear that the laws of the society required an impress seal mark to be placed upon the notice. Defects of form merely are not ma- terial, where the notice gives to the member actual informa- tion of the assessment. 1 A notice to do an act, which is required to be given by a particular person named, contem- plates the personal action and judgment of the person author- ized to give such notice, and involves the exercise of power and discretion to be exerted by the individual himself, which he can not delegate to another. Thus, where a by-law of a mu- tual benefit society provides that the local secretary shall give notice of assessments to members, and another by-law declares that a member, by a failure to pay after notice by the general secretary shall forfeit his right to benefits, a member is enti- tled to notice from both secretaries, and a card on which the name of the general secretary is printed, but which is filled up and addressed by the local secretary, is not sufficient to con- stitute a notice from the general secretary. 2 "When according to the by-laws of a society, the notice to members requiring them to pay assessments must contain a list of all deaths which have occurred since the last assess- ment, and notify the member of the amount due from him to the benefit fund, a forfeiture of membership can not be sus- tained for failure to pay an assessment, when the notice thereof did not conform to the by-laws in these respects. 3 Where provision is made for the publication of a list of the deaths, it will be presumed that the members adopted such a provision in order to see the necessity of the assessment; and where the society agrees to notify the member of the amount due from him on an assessment, he has a right to rely upon the amount as stated in the notice, and where no amount is stated the notice is manifestly insufficient. The fact that a notice of assessment was not addressed on its face to a member does not invalidate it, when it was sent and received in an envelope properly directed. A notice need not state the amount of the 1 Karcher v. Supreme Lodge, 137 s Payne v. Mutual Relief Society, Mass. 36; see Hefferman v. Supreme 17 Abb. (N. Y.) N. Cas. 53. Council, 40 Mo. App. 6Q5; Hansen v. 3 Miner v. Michigan Mutual, 63 Supreme Lodge, 140 111. 301; 29 N. Mich. 338; 29 N. W. Rep. 852. East. Rep. 1121; S.C.,40I11. App. 216. ASSESSMENTS. 501 assessment when the member knows the amount which he is required to pay under his contract. 1 A society claimed that a member had been suspended after having received notice under an article of its by-laws, which was as follows : *' ; A member who does not pay his dues and assessments to the lodge within four weeks after the quarter, shall be notified to pay the same Avithin fourteen days, and if he does not pay he shall be considered in arrears, and he is not entitled to lodge benefits. A member so in arrears shall be notified by the secretary in writing to pay within thirty days, in default whereof the member shall be suspended." The dues, as to which the member was delinquent, were for the two quarters ending respectively June 30 and September 30. The only notice sent to the member in relation to the dues for the quarter ending June 30, as shown by the record, was mailed to him May 22, which was long before those dues were pay- able. The only other notice shown to have been sent him in relation to the dues of either quarter was mailed October 22, and that notice required the payment of the dues of both quarters. It was not shown, as to the dues of either quarter, that after the member had failed to make payment within four weeks after the quarter, he was notified to pay within fourteen days, and failing to make payment within that time, reached that stage of the proceedings where he could be '* considered in arrears," and after becoming so " in arrears," he was again notified to pay within thirty days, and made default in payment during all that period. By the terms of the above by-law, each of these steps was clearly essentia! to valid suspension. " It was necessary to wait four weeks after the expiration of the quarter, and then if the dues were un- paid, to notify the delinquent to pay within fourteen days. If he still remained delinquent, he was to be considered in ar- rears, and when so in arrears, he was to be again notified to pay within thirty days thereafter, and it was only when the delinquency had extended to the termination of this hit in- period, that sentence of suspension could be pronounced." ' § 269. By a clause of the certificate of membership, a for- feiture was authorized if the member failed to pay an assess- 1 Hansen v. Supreme Lodge, 40 111. i District Grand Lodge v. Colin. 20 App. 21G. 111. App. 333. 502 ASSESSMENTS. ment within thirty days after a publication of the notice for five consecutive clays. Subsequent to the issuing of the cer- tificate, the society addressed a notice of assessment to the in- sured, who resided in New Orleans, on which the following indorsement was printed : '*' Members residing in the city of New Orleans are hereby notified that the notices of assess- ments due by them on death of a member are only given through newspaper publication — in special notice column — for eight consecutive days; being always published on the first Sunday of the month and continued through the week, in- cluding the second Sunday. Payment is required at the office within thirty days from date of publication; the failure to make payment within thirty days operates a forfeiture of his or her policy, and the name of such delinquent will be erased from the books of said association. J\' otices of assess- ments are published in the New Orleans Times, New Orleans Bee, the Daily Picayune and German Gazette. Special no- tices will not be sent to residence or business location." While this indorsement remained unrecalled, it was a volun- tary extension of the time of the publication, in order to effect a forfeiture as agreed to in the contract of insurance; and un- der this agreement the forfeiture would not occur unless there was a failure to pay the assessment called for, after thirty days from the publication of notice for eight consecutive days. Where the notice, therefore, under which forfeiture was claimed was only published for seven days, it was held in- sufficient. 1 A society provided in its by-laws that if a member should fail to pay his assessment for ten days after notice thereof by publication, his wife should have no benefit fund in case of his death; and if he should fail for thirty days so to pay, he might be expelled. A by-law of the society provided for pub- lishing notice of every death and assessment, and of the time when the same was required to be paid, and also provided that a collector should be appointed to notify members in arrears for such dues, and to collect them. A member died in 1 Fitzpatrick v. Mutual Benevolent Ins. Co. v. Stewart, 39 N. J. L. 486; Co., 25 La. Ann. 443; see Gunther v. Atlantic Mutual v. Sanders, 36 N. Aid Ass'n r 40 La Ann. 777; 5 South- H. 254. ern Rep. 65; see also Northampton ASSESSMENTS. 503 April, 1873, and notice was published in two newspapers in the city where the members resided, stating the fact, and that dues on account thereof were payable April 30, 1873. B., another member, was drowned on May 11, 1873. There was no evidence that he was aware of the death of the member who died in April, or that he knew of the publication of notice in the newspapers. The collector of the society did not call upon him for, or notify him of the assessment. The society refused to pay the benefit fund to B.'s widow. The court held that members of this society did not bind them- selves to ascertain the fact of the death of a member from publication only at the risk of forfeiting their interest in the benefit fund, and that B. did not lose his right to have this fund paid to his widow, as he had no knowledge of the death of the party on whose account he had been assessed, or of the publications in the newspaper; and until he had, or until after demand made upon him by such collector, his right to pay such assessment and preserve his rights in the fund continued. 1 Notice of an assessment handed to a son of the member is insufficient as a basis for a declaration of forfeiture. 11 Where the by-laws provide that notices of assessment shall be given by publication in three newspapers published in the county in which the society is doing business, it is not sufficient to show that such notices were published in two papers in that county. 8 A notice of an assessment is invalid, which requires payment to be made before the expiration of the time in which the mem- ber may, by the contract, make the payment. 4 Thus where 1 Mutual Relief Society v. Billau directed to his postoffice address, as (Superior Court of Cincinnati), 3 Am. given in his original application, or Law Record, 546; Schmidt v. Ger- in writing to the secretary of the corn- man Mutual, 4 Ind. App. 340; 30 N. pany. On the 12th of February the East. Rep. 939. notice on which the defendants relj ■Supreme Lodge v. Wickser, 72 was mailed, but it required payment Texas, 257. to be made on the 24th of the si 3 Sande v. Groves, 58 N. Y. 94. month. The statute requires the «Frey v. Wellington Mutual, 4 time for payment to be stated in the Upper Canada, 293. In this case it is notice, and so impliedly requires the said: " The statute provides that an named day to be at least thirty .lavs assessment shall become payable in subsequent to the mailing. This as- thirty days after notice of such assess- sessment, therefore, does not seem to ment shall be mailed to the person have been validly made upon the who has given the premium note plaintiff." 504 ASSESSMENTS. the by-laws of a society provide that, upon the failure of a member to pay his assessment within forty days after notice from the secretary of the death of a member, his claims upon the society shall be forfeited, a notice from the secretary re- quiring payment to be made within thirty days is a nullity, as there is no authority for the issuing of such a notice. 1 Where the by-laws provide for forfeiture of membership if the mem- ber fails to pay any assessment " within thirty days from the date of the notice thereof," a notice which is mailed so as to reach the insured November 30, and which demands pay- ment on or before December 28, is not sufficient to sustain a forfeiture, since the " date " of the notice is the time when it is or could be received. 2 "Where a mutual benefit society urges its members to deposit money with it in advance of the assess- ments, and agrees to apply such deposits to the payment of future assessments, a notice demanding three dollars from a member, that being the full amount of the assessment, when the member has one dollar deposited with the society, is in- valid as demanding more than is due. 3 A notice requiring a member to pay an assessment before it is due is invalid. 4 1 Haskins v. Ky. Grangers' Mutual, supra; Eddy v. Ins. Co., 65 N. H. 7 Ky. Law Rep. 371. 27: 18 Atl. Rep. 89. * U. S. Association v. Mueller (111.), 4 Haskins v. Ky. Grange, 7 Ky. Law 37 N. East. Rep. 882; Mueller v. U. Rep. 371; Frey v. Wellington Mutual, S. Association, 51 111. App. 40. supra. 3 U. S. Association v. Mueller, CHAPTER XIX. ASSESSMENTS. § 270. Payment of assessment. 271. Payment out of funds in the hands of the society. 272. By whom payment of an assessment may be made. 'J?:!. When payment must be made during the lifetime of the member. 274. Death within thirty days after notice. 273. Payment of an assessment after the death of the member; days of grace. 276. Payment to subordinate lodge; agency of lodges. 277. Authority of agents to collect assessments. 278. A receipt for an assessment may be contradicted. 279. Tender of an assessment. 280. Refusal to accept assessments; remedy of member. 281. Effect of the return of assessments once paid. 282. Recovery of assessments paid by a member. 283. Promise of the society to receive a past due assessment. 284. Reimbursement of one who has paid assessments for another. § 270. Payment of assessment. — Where a policy of insur- ance issued by a mutual benefit society provides that, if any assessment owing by the assured shall not be received by the society within thirty days from the date of notice, the policy shall be null and void, and there is no provision either in the contract of insurance or in the notice, stipulating the mode of remitting the assessment, the member is bound to see that the money is actually received by the society within the time speci- fied, or forfeit his policy. But where a notice directs the member to remit the amount by post-office order, or draft pay- able to the society, the right to forfeit the policy, by reason of the non-payment of the assessment within the time limited by the policy, is waived, and all that the member can be ex- pected to do, under such circumstances, is to promptly observe such directions. When lie lias done so. lie has a righl to sup- pose that his dues are paid, and he can not be expected to know to the contrary until notified by the society, or until the (505) 506 ASSESSMENTS. lapse of a reasonable time to receive a notice from the society. 1 In all cases where, by the direction or agreement of the cred- itor, money is sent by mail in discharge of a debt, proof that a letter, containing the requisite sum, duly sealed and directed, was deposited in the post-office, is sufficient to maintain a plea of payment. 2 This doctrine rests on the principle that the debtor has done all in his power to perform the contract, and that the risk of transmission was assumed by the creditor. An assessment is considered paid to the society when, accord- ing to instructions, it is delivered to an express company ad- dressed to the society or its agent. 3 The contract of insurance frequently provides that assess- ments shall be paid by noon of the day on which they fall due, but, in the absence of any provision upon the subject, an assess- ment may be paid at or before midnight of the day it falls due; and if paid by that hour, even after the death of the member, it will be sufficient. 4 The decision of the officers of a society respecting the construction to be given to a contract of insurance, and the custom of paying assessments which has arisen under such decision, are not binding upon members. Where the contract provides for the payment of assessments to an officer of the society, and those in authority in the order decide that they must be paid at a meeting of the lodge, and can not be paid otherwise, and a custom of so paying them grows up in the order, the terms of the express contract of the parties, and not the custom or habitual mode of doing busi- ness, must determine the rights and duties created by that contract. 5 It may well be doubted whether it is competent for those representing a mutual benefit society to accept any- thing less than the total amount of the assessment laid upon a member, or to accept in payment thereof anything but Protection Life v. Foote, 79 111. 4 Och v. Ins. Co., 4 Pittsburg Leg. 361; see Palmer v. Phoenix Mutual, Jour. 98; see Leigh v. Ins. Co., 26 La. 84 N. Y. 64-71. Ann. 436. 2 Warwicke v. Noakes, 1 Peake R. 5 Manson v. Grand Lodge, 30 Minn. 67; Hawkins v. Rutt, lb. 186; King- 509; Wiggin v. Knights of Pythias, ton v. Kington, 11 M. & W. 223; Cal- 31 Fed. Rep. 122; Davidson v. Su- vin v. Association, 21 N. Y. Supp. preme Lodge, 22 Mo. App. 263; see 734; Primeau v. Association, 28 N. § 143. Y. Supp. 794. 3 Whitley v. Ins. Co., 71 N. C. 480; Currier v. Ins. Co., 53 N. H. 538. ASSESSMENTS. 507 money. If this course of dealing might be carried on with one member, it might also be done with all members, and thus the sole purpose of such an organization might be hindered and defeated.' In some contracts payment in cash is not called for in apt words, and in such cases anything which can fairly be called payment, and which is accepted as such, will answer the requirements of the contracts, but where an assessment must be " actually paid in cash," nothing else will answer the requirement. 2 A general agent may waive the payment of an assessment in cash, and accept other things than money in payment; 8 but a local agent may not. 4 Where the treasurer of a subordinate council remitted to the supreme treasurer of the society an amount which equaled, and was received as, the aggregate amount due from his council for each member thereof, and the remittance included the amount assessed against him, the fact that the payment of his assessment was made by him directly to the supreme treasurer, instead of indirectly through the collector, as provided by the rules of the council, may not be urged to deprive his widow of the benefit of such payment. The main purpose for such rules for the collection of assess- ments is to put into the hands of the supreme treasurer the amount payable by each member of the society. If the mone3 r gets into the treasury, it matters little by what path it got there, so far as the rights of the beneficiary are concerned. Payment may be made in anything of value agreed upon by 1 Protection Life Ins. Co. v. Foote, Texas Mutual v. Davidge, 51 Texas 79 111. 361; Buffum v. Fayette Mut 244: Haul. v. Ins. Co., 14 N. Y. St. Ins. Co., 3 Alien (Mass.), 360; Hoffman Rept'r573; as to payment by check, v. John Hancock .Mutual. 92 U. S. see Neil v. Ins. Co., 7 Out. App. 171: 1'il. Bigelow v. Association, L5 N. Y. 2 Dunham v. Morse. 158 Mass. 1.32; Weekly Dig, 361. As to waiver of 32 N. East. Rep. 1116. actual prepaymenl of premium or 3 Boutonv. Ins. Co., 25 Conn. 542; assessments, see Boehen v. Ins. Co., Sheldon v. Ins. Co.. 2.-. Conn. 207; 35 N. Y. 131; Goit v. Ins. Co.. 25 Kentucky Mutual v. Jenks, 5 End. Barb. 189; Sheldon v. Ins. Co.. 26 X. 96; Willcuts v. Ins. Co.. si i n .l. :{(i(i; Y. 460; Baxter v. [ns. Co., !:: Allen Insurance Co. v. Colt, 20 Wall. 560. 820; Heaton v. Ins. Co., 7 R. I. 502; ♦Continental Life v. Willets. 24 Dayton Ins. Co. v. Kelly, 24 Oh. St. Mich. 26S; Combs v. Ins. Co.. 66 Me. 845. 882; Hoffman v. Ins. Co., 92 U. S. s Farrie v. Supreme Council, 15 X. 161; Carter v. Ins. Co., 56 Ga. 237; Y. St. Reporter 155. 508 ASSESSMENTS. the parties. Payment of an assessment by a draft which was paid when presented is valid," although the rules of the society forbade the taking of drafts. 1 Where a member gave an order on a third person for the amount of an assessment, and the society failed to present the order for payment prior to the death of the member, although several months intervened, the society was estopped to set up the non-payment of the assessment. 2 To pay the membership fee and premium in advance in an accident company, an order was given by an ignorant man upon his employer, directing payment to be made from his wages. The company was informed by the man of the nature of his employment, and the uncertainty of his earning wages. The order was afterward returned to the company with the statement that the man had left the service of the drawee and had been paid in full. No notice of non-payment was given to the drawer of the order, and no further effort was made to collect the premium. Thirteen days after the order was returned the man was accidentally injured. It was held that under all the circumstances of the case, including the delay in the effort to collect the order, and the failure to inform the drawer that the taking of the order was not to operate as a complete discharge of his obligation to pay, he was entitled to notice of demand and nonpayment, and that the company could not insist that the policy had been forfeited. 3 A society may waive a cash pay- ment and accept in lieu thereof an order given by the mem- ber on a third person. When it does so, and gives a receipt for the amount, it can not defeat a recovery upon the policy and insist upon a forfeiture, without having given the assured notice of non-payment of the order. 4 Where a society and 1 Piedmont Ins. Co. v. Ray, 50 4 National Benefit Ass'n v. Jackson, Texas 511. 114 111. 533; 2 N. East. Rep. 414; see 2 Cotten v. Casualty Co., 41 Fed. Lyon v. Ins. Co., 55 Mich. 141; 20 Rep. 506. N. W. Rep. 829; Baker v. Ins. Co., 3 Eury v. Ins. Co., 89 Tenn. 427; 6 Abb. Pr. (N. S.) 144; 1 Big. L. & 14 S. W. Rep. 929; but see Landis v. A. Cas. 595; Bane v. Ins. Co., 85 Ins. Co., 6 Ind. App. 502; 33 N. East. Ky. 677; see Knickerbocker Ins. Co. Rep. 989; McMahon v. Ins. Co., 77 v. Pendleton, 112 U. S. 697; Insur- Iowa, 229; 42 N. W. Rep. 179; Bane ance Co. v. Ray, 50 Texas 511; Kline v. Ins. Co., 85 Ky. 677; see Pacific v. Association, 111 Ind. 462; UN. Mutual v. Williams, 79 Texas, 633; East. Rep. 620. 15 S. W. Rep. 478. ASSESSMENTS. 509 its agent keep running accounts with each other, and the society agrees to charge him in its account against him, with assessments as they become payable, this promise is valid al- though its by-laws provide for the payment of assessments in cash. 1 But where the society merely charges its local agent with the assessment about to become due from a third per- son, this does not constitute in judgment of law a payment of the assessment. 2 The beneficiary of a member is not entitled to a proportion- ate part of the amount of insurance, when only a part of the assessment has been paid, in contravention of a condition of the contract, that if the assessment is not paid by a certain time the insurance shall cease.* Payment of part of an assess- ment does not, by itself, raise a presumption that there was an understanding that time was to be given for the payment of the remainder. 4 "Where there is nothing in the contract re- quiring the monthly dues to be paid in advance, they may be paid at any time during the month, and a member who dies before the end of a month Avithout paying dues for that month is not in arrears. 5 § 271. Payment out of funds in the hands of the society. — It has been held that a society which has money in its posses- sion belonging to a member, and the poAver to so apply it, must pay out of such money an assessment due from the mem- ber, to save a forfeiture of the contract; and it is not necessaiv in such a case that the member shall authorize the society to so appropriate the money. It is inequitable and against the policy of the law to permit a society to forfeit a contract of insurance for non-payment of an assessment, when it has in its possession the money of the member to an amount coA r ering the assessment, and has the power to apply the money as a 1 AHssouri Valley Life Ins. Co. v. Hollister v. Ins. Co., 118 Mass. ITS; Dimklee, 16 Kan. 158; see Butler v. ilutson v. Ins. Co., 28 N. J. Eq. 167; Ins. Co., 42 N. Y. Sup'r Ct. 342; Mat- Carlock v. Ins. < .... 188 111. 310; 28 X. ter of Booth, 11 Abb. N. C. 145; East. Rep. 53; Bulger v. Ins. Co., 63 Chickering v. Ins. Co., 116 Mass. 321; Ga. 328. Marsh v. Ins. Co.,3Biss. 351. 4 Continental Life v. Willete, 24 * Wright v. Society, 41 N. Y. Sup'r Mich. 268. Ct. Repts. 1; see Brown v. Ins. Co., : Weiss v. Tennant, 21 N. Y. Supp. 59 N. H. 298. 252. 'Wil'lcuts v. Ins. Co., 81 Ind. 300; 510 ASSESSMENTS. payment. 1 Where a society had, under an illegal by-law, re- tained sick benefits due a member to an amount largely in excess of an assessment on the contract of insurance, it was held that such an assessment should have been paid out of the money so retained, and that a forfeiture for non-payment could not be declared. 2 In one case 3 it was held that where a member of a subordinate lodge had money due him for " sick benefits," it was not the right of his lodge to appropriate it in payment of an assessment ordered by the grand lodge, with- out the member's direction, Pryor, C. J., dissenting. The majority of the court based their opinion on the distinction between the funds created by assessments ordered by the grand lodge, which were for the benefit of the families of members after their death, and the dues collected by the sub- ordinate lodges, which were for the payment of "sick benefits" to sick members. By the laws of a society each member was required to pay all assessments by the supreme lodge within thirty days after notice under penalty of suspension and forfeiture of all rights. By the laws of the subordinate lodge he was liable to pay dues and fines, and was entitled to five dollars a week when sick, and he could not become in arrears for dues and fines when sick, as they were required to be taken out of his weekly benefit. It was held that under these laws the sickness of a member and his right to weekly benefits did not relieve him from his obligation to pay assessments by the supreme lodge and that his sick benefits could not be applied to the payment of them since such application was confined to the dues and fines of the subordinate lodge. 4 Under a by-law of a benevolent association, providing for payment of benefits in case of sickness, to "every member in good standing on the books," a member can not be de- prived of such benefits because in arrear for dues, where the 'Girard Life v. Mutual Life, 97 Pa. Ins. L. Jour. 539; see Hawkshaw v. St, 26; Johnson v. Benefit Ass'n, 2 Supreme Lodge, 29 Fed. Rep. 770: Daily Record (Baltimore Cir. Ct.) 441; Eaton v. Supreme Lodge, 22 Cent. L. Pomeroy's Equity, § 364; Knight v. J. 560; Hansen v. Supreme Lodge, Supreme Council, 6 N. Y. Supp. 427. 140 111. 301; 29 N. East. Rep. 1121. 2 Johnson v. Benefit Association, 4 Hansen v. Supreme Lodge, 140 supra; 111. 301; 29 N. East. Rep. 1121. 3 Ancient Order v. Moore (Ky.), 9 ASSESSMENTS. 511 amount of the clues in arrear is less than the benefits to which he was entitled when they became due. 1 A society has no power, in the absence of a provision there- for in its certificates or its rules and regulations, to charge a member with an assessment made before he became a member, or for losses arising prior to his membership, and where the money deposited by a member to meet future assessments was sufficient to meet all lawful assessments made before his death, he will not be in default by reason of the fact that the society used the money by applying it on an assessment made prior to his becoming a member. 2 The omission to pay an assessment will not work a forfeiture when the society has without right received from the member on assessments for losses occurring before he joined the so- ciety a larger amount than such unpaid assessment. 3 It is not a valid excuse, on the part of a member, for a neglect to pay an assessment, that the society owes him a less sum, if he does not offer to pay the remainder. 4 In one case it was held that the fact that at the time of the death of a member the society was indebted to him for salary as an officer in an amount greater than the amount of the assessments due from him, did not require the society to apply the amount due to the payment of the assessments. 5 1 Brady v. Coachman's Benevolent of defaults. The accounts with LofF- Ass'n, 14 N. Y. S. 27:2. ingwell for assessments and dues 2 Evarts v. Association, 16 N. Y. were kept by Eureka lodge, and pay- Supp. 27. tments were made to it. It is true, Knight v. Supreme Council. 6 N. reports of the standing of cadi mem- Y. Sup. 427; see Eaton v. Supreme ber and of those in arrears were for- Lodge, 22 Cent. Law Jour. 560. warded, from time to time, to the 4 Hollister v. Insurance Co., 118 grand lodge, but it was important, Mass. 478; Bulger v. Ins. Co., 63 Ga. in order to avoid confusion of ae- 328. counts, and to know the duties and 6 Leffingwell v. Grand Lodge, 86 obligations of the subordinate to the Iowa, 279, 53 N. W. Rep. 843. Leff- grand lodge, that the method of pay- ingwell was a salaried officer of the ment required by the rides and regu* grand lodge, and a member of Eu- lations he followed, that the honks reka lodge, one of the subordinate of the subordinate lodge should show branches of the society. The court the exact standing, including arrear- said: " The rules and regulations of ages, of each member, Our atten- the order specified the time and man- tion has qoI been called to any provis- ner of the payment of assessments ions of the contract between defend- and dues, and fixed the consequences ant and decedent which authorized 512 ASSESSMENTS. § 272. By whom payment of an assessment may be made. — Personal contracts must be performed according to the words and apparent meaning of the parties, and it is obvious that the parties to a contract of insurance may make the pay- ment of an assessment a personal act to be performed by the member himself during his life. A contract stipulated that the society should pay a benefit to the widow of a member, in consideration of certain sums to be paid to the society at cer- tain times during his lifetime, and provided that he should pay certain sums at certain times during his life, and that, if he neglected to pay any such sum for fifteen days after it be- came due, the contract should be void. A member died, leav- ing a payment due and unpaid at the time of his death, and his executor tendered the amount within fifteen days after it became due. But the court held that the payment of any such sum was, under the terms of the contract, a personal act to be performed by the member, and that it could not be performed for him after his death. 1 But, in an agreement to pay money as the consideration for a contract, it is not contemplated that the party paying shall, by the act of paying, render to the one receiving any personal service requiring personal skill; and, in the absence of stipulations to the contrary, the payment of an the former to receive assessments di- the amount due him, and been re- rect from the latter, or to apply any fused, or had he requested that it be money in its hands belonging to applied in payment of the amount he him to the payment of such assess- owed, a different question would ments. It does not appear that Leff- have been presented. But no equi- ingwell ever desired to have the table circumstances are shown which amount due him from the defendant should except this case from the applied on the arrearages in question, operation of the general rules. * * It is shown that a few weeks before * Rules which govern cases where an his death, and at a time when he insurance company dealing directly was sick, the amount of arrearages with the person insured, and hold- was tendered to Eureka lodge, but ing unpaid dividends, which it had a refused because not accompanied by right to apply on unpaid premiums, the proper certificate of a physician, are not applicable to such cases as It is said that ' equity looks upon that this, for reasons we have sufficiently as done which ought to be done,' but indicated." that maxim has no application to this 'Want v. Blunt, 12 East 183; see case. As defendant had no right to Whiting v. Ins. Co., 129 Mass. 240; make the desired application, it ought Yoe v. Association, 63 Md. 86; Simp- not to have made it, and it can not be son v. Ins. Co. , 89 Eng. Com. Law regarded as having been made. Had Repts. 257 (2 C. B. N. S.). Leffingwell demanded payment of ASSESSMENTS. 513 assessment is an act which may be performed by any other person than the member. Its payment does not necessarily depend upon his continued capacity or existence. Hence, it has been held that, although an insured was shortly prior to the expiration of the contract of insurance, when about to pay the premium, rendered incapable by the act of God, the bene- ficiary was without the rule which relieves a party from the consequences of an omission to do an act rendered impossible by omnipotent power. 1 The friends and relations of an in- sured may, and often do, keep up his insurance for years. The act is not a personal one, unless made so by the terms of the contract. 2 Where the contract provides that an assess- ment shall be paid within thirty days from the date of notice, payment within that time will preserve the validity of the contract, though made by the beneficiary after the death of the member. 3 In the absence of any stipulation to the con- trary, the payment of assessments may be made by the beneficiary. 4 § 273. When payment must he made during the lifetime of the member. — A society may in its contract stipulate that it will receive delinquent assessments within a certain time after they are due provided they are paid within the lifetime of the member. In such a case the member does not forfeit his contract during the period of leniency but carries it at his own risk. If he dies during such period the contract is not binding upon the society. In Lantz v. Ins. Co. 6 the contract of the member was to pay certain assessments at certain times with the further stipulation that if an assessment should not be paid when due and within the lifetime of the assured, the policy should cease and determine. It was held that a con- tinual practice on the part of the society to accept past 1 Howell v. Ins. Co., 44 N. Y. 276; Co., 39 Fed. Rep. 752; Bankers" Ass'n Wheeler v. Ins. Co., 82 N. Y. 543; 16 v. Stapp, 77 Texas 517; 14 8. W. Rep. Hun 317; Broom's Leg. Max. 6th 168. Am. Ed. pp. 178 and 179; see ^ 295. 8 Bankers' Association v. Stapp, 77 •^Worden v. Guardian .Mutual, 3!) Texas 517; MS W. Rep. His. Sup'r Ct. Repts. p. 317; Baker v. *0'Grady v. Knights, 63 Conn, 228; Ben. -tit Ass'n, 27 N. Y. Weekly Dig. 25 Atl. Rep. 111. 91; Kogersv. Capitol Life, 1 Weekly 5 130 Pa. St. 546; 21 Atl. Rep. 80; Notes of Cases 588; Protection Life see Harvey v. Grand Lodge, 50 31o- v. Palmer, 81 111. 88; Spoeri v. Ins. App. 472. 33 51-± ASSESSMENTS. due assessments would not make it liable on its policy where such an assessment was not paid during the lifetime of the member. 1 The language of the contract may be such as to require that the payment of the assessment be made during the lifetime of the member. In Simpson v. In- surance Co., 2 the words of the policy were : " Provided he, the said insured, on or before * * * pay or cause to be paid to the defendant the annual premium; " and on this point the court said : " The policy was to continue, provided he, the insured, paid the premium within the twenty-one days; and this, we think, did not give the executors the right to pay it after his death." 3 In Want v. Blunt et al., 4 the covenant of the society was to pay an annuity, " If Want shall pay, or cause to be paid, the quarterly premium on every quarter day during the life of Want, or within such time after as shall be allowed by the rules of the society for that purpose." The rules of the society provided that if any member should neglect to pay the quarterly premium for fifteen days after the same should become due, the policy should become void. The member died five days after the premium was due, and within the fifteen days allowed by the society for the payment. In con- struing this provision, the expression "during the life of Want," was held to apply to the latter part of the sentence, and to be the same as if the words " during his life " had been repeated after the words " within such a time after," i. e. " within such time after, during his life," etc. The decision was based upon the particular words of the contract, and would seem to be contrary to the established rules of construction given to clauses of forfeiture. § 274. Death within thirty (lays after notice.— When, by the terms of a contract of insurance, an assessment is payable at a certain time, " or within thirty days thereafter during the continuance of this certificate," there can be no forfeiture 1 See Yoe v. Association, 63 Md. 86; 8 2C.B.(N.S.) 257. Thompson v. Insurance Co., 104 U. 3 See Pritchard v. Society, 3 C. B. S. 252; Insurance Co. v. Eosenberger, (N. S.) 622; Ins. Co. v. Ruse, 8 Ga. 84 Pa. St. 373; Insurance Co. v. 53 f. Rought, 97 Pa. St. 415; Whiting v. 4 12 East 183. Ins. Co., 129 Mass. 240; Giddings v. Ins. Co., 102 U. S. 108. ASSESSMENTS. 515 for non-payment until after the expiration of the thirty days; and if the member dies after the certain time fixed, but before the expiration of the " thirty days thereafter," the society is liable. 1 This is not the case of the death of the insured after the premium was due, and within the days of grace. In such case, it is settled that the insured can only take ail vantage of the days of grace at his own risk, and if he die before actual payment, his beneficiary can not recover. Where the condition of a contract is that the assured shall, within thirty days from the date of notice pay an assessment levied upon him, the society will have no right to declare a forfeiture for non-pay- ment within the thirty days, even though the member dies within that time.' 2 § 275. Payment of an assessment after the death of Uie member; (lays of grace. — It is clear that, in order to hold the society liable, the death of the member must take place dur- ing the continuance of the contract of insurance. 3 Where a certain time is set for the payment of an assessment, and days of grace are given, in which it may be paid, the member may take advantage of them, and if it is paid or tendered during such days of grace, and in the lifetime of the member, the effect is the same as if it had been paid or tendered when due. 4 But it seems, he takes advantage of them at his peril, and if he dies during such days of grace, without having paid the assess- ment, his contract is forfeited, and his beneficiary can not recover. 5 But the effect of the language used in eiving the days of grace, may be such as to absolutely extend the period for the payment of the assessment, so that if the mem her shall 'Rogers v. Capitol Life. 1 Weekly 8 Howell v. Ins. Co., 11 X. Y. 276; Notes of Cases 588; Baker v. N. Y. Lockyerv. Offiey, 1 T. R. 260; Perry St. .Mutual. 27 X. Y. Weekly Dig. v. Provided Life, 99 Mass. 162. 91; Banker's Association v. Stapp, * Campbell v* Assurance Society, 4 77 Texas 517: It 8. W. Rep. 168; Bosw. 298. Elmer v. Association, 19 N. Y. Supp. * Pritchard v. Assurance Society, 8 289; MacKinnon v. In;. Co., 83 Wis. C. B. (N. S.)622; Simpson v. Ins. Co., 12; 58 X. W. Rep. 19; Wrighl v. Su- 89 Bng. Com. Law Repte. 257; Ruse preme Commandery, *7 Ga. 426. v. Mutual Ben. In--. I '<<.. 28 X. Y. 516; J Protection Life v. Palmer, 81 Til. Mutual Ben. Life Ins. Co. y. Ruse, 88; Ruse v. Mutual Benefit, 26 Barb. 8Ga.534; Day v. Ins. Co., I McAr- 556; Rogers v. Capitol Life, supra; thur(D. C.)41; 8 Ins. L. J. 253; Tarle- Wright v. Supreme Commandery, ton v. Staniforth, 5 T. R. 695, 87 Ga. 426; 13 S. East. Rep. 504. 516 ASSESSMENTS. die within the days of grace, the society is still bound to accept the money. Such payment, to all intents and purposes, inures as a payment within the time limited, so as to entitle the bene- ficiary to recover the benefit fund, even though the member be dead at the time the assessment is paid. When, by the terms of the contract an assessment is payable at a certain time, " or within thirty-five days thereafter," * " or within thirty days thereafter, during the continuance of this certificate," 2 or when it is payable within thirty days from the date of notice of assessment, 8 the risk is extended during such days of grace, and the assessment is not due until they expire. If a member die during the days of grace, given by any one of the con- tracts just mentioned, leaving the assessment unpaid, it may be paid by the beneficiary or some one for him after the death of the member, and within the time limited. It is, perhaps, doubtful whether the beneficiary need, in such a case, pay the assessment to the society 4 but it is usually paid or tendered as a matter of precaution. "Where a policy was renewable from year to year, but provided that " no policy will be considered valid for more than fifteen days after the expiration of the period limited therein," unless the premium should be paid, it was held that the society was liable for a loss occurring after the end of the year, and before the expiration of the fifteen days, since in effect the contract was an insurance for a year and fifteen days. 5 § 276. Payment to subordinate lodge — Agency of lodges. ■ — Where a local lodge admits a member into a mutual benefit society, collects his admission fee and all assessments levied upon him, and remits such assessments to the supreme lodge or directory of the society, it is to be regarded as the agent of the supreme lodge or directory, at least to this extent, that payment of assessments to the local lodge is a payment to the 1 Worden v. Ins. Co., 39 Superior Bankers Ass'n v. Stapp, 77 Texas 517; Ct. Repts. 317. 14 S. W. Sep. 168. 2 Rogers v. Capitol Life, 1 Weekly 4 Worden v. Ins. Co., supra; Vivar Notes of Cases 589. v. Supreme Lodge, 52 N. J. L. 455; 3 Elmer v. Association, 19 N. Y. 20 Atl. Rep. 36; Illinois Order v. Bes-, Supp. 289; Protection Life v. Palmer, terfield, 37 111. App. 522. 81 111. 88; Wright v. Supreme Com- 6 McDonnell v. Carr, Hayes & Jones mandery, 85 Ga. 751; Baker v. Bene- (Irish), 256. fit Ass'n, 27 N. Y. Weekly Dig. 91; ASSESSMENTS. 517 higher body of the order. The default of the local lodg-e in paying over to the higher body of the order the assessments paid to it by its members, does not affect the rights of such members. 1 The relations which local and subordinate lodges of such societies shall bear to the supreme lodge or directory and to the members of the order, are proper matters for regu- lation in the by-laws of the society. Where the by-laws on the subject are artistically and plainly drawn, it is not difficult to determine these relations, but they frequently contain so many inconsistent and vague provisions on the subject that a consistent interpretation and construction of them is impossi- ble. A by-law of the supreme lodge of the Knights of Honor provided that " any lodge failing, neglecting or refusing to for- ward the same" (the assessment laid upon it) "within thirty days from the date of said notice, shall stand suspended," and that " if a death occur in said lodge during such suspension, no death benefit shall be paid," etc. In construing the meaning of this by-law the supreme court of Indiana said : " This bv- law contemplates the restoration of the delinquent lodge on the payment, after suspension, of the required assessment, for it prohibits the payment of such benefits when death occurs during such suspension. Now, the question arises, what is meant by the words ' if a death occurs in such lodge during such suspension, no death benefit shall be paid \ ' " Is it meant by the provision to cut off absolutely, as for- feited, all right to death benefits of a member in good stand- ing, who dies during the suspension of his lodge, and who was not in default in the payment of his dues or otherwise, be- cause his lodge was in default at the time of his death, though his lodge afterward pays up and is restored ? This would be a harsh construction, and one that can not be adopted, if the provision admits of any other reasonable interpretation. For- feitures are not favored in law, and instruments will be so construed as to avoid them, :'f it can be done without doing violence to the language employed. * * We think the pro- ^chunck v. Gegenseitiger Witt- App. 127; seeScheu v. Grand Lodge, wen und Waisen-Foixl, II Wis. 369; 17 Fed. Rep. 214; Hall v. Supreme Erdmann v. Mut. Ins. Co., Order Lodge, 24 Fed. Rep. 4. r >0; Hoffman v. Herman's Sons, 44 Wis. 376; Barbaro Supreme Council, 35 Fed. Rep. 262- v. Occidental Grove, 4 Mo. App. 429; Oates v. Supreme Court, 4 Ontario Borgraefe v. Supreme Lodge, 22 Mo. 535. 518 ASSESSMENTS. vision, fairly construed, means that where death occurs during the suspension of the subordinate lodge, no death benefit shall be paid during such suspension, as if it read as follows : ' If a death occur in said lodge during such suspension, no death benefit shall be paid during such suspension.' This construc- tion seems to us to be reasonable and well calculated to carry out the general purpose of the defendant's organization. When a subordinate lodge is thus suspended, no death benefits are to be paid on behalf of members dying during the suspen- sion. This is a strong incentive to the delinquent lodge to re- spond to the calls upon it, and be restored. When restored, the rights to death benefits, which were suspended with the suspension of the lodge, are restored with its restoration.' , ' A member of a society was sick and unable to go to the lodge, and he handed the amount due on an assessment to his wife, and directed her to give it to E. to carry to the lodge. As he was not going, E. gave it to the member's brother- in-laAv, D. D. went into a saloon and gave it to P. who was the janitor of the lodge rooms, but who had no authority to receive money for it. P. never paid it to the lodge, and the question was as to whether the payment to him was sufficient. The court held that P. was not the agent of the lodge, but of the member, and that payment to him was not payment to the lodge. 2 The constitution of a subordinate lodge of a society provided that the secretary should receive assessments paid by its members to the society, and that the lodge might per- mit him to select an assistant for whose acts he should be responsible. The secretary of the lodge had no office, but it was the uniform practice of members to pay assessments to his wife, at his house, in his absence, and, her authority to re- ceive them never having been questioned, she was held to be his assistant to whom payments might properly be made. 3 § 277. Authority of agents to collect assessments. — Where a person is an agent of a society for a specific purj)ose 1 Supreme Lodge v. Abbott, 82 Ind. 2 Fisber v. Schiller Lodge (Iowa) 1; but see Peet v. Great Camp, 83 11 Ins. L. J. 164. Mich. 92, 47 N. W. Rep. 119, where 3 Anderson v. Supreme Council, 135 the suspension of a subordinate lodge N. Y. 107; 33 N. East. Rep. 1092; of a society was held to suspend a affirming 16 N. Y. Supp. 947, member of the lodge who had no notice that it was in default. ASSESSMENTS. 510 and is known to be such by those dealing with him, he can not bind the society by an act done without the scope of his authority. If his authority extends only to the single act of collecting assessments from members, and he collects them from a stranger, without any notification from the society that he is a member, he can not thereby bind it, force upon it a member whom it has not accepted, and render it liable for benefits. Authority to make the collection or a subsequent ratification of the unauthorized act must be shown.' An agent's authority can not be shown by his own declarations, and a party who avails himself of the act of an agent must, in order to give in evidence his declarations to charge his princi- pal, prove the authority under which the agent acted; the bur- den of proof lies on him to establish the agency, and the extent of it." The paymaster of a railroad company, who has nothing to do with making out the pay-roll, is a servant, and not an agent, and has no authority to deduct dues owed by an em- ploye to an employes' relief society, though its constitution and by-laws authorize the company to do so; and his declara- tions that the deduction had been made are inadmissible in an action against the society. 3 § 278. A receipt for an assessment may be contradicted. — An acknowledgment in a certificate of membership that the admission fee and certain assessments have been paid may be contradicted or explained; it is not conclusive, and does not operate as an estoppel.* But where a certificate provided that if a "binding receipt" should be issued, and the "number of a binding receipt is inserted, it becomes conclusive evidence that 1 Greene v. Ins. Co., 91 Pa. St. 387; is authorized to use discretion then B. & O. Ass'n v. Post, 122 Pa. St. he ceases to be a servant and becomes 579: 15 Atl. Rep. 885; Swettv. Relief an agent. Those dealing with a mere Society, 78 Me. 541; 7 All. Rep. 304. servant, knowing him to lie such. 2 B. & O. Ass'n v. Post, siqjra. In know that, except in the immediate Wharton on Evidence, at section discharge of a mechanical duty, he 1182 it is said: " We must rememher is not authorized to hind his master that a servant moves within a limited hy Ins admissions. Hence, ordinarily, orhit, one far more limited than that a master, except within such range, of an agent: and that consequently is not so hound.'* See Fairlie v. the. admissions of a servant are more Hastings, 10 Ves. 126; see§30l note. jealously guarded than are those of 3 B. & O. Relief Ass"n v. Post, an agent. An agent is authorized to supra. exercise discretion. When a servant 4 See Bliss on Life Ins. at £ 370. 520 ASSESSMENTS. the above amount has been paid," and the number of a bind- ing receipt was inserted in the certificate, it was held that, as against the beneficiary, the insurer was estopped from show- ing that the assessment, acknowledged in the policy and in the "binding receipt" to have baen receive!, had not been paid. 1 Some authorities go so far as to hold that, upon grounds of public policy, an insurance company will be estopped to deny, as against its acknowledgment in its policy, that the consideration for the policy has been paid. 2 But, according to the weight of authority, the recital in a delivered policy, of the receipt of the consideration for which it was issued, is prima facie, and only prima facie evidence of the fact. 3 § 279. Tender of an assessment. — The tender of an assess- ment is just as effectual to preserve the rights of a subordi- nate lodge and its members, or the rights of a member of a mutual benefit society, as the payment of the assessment. For the purpose of avoiding penalties and forfeitures, or the loss of an}^ right or privilege, a tender is the exact equivalent of payment. It does not have to be repeated. After the tender is made, the burden is on the creditor to act. He must demand the debt, and it is only required of the debtor that he be ready to meet the demand. 4 In mutual benefit societies, the holder of a certificate is entitled to notice of an assessment before he can be declared to be in default for its non-payment, and, in the absence of notice, no tender of the amount of such assess- ment is necessary, in order to prevent a forfeiture of member- ship. 5 If a member who has been expelled from a society ap- peals to a higher tribunal within the order, or resorts to court for reinstatement as a member, and, pending the appeal or 1 Kline v. National Benefit Ass'n, v. Smith, 3 Whart. 520; Sheldon v. Ill Ind. 462; 11 N. E. Rep. 620; Na- Ins. Co., 26 N. Y. 460; Baker v. Ins. tional Benefit Ass'n v. Jackson, 114 Co., 43 N. Y. 283; Ins. Co. v. Has- IU. 533. brook, 32 Ind. 447. 2 Provident Life v. Fennell, 49 111. 4 Campbell v. Society, 4 Bosworth, 180; Teutonia Life Ins. Co. v. Ander- 298; Hall v. Supreme Lodge K. of H., son, 77 111. 384; Grit v. National In- 24 Fed. Rep. 450; People v. Mutual surance Co., 25 Barb. 189; 3 Kent's Life, 92 N. Y. 105; Meyer v. Ins. Co., Com. 260; Insurance Co. v. Cashow, 73 N. Y. 516; Roeding v. Sons of 41 Md. 59. Moses, 11 N. Y. Supp. 712. 3 1 Greenleaf Ev. at section 305; 6 Covenant Benefit Ass'n v. Spks, Ins. Co. v. Carpenter, 4 Wis. 20; Berg- 114 111. 467. son v. Ins. Co., 38 Cal. 541; Ins. Co. ASSESSMENTS. 521 legal proceedings, regularly tenders his dues and assessments until his death, his beneficiary, on a reversal of the judgment, or upon a reinstatement by the court, after his death, will be entitled to the benefit. 1 If assessments are payable only after notice, the member will be under no obligation to make the tender until he has been notified of the assessment. 2 Where a society has declared a contract forfeited, and has refused to receive an assessment from a member, his subsequent failure to tender assessments will not affect the right to recover on the contract. 3 Where the constitution of a society provides that the financial reporter of a subordinate lodge shall receive all moneys' due the lodge, and give a bond for the discharge of his duties, and does not authorize any other person to receive or decline a pa} r ment of an assessment, and a notice of an assessment states that it must be paid to the financial reporter only, a tender of payment of the assessment to the secretary, an officer not under bond, and his refusal to accept it, on the ground that the member is suspended, are ineffectual to bind the society. even though it is customary for the secretary and other officers to receive payment of assessments. 4 For the accommodation of the members, the various officers of a lodge frequently accept dues and assessments, and pay them to the proper officer. "While the practice may be open to objection, still, so long as the money is eventually paid into the treasury, no harm results. But when one of these voluntary messengers declines to receive them from a member, alleging as a ground of such refusal that the member has been suspended, it be- comes a serious matter, and such a custom may not be shown to vary the terms of the constitution or the directions con- tained in the notice of assessment, especially where it does not appear that the supreme lodge had notice of such custom, But where a society knows that its secretary habitually receives assessments from members and pays them over to it. it is estopped to deny his authority to receive them, uotwith- 1 Marck v. Supreme Lodge, 29 Fed. 23s; ; i Am. & Eng. Corp. Life Ins. Co. v. French, 30 Ohio St. Cases, L86; Franklin Life v. Wallace, 240. 93 tad. 7: Supreme Lodge v. Abbott, •Mutual Reserve v. Hamlin, L89 B2 Ind. 1: 11 Ins. L. J. 907; Symonds U. S. 297; 11 Sup. Ct. Rep. 61 I. v. Ins. Co., 28 Minn. 191. "Miner v. Association, <'.:; .Midi. *Wachtel v. Widows and Orphans' 338; 29 N. W. Rep. 838; Hull v. [ns. Society, S4 N. Y. 28. Co., 39 Wis. :;'.iT; Erdmann v. Ins. 528 ASSESSMENTS. silent as to whether a member in default shall have notice of his proposed expulsion, such notice must be given in order that he may have an opportunity to be heard. 1 Where, by the by-laws, notice is required to be given to members who fail to pay their assessments, there can be no forfeiture with- out such notice. 2 A by-law of a society is to the effect that, " when a member neglects for six months to pay his con- tributions, or the entire amount of his entrance, the society may strike his name from the list of members, and thereupon he no longer forms part of the association. To that end, at each regular general meeting the collectors-treasurers are bound to make known the names of those thus indebted for six months' contributions, or for a balance of their entrance; and thereupon any member may make a motion that such members be struck from the list of the society's members." Under this by-law, a member may not be expelled without notice and opportunity to be heard upon the subject of his arrearage. 3 Such a by-law does not take from a delinquent member either expressly or by implication, the right to notice, and this right is valuable, because, on such notice, a member may give a sufficient excuse for his delinquency, or, on hear- ing him, the society may be inclined not to exercise rigor in enforcing the penalty of default. A mutual benefit societ} 7- was organized for the express pur- pose of becoming the successor of " The Widows' and Orphans' Mutual Aid Society." A resolution of the new society pro- vided for the surrender of the old certificates, and the issue of new certificates by it as successor, and further provided : " All assessments made by the old society on its members, not due at the time of transfer of the member from the old to the new organization, shall become due and payable to the latter on the day it would become due and payalle to the society, had the member not been transferred therefrom." A member surren- dered his old certificate and received a new one from the new society. This stipulated for the payment of a certain sum, and 1 Fritz v. St. Stephen's Society, 62 nevolent Society, 24 How. Pr. 216; How. Pr. 69; see § 61. Mutual Reserve v. Hamlin, 139 U. S. 2 Pulford v. Fire Department, 31 297; 11 Sup. Ct. Rep. 614. Mich. 458; Wachtel v. Benevolent 3 Lapierre v. L'Union St. Joseph, Society, 84 N. Y. 28; People v. Be- 21 Lower Canada Jurist 332. ASSESSMENTS. 529 provided that " a failure to pay at the home office any assess- ment made by the society within the prescribed time, shall work a forfeiture of this certificate, and the party can only be reinstated on terms as set forth in the by-laws." In an action on the certificate, the society set up the non-payment by the deceased member of an assessment made against him by the old organization to meet a death loss while he was a member thereof, and which sum, by the terms of the resolution under which he was admitted to membership in the new society, became payable to it, but it was held that, under the contract, a failure to pay assessments made by the new society, not by the old, worked a forfeiture. 1 Where the by-laws of a society require written notice of forfeiture to be given, proof of any other notice is properly excluded. 2 A certificate was issued to a member in consideration of a membership fee of $10 pai'd, '-and the further payment of one assessment within thirty days after the date of such assessment, whenever made in accordance with the terms and conditions of the constitution and by-laws of the association, as they may now exist or may hereafter be modified." A by- law provided that " every member failing to pay his assessment within thirty da}^s from the date of said assessment, shall stand suspended from all benefits and privileges of the associa- tion." A proper construction of this contract is, that if one assessment is not paid within the time as therein provided, it shall be null and void; but it does not mean that unless one assessment is paid, there can be no recovery. There may be no assessment made after the issuing of the certificate and be- fore the death of the member, and in that case the beneficiary may recover.' § 286. It will not be presumed that some other person than the member has paid his assessment, and an averment that a deceased member did not pay an assessment within the stipu- lated time after notice is good as showing that it was not in fact paid. If it has been paid by some other person, such payment may properly be set up in the pleadings by the 1 Abe Lincoln Society v. Miller, 23 560; 8 S. E. Rep. 27; see §61 et seq. 111. App. 34. » Stanley v. N. W. Life Ass'n, 36 8 Dial v. Valley Mutual, 29 S. C. Fed. Rep. 75. 34 530 ASSESSMENTS. plaintiff.' Under the constitution of a society which provides that a member shall be entitled to funeral benefits if he is " not more than three months' dues in arrears at the time of his death," a member whose dues are in arrears for three months, and who dies the day before the dues for the follow- ing month are payable, is entitled to funeral benefits." The dues of members of a lodge may accrue weekly and be paya- ble quarterly. In such a case a forfeiture may not be claimed until after the quarterly installment has become delinquent. 3 Where the suspension of a member is illegal, the refusal of the subordinate society to credit him with assessments paid there- after, or to give to the proper officers the required notice of his death does not prejudice the right of his beneficiary to re- cover on the certificate, when he has done everything required of him by the contract. 4 When by the terms of a contract of insurance, an assess- ment is payable at a certain time, " or within thirty days there- after during the continuance of this certificate," there can be no forfeiture for non-payment until after the expiration of the thirty days ; and if the member dies after the certain time fixed, but before the expiration of the " thirty days thereafter," the society is liable. 5 This is not the case of the death of an insured after the premium for the insurance is due, and within the days of grace. In the latter case, it seems to be settled that the insured can only take advantage of the days of grace at his own risk, and if he dies before actual payment, his ben- eficiary can not recover. 6 A waiver of forfeiture on the part of the society, procured by false representations, is void. 7 Punctuality in the payment of assessments is of the very es- sence of the contract, and, when payment is not made within the stipulated time, the society may forfeit the contract. The burden is upon the society to establish the failure of the mem- ber to pay an assessment within the stipulated time. 8 A mem- 1 Gray v. Supreme Lodge, 118 Ind. 6 Protection Life, etc. , v. Palmer, 81 293; 20 N. East. Rep. 833. 111. 88; Rogers v. Capitol Life, 1 Week- 2 Sherry v. Union, 139 Pa. St. 470; ly Notes of Cases 589: Baker v. N. Y. 20 Atl. Rep. 1062. St. Mutual, 27 N. Y. Weekly Dig. 91; 3 Strasser v. Staats, 13 N. Y. Supp. see § 274. 167. 6 See § 275. 4 Spoeri v. Ins. Co., 39 Fed. Rep. 1 Harris v. Society, 64 N. Y. 196. 752. 8 Tobin v. Society, 72 Iowa, 261; 33 ASSESSMENTS. 531 ber is in good standing in a mutual benefit society so long as he faithfully performs his duty as a member of the society and regularly pays or tenders his dues and assessments. The so- ciety can not deprive him of any rights by wrongfully refusing to accept dues and assessments tendered by him under the con- tract of insurance. A member of a subordinate court of the supreme court of the Independent Order of Foresters was in- sured under the endowment provisions thereof, for $1,000. This court left the order in a body, and was consequently suspended. By the rules of the order members of suspended courts in good standing at suspension were, on application within thirty days to the supreme secretary and payment of a fee of $1, to receive a card of membership and be entitled to the endowment, provided they paid all assessments as they fell due, and affiliated with another lodge of the order ; but, if after thirty days, they must pass a medical examination. The member, ascertaining that his court had been suspended from the order and being then in good standing, applied within thirty days, to the supreme secretary of the order for his card of membership, tendering $1, and assessments due, which were refused on the ground that a medical certificate was nec- essary. The member, by reason of his not having the card, was prevented from affiliating with another court, though he endeavored to do so. lie regularly tendered his monthly assessments until he died. It was held, on these facts, that he died in good standing, and that his beneficiary was entitled to the benefit fund. 1 When under the laws of a society a subordinate lodge may be suspended and during such suspension no member of the lodge is entitled to benefits unless he takes out a special certif- icate from the society within thirty days after the suspension, a member of the lodge is not entitled, in the absence of a special provision in the contract, to notice of its suspension, but he must take notice of it. It is not unreasonable to pre- sume that each member of the lodge will at once know of its suspension.' Non-payment of an assessment during sickness N. W. Rep. 663; Hodsdon v. Ins. Co., ers, 4 Ontario 535; see Peet v. Great 97 Mass. 144; Scheufler v. Grand Camp, 83 Mich. 92; 47 N. W. Rep. Lodge, 45 Minn. 256; 47 N. W. Rep. 119. 799. 2 Peet v. Great Camp., 83 Mich. 92; 1 Oates v. Supreme Court of Forest- 47 N. W. Rep. 119. 532 ASSESSMENTS. will not forfeit a contract of insurance where the laws of the society provide that it shall not. 1 § 287. When an affirmative act of the society declaring the forfeiture is necessary. — In order to work a forfeiture of the rights of a member, the society must, as a general rule, take definite action upon the default of the mem- ber and declare the contract at an end. By the express and unequivocal terms of the contract the default of the member may of itself work a forfeiture, but a construction which will summarily cut off the substantial rights of a mem- ber is never favored. The society at large, or the proper tri- bunal of the society to which the requisite authority has been distinctly given by the terms- of the contract, must suspend the member or declare the contract forfeited. 2 Where the laws of a society require the payment of an assessment within thirty days after the date of the notice on penalty of suspension, and provide that the time for considering the subject of the suspension of a delinquent member shall be fixed by a vote of the society, an order of an officer, suspending a member for non-payment of an assessment, without the required vote is in- operative. 3 Where it is provided that any member who shall not pay within a 'certain time " shall forfeit his claim to mem- bership and have his name stricken from the roll," this provision is not self-executing, but requires affirmative action on the part of the society declaring the forfeiture in order to ter- minate his membership. 4 The society must ascertain the fact of delinquency and impose the penalty, and until that is done, his membership is not terminated. The charter of a society provided : " Should any member neglect to pay his arrearages for three months, he shall be ex- pelled." In construing this provision, the court said : " There must be some act of the society declaring the expulsion, and this can not be done without a vote of expulsion, after notice to the member supposed to be in default. For it may be that he may either prove that he is not in arrears, or give such reason for his default as the society may think sufficient. If 1 Grand Lodge v. Brand, 29 Neb. Supreme Lodge v. Kalinski, 57 Fed. 644. Rep. 348. 2 See § 67 et seq. * N. W. Association y. Schauss, 3 Knights of Honor v. Wickser, 148 111. 304; 35 N. East. Rep. 747. 72 Texas 257; 12 S. W. Rep. 175; see ASSESSMENTS. 533 he is present when the subject is taken up, and willing to enter into the inquiry immediately, there is no occasion for further notice. But no man should be expelled in his absence without notice. It appears that Hansell was present, but no question was made, nor any vote taken on his expulsion. He had an excuse to offer, viz., that the society was indebted to him for his services as secretary in a larger sum than the amount of the arrears of his monthly contribution. And had he urged this defense when the question of his expulsion was put, there is no saying what influence it might have had on the vote. Be that as it may, he ought to have had the opportunity. The terms of the charter have not been complied with." ' The constitution of an incorporated voluntary society, after provid- ing that every member shall pay into the treasury a designated annual contribution to become due and payable on January 1 of each year, declares that if the contribution is not paid by the first meeting in April, thereafter, the defaulter shall forfeit his membership, and his name shall be stricken from the roll of members, " and of this he shall be duly notified by the secre- tary;" and imposes upon the treasurer the duty of serving, on or about March 1, of each year, upon every member in arrears, a written notice, calling his attention to the foregoing require- ment. It is further declared that " the first regular meeting in April of each year shall be the regular meeting for the revision of the roll of members," at which the treasurer is required to report " the names of all members whose dues for the year have not been paid," and all such names " shall be immediately stricken from the roll." The treasurer is declared to be " personally responsible to the society for the dues of all defaulting members not so reported." It further provides that the treasurer " shall report to the society, at the annual meeting for the revision of the roll, a written statement of the names of members who are in ar- rears for the dues of the year, so that they may be stricken from the roll; but this written statement shall not be spread 'Commonwealth V.Pennsylvania Scheufler v. Grand Lodge, 46 Minn. Beneficial Institution. 2 Ser. & Raw. ',>r>6; 47 N. W. Rep. 799; Backdahlv. 141; see also Sibley v. Carteret Club, Grand Lodge, 46 Minn. 61; 48 N. 40 N. J. L. 296; Gray v. Society, 137 W. Rep. 464; N. W. Association v. Mass. 829; McDonald v. Supreme Schauss, 148111. 304; 35 N. East. Rep. Council, 78 Cal. 49; 20Pac. Rep. 41; 747. 534 ASSESSMENTS. upon the minutes." Another article provided in detail for the order of business at what is designated as " the regular meet- ing for the revision of the roll," specifying inter alia, " the treasurer's report of members in arrears " and the " revision of the roll by the secretary." It is also declared that " any one of these orders of business may be suspended at any time by the vote of a majority of the members present at any meeting." In construing these several provisions in pari ma- teria, as they should be construed, the supreme court of Ala- bama held that the non-payment of annual dues by a member, by the first meeting in April, is not, ipso facto, a forfeiture of membership, but only a ground of forfeiture, in the nature of a judgment nisi, to be made final by the vote of the society; that where no statement or report had been made by the treas- urer at the regular meeting in April, as required by the con- stitution, and no vote of the society had been taken on the subject, the mere reading, at that meeting, of the name of a member from a book as a delinquent, did not operate to forfeit his membership; that the action of a society at a subsequent meeting, of which such delinquent had no notice, actual or constructive, declaring a forfeiture of his membership for non- payment of dues, was irregular and not binding on him, and that on his application, mandamus would lie to vacate it and restore him to membership. 1 The law of a society provided that members should pay their assessments within thirty days after notice, and the records of the society showed a suspen- sion before the expiration of that time. There was no other evidence, and the court held that such suspension afforded no proof of the non-payment of an assessment, or of any default of the member. There being no evidence of the non-payment of an assessment, the member could not be held to be in default by reason of having made no application for reinstatement, under rules wholly applicable to suspension for the non-payment of assessments. 2 § 288. Forfeiture of membership for non-payment of an assessment can not be declared nunc pro tunc after the loss, if 1 Medical Society v. Weatherly, 75 v. Musical Union, 47 Hun 273; People Ala. 248. v. Protective Union, 118 N. Y. 101; - Lazensky v. Supreme Lodge K. 23 N. East. Rep. 129. of H., 31 Fed. Rep. 592; see People ASSESSMENTS. 585 the policy was in force when the loss took place, and a mem- ber can not be suspended after his death for non-payment of an assessment so as to avoid a policy in force at the time of his death. 1 The charter of a society provided that, if a mem- ber did not pay his assessment within thirty days after demand, his insurance might be suspended by the secretary or board of directors, but if suspended by the secretary, appeal might be made to the board of directors when in session, and it was held that such forfeiture could not properly be imposed as an ex parte result of mere default in payment, and without giving the assured an opportunity for hearing. 2 S. was a mem- ber of a subordinate lodge of Independent Foresters, and by the terms of its constitution and by-laws, became a member of the grand lodge. The death assessments were required to be collected by the subordinate lodge, and forwarded to the grand lodge, the subordinate lodge being compelled to account for these assessments, and pay them to the grand lodge, unless the member had been expelled or suspended. The assessment of S. was paid by the subordinate lodge to the. grand lodge, but, at the time of his death, had not been paid by him to the subordinate lodge. The by-laws provided that "any member failing to pay his assessment within thirty days shall be sus- pended,'' and also provided that notice should be given to the grand secretary of the grand lodge. On the death of S. his widow brought suit for the amount due from the grand lodge, and the court held that the mere non-payment of assessment did not of itself operate as a suspension, nor did the clerical act of the secretary in marking S.'s account suspended. The suspension must be by some affirmative act of the lodge. Such suspension maybe waived by the lodge, either expressly, or by failure to act. The grand lodge having received the assessment, was liable to the widow/ In an action against a society, where the certificate is made payable upon condition that the insured is in good standing in the society at his death, and the constitution provides that 1 Olmstead v. Farmers' Mutual, 50 Ins. Co. v. McLennon, 6 Ins. L. J. Mich. 200; Baker v. Citizens' Mutual, 124. 51 Mich. 243. Scheu v. Grand Lodge, 17 Fed. 'Olmstead v. Farmers' Mutual, Rep. 214; Bee Hall v. Supreme Lodge etc., 50 Mich. 200; but see Equitable K. of H., 24 Fed Rep. 450. 53G ASSESSMENTS. upon clue trial and conviction of unbecoming conduct a mem- ber shall be reprimanded, suspended or expelled, the loss of good standing can only be shown by proof of some official action by the society, and oral evidence thereof is not admis- sible. 1 § 289. When an affirmative act of the society declaring a forfeiture is not necessary. — However abhorrent it may be to all reason to permit the expulsion of a member without notice and hearing, or opportunity to be heard, for an alleged violation of his duty as a citizen or a corporator, and notwith- standing the fact that a by-law providing that on such charges a member may be expelled by a vote of the society in his absence and without notice is illegal and invalid, it may be laid down as certain that, from the very nature of the plan of mutual assessment insurance, it is proper for mutual benefit societies to provide that non-payment of an assessment within a specified time after notice shall, ipso facto, work a forfeiture of the insurance and an expulsion of the defaulting member. It is true that where such stringent clauses of forfeiture are made a part of the contract, they are usually accompanied by provisions for the reinstatement of the delinquent member upon equitable terms, but such provisions are not necessary to the validity of the terms of forfeiture. These societies depend exclusively upon the payment of assessments to meet their losses and expenses, and only by the prompt payment of assessments by their members can they maintain their solvency and responsibility. The only practical way which they have of enforcing payment of their assessments is by forfeiting insurance contracts and expelling the delinquent members for non-payment, and this power is necessary for the existence of such societies. To hold that specific notice to the member must be given of the time and place at which he will be cailed upon to answer the charge of having failed to pay his assess- ment within the stipulated time, and that a judicial act of the society, expelling the delinquent member is necessary in order to terminate his rights under the contract, and to hold further that such proceedings may not be waived by express contract of the parties, would be to extend unduly the period of insur- JHigh Court v. Zak, 136 111. 185; 26 N. East. Rep. 593; distinguishing Royal Templars v. Curd, 111 111. 284. ASSESSMENTS. 537 ance beyond the time for which a consideration had been paid, would offer encouragement to careless members, and greatly impair the ability of the societies to carry on the work for which they are organized. While it is competent for a member of a voluntary society to bind himself by an agreement that his membership and insurance shall be forfeited, in case he shali not pay his assess- ment within a stipulated time, and that such forfeiture si i all take effect at the expiration of that time, without special or personal notice to him, and without any act on the part of the society declaring the forfeiture, a construction leading to such a result will not be adopted by the courts unless the intention to waive such notice and judicial act, is clearly expressed in the most unambiguous and explicit language. As observed in The People v. The Medical Society of the County of Erie, 1 " the general policy of the law is opposed to sharp and summary judgment, where the party whose rights are in jeopardy has no opportunit} 7 to be heard in his own defense." Where the charter of a society provides for strict forfeiture of membership and the benefits arising therefrom, upon the failure of a member to pay his dues or assessment, there is< nothing to be done by the society in order to give effect to the failure to pay them. While the conduct of the society may be such as to waive the forfeiture, the forfeiture takes effect unless it is waived. Under a law of a mutual benefit society, which makes the non-payment of assessments for a given period of time after notice operate ;is an expulsion, ipso facto, of the delinquent member and a forfeiture of his rights in the benefit fund, it is not necessary that the expulsion and forfeiture should be judicially determined by any judicatory of the society. Where the by-laws of a society provide that each, member snail, within thirty days after notification, pay the secretary the amount of the assessment, and that if any mem- ber shall neglect to pay any assessment within thai time, "then and in such case such membership shall cease and determine at once without notice, and all claims be forfeited to the association." the neglect to pay an assessment forthirty days after notice thereof, ipso facto, determines the member- ship of the delinquent. 8 1 32 N. Y. 187. 238: McDonald v. Ross-Lewin. 29 8 Pendleton v. Ins. Co., 5 Fed. Rep. Hun (N. Y.) 87; Backdahl v. Grand 538 ASSESSMENTS. Where the charter of a society provides that on non-pay- ment of an assessment the officers may forfeit the contract of insurance, the society may provide that such non-payment within a certain time shall work a forfeiture; and in case such a provision is inserted in the contract, no action of the officers will be necessary to terminate the rights of the member. 1 A provision in a certificate of membership that, upon failure to pay an assessment within thirty days from the date of the notice, it shall be void, can not, in the absence of qualifying expressions, be construed to render it voidable, at the option of the society. In such a case there is nothing to construe, and the parties will be taken to have meant what they said. There must be some other language in the certificate, or articles of incorporation, or by-laws of the society, which bears materially upon the subject, or which qualifies or re- strains the meaning of the word " void " as used in the certifi- cate, in order that it shall be construed to mean " voidable " merely, at the election of the society. 2 Where a certificate stipulates that if assessments shall not be paid at certain times, and within the lifetime of the member, the contract shall cease and determine, the death of the member while in default of payment terminates the contract, and no formal forfeiture is required. 3 Where it is provided in the contract that " any member failing to pay such assessment within thirty days from date of notice shall stand suspended, and shall not there- after be entitled to the benefits of the mutual aid fund until he has been reinstated according to the laws of the order," no act on the part of the society declaring the suspension is nec- essary. 4 § 290. A contract provided that any member who should violate his pledge of total abstinence from intoxicating liquors should be by the very act suspended from membership in the Lodge, 46 Minn. 61; 48 N. W. Rep. 3 Lantz v. Ins. Co., 139 Pa. St. 546; 454; Scheufler v. Grand Lodge, 45 21 Atl. Rep. 80. Minn. 256; 47 N. W. Rep. 799; Yoe 4 Illinois Order v. Besterfield, 37 111. v. Association, 63 Md. 86. App. 522; Hansen v. Supreme Lodge, 1 Equitable Ins. Co. v. McLennon, 40 111. App. 216; Supreme Lodge v. 6 Ins. L. J. 124; but see Olmstead v. Keener (Texas), 25 S. W. Rep. 1084; Farmers' Mutual, 50 Mich. 200, which distinguishing Supreme Lodge v. is distinguishable from this case. Wickser, 72 Texas 257; 12 S. W. Rep. 2 Bosworth v. Western Mutual, 75 175. Iowa 582; 39 N. W. Rep. 903. ASSESSMENTS. 539 society, and it was held that the drinking of whisky by a member was a self-executing suspension of membership, which took away his good standing and precluded a recovery on his certificate of insurance after his death. 1 The beneficiary of a member who, at the time of his death, stood suspended for non-payment of assessments by operation of the laws of the society, can not recover on the benefit cer- tificate on the ground that a subordinate lodge of the society, of which he was a member, had continued to treat him as a member, and to treat his unpaid dues to the supreme lodge as dues payable to the subordinate lodge for which it had extended him credit. 2 Where the by-laws of a society provide that, in case of failure or neglect of a member to pay an assessment within a stipulated time, " his name shall be erased from the roll of members, and he shall forfeit all claims upon the asso- ciation," and a member does not pay within the time limited, he at once ceases to be a member and forfeits all claim upon the society by operation of the by-law." "Where the laws of a society provide that, if a member neglects or refuses to pay an assessment within a specified time, he shall cease to be a member, and the secretary shall strike his name from the roll, such laws are self-executing, and the member so omitting to pay loses his right as a member, although the secretary does not strike his name from the roll. 4 The provision in the char- ter of a mutual benefit society, that, "any member failing to pay his annual due or assessment within thirty days after notice has been served on him, or sent to him, shall forfeit Ins membership and all benefits arising therefrom" is not self- executing in the sense that the failure to pay is equivalent toa formal withdrawal <>r resignation at the expiration of the thirty (lavs next after notice t<> pay an assessment and a sev- 1 Royal Templars v. Curd, 111 III. for local expenses; and tin- dues \>< 284; Smith v. Knights of Father the supreme lodge were nol paid by Mathew, 86 Mo. App. 184; Bogins v. the subordinate lodge for the de< Supreme Council, 76 CaL 109; 18 Par. member. Rep. 126. 3 Yoe v. Association. 63 Md. Ml. "Borgraefe v. Supreme Lodge, 22 'Rood v. Association, 81 Fed. Rep, Mb. A|)|>. 137. Id this case the dues 62; Gmnther v. Association, 40 La. payable to the supreme lodge, the Ann. 777: •"> s<>. Rep. »'m: Maginnis' mutual benefit society, were for in- Estate v. Association, \'-) La. Ann. surance purposes, while those pay- 113(3; 10 So. Rep. 180. ably to the subordinate lodge were 540 ASSESSMENTS. erance of all relations between the member and the society, •which precludes a waiver of the forfeiture. In such a case, the society may waive the forfeiture. 1 Where a certificate of membership in a society requires the member to pay all assessments against him within ten days after notice thereof, or the certificate shall be null and void, and the by-laws of the society provide that a member failing to pay his assessments within ten days after notice shall forfeit his membership and all benefits therefrom, and a member in his application for membership agreed to be bound by the rules and regulations of the society, a failure or a neg- lect to pay an assessment within ten days after notice of the same will prevent any recovery upon the certificate after his death. 2 AVhere a certificate of membership pro- vides that the benefit fund shall be paid to the benefi- ciary, in case of the member's death, on condition " that he has complied with the by-laws of the society," and the by-laws provide that members shall forfeit their membership if they fail to pay their assessments within thirty days after publica- tion of notice, and where it appears from the evidence that the assured had failed to pay an assessment within the time specified, and that it remained unpaid at the time of his death, the assured has forfeited his membership, and the benefiiciary can not recover under his certificate." In a certificate the member agreed " to make a deposit of twelve dollars (two assessments), and renew the same when said deposit has been consumed within thirty days from date of written notice, de- posited in the postoffice, in the city of New Orleans, state of Louisiana,. addressed in conformity with his written address, filed with the secretary of the association." After the death of the member, an action was brought on the contract of in- surance, and the testimony of the secretary and treasurer clearly established the fact that notices were sent through the postoffice, according to the terms of the agreement, inform- ing the deceased member of the consumption of his deposit, and calling on him to renew the same, and that the member 1 American Mutual v. Quire (Ky.), 3 Madeira v. Society, 16 Fed. Rep. 8 Ky. L. Rep.101: Johnson v. South- 749. ern Mutual, 79 Ky. 404. 2 Benevolent Society v. Baldwin, 86 111. 479. ASSESSMENTS. 541 failed to renew the deposit, within thirty days from date of Avritten notice. Upon these facts the court held that the fail- ure to renew the deposit in accordance with the contract for- feited the "good standing" of the member in the society, and constituted a sufficient defense to the action. 1 In McMurray v. Supreme Lodge, 2 it was held that "good standing," within the meaning of the laws of the Knights of Honor, implies a f ull and fair compliance with those laws, in the payment of assessments and dues; that a member who is largely in arrears for assessments and dues, is not " in good standing," within the meaning of his benefit certificate, and if he die, when so in arrears, his beneficiary is not entitled to the I >ayment of the benefit. Decision No. 20, made by the supreme dictator of the Knights of Honor in 1879, held that, if a member fails to pay an assessment, within thirty days allowed by the constitution, and dies between the expiration of the thirty days and the next meeting of the lodge, his family or heirs would be entitled to the death benefit; that a member must be suspended in order to forfeit his death benefit, and can not be suspended after his death. In McMurray v. Supreme Lodge, supra, the court held that this decision did not apply where the death of the delinquent member took place after the next meeting of his lodge; that the assured, having been in arrears for eight assessments at the time of his death, was not in good stand- ing, and that his beneficiary could not recover. This decision seems to be contrary to the principles governing the forfeiture of rights of membership. According to the decided weight of authority, some act of the society, judicially declaring the forfeiture, was necessary under the contract. The contract provides, as such contracts usually do, that certain benefits will be paid to the beneficiary of the member, " providing he is in good standing when he dies." The laws of the order contain the following provisions upon the payment of dues, assessments, etc.: "Any member who may become in arrears for dues or fines to this lodge shall not be entitled to vote, hold office, nor shall he be entitled to benefits; and when six months in arrears for dues or fines, or when he fails to com pi v with section 3 of law XV, he shall be suspended from the ■Ziegler v. Ins. Co., 1 McGloin s 20 Fed. Rep. 107. (La.) 284. 542 ASSESSMENTS. lodge." Law XV, Sec. 3 : " Each member shall pay the amount due, on the notice of the reporter of his lodge, within thirty days from the date of such notice, and any member failing to pay such assessment within thirty days, shall be sus- pended from his lodge.'" Under the authorities cited in the preceding paragraphs, notice to the member, and a declaration of forfeiture for the non-payment of assessments were neces- sary to terminate the " good standing " of a delinquent mem- ber. § 291. Restoration after suspension or forfeiture for non-payment. 1 — When a society is composed of one grand or central body, and many subordinate and local councils or lodges, these local organizations must, for most purposes, be regarded as the representatives and agents of the society, not of the members insured by it. And although a local council is bound to conform all of its proceedings to the requirements of the constitution and by-laws of the society, yet the insured member is not to be held responsible for such irregularities of procedure, as the local council may commit in adjudicating or determining upon his rights under the contract of insurance. When a local council is authorized by the constitution and by- laws of a society to receive and pass upon applications for restoration or re-admission to membership in the society, and when, acting upon such authority, such council does consider and adjudicate upon an application for restoration or re-ad- mission, restores or re-admits the applicant, and afterward supplements this action by renewing its calls upon the restored or re-admitted member for assessments and by accepting such assessments, these acts of the society constitute an estoppel, prohibiting the society from denying the legality of the mem- ber's restoration or re-admission and subjection to new assess- ments. It can not with plausibility or any degree of liberality be contended that the local council of the society is bound, at the peril of a member who has been suspended, or who has forfeited his membership, to conduct its proceedings for his restoration or re-admission strictly in accordance with the man- ner prescribed in the constitution and by-laws of the society; that if it fail strictly to observe the routine thus prescribed, the suspended or dropped member is responsible for the irreg- 1 See § 162a. ASSESSMENTS. 543 ularity; and that, if the local council varies at all, in its pro- ceedings for restoration or re-admission, from the details of procedure set forth in the constitution and by-laws, then, the restoration or re-admission shall be null and void. 1 By the rules of a society, if a member fail to pay his assess- ment on or before the tenth day of the following month after notice, he shall stand suspended from all rights and privileges in the society from that time. He may, however, within three months, make application in writing signed by him for resto- ration, to be presented at a meeting of his lodge, accompanied by a sum equal to all his dues and assessments, and be restored by a majority vote of the members of his lodge present at such meeting. A member was in default for not paying two as- sessments on or before August 10, 1885, and he was suspended by his lodge on August 15, and so reported to the grand lodge of the society. On September 5, his lodge passed a resolution that he be restored on payment of the dues and assessments charged against him. On September 20, he caused the full amount of his dues and assessments up to that date to be paid to his lodge, and died on the following day. The societ} r refused to pay the fund to his beneficiary, because he had not presented to his lodge an application in writing signed by him, etc. In passing upon this question, the supreme court of New York said : " This (the formality prescribed) has relation only to the manner of bringing his case before the meeting of the lodge. Its purpose evidently is to require action to be taken. "With- out such application the duty would not be imposed upon it to act in the matter. But the lodge, having the power to restore him to his relation of member, might, it would seem, doit with- out the formality of a written application, as it would contain nothing essentially relating to the inquiry whether or not he should be reinstated. It may be that the subordinate lodge may not waive the observance of any regulation of the grand lodge, which in its nature or effect is substantial. But those things which are merely formal and incidental to the exercise of the power vested in the subordinate lodge may not require strict observance to render its action effectual. To that extent 1 Hoffman v. Supreme Council. 35 nelly v. Association. 58 Conn. 550 : 20 Fed. Rep. 252; 2 Herman on Estop- Atl. Rep. 671; L'ha^e v. Cheney, 58 pel, Sec. 1214 and cases cited; Con- 111. 509. 5J4 ASSESSMENTS. waiver is incident to the exercise of power possessed in sup- port of action taken." The court held that, upon complying with the requirements of the resolution of the lodge, the mem- ber became again entitled to the enjoyment of all his rights, as such, and that, upon his death, his beneficiary was entitled to the fund. 1 But the society may refuse to recognize or pass upon an application for reinstatement to membership where the appli- cant has not complied with the reasonable by-laws governing the reinstatement of suspended members. The widow of a deceased member sued a mutual benefit society for the benefit fund. It was proved in defense that the member had been regularly suspended for non-payment of assessments; that the by-laws of the society required that a member so suspended should be reinstated within six months, provided he appeared in person, or applied in writing, and paid up all dues to date of re-admission; that within said time deceased had sent the money to pay up his dues, but that it had not been accepted by defendant, and that deceased had never appeared in person, or applied in writing for his reinstatement as a member. It was held that the defense Avas sufficient. The society was not obliged to accept the money sent by the member as long as he did not appear in person, or apply in writing. He was required to do one or the other in addition to the payment of his dues to terminate his suspension and secure his re-admis- sion. The court had no power to relieve the member from the observance of this condition, and his suspension, therefore, continued to the period of his decease, and necessarily forfeited all his rights and privileges as a member of the society, except that of being reinstated upon complying with the by-laws. The membership of the deceased was subject to the operation and effect of the by-laws of the society, and as they were rea- sonable, it was the duty of the court to protect the corporation in enforcing them." § 292. Where the suspended member applied for reinstate- ment and his medical certificate stated that he was of the 1 Gaige v. Grand Lodge, 15 N. Y. Supreme Assembly, 153 Mass. 83; 26 St. Reporter, 455; 48 Hun 137. N. East. Rep. 236; Supreme Council 2 Lehman v. I. O. B'nai Brith, 23 v. Connema, 3 Oh. Cir. Ct. 130; N. Y. Weekly Dig. 409; see Wells v. Grand Lodge v. Jesse, 50 111. App. Society, 17 Ontario 317; Lyon v. 101. ASSESSMENTS. 515 same age as shown by a certificate given more than a year prior, and, on objection to the certificate, the societ} 7 and the applicant agreed that no further action should be taken until inquiry could be made as to his age, and he died before the ballot was taken in the society as provided in the by-laws, he was not at the time of his death restored to membership or in good standing. 1 Where a member had been suspended for non-payment of an assessment, and he had neglected during his lifetime to secure his reinstatement in accordance with the terms of his certificate by paying arrearages while in good health and within a certain time, his restoration to membership can not be effected after his death by payment by another person within the time limited of the sum due from him at the time of his death. 2 The constitution of a society provided for the reinstatement of a member who had been suspended for non- payment of an assessment, on his making a written applica- tion, and on his paying arrears of dues and assessments, if a majority of the ballots cast on the vote to be taken by the members of his lodge on the question were in favor of his re- instatement. After default and suspension the insured paid his assessment, but the collector received it under protest. The formal paper requesting reinstatement was demanded of him, and no vote was taken by his lodge. The supreme secre- tary wrote him that his lodge could not reinstate him without a medical examination, and, on this letter, his name was dropped from the roll of members. It was held that the ruling of the supreme secretary was not in accordance with the laws of the society, and that the suspended member had been deprived of a right to a ballot and to reinstatement, with- out good cause. 3 This condition in respect to good health was not in the rule, and the officers had no right to add it to the rule. 4 1 Supreme Council v. Connema, 733; see Harvey v. Grand Lodge, 50 sujva; see Taylor v. Grand Lodge, Mo. App. 472. 29 N. Y. Supp. 773. 3 Ingrain v. Supreme Council, 14 * Modern Woodmen v. Jameson N. Y. St. Reporter 600. (Kansas), 29 Pac. Rep. 473. On a re- 4 Dennis v. Benefit Association. 120 hearing of this case the court held N. Y. 496; 14 N. Y. St. Reporter 605; that the member had not in fact been see also Van Houten v. Pine, 38 N. J. suspended. See 48 Kan. 718; 30 Pac. Eq. 72. Rep. 460; 49 Kans. 677; 31 Pac. Rep. 35 546 ASSESSMENTS. The society is not the ultimate judge of the sufficiency of a certificate of health, and where such a certificate is presented and rejected as insufficient by the officers of the society, the courts will, nevertheless, examine it and pass upon its suffi- ciency. The right to reinstatement upon a certificate depends upon its sufficiency in fact. 1 Unless it is otherwise stipulated in the contract, the right of a member to reinstatement is to be determined on the facts as they existed when the applica- tion was made or sent to the society, irrespective of subsequent events. Thus certain by-laws provided that within six months after a forfeiture, the defaulting member might be reinstated by paying all arrearages, and furnishing a satisfactory certif- icate of health. After the assessment for which a forfeiture was claimed, several notices of subsequent assessments were sent to the assured, each accompanied by a reinstatement con- tract for her to sign. She received the last of these notices on January 27th, and on February 12th she signed the appli- cation for reinstatement, inclosed it, together with money for all arrearages, and a certificate showing her health to be as good as when she first entered the association, and carried the package to the postoffice. "While doing so she caught a cold, and died the next day. The company received the package the day after her death, and after knowledge thereof, returned it to her address. It was held that her death was not a good cause for rejecting her application for reinstatement, since her right to reinstatement accrued, if at all, when the application was mailed to the societ}\ 2 § 293. "When a member has done all that he is required to do, under the contract of insurance, to entitle him to restora- tion to membership or to a vote upon the question of his res- toration he may not arbitrarily be refused re-admission. The courts will protect his rights during his life, and those of his beneficiary after his death. The by-laws of a society provided that a member who should fail to pay an assessment should be suspended, but that a payment within three months should reinstate him. Another article of the by-laws provided for 1 Miesell v. Ins. Co., 76 N. Y. 115; 2 Jackson v. Association, 78 Wis. Jackson v. Association, 78 Wis. 463; 463; 47 N. W. Eep. 733; see Marckv. 47 N. W. Rep. 733; Van Houten v. Supreme Lodge, 29 Fed. Rep. 896. Pine, supra. ASSESSMENTS. 54:7 the action of the society in cases where members delinquent for more than three months should desire to pay arrearages and obtain restoration of their rights. A member delinquent for less than three months, paid an assessment while on his death bed. and it was held that his rights were thus restored without action on the part of the society. 1 If the laws gov- erning a society do not impose other conditions of reinstate- ment than the payment of the money due, that is to say. if they do not require a certificate of good health, or a re-elec- tion, an acceptance by the society of the money due will oper- ate as a reinstatement of the delinquent member. 2 The by- laws of a society provided that a member failing to pay an assessment within thirty days should be suspended by his coun- cil at its next meeting; that any member so delinquent should forfeit all rights to benefits under the relief fund laws, should be reported suspended by the secretary to the supreme treas- urer, and should stand so suspended until payment of arrear- ages and compliance with the other laws governing reinstate- ments. It was held that compliance with " the other laws governing reinstatements/' which required a certificate of good health and a re-election was not necessary where no sus- pension had been declared by the council. 3 Where the by- laws provide for reinstatement of a delinquent member, if he is in good health, the society may not refuse to reinstate him while in good health because he has passed the age at which it would insure him, and such a refusal is a breach of the contract, for which he may recover/ A certificate provided that any member who had forfeited his contract of insurance might be again restored, at any time within six months, by furnishing proofs of good health and paying the lull amount of arrears. In an action on the certifi- cate, the defense of the society was. as to all but $168.78, that, at the time of the reinstatement of the member, the beneficiary 1 Manson v. Grand Lodge, 80 Minn. 'McDonald v. Supremo Council, 509: McDonald v. Supreme Council supra. 78 Cal. 49; 20 Pac. Rep. 41; Millard 4 Lovick v. Association. 110 N. C. v. Supreme Council, 81 Cal. 340; 22 93; 14 S. E. Rep. 506. In this case Pac Rep. 864. the court gave judgment for the ag- * McDonald v. Supreme Council gregate Bum of the assessments paid Order of Chosen Friends, 78 Cal. 49; with interest. 20 Pac. Rep. 41. 548 ASSESSMENTS. had stipulated that, if his death should take place within sixty days from that date, she should be entitled only to the money actually paid by him on assessments; that as he had died within sixty days after the date of his reinstatement, she was only entitled to the amount of such paid assessments, to wit, $168.78. The court said: "This was a mere nudum pactum. To etfect a reinstatement, no consent on the part of the society was necessary. Only two things were required, viz., furnish- ing a certificate of the good health of the assured, and the payment of arrears. These were done, and thereupon the as- sociation was bound under its contract to reinstate him, and had no right to impose any other condition. Neither the promise to do a thing, nor the actual doing of it, will be a good consideration, if it is a thing which the party is bound to do by a subsisting contract with the other party, at least unless done as a compromise of a bona fide dispute with reference to the obligations or rights of the parties under the contract, of which there is no claim in this case." 1 A notification to a member that his contract had lapsed, but that the society would reinstate him if he would remit his check for a specified amount, does not make the reinstatement de- pend on the receipt and payment of the check, but such rein- statement becomes complete by the mailing of the letter con- taining the check on the day the notification was received; hence, the member may recover benefits for accidental injuries sustained by him while the letter was in transit, and before it reached the society. 2 § 294. Reinstatement to membership in a mutual benefit society, effected by concealment of the fact that the suspended member was dying, is fraudulent and void. 3 The contract of insurance is essentially one of good faith, and a reinstatement obtained by false and fraudulent representations does not bind the society. The fact that, after the reinstatement of a member on his false representations, his subordinate lodge allowed him sick benefits under its by-laws and paid his assessments for him, does not preclude the society from setting up the defense 1 Davidson v. Society, 39 Minn. 303; 3 Marshall v. Accident Co., 11 N. Y. 39 N. W. Rep. 803. Supp. 700. 2 Calvin v. Association, 21 N. Y. Supp. 734; see Tayloe v. Ins. Co., 9 How. 390. ASSESSMENTS. 5-iO of fraud in obtaining reinstatement, when it had no knowledge of the fraud.' By reinstating a suspended member with full knowledge of the untruthfulness of his answers in his application for mem- bership, a mutual benefit society waives the benefit of a con- dition of forfeiture in the policy." Restoration to membership is not the making of a new contract, but is simply the cancel- lation of the forfeiture whereby the person is restored to mem- bership under the original contract and with his original rights. 3 One who is no longer recognized by the society as a contin- uing member does not, by merely applying for reinstatement, waive such rights as he may in fact have as a member. lie may in any controversy with it attempt to avoid litigation, and his application will be considered as an attempt to have his rights recognized by the society. The question is whether his rights have been forfeited. This will depend upon the facts of the case and the contract of the parties, not upon the act of one of the parties in attempting to adjust the contro- versy. 4 But where the petition for reinstatement recites that he has been suspended for non-payment of a certain assess- ment, and asks that he be reinstated under certain by-laws which provide for the restoration of delinquent members, the petition is evidence of a waiver of any formal defects in the notice of that assessment. 5 It is the duty of a person who has been expelled from a society, or whose contract of insurance is no longer recognize I by the society to be in force, and who claims that he is still a member and entitled to the benefits of membership, to disaf- firm the act of expulsion or the forfeiture within a reasonable time, and in some appropriate and distinct manner, under the circumstances of the case, and this is true even when the ex- pulsion is null and void, and when the forfeiture is without any good foundation. The rights of a member of a mutual 'Grand Lodge v. Cressey, t~ 111. rensky v. Supreme Lodge K. of H.. App. 616. 31 Fed. Rep. 592; i Greenl. Ev. at 2 Hoffman v. Supreme Council, section 171. .As to declarations and supra. admissions of a member, Bee § 836. 3 See $ 102a. 'Hansen v. Supreme Lodge, 1 10 * Mutual Reserve v. Hamlin, 189 U. 111. 801; 39 N. Bast. Rep. L121; Grand S. 297; 11 Sup. Ct. Rep. fill; Dodge Lodge v. Cressey, 47 III. App. (316. v Freedmans Co., 93 U. S. 379; La- 550 . ASSESSMENTS. benefit society rest merely in contract, and hence, his expul- sion or the forfeiture of his contract of insurance is no more than the breach of a contract, and although void for want of jurisdiction, or for want of proper foundation in fact, it is no more than an act which is void in the sense of being voidable at the election of the member. He may, at his election, affirm or disaffirm it. Where he takes no steps of any kind to secure his reinstatement, permits dues to remain unpaid which had accrued and were payable prior to the date of his expulsion, does not tender them, or any which accrue subsequently, and does not pay or tender subsequent assessments of which he had notice, he must be taken to have acquiesced in and con- sented to the sentence of expulsion or the asserted forfeiture of his contract, and no recovery may be had for benefits de- pendent upon his continued membership. 1 But where, as in one case, 2 he resists the expulsion, though without appeal, and fails for a year to pay subsequent dues which were not demanded of him, it may be regarded that he has sufficiently manifested his disaffirmance of the sentence of expulsion; and where, as in another case, 3 he continues to tender all dues when payable, this is clearly so. § 295. Excuse for non-payment, insanity, act of God. — Where there is no provision of the contract of insurance, which declares either expressly or by necessary implication that sickness, insanity or similar incapacity shall excuse the non-payment of an assessment on the day it is due, the courts can not grant relief against such contingencies. 4 As we have seen, 6 the payment of an assessment is not a personal service, but may be made by any person on behalf of the insured. It may be made, even though the insured know nothing about it or be incapable of knowing anything. It may not, therefore, be said that his incapacity makes payment impossible. Courts will sometimes relieve against absolute impossibilities, as where the subject-matter of a contract is destroyed without the fault of the party asking for relief, but they will not 1 Glardon v. Supreme Lodge, 5 Mo. 4 Klein v. Ins. Co., 104 XJ. S. 88; App. 45; see § 58. Thompson v. Ins. Co., 104 U. S. 252; 2 Mulroy v. Supreme Lodge, 28 Mo. Wheeler v. Ins. Co., 82 N. Y. 543; 16 App. 463. Hun 317; Carpenter v. Association, 3 Hoeffner v. Grand Lodge, 41 Mo. 68 Iowa 453; 27 N. W. Eep. 456. App. 359, 367. 5 § 272. ASSESSMENTS. 551 relieve in cases where ordinary prudence might have averted the calamity. It is the duty of the insured to make known to the proper persons the conditions of his insurance, and to pro- vide for the prompt payment of assessments as they become due. The case of Hillyard v. Mutual Benefit Life Insurance Com- pany, 1 holds that a failure to pay a premium on the day fixed may be excused, if the failure occurred through no fault of the insured, but by the act of the law, or the act of God. But this doctrine is not in harmony with the adjudicated cases upon this subject. 2 AVhile it is the general rule that sickness, insanity or similar incapacity on the part of the member will not excuse the non-payment of an assessment within the stip- ulated time, yet the charter, by-laws or certificate of member- ship may contain provisions qualifying the rule, although not stating the qualification in express language bearing upon that point. Thus, a rule of a society forfeiting the contract of insurance for non-payment of an assessment within thirty days after mailing of notice also provided that "for valid reasons to the officers of the association (such as a failure to receive notice of an assessment) he (the defaulting member) may be reinstated by paying the amount of arrearages." On February 12, 1886, the deceased received notice of an assess- ment to be paid on or before March 15th. On March 8th, while apparently in good health, he was suddenly stricken with apoplexy, rendering him immediately speechless and insensible. He never regained consciousness, and died on March 19th without having paid the assessment. It was held that his sudden illness did not excuse the non-performance of the condition of the contract, but that, by reason of the law of the society providing for the reinstatement of a member "for v;i lid reasons to the officers of the association," it was a question of fact for the jury, whether the excuse was sufficient, and that the right of the decedent to have that question deter- mined by a jury passed to his beneficiary upon his death. 3 1 85 N. J. Law 415. 111. App. 101: Bee Bliss on Life In- 2 Hawkshaw v. Supreme Lodge. 29 suranee at section 179; see also Fed. Rep. 770; Yoe v. Benevolent Howell v. Knickerbocker Life Ins. Association, 63 Md. 80: Ingram v. Co., 44 N. Y. 276. Supreme Council, 14 X. Y. St. Re- 3 Dennis v. Association, 120 N. Y. porter 600; Grand Lodge v. Jesse, 50 496; 24 N. Ea.st. Rep. 843; atlirming 552 ASSESSMENTS. § 296. Excuse for non-payment, Sunday, holiday . — Tf the time for the payment of an assessment expires on Sunday, at noon, and the member dies on Sunday afternoon, the society is liable, since the assessment is not payable until the follow- ing Monday. 1 A contract of insurance provided : " This policy will not be considered in force if the premium remains unpaid beyond thirty days after becoming due." The thirty days expired on Sunday and the premium was tendered on Monday. 47 Hun 338; 14 N. Y. St. Reporter, 605. The word "valid" as used above is equivalent to " good," " suf- ficient" or " satisfactory." The offi- cers may not arbitrarily reject an ex- cuse, under such a provision, but the manner in which they exercise their power under it is open to review in the courts. "That which the law will say a contracting party ought in reason to be satisfied with,that the law will say he is satisfied with." Mie- sellv. Ins. Co.,76N.Y. 115; Boiler Co. v. Garden, 101 N. Y. 387; 4 N. East. Eep. 749; Folliard v. Wallace, 2 Johns. 395; City of Brooklyn v. R. R. Co., 47 N. Y. 475; Braunstein v. Ins. Co., 1 Best & S. 782; Moore v. Wool- sey, 4 El. & Bl. 243; Van Houten v. Pine, 38 N. J. Eq. 72; Jackson v. As- sociation, 78 Wis. 463; 47 N. W. Rep. 733. 1 Hammond v. American Mutual, 10 Gray 306; 20 Law Reporter 273; Howland v. Continental Ins. Co., 121 Mass. 499; Taylor v. Germania Ins. Co., 2 Dillon 282; Sands v. Lyon, 18 Conn. 69; Salter v. Burt, 20 Wend. 205; Holbrook v. Ins. Co., 86 Iowa 255; 53 N. W. Rep. 229. In Ham- mond v. American Mutual, etc., supra, it is said : " The only question in the case seems to be whether Sun- day is to be excluded as a day of pay- ment, and the payment properly post- poned till Monday, or whether the party, to save his policy from being forfeited, must make his quarterly payment on or before Saturday, when the quarter day falls on Sunday. We have on the one hand the rule as to commercial paper, or negotiable notes payable with grace requiring payment to be made on Saturday where the third day of grace falls on Sunday: and on the other a rule generally adopted as to other con- tracts to pay money, or perform other specific duties on a certain day named, that if such day falls on Sun- day, the day of performance is post- poned till Monday. In reference to notes payable on a certain day, but entitled to three days' grace, it is said that in such case the note by its terms would be due and \ ayable two days earlier than Saturday, and that what was originally a mere indul- gence to casualty or oversight should not be extended, and, therefore, if the last of three days of grace falls on Sunday, the payment must be made on Saturday, and that it was more reasonable to take from, than to add to, a period of time thus orig- inally allowed as mere grace and favor. But as to other contracts, which by the face of the instrument required a payment on a day which proves to be Sunday, to discharge literally the promise or duty, the law seems to sanction the postponement of the time for doing the same till the Monday following. In other words, Sunday is not a legal day for the per- formance of contracts and doing secu- lar business." ASSESSMENTS. 553 The court held that the tender was made in time, and said : " The court is warranted in saying, that when from accident or mutual error, the day of fulfilling an agreement falls upon Sunday, there is enough of principle and authority to justify the party in deferring his performance to the Monday ensuing, without impairing a right or incurring a forfeiture.' A statute of Kentucky provides that Thanksgiving day shall be treated as Sunday, as to the presentment, acceptance and protesting of notes and bills. The court of appeals of that state held that this statute did not apply to other business transactions and contracts, and that the payment of an assess- ment should be made on Thanksgiving day, if so contracted, notwithstanding the statute. 2 The statutes of the different states must be consulted in order to determine whether a legal holiday will excuse the non-performance of a contract to pay an assessment falling due on that clay. 1 Campbell v. International Life, 4 2 National Mutual v. Miller, 85 Ky. Bosw. 298. 88; 2 S. W. Rep. 900. CHAPTER XXI. ASSESSMENTS. § 297. "Waiver of forfeiture, agreement of officers, printed prospectus. 298, 299. Waiver of forfeiture, custom of society. 300, 301. "Waiver of forfeiture, receipt of assessments, estoppel in pais. 302. Waiver of forfeiture, assessments retained by the society. 303, 304. "Waiver of forfeiture, conditional acceptance of past due assessments. 305, 306. "Waiver of forfeiture, the levy of an assessment on a delin- quent member. 307. "Waiver of forfeiture, attempt to collect assessments. § 207. Waiver of forfeiture, statements and agreements of officers of the society, printed prospectus of the soci- ety. — -Where the officers of a society circulate a pamphlet among its members, stating that thirty days of grace will be given for the payment of dues and assessments, the society is estopped to claim a forfeiture on account of the failure to pay on the day stipulated, where the member . relies upon such statement, and fails to pay promptly. 1 Where a member of a mutual benefit society, relying on the promise of its manager to draw on him for assessments, and being misled by the fact that such drafts had been twice made on him, is suspended be- cause of non-payment of an assessment for which no draft was made, and is unable to be reinstated for the reason that his health hfis become impaired, the society is estopped from in- sisting upon a forfeiture. 2 A director of a society called upon a sick member who was insured in the society. The sick member said to him that an assessment was due on the following Fri- day, that he could send out and borrow the money to pay it, but that he expected some money on the following Monday, and did not like to borrow it. He asked the director to pay the 'Fowler v. Metropolitan L. Ins. s McCorklev. Association, 71 Texas Co., 41 Hun 357; Ruse v. Mutual 149; 8 S. W. Rep. 516. Co., 24 N. Y. 653; Howell v. Knick- erbocker Co., 44 N. Y. 276. (554) ASSESSMENTS. 555 assessment for him, promising to repay him on the following Monday. The director assured him that he would pay it for him at once, but neglected to do so, and the society claimed that his rights were forfeited. The court held that the prom- ise of the director was one upon which the member had a right to rely, and that the member should be reinstated. 1 The statement of the secretary of a mutual benetit society to the insured member that he need not pay his dues until certain charges then pending against him, which if true made the policy forfeitable, were disposed of, is one upon which the insured has a right to rely, and will excuse the non-payment of assessments until that time. 2 The by-laws of an unincor- porated mutual benefit society provided that, in case a mem- ber for failure to pay an assessment promptly had been dropped from the society by the secretary, the board of directors should have power to reinstate him on his presenting to them a reason- able excuse for such failure, and paying the sum in arrears. A member, being delinquent, appeared before them, and of- ferred a sufficient reason for his delinquency, and the board refused to reinstate him because they alleged his health was precarious. He died very soon afterward. The court after his death, inquired into and determined the adequacy of the reason so offered, and compelled the society to pay the amount of insurance to which such delinquent's widow was entitled." A person having notice that an agent with whom he is deal- ing is acting beyond the scope of his authority, can not hold the principal. The promise of an agent of a mutual benefit society to a member whom he owes, that he will pay such as- sessment as may be made by the society and become debtor therefor to the society, is of itself notice that the agent is acting outside of his authority; and the society is not bound to ac- cepl the agent instead of the member as his debtor unless it, with full knowledge of what the agent has done, affirms or 1 Van Houten v. Pine, 9 Stew. Eq. 3 VanHouten v. Pine, 38 N. J. Eq. 133; 38 N. J. Eq. 78. 72; it stew. Eq. L8S. The excuse w as 9 National Mutual v. Jones, 84 Ky. that a director <>f the society had 110; 3 S. W. Rej>. 447: Robertson v. promised and assured the member Ins. Co., 47 N. Y. Superior Ct. 377; that he himself would pay the assess- Loughridge v. Association. M Iowa rncnt due the next Friday, in oon- 141; 50 N. W. Rep. 508; Mallory v. sideration of the promise of the mem- .Ins. Co., 90 Mich. 112; 51 N. W. Rep, ber to repay him the amount of such 188. assessment on the Monday following. 556 ASSESSMENTS. ratifies it. 1 A printed prospectus is inadmissible to control the terms of a certificate. 2 Where a member was misled by the statements of an officer of the society and was by such statements induced to refrain from paying assessments which he otherwise would have paid, his beneficiary is entitled to recover on the contract after his death, upon payment of such assessments and al] others which may be due. 3 §298. Waiver of forfeiture^ custom of the society. — While it is sometimes said that custom is never permitted to overcome the express terms of a contract, yet a custom may change the express provisions of a contract, where it has the necessary elements of an estoppel. If a society continually waives a forfeiture, and this fact is known to the public and to the member, it is bound by the custom in that regard. Such a custom must be clearly established, and its uniformity and duration shown. When it is urged that a society in each particular case has waived the prompt payment of the assess- ment, the question is whether the custom or usage of the society in this respect was so general and usual as to estop it from asserting that there was a forfeiture in the particular case at bar. Isolated instances of waiver of forfeiture are insufficient to prove, a custom, and can not be shown to over- come or change the express provisions of the contract of insurance. 4 Knowledge of the custom on the part of the member must be shown in order to be binding on the society, and where all that was shown in regard to the extent of a mem- ber's knowledge that the society waived prompt payment, was that he had paid twenty -three assessments, one five days after maturity, and four from one to three days after maturity, it was held that the evidence did not tend to show that the 1 Co-operative Association v. Mc- 30 Iowa 133; Smith v. Ins. Co., 2 Connico, 53 Miss. 233. Tenn. Ch. 727; Ball v. N.W. Asso- 2 Ruse v. Ins Co., 23 N. Y. 516; Mu- ciation(Minn.), 57 N. W. Rep. 10 3. tual Benefit v. Ruse, 8 Ga. 534; Smith 3 Colby v. Life Indemnity Co. v. Ins. Co., 103 Pa. St. 177; Fowler v. (Minn.), 59 N. W. Rep. 539. Ins. Co., 116 N. Y. 389; Ins. Co. v. 4 Willcut v. N. W. Mutual, 81 Ind. Bratt, 55 Md. 200; Union Central v. 301; Crossman, Adm'x, v. Mass. Ben., Cheever, 36 Oh. St. 201; Continental 143 Mass. 435; 9 N. E. Rep. 753; 111. Ins. Co. v. Hamilton, 41 Oh. St. 274; Masons' Benevolent Soc. v. Baldwin, contra, see Southern Mutual v. Mon- 86 111. 479. tague, 84 Ky. 653; Walsh v. Ins. Co., ASSESSMENTS. 00 1 member had had knowledge of any custom of the society in that respect. 1 The by-laws of a society provided for payment of assess- ments within thirty days after proper notice, and, in default thereof, for forfeiture of the rights of membership. A mem- ber failed to pay an assessment and died. In a suit on the certificate, it was shown that it was the custom of the society, if a member failed to pay his assessment after one notice, to give him a second one, requiring him to pay within ten days, and that the deceased member had not been given a second notice. The evidence did not establish any knowledge of such a custom on the part of the deceased and was held insufficient. 2 While a custom may not be urged to affect the terms of a contract to the extent of enlarging or abridging it, yet it may interpret it. 3 Where it is shown that a large number of assessments on members were accepted by a society after they were due, and it is claimed that a waiver of forfeiture should be implied therefrom, but no practice is shown of receiving past due as- sessments from sick members, such waiver does not extend to a member who was sick at the time his past due assessment was tendered to the society. 4 In an action on a certificate on which the society denies liability because of the non-payment of an assessment, evidence is inadmissible that it was defend- ant's custom to reinstate members on payment of delinquent assessments, as a matter of course, if no other charges were preferred against them. 5 In a suit upon a certificate of insur- ance it was held that, even though a custom of leniency to its members in receiving assessments after the stipulated time, were thoroughly established, there was nothing in such a cus- tom which would prohibit either an inquiry by the society as to the health of the member who desired to take advan- ■Bosworth v. Western Mutual, 7."> Germania L. Ins. Co., 18 Minn. 44S; Iowa 582; 39 N. W. Rep. 908; Mars- A.lams v. Otterback, 15 Bow. 539; ton v. Ins. Co., 59 N. H. 92; Gater- Taylor v. .Ktn.i L. Ins. Co., 13 Gray man v. Ins. Co., 1 Mo. App. 300; 434. Lantz v. Ins. Co., 139 Pa. St. 546; *Rappv. Palmer, 3 Watts 178. 20 Atl. Rep. 80; McGowan v. Asso- •'Schmidt v. Modern Woodmen, 84 ciation, 28 N. Y. Supp. 177. Wis. 101; 54 N. W. Rep. 264. * National Mutual v. Jones, 84 Ky. 'Dickinson v. Grand Lodge (Pa. 110; 2 S. W. Rep. 447; Schwarz v. St.). 88 Atl. Rep. 293. 558 ASSESSMENTS. tage of the custom, or the refusal of the money when ten- dered, if the health of the applicant was so impaired as to increase the risk. 1 But in Stylow v. Wisconsin Odd Fellows, 2 the language of the court might be construed as favoring the opposite doctrine. In that case, the by-laws of the society provided that membership should be forfeited by failure to pay an assessment within sixty days after notice, but that re- instatement might be had, the company reserving the right to exact a physician's certificate of good health. In an action on a certificate issued by the society, it was shown that at the death of the member holding the certificate, sixty-seven assess- ments had been made against him. Of these the last three had not been paid— Nos. 17, 18 and 19. The evidence dis- closed the fact that the society made assessment No. 19 against the deceased two days after he was in default for assessment No. 17. for the non-payment of which the society claimed he forfeited all rights under his contract with the society. Of the remaining sixty-four but one assessment had been paid within the sixty days and all payments had been received without demand for a physician's certificate, though some payments were made one hundred days late. The court said : " The assured had every reason to believe that the company would accept the payment of these assessments as it accepted the payment of all others, within a reasonable time after they became due, without making any question as to his state of health. * * We are of opinion that after the constant course of conduct of the company with the assured, as shown by the evidence in this case, the only way the company could in- sist upon a forfeiture for non-payment within the time fixed by the by-laws would be by giving the assured personal notice that thereafter punctual payment would be required." 3 Where a certificate provided that it should be void if an assessment were not paid within ten days after due no- tice, but it appeared that the society had been accustomed for two years to receive payments from the member if made within 1 National Mutual v. Miller, 85 Ky. 2 69 Wis. 224; 34 N. W. Rep. 151 . 88; 2 S. "W. Rep. 900; see also Lewis 3 See Insurance Co. v. Hinesley, 75 v. Phcenix Mutual, 44 Conn. 72; Mu- Ind. 1. tual Life v. Ins. Co., 100 Pa. St. 172; Crossman v. Association, 143 Mass. 435; 9 N. East. Rep. 753. ASSESSMENTS. 559 sixty days from the time he received the notice, and the cer- tificate remained uncanceled at the death of the member within that time, the society was estopped to claim a forfeiture for non-payment of an assessment within the ten days. 1 Where a contract provides for a forfeiture unless an assess- ment is paid by a certain time, but the society has accepted pay- ment of more than half of such assessments after they were due, without warning of any possible forfeiture in the future, if the last assessment be paid or tendered within the same time after maturity as the majority of the previous ones, the society is estopped from asserting a forfeiture, though the insured died before it was paid or tendered. 2 A general prac- tice and course of business which will naturally lead a mem- ber to rely upon the acceptance of payment for assessments, after failure to pay in the time prescribed by the policy, will operate as a waiver of the forfeiture. Insurance companies can not lead customers to rely upon their usages, course of business, and the declarations of their officers, which disarm vigilance, overcome watchfulness, and remove stimulus to promptness in payments provided by their policies, and then rigidly enforce the conditions of payment. They must give to the customers the indulgence which they thus promise. Forfeitures on account of omissions to pay sums provided by the policies will be regarded as waived by such usages, course of business, and declarations of officers. 3 § 299. Where the uniform custom of the society has been to give notice of the time when assessments fall due, and to collect the same at the residence of the member through a local agent residing in his neighborhood, good faith requires 1 Odd Fellows' Mutual v. Sweetser, Rep. 443; Pittsburgh Boat- Yard Co. 117 Ind. 97; 1!) N. East. Rep. 722. v. Western Assur. Co., 118 Pa. St. *Spoeri v. Ins. Co., 89 Fed. Rep. 415; 11 Atl. Rep. 801; Tripp v. Insur- 752; Hanley v. Association, 69 Mo. ance Co., 55 Vt. 100: Marston v. In- 380; Goedeeke v. Ins. Co., 30 Mo. surance Co., 59 N. H. 92; Insurance App. 608; Boutonv. Ins. Co., 35€k>nn. Co. v. Lester, 62 Ga. 247: Insurance 542; Illinois Ins. Co. v. Stanton. 57 Co. v. Garmany, 74 Ga. 51; Thomp- 111. 354; White v. Ins. Co.. 120 Mass. son v. Insurance Co., 52 Mo. 4(59: In- 330: Meyer v. Ins. Co., 51 How. 267; surance Co. v. Scheidle, L8 Neb. 195; Alabama Gold Ins. Co. v. Garmany, 25 N. W. Rep. 620; Loughridge v. 74 Ga. 51. Association, 84 Iowa. 141; 50 X. W. 3 Mayer v. Insurance Co., 38 Iowa, Rep. 568; but see Richardson v. Ins. 304; Unsell v. Insurance Co., 32 Fed. Co. (Ky.), 18 S. W. Rep. 165. 560 ASSESSMENTS. that this mode of collecting should not be discontinued, and payment required at the office of the society, without notice to the insured. 1 But it has been held that where the exact time of payment is fixed by the contract, and the society has been accustomed to notify the insured in advance of that date, and to urge him to be punctual, it may, nevertheless, cease to give such notice at any time, without informing him that such notice will no longer be given. 2 If the practice of a society and its course of dealing with its members, known to the in- sured, have been such as to induce a belief that so much of the contract as provides for a forfeiture in a certain event, will not be insisted on, the society will not be permitted to set up such forfeiture, as against one in whom their conduct has induced such belief. 3 Where a party to a contract, who is entitled to a forfeiture in case of the non-performance by the other party of a condition therein, by his own act induces such other to omit strict performance within the time limited, he can not exact the forfeiture if the party in technical default, with rea- sonable diligence thereafter, performs or offers to perform the condition. 4 It is a well settled and salutary rule of law, that a party can not insist upon a condition precedent, when its non-performance has been caused by himself. 5 Between August 17, 1883, and February 27, 1885, fifteen assessments were made by a society on a member residing in Watertown, JN". Y., and ail of them were paid by the member by his sending to the society, at its place of business at Cincinnati, Ohio, by mail, 1 Ins. Co. v. Bernard, 33 Ohio St. Co. v. Eggleston, 96 U. S. 572; Ins. 459; Seamans v. N. W. Mut. Life, 3 Co. v. Pierce, 75 111. 426; Bradwell v. Fed. Rep. 325; Hanley v. Life Ass'n, Ins. Co., 75 N. C. 8; Thompson v. Ins. etc., 69 Mo. 380; Illinois Ins. Co. v. Co., 52 Mo. 469. Stanton, 57 111. 354; Bouton v. Mut. 4 Kenyon v. Association, 122 N. Y. Life, etc., 25 Conn. 542; White v. 247; 25 N. East. Rep. 299; 48 Hun Conn. Ins. Co., 120 Mass. 330; Meyer 278; 17 N. Y. St. Rep. 925; Leslie v. v. Knickerbocker Life, 51 How. 267; Ins. Co., 63 N. Y. 27; True v. Asso- Truev. Association, 78 Wis. 287; 47 N. ciation, 78 Wis. 287; 47 N. W. Rep. W. Rep. 520. 520; Penn. Mutual v. Keach, 134 111. 2 Thompson v. Ins. Co., 104 U. S. 583; 26 N. East. Rep. 106; Thompson 252; Mutual Fire Ins. Co. v. Miller, v. Ins. Co., 52 Mo. 469; Unsell v. Ins. 58 Md. 463; Mandego v. Life Asso- Co., 32 Fed. Rep. 443. ciation, 64 Iowa 134, distinguishing 6 Young v. Hunter, 6 N. Y. 207; Phoenix Mut. v. Doster, 106 U. S. 30. Ins. Co. v. Eggleston, 96 U. S. 572; 3 Ins. Co. v. McCain, 96 U. S. 84; Wyman v. Ins. Co., 119 N. Y. 274. In3. Co. v. Wolff, 95 TJ. S. 326; Ins. ASSESSMENTS. 561 his check on the "Watertown National Bank, pavable to the order of its secretary. On March 27, 1885, the assessment in question was made. It was for $4.75. On April 4, 1885, the member sent his check for that sum precisely as he had paid all the former assessments. On April 10, a second notice was sent to him, asking him to remit by check, postal order, or ex- press order, to which he replied that he had paid that assess- ment April 4, and had the receipt of the society for it. On April 15 the societ}' replied that there must be a mistake some- where, as its officers had the receipt and could find no trace of having received a remittance for the payment of such assess- ment, and requested him to return the receipt he held, that they might trace the matter up, promising to return it to him. Before the receipt of this letter the member died. His death was sudden and unexpected. There was a sufficient fund in bank to meet this check. The first notice of assessment re- quested the member to remit the amount by sight draft on a Cincinnati or New York bank, or by an express money order. On these facts the court held that the member was justified, by the course of dealing between the parties, in regarding the sending of his check as equivalent to sending a draft or order, and that the society was estopped by its acts and course of dcding with him from claiming that such check was not equiv- alent to a sight draft, at least so far as to prevent it from claiming that the certificate was forfeited by reason of the non-payment of that assessment. 1 The fact that by the charter of a mutual benefit societv a particular method of giving notice of assessments as they fall due is declared to be sufficient and binding on all members does not exempt the corporation from the operation of the prin- ciples of equitable estoppel, which apply to all other persons. natural or juridical. The charter of a society provided that notices of assessments posted in the rooms of the cotton ex- change should be deemed proper notices to all members. .Members were required to be members or employes of the exchange, but it was also provided that" any member may withdraw from the cotton exchange without severing his con- nection with this association," and in course of time a class of 1 Kenyon v. Association, supra. 36 562 ASSESSMENTS. members arose, who had ceased to be members of the ex- change, and had lost the privilege of access to its rooms, and the society adopted the custom of sending by mail written notices of assessments to all such members, and even to others who requested it. A member of the society had ceased to be a member of the exchange, and notices had been sent to him for several years. He failed to receive notice of one assess- ment, and was thereupon suspended. As soon as the default became known, payment of all assessments due was tendered, and reinstatement demanded, but the society insisted that all his rights were forfeited. It was held that the society was estopped to claim that the member was entitled to no other notice than the posting in the cotton exchange, and the court said: " We can discover no possible reason why the defend- ant should be exempt from the application of the principles of equitable estoppel which operate upon all other persons, natural and juridical, nor why the mere fact that there was a contract should bar their application. In matters affecting the execution of contracts, there would never be any occasion for invoking the doctrine of estoppel if the party had complied with the terms of his contract, because such compliance would be of itself a sufficient basis for his legal right. It is only when the terms have admittedly not been complied with that the ques- tion arises whether the other party has, by his representations or conduct, estopped himself from setting up such non-com- pliance as a ground of forfeiture. * * There can be no doubt that the long-continued practice of the defendant com- pany to send to (the member) prompt notice of every assess- ment as soon as made, justified him in believing that he would receive such notices, and in acting on the belief that, by pay- ing when so notified, his rights would be protected." ! In Helme v. Phila. Life Ins. Co.,'' plaintiff offered on the trial to prove a custom among life insurance companies, to allow thirty days of grace for payment of premiums, even where a clause of forfeiture for non-payment on a time certain existed, and the court held that the testimony should have been ad- 1 Gunther v. N. O. Cotton Ex- Fitzpatrick v. Ins. Co., 25 La. Ann. change Mut. Aid Ass'n, 40 La. Ann. 443; see § 300; True v. Association, 777; 5 Southern Rep. 65, citing Bige- 78 Wis. 287; 47 N. W. Rep. 520. low on Estoppel, Introduction, p. 64; 2 61 Pa. St. 107. ASSESSMENTS. 5G3 mitted. 1 The contrary doctrine has been held in several cases. 2 A condition in the contract of insurance issued I >y a mutual benefit society, providing that a failure to comply with the rules of the society as to payments shall render the certificate void, is not waived, as to future payments, by the fact that the officers have reinstated the insured member when he has failed to make payment according to the rules of the society; espe- cially when another rule, which is a part of the contract, per- mits the officers to so reinstate a member, on payment of arrears, for any valid reason. 3 "Where unknown to the supreme lodge, a custom had grown up in a subordinate lodge for the latter to pay one assessment for a member, in case he failed to pay it, the custom is not binding on the supreme lodge. 4 §300. Waiver of forfeiture, receipt of assessments, estoppel in pais. — The doctrine of estoppel in pais is based upon a fraudulent purpose or fraudulent result. If the ele- ment of fraud is wanting, there is no estoppel, as where both parties were equally cognizant of the facts, and the declara- tions or silence of the one party produced no change in the conduct of the other, he acting solely on his own judgment. There must be deception and change of conduct in consequence of it. 6 The mere act of receiving or collecting assessments by a society with knowledge of an existing right of forfeiture will not estop the society from setting up such forfeiture, unless the member when he paid the assessments had reason fairly to conclude from the acts and declarations of the association that the forfeiture had been or would be waived, or unless the pay- ment was made in a reliance upon the validity of the contract of insurance, induced by the acts, declarations or silence of the society. Thus, in one case * the member informed the c< >m- pany that he had changed his occupation from clerking to braking upon a railroad, and asked what change, if any, was ' Ruse v. Mut. Hen., 26 Barb. (N. Y.) 4 Grand Lodge v. Jesse, 50 111. App. 656; 24 N. Y. 658; Mayers v. Ins. Co., 101. 38 Iowa 304; Girard Life v. Mutual b Davidson v. Young, 38 111. 152. Life, 97 Pa. St. 1. 6 N. W. Mutual v. Amerman, 119 'Mutual Benefit v. Ruse, 8 Ga. 534; 111. 329; 10 N. East. Rep. 225; over- Ins. Co. v. Sefton, 58 Ind. 380; Lewis ruling 16 111. App. 528. v. Phoenix Mutual, 41 Conn. 72. 3 Grossman v. Association, 143 Mass. 435; 9 N. East. Rep. 753. 564 ASSESSMENTS.. necessary in his policy. The company informed him by letter that it could not issue a permit for his occupation as brakeman, but advised him, as he did not expect to be in that business long, to pay the premium on his policy, so as to have it in force when he should stop braking, and to take out an acci- dent policy on his life, while in that business. The assured paid the premium, and was killed soon afterward while at work as conductor of a freight train, having been promoted from brakeman to that position. The court held that the doctrine of estoppel was not applicable to the receipt of the premium by the company under these circumstances, and that the company was not liable. Where membership in a mutual benefit society is, by the by-laws, made to depend upon contin- uance of membership in a particular organization, withdrawal from membership in such organization forfeits all rights in the society; and the subsequent levy and collection of assessments by the society from one who had withdrawn from member- ship in such organization, does not continue his right of mem- bership in such society. The member is as much bound by the by-laws as the society, and he can not claim a waiver of their requirements. 1 By the constitution of a mutual benefit society, no person could be a member of it unless he was a member of the Improved Order of Ked Men, and on failing to pay his dues to the I. O. K. M., he ceased to be a member of the benefit society. The two societies were independent, and had different officers. It was held that the receipt of assessments by the mutual benefit society in ignorance that the person paying them had ceased to be a member of the Eed Men by reason of non-payment of dues, was not an acquies- cence in, or waiver of the fact that he was not a member in good standing in the societ} r ; that to constitute a waiver it should, at least, appear that the officers of the society knew, or had notice of the fact, that the person had ceased to be a member of his tribe when they received his subsequent assess- ment. 2 A waiver of a right presupposes a knowledge of the right waived, and is not to be inferred from a merely negligent 1 Burbank v. Boston Police Relief ciation, 5 Oin. Law Bull. 516; Ellerbe Association, 144 Mass. 434. v. Faust (Mo.), 25 S. W. Rep. 390. 8 Springmier v. Benevolent Asso- ASSESSMENTS. 565 act, or from one clone under a misapprehension of the real con- dition of the rights of the parties at the time. 1 It has been held in some cases that knowledge on the part of a society that a statement warranted in the application to be true is false and the subsequent collection of assessments will not estop it from insisting upon a forfeiture of the con- tract for breach of the warranty. 2 It has also been held that an untrue or fraudulent statement by the member in his appli- cation, of a fact material to the risk, will not prevent a recoverv, if the society knew the truth in regard to the fact when it issued the contract of insurance and received assessments upon it; 3 and it may be broadly laid down as the general rule that where, after discovering that a member has made misrepre- sentations in his application, a society continues to collect assessments, it thereby waives its right to declare invalid the contract obtained by such misrepresentations. 4 Knowledge on the part of the society of a breach of one of the conditions of the contract by the member, and the subsequent collection of assessments, is a waiver of the right to forfeit the contract for that cause. 6 Knowledge on the part of the society and the waiver of the forfeiture must be pleaded to be made available. If the society accept payment of an assessment after it has 1 Diehl v. Ins. Co., 58 Pa. St. 443; Ins. Co., 33 La. Ann. 1353; Day v. Leonard v. Lebanon Mutual, 3 W. N. Ins. Co., 1 McArthur 41; iEtna Life C. 527; Lyon v. Supreme Assembly, v. France, 91 U. S. 510: Jeffries v. 158 Mass. 83; 26 N. East. Rep. 236; Ins. Co., 22 Wall. 47: Morris..,, v . Ins. Wells v. Society, 17 Ontario 317. Co., 59 Wis. 163; 18 N. W. Rep. 13; 2 Kenyon v. Association, 122 N. Y. Fitzpatrick v. Ins. Co., 56 Conn. 116. 247; 25 N. East. Rep. 299; Barteau v. insurance Co. v. Hazelett. 105 Ind, Ins. Co., 67 N. Y. 595; Vose v. Ins. 312; 4 N. East. Rep. 582; Newman v. < 'ii.. Cush. (Mass.) 42; Smith v. Ins. Association, 76 Iowa 56; Walsh v. Co., 24 Pa. St. 820; Galbraith'sAdm'r Ins. Co., 30 Iowa 183; McDonald v. Ins. Co., 12 Hush (Ky.) 29. v. Supreme Council. 7s Cal. 49; 20 » Miller v. Ins. Co., 81 Iowa 816. Pac. Rep. 41; Association v. Beck, 1 Schwarzbachv. Protective Union, 77 Ind. 203; Modem Woodmen v. 25 W.Va. 622; Watson v. Association, Jameson, 48 Kan. 718; 80 Pac Rep. 21 Fed. Rep, 698; Hoffman v. Su- 460: 81 Pac. Rep. 788; 4!) Kan. 677; preme Council, 35 Fed. Rep. 252: Ball Daniher v. Grand Lodge (Utah). 87 v. Association, (14 N. H. 291; 9 Atl. Pac. Rep. 215. Rep. 103; Warnebold v. Grand Lodge, 6 Schwarzbachv. Protective Union, 83 Iowa 2::: is x. W. Rep. 1071; mpra; Texas Mutual v. Davidge, 51 Humphreys v. Association. 189 Pa. Texas. 244; Matt v. Society, 70 Iowa St. 264; 20 Atl. Rep. 1047: Campbell 455. v. Ins. Co., 98 Mass. 381; Hartwell v. 5 60 ASSESSMENTS. notice of a change in the habits of the assured, which by the terms of the policy would cause a forfeiture, it thereby waives the forfeiture. 1 Where it was known to the society that the member was addicted to the use of intoxicating liquors, and it accepted assessments until his death, it can not set up the forfeiture. 2 The demand and receipt of assessments by a so- ciety with full knowledge of the facts is a distinct act of af- firmance of the contract by the party entitled to avoid it, and will constitute a waiver of the right to annul it. 3 Where a society, which has issued a certificate conditioned that it shall be void, if the beneficiary is not a " natural heir " of the mem- ber, continues to collect assessments after knowledge that the beneficiary named is not related to the member, there is a waiver of the condition. 4 Where the society retains and con- tinues to collect assessments after its secretary has knowledge of a false statement in the application as to the age of the mem- ber insured, it waives the forfeiture of the contract. 5 But when a member has in his application made statements as to his age, and his local lodge has instituted inquiries as to the truth of his statements, the levy and collection of assessments by the secretary of the society in ignorance of the fact that the state- ments were untrue, do not waive the forfeiture of the contract on account of the false statements. 6 Where a member of a mutual benefit society has made false statements as to his age in his application for membership, and has never stated his true age, the fact that pending an investigation of the matter 1 Phoenix Mutual v. Roddin, 120 U. Wall. 404; Ins. Co. v. Stockbower, 26 S. 183; 7 Sup. Ct. Rep. 500; Lindsey Pa. St. 199; North Berwick v. N. E. v. Society, 84 Iowa 734; 50 N. W. Ins. Co., 52 Me. 336; Viele v. Ger- Rep. 29. mania Ins. Co., 26 Iowa 9; May on 2 Grand Lodge v. Brand, 29 Neb. Ins., section 507; Cotten v. Ins. Co., 644; 46 N. W. Rep. 95. 41 Fed. Rep. 506. 3 Frost v. Saratoga Ins. Co., 5 Denis 4 Lindsey v. Society, 84 Iowa 734; 516; Viall v. The Genesee Mutual, 50 N. W. Rep. 29. 19 Barb. 440; Gans v. St. Paul Ins. 5 Morrison v. Odd Fellows, 59 Wis. Co., 43 Wis. 108; Masonic Mutual v. 162; see Mtna Life v. Hanna, 81 Beck, 77 Ind. 203; Watson v. Centen- Texas 487; 17 S. W. Rep. 35; Cotten nial Mutual, 21 Fed. Rep. 698. To v. Ins. Co., 41 Fed. Rep. 506; Miller same effect see Commercial Ins. Co. v. Ins. Co., 31 Iowa 216; Coolidge v. v. Spankneble, 52 111. 53; Lycoming Ins. Co., 1 Mo. App. 109. Ins. Co. v. Barringer, 73 111. 230; 6 Preuster v. Supreme Council, 15 Mtna, Ins. Co. v. Maguire, 51 111. 342; N. Y. Supp. 41. Phoenix Ins. Co. v. Slaughter, 12 ASSESSMENTS. 507 by the society, which investigation is carried on with reason- able diligence, and results in his expulsion, assessments are levied against and paid by him, does not constitute a waiver of the right to expel him for his false statements, where, up to the time of his expulsion, the society had no legal proof that his age had been falsely stated. 1 In an action on a certificate of membership, the society defended on the grouud that the deceased member had stated in his application that he was fifty-nine years of age, when, in fact, he was sixty-four years of age. It was claimed by plaint- iff that the society, by its treasurer, had received of plaintiff, after her husband's death, two as3e33ments against him, made just before he died, and that, at that time, the treasurer and some of the other officers had information of his true age. Upon these facts, it was contended that the society had ratified the contract, or was estopped from setting up such defense. The court said : " We think this ground untenable. There is no evidence that the directors had knowledge of Swett's true age, prior to their action rejecting the plaintiff's claim in 1 Preuster v. Supreme Council. 135 80 Mich. 332; Luthe v. Ins. Co., 55 N.Y. 417; 32 N. East. Rep. 135; affirm- Wis. 543. Evidence of age of mem- ing 15 N. Y. Supp. 41. Statements ber: his statements made some time made by a member as to his age. before or some time after the issuing yEtna Ins. Co. v. France, 91 U. S. of the contract are not admissible. 510; Linz v. Ins. Co., 8 Mo. App. 3G3; Valley Mutual v. Teewalt, 79 Va. Alabama Ins. Co. v. Ins. Co., 81 Ala. 421; Westropp v. Bruce, Batty (Irish 329; Swett v. Society, 78 Me. 541; 7 Rep.) 155. It is improper to pen nit a Atl. Rep. 394; Gray v. Association, witness to give in evidence his opin- 111 Ind. 531; 11 N. East. Rep. 477; ion of the age of a person from the Low v. Ins. Co., 6 Cin. L. Bull. 0(>(>; appearance of the Latter. Valley Mu- Southern Lif e v. Wilkinson, 53 Ga. tual v. Teewalt, supra; but see Ma- 535: Vivar v. Supreme Lodge, 52 baney v. Association, 69 Hun 12; 22 N. J. L. 455; 20 Atl. Rep. 86; Ball v. N.Y. Supp. 213. An entry in the Association, (It N. H. 291; Hani' v. minute-hook of a lodge of which the Association, 70 Wis. 450; 45 N. W. deceased was a member made prior Rep. 315; Preuster v. Supreme Coun- to the issue of the certificate and oil. 185 X. V. 417; 82 N. East. K<'|>. showing his age as recorded by 135; 15 X. Y. Supp. 41; Mahaney v. the secretary in the usual manner Ass'n, 28 X. Y. Supp. 318; McCoy v. of keeping its records, isnotadmis- Ins. Co., 152 Mass. 272; 25 X. Bast sible a^ evidence of his age; it is Rep. 289. Member beyond the age mere hearsay, Conn. Mutual v. limited in the charter or by-laws. Scliwenk. 94 U, S. 598; see McQuirk McCoy v. Ins. Co., 152 Mass. 272; 25 v. Mutual Benefit Life, 20 X. Y. Supp. N. East. Rep. 289; Morrison v. odd 908. Fellows, 59 Wis. 162; Smith v. Pinch, 568 ASSESSMENTS. July, 1S83. ]STor is there any evidence that the treasurer or any other officer of the corporation, acquired any knowledge or information of the fact, while in the discharge of any official duty. But assuming that the treasurer acquired notice of the fact when he received the assessments, he had no power to ratify the invalid contract. He could not admit a member, and thereby make a contract of insurance, and, if he had no power to make such a contract for the corporation, he had no power to validate a void contract by any ratification. 1 § 301. The act of the financial officer of a subordinate lodge, who is not an officer of the supreme lodge, in receiving past due assessments, does not bind the society. To establish a waiver as to such act, knowledge and acquiescence on the part of the managing officers of the supreme or central body must be shown. 2 The unauthorized acts of the ministerial officers of a subordinate lodge can not operate to dispense with a member's duty to comply with the laws of the supreme lodge in regard to the prompt payment of assessments. A benefit society is not estopped from enforcing a forfeiture of a policy for non-payment of an assessment by the fact that one of its sub-agents, without special authority for the act, accepted payment of the assessment after it was due. 3 Where a member falsely states and warrants in his application that the appointed beneficiary is his niece, the society is not estopped from showing that this statement is untrue by the fact that one of its officers who witnessed the application, but was not charged with the duty of ascertaining the qualification of a beneficiary named, had heard before that time that the person so appointed was not the niece of the member, but had no personal knowledge on the subject, and testified that he 1 Swett v. Society. 78 Me. 541; 7 Life Ins. Co.. 2 Lansing 480; Bou- Atl. Rep. 394; see § 97. ton v. American Mutual, 25 Conn. 2 Eaton v. Supreme Lodge, 22 Cent. 542; Ryan v. The World Mutual, 41 Law Jour. 560; Painter v. Associa- Conn. 168; Catoir v. American Life, tion, 14 Ins. Law Jour. 556. 33 N. J. L. 487; Wall v. Home Ins. 3 Illinois Mason's Ben. Soc. v. Bald- Co., 8 Bosw. 597; Franklin Life v. win, 86 111. 479; Borgraefe v. Su- Sefton, 53 Ind. 380; Wells v. Society, preme Lodge, K. of H., 22 Mo. App. 17 Ontario 317; State v. Society. 4 2 127; Leonard v. The Lebanon Mu- Mo. App. 485; Brown v. N.W. Legion, tual, 3 Weekly Notes of Cases 527; 81 Iowa 400; Harvey v. Grand Lodge, see also as sustaining this prop- 50 Mo. App. 472. osition, Koelges v. The Guardian ASSESSMENTS. 5G0 did not recollect having paid any attention to the statement in the application that she was the niece of the member.' When a certificate has become void through non-payment of an assessment, and it provides that agents may not make, alter or discharge contracts or waive forfeitures, or receive assessments in arrears, except upon a written application in prescribed form for a revival, which must be acted on by the society itself, and when there is no evidence that the agent actually possessed, or ever before attempted to exercise the power to waive a forfeiture or revive a lapsed certificate, it is error for the court to refuse to charge the jury that a collect- ing agent had no power to waive the forfeiture or to bind the society by receipt of the assessments in arrear, without any application for revival, and for the court to charge that pay- ment by the member, and receipt by the agent of the assess- ments in arrear for the purpose of revival, would warrant a recovery on the lapsed certificate. 2 Where there is a schism in a mutual benefit society and a division takes place, some of the members remaining in the original society, and others forming another, it is competent, unless the law of either society forbids it, for a person to be- long to both organizations. If, after a person has been ad- mitted to membership in both societies, one of them passes a resolution making it a forfeiture of membership for any of its members to continue in fellowship with the other, it must be shown that this resolution was known to the person against whom a forfeiture on that ground is claimed, and if the officers of this society afterthe passageof the resolution have received dues and assessments from him with notice that he had not severed his connection with the other, it is estopped from insisting on his failure to do so as a ground of forfeiture. 3 Where a contract provides that if assessments are not paid ■Supreme Council v. Green, 71 to local, but not t<> general agents. Md. 263; 17 Atl. Rep. 10-18. The latter arc presumed t.> possess ' Metropolitan Ins. Co. v. McGrath, authority to transact the genera] 52 N. .!. I- 858; 19 Atl. Rep. 886; business of the company. Eartford Catoir v. Trust Co., 88 X. J. L. 487; Life v. Hayden, 90 Kv. 89; 18 s. W. Lewis v. Ens. Co., 44 Conn. 72. The Rep. 585; Carrigan v. Ins. Co., 58 term "agent" in a contract of in- Yt. 418; Ins. Co. v. Booker, 9 Heisk. surance providing that agents are 806; Marcus v. Ins. Co., 68 N. Y. not authorized to vary the terms of 625; see §277. the certificate, to receive dues, or to 'Warnebold v. Grand Lodje accept assessments in arrear, applies Iowa 28; 48 N. W. Rep. 1069; dis- 570 ASSESSMENTS. when due, and within the lifetime of the member, and that the acceptance of any assessment after maturity shall not be a waiver of prompt payment of future assessments, the accept- ance of three previous assessments after maturity, and the promise after the maturity of another assessment to accept it if paid before a certain date constitute no waiver of the forfeit- ure incurred by the failure to pay at maturity. Where the member died without having paid the last mentioned assess- ment, the contract was held to be void. 1 A by-law providing that if a member is in arrears when taken sick he shall not be entitled, by paying such arrearages, to benefits during such sickness, is not waived by the acceptance of arrearages from a member after he has taken sick. 2 If the society, without any inquiry as to the health of the member, accepted past due assessments from him while he was suffering from a fatal ill- ness, it can not avoid liability on the contract of insurance on the ground of fraudulent concealment in the failure of the member to voluntarily disclose his condition. 3 Where a soci- ety receives from a member payment of an assessment while a subsequent assessment is past due, it waives the right to claim a forfeiture on the ground that such subsequent assessment was not paid within the time stipulated in the contract. 4 § 302. Waiver of forfeiture — Assessments retained by the society. — A society may not retain the assessment paid before the death of a member, and refuse to pay the_ insurance to the beneficiary of the certificate, on the ground that it was not paid within the time stipulated in the contract. 5 Where, in an action on a contract of insurance, it is shown that the society knew for eighteen months after proof of death that the deceased member had misrepresented his age in his application for membership, but had never at any time offered to rescind or cancel the contract sued on, or to refund tinguishing Bock v. A. O. U. W., 75 4 De Frece v. Ins. Co., 19 N. Y. Iowa, 462; 39 N. W. Rep. 709. Supp. 8; see Menard v. Society, 63 *Lantz v. Ins. Co., 139 Pa. St. 546; Conn. 172; 27 Atl. Rep. 1115. 21 Atl. Rep. 80; Want v. BJunt, 12 5 Underwood v. Iowa Legion of East. 183; Harvey v. Grand Lodge, Honor, 66 Iowa 134; Shea v. Associa- 50 Mo. App. 472. tion, 160 Mass. 289; 35 N. East. Rep. 2 Nagel v. Glasburger, 10 N. Y. 855; Spitz v. Association, 25 N. Y. Supp. 503. Supp. 469. 3 Spitz v. Association, 25 N. Y. Supp. 469; 5 Misc. Rep. 245. ASSESSMENTS. 571 the money it had received, it will be held to have ratified and confirmed the contract, and is estopped from asserting the misrepresentation as a defense to the action. 1 "Where a mem- ber of a mutual benefit society fails to pay his assessments during a certain year, and the society, not discovering such failure, demands and receives subsequent assessments, and retains them until after the death of the member, it will be held to have waived the forfeiture for non-payment, and is liable for the amount due on the certificate. 2 Assessments may be retained by the society in such a manner, and under such circumstances, as to constitute an act of affirmance of the contract of insurance after, as well as before, the death of the member whose life was insured. 3 A society after demand- ins:, receiving and retaining until after the death of a member the amount of an assessment due from him, can not claim that the money was demanded and received by mistake, and that the certificate is forfeited/ The right to a certain benefit fund was forfeited, in case the assured at his death had not paid all assessments against him, but after his death all assess- ments against him were paid for him in pursuance of authority granted and a request made during his lifetime, and were by his local lodge, which was defendant's agent in the collection of assessments, received and forwarded to defendant, and by it accepted and retained until after commencement of a suit for the benefit fund. These assessments were accepted and retained with knowledge, on the part of both the local lodge and the defendant corporation, of the death of the assured, and the court held that the forfeiture for non-payment in the lifetime of the assured had been waived, and that the defend- ant corporation was liable. 8 In Jolitfe v. Madison Mut. Ins. Co.," it was held that an acceptance by the insurer of part 1 Gray v. National Ben. Ass'n, 111 * Bailey v. Association, 71 Iowa Lad. 531; 11 N. E. Rep. 477. 689; 27 N. W. Rep, 770; Millard v. Tui.ii. v. Society, 72 Iowa 361 ; Supreme Council, 81 Cal. 840; 22 Pac. 33 N. W. Rep. 663; Roswell v. Aid Rep.864; Menardv. Society, 6 iConn. Union, 18 Fed. Rep. 840. 172; 21 Atl. Rep. 1115. Masonic Mutual v. Beck, 77 Ind. 6 Enlmann v. .Mut. Ins. Co. of Order 203; Joliffe v. Madison Mutual. 89 of Herman's Sons, II Wis. 876. Wis. Ill; Grand Lodgev. Cotan, 20 6 39 Wis. 111. 111. App. 835; Erdmann v. Mutual Ins. Co., 44 Wis. 376; Gotten v. Ins. Co., 41 Fed. Rep. 506. 572 ASSESSMENTS. of the premium on a fire insurance policy, with knowledge that the property had been destro}^ed, was a waiver. In the opinion, the court alludes to the peculiar terms of the con- tract; but the waiver is put distinctly and clearly on the ground that, as the company had accepted the cash premium after the default and notice of loss, this operated as a waiver of the suspension clause in the policy. In another case of mutual fire insurance, it was held that where a society imposes a for- feiture of the contract, in case of loss while its assessment is unpaid, but its local agent receives the past due assessment with knowledge of a loss, and forwards it to the society with- out notifying its officers of the facts, and the officers receive the assessment, and two or three weeks afterward order the loss to be paid when adjusted, they can not afterward refuse payment on the ground of the dela} r in paying the assessment, since they have waived that by receiving it when overdue and by ordering payment. 1 Whether assessments have been retained an unreasonable length of time, and under such circumstances as to waive a forfeiture, is a question for the jury to determine. In the absence of evidence showing that an administrator of a deceased member had been appointed and qualified to receive payment of assessments paid by the deceased, and that the society retained such assessments for an unreasonable time after such appointment of an administrator, and after learning the facts on which it claims the policy to be void, the forfeiture is not waived. 2 The forfeiture of a contract for non-payment of an assessment may be waived by the subsequent acceptance of it ; but where the society within a reasonable time refuses to accept and retain the amount of a delinquent assessment, and returns it to the member or his representative, no forfeiture is waived. A certificate of membership in a mutual benefit soci- etv was subject to a by-law providing that, if any assessment was not paid within thirty days after notice, it should be for- feited. Several assessments were permitted to remain unpaid long after the thirty days, and on the day of the member's death, the person to whom the notices of assessments had been sent called on the local agent of the society, and offered to pay 'Farmers' Mutual v. Bowen, 40 ■ Matt v. Society, 70 Iowa 455; 30 Mich. 147. N. W. Rep. 799. ASSESSMENTS. 573 the amount of such assessments. The agent, who had no authority to make arrangements in regard to the standing of members agreed to accept the money and forward it to the so- ciety, whose office was twenty-eight miles distant, subject to its action in the matter. In his report he said : " If money is not received, must be refunded." About ten days afterward, the society gave notice through the agent that the payment would not be accepted, and offered to return the money. It was held that the court did not err in leaving it to the jury to say whether the delay in refusing the money amounted to a waiver of the forfeiture. 1 Where a member failed to meet the assess- ments made upon him, but subsequently transmitted to the secretary an amount of money in payment of all dues which had been demanded of him, which sum the society retained for four months and until after his death, without notifying him whether the payment was satisfactory or not, such retention of the amount by the society was a waiver of the default, and restored him to membership. 2 The grand lodge of a mutual benefit association, by accepting and retaining the dues of an applicant for a beneficiary certificate, with knowledge of the facts, waives all irregularities in the organization of the subor- dinate lodge and in the admission of the applicant to its mem- bership. 3 § 303. Waiver of forfeiture — Conditional acceptance of past-due assessments. — When a contract of insurance has been forfeited for non-payment of an assessment, it is at an end, and unless its provisions confer upon the member some right to revive it, it can only be revived by some act of the society. The society may be willing to revive it only on cer- tain conditions, and since such conditions are the terms of a new contract, they may be accepted or refused by the member. If they are accepted by him, he is, of course, bound by them. The receipt of a past-due assessment on the written condition that the member is of temperate habits, and in as good health as when the certificate was issued, otherwise the payment, receipt, and certificate to be void, is of no effect against the 1 United Brethren v. Schwartz, 120 3 Perine v. Grand Lodge, 48 Minn. Pa. St. (not reported); 13 Atl. Rep. 82: 50 N. W. Rep. 1022; 8. C, 53 N. 769; 12 Cent. Rep. 728. W. Rep. 367. 9 Georgia Masonic Mutual v. Gib- son, 52 Ga. 640. 574 ASSESSMENTS. society, if lie is not of temperate habits and is not in such a state of health. 1 A receipt given for the payment of an as- sessment which is past due will naturally express the terms of the waiver, or the conditions of reinstatement, or whatever else is essential to give renewed life to the old, or to create a new contract, and a delinquent, whose past-due assessment is accepted as a matter of favor, is bound by the terms of such a receipt, whether he reads it or not. 2 A member of a society forfeited his certificate by failing to pay an assessment due December 7, 1882, when the secretary of the society wrote him, in substance, that if he would send in the assessment im- mediately, he would send a receipt without default. The as- sessment was not then paid, but on the 25th of that month the member was taken sick, and on the 31st of the month he died. On the 30th, however, at his request, his wife, who was the beneficiary of his certificate, remitted the mone} r , and it was received, at the office of the society, January 1st. A receipt for the assessment was returned in printed form, containing the provision .that it should be valid only on con- dition that the assured should be alive and in good health, on the day of its date; but there was written, in the hand- writing of the secretary, on the margin of the receipt the words " no default." After the society was informed of the death of the assured, it returned the money to the widow. It was held, upon these facts, that because the remittance was not made immediately upon receipt of the letter of December Tth, the offer therein contained to waive the default, was at an end; that, since the assured was not alive at the date of the receipt, it was invalid by its own terms. The written words " no default," not being repugnant to the printed conditions of the receipt, must be construed in connection with such conditions; and the true meaning is that there should be no default provided the assured was alive and in good health at the time of its date. 3 It has been held that the provision that the insured is in good health does not apply to his actual state, but to his supposed condition. Where an insured had sustained an injury just before the society received a payment 1 Ronald v. Association, 132 N. Y. 2 Ronald v. Association, siqjra. 378; 30 N. East. Rep. 739; affirming 3 Servoss v. Society, 67 Iowa, 86; 7 N. Y. Supp. 152 and 10 N. Y. Supp. TJnsell v. Ins. Co., 32 Fed. Rep. 443. 632. ASSESSMENTS. 0«0 on condition that he was in good health, but no danger was anticipated by him, his medical attendant or the agent of the society, the subsequent fatal termination of the injury did not avoid the payment. 1 But in another case it was held that where a certificate, conditioned to be void on non-payment of dues, provides that the assured may be reinstated on payment of delinquent dues and "satisfactory evidence of good health,"' the taking of delinquent dues by the insurer from an agent of the assured, on the day before the assured's death of fatty de- generation of the heart, and the giving of a receipt, providing that the payment and receipt shall be void unless the assured is in as good health as when originally received asa member, do not constitute a waiver of the breach of the contract, since no " satisfactory evidence of good health " could, under the circumstances, be furnished. 2 The receipt of dues from a member of a mutual benefit association after the expiration of the time limited for their payment, and the sending of a letter to him informing him that the association has reinstated him provided he was in usual good health when the dues were paid, do not amount to a waiver of a forfeiture of the policy, where the insured was in fact fatally ill at the time of pay- ment.* The reinstatement of a delinquent member by the receipt of his back dues on condition that he "is now and has been dur- ing the past twelve months in continuous good health, and free from all disease, infirmity, or weakness" is not vitiated and void by reason of the fact that he had had during the pre- ceding twelve months, a slight illness of a temporary nature which did not indicate a vice in his constitution, and from which lie had fully recovered at the time of the receipt of his dues. In order to make such a conditional reinstatement in- effectual, the illness must have been such that he would not have been received if he had been an original applicant for insurance. 4 After a member of a mutual benefit association had forfeited her membership by failure to pay an as ment within the time required l»y the certificate, the assess- 1 Campbell v. Ins. Co., 24 Up. Can. 'French v. Association, 111 N. C. C. P. L83. 391: 16 8. E. Rep. 427; BfacRae, J., 5 Ronald v. Association, supra, dissenting. 3 Garbutt v. Association, 84 Iowa 293; 51 N. W. Kep. 148. 576 ASSESSMENTS. ment was paid, and a receipt given therefor, which recited that the payment was made and received and the receipt given by the association, and received by the member, on con- dition that such member " is now in good health, and free from all diseases, infirmities, or weaknesses." It appeared that the member's health had begun to be affected about a year before the forfeiture by the natural decline of age, which resulted in her death soon after the receipt was given, but that she was subject to no disease, and that her only infirmi- ties were those natural to old age. It was held that the evi- dence failed to show that the condition of the receipt was not fulfilled. 1 § 304. The assured sent a draft for the amount of the premium after it was due. The company collected the draft, and wrote to the assured : " As this is past due, it will accord with our rules for you to send us a certificate of good health, and in your case we will be satisfied with your own. You did not write me where to send the renewal receipt, and so I have not inclosed it. 1 ' It was held that it was not clear that the assured did understand or could have understood that his money was received only on condition of his furnishing the certificate; that it was error to non-suit the plaintiff, and that the facts should have been submitted to a jury, so that they mio-lit determine whether there had been a waiver of the for- feiture.' 2 A society may hj its subsequent acts waive the con- ditions upon which it received a past due assessment. When a society may declare the contract forfeited for non-payment of an assessment, but, instead of taking this course, accepts pay- ment of it on condition that the member is in good health, it may not retain the money, levy other and subsequent assess- ments and still insist upon the forfeiture, unless fraud was practiced by the member in concealing the state of his health at the time of making the payment. 3 Where payment of an assessment was accepted by the 1 Griesa v. Association, 133 N. Y. 3 Sty low v. Odd Fellows' Mutual, 619; 30 N. East. Rep. 1146; 'affirm- 69 Wis. 224; 34 N. W. Eep. 151; Erd- ing 15 N. Y. Supp. 71; see Lindsey mann v. Ins. Co., 44 Wis. 376; Ken- v. Society, 84 Iowa 734. yon v. Knights Templar, 122 N. Y. ' 2 Rockwell v. Ins. Co., 20 Wis. 247; 25 N. East. Rep. 299; Bucklee v. 335; S. C, 21 Wis. 548; S. C, 27 Wis. Ins. Co., 18 Barb. (N. Y.) 541; Mutual 372. Benefit v. Coats, 48 111. App. 185. ASSESSMENTS. 577 society after the time for making such payment had expired, and a receipt was given therefor, stamped across its face with the words " Received on condition that member is in good health." but nothing was said by the member as to his health after he had received the receipt, and no inquiries relative to the condition of his health were made then or subsequently by the society, the subsequent levy and unconditional acceptance by the society of assessments on the member operated as a waiver of the forfeiture, although the member was, at the time of the conditional acceptance, in ill health. In deciding this question, the court said : " Without expressing an} 7 opinion as to the effect of the retention of that money (the assessment which was paid after it was due), we think the levy of the sub- sequent assessments, and the acceptance of the money paid upon them, amounted to such a waiver. When the time came for the levy of a new assessment, if Mr. Rice's policy was to be treated as still in force, he would properly be included in the assessment; otherwise not. Under this state of things, six other assessments upon him were made by the company; all of which were seasonably paid. There was no determina- tion by the directors of the company that, for the time being, Mr. Rice's policy should be treated as not in force or suspended, but in making new assessments, so far as appears, no pains were taken, and no intention was formed, to exclude him. No condition was in express terms annexed to the levy of these new assessments, or to the acceptance of the payments of the assured upon them. The company, however, contends that the condition of the former acceptance reaches forward, mid applies also to the later payments; and that it is not bound by later assessments which it made and later payments which it received in ignorance that the assured was in ill health at the time of the former payment. But it can not be allowed in this way to imply a condition in favor of a forfeiture. It had knowledge that on the former occasion the paymenl had been made too late, and that the money had been accepted with a condition annexed. If, before levying a new assessment, the company wished to know the particulars as to Mr. Rice's health, and thus to determine whether that payment was valid or not, it was incumbent on it to make inquiry, instead of doing so; instead of notifying him that it wished for some 37 578 ASSESSMENTS. positive evidence or statement upon the subject; instead of imposing a further condition, relating back to the time of the former payment, the company made an unconditional call upon him for the payment of the new assessment. It acted under no deception or misrepresentation, but with all the information which it cared to'take the pains to acquire. "We are unable to see how it can properly be held that the former conditional acceptance cuts down the effect of the later unconditional acceptance. The condition related to the former payment alone. Suppose the payment of the former assessment had never been made at all; and the company, without insisting upon the non-payment as a ground of forfeiture, had levied new assessments upon the assured, which were all duly paid and accepted without condition; could it be contended that there was no waiver? An unconditional acceptance of an assessment waives all the former known grounds of forfeiture; and this effect is not varied or limited because an acceptance of a former assessment had been on condition, and had not amounted to such a waiver." ' A member failed to pay an assessment within the time required b} r her certificate, and by its terms it became void. It provided, however, that she might be reinstated by the offi- cers of the society for reasons satisfactory to them and on such conditions as they might impose. A few days after the expiration of the time limited the member paid the assessment and received a receipt which declared that the payment was received on condition that she was at the time " in good health and free from ail diseases, infirmities and weaknesses," and stipulated that no subsequent payment to the society of assess- ments on the certificate should " impair, waive, alter or change any of the conditions of this receipt or of said certificate." Notices of subsequent assessments were given, which stipu- lated that no condition on which any previous payment.had been 1 Rice v. Society, 146 Mass. 248; 15 well v. Ins. Co., 27 Wis. 872; see Lyon N. East. Rep. 624; 5 N. Eng. Rep. 813; v. Supreme Assembly, 153 Mass. 83, citing upon the last proposition, 26 N. East. Rep. 236, which is dis- Hodgdon v. Ins. Co., 97 Mass. 144; tinguished from the Rice case; see Bouton v. Ins. Co., 25 Conn. 542; Ins. Conway v. Ins. Co., 140 N. Y. 79; 35 Co. v. Raddin, 120 U. S. 183; see N. East. Rep. 420; Mutual Beneht v. also Stylow v. Odd Fellows, etc., 69 Coats, 48 111. App. 185. Wis. 224; 34 N. W. Rep. 151; Rock- ASSESSMENTS. 579 received should be waived by accepting payment of these assessments. They were paid from time to time, and after- ward a notice of an annual assessment for expenses was sent to her, which provided that " the sending of this notice shall not be held to waive any forfeiture or lapse of membership, if previous assessments remain unpaid." It was held that even if the condition of the first receipt was not fulfilled, the sub- sequent dealings between the parties showed a waiver of the forfeiture for non-payment of the assessment within the re- quired time. It appeared in this case that about a year before the forfeiture the member's health began to be affected by the infirmities of old age, that she died from such infirmities, and was subject to no disease. The court held that the evidence failed to show that she was not " in good health and free from all diseases, infirmities or weaknesses." * Where money for payment of an assessment is retained by the society, and a receipt therefor is mailed, stating a condition on which it is accepted, the society must, in the absence of any stipulation for such communication through the mail, show that it was received by the member; otherwise the fact that the money was received after the time fixed for payment will be held to have been waived. 2 Where the defense in an action on a contract of insurance is that it had lapsed for non-payment of an assessment, and that the member had procured it to be reinstated by representations as to his health, which were not guranteed to be true, but which he knew at the time to be false, defendant must prove that the member knew them to be false. 3 A suspended member paid his delinquent assessments; and in his applica- tion for reinstatement stated that he was then in good health and that "if this statement be found to be in any respect un- true, the policy shall be treated in the same manner as if the assessment had not been accepted." It was held that this con- dition was unqualified, and that the beneficiary could not recover if the statera $nt was imtrus in fact, even though honestly made. 4 Aiter a member had made default in the 1 Griesa v. Association, IS N. Y. 'Patten v. Association, 70 Hun Snpp. 71 : affirmed, 133 N. Y. 619; 30 200; 24 N. Y. Supp. 269. N. East. Rep. 1146. 4 Richards v. Association, 85 Me. 2 Sheav. Association, 160 Mass. 289; 99; 26 Atl. Rep. 1050. 35 N. East. Rep. 855. 580 ASSESSMENTS. payment of an assessment, the amount thereof was handed to the treasurer of the society. He gave no receipt, but said he would take the money to the next meeting and ask to have the member reinstated, and that he would mail a receipt on his reinstatement. The member died before the next meeting, and the money was returned. It was held that there was no waiver of the forfeiture for non-payment.' § 305., Waiver of forfeiture— The levy of an assessment on a delinquent member. — While it is proper for a society to provide in its contract that a failure to pay an assessment within a oiven time after notice shall work a forfeiture of all claims against it under that contract, yet a forfeiture of this character is a matter of strict legal right. It may be waived, and, if waived, can not again be asserted. In fact, in order to assert it, the society must abide inflexibly by the terms of its con- tract. 2 It follows that conduct on the part of the society incon- sistent with an intention to abide by the strict terms of the con- tract and to insist upon a forfeiture, if not amounting to, is at least evidence of a waiver of the forfeiture. The levy of an assessment, notifying the delinquent member to pay it within a certain time, receiving payment of it from him, and retaining the money paid are all acts inconsistent with an intention to stand by the terms of the contract and assert the forfeiture, and end to show a waiver. 3 It may be laid down as the general rule that every time a society levies an assessment on a mem- ber who has failed to pay a previous assessment within the time prescribed by its laws, it waives the forfeiture of the con- tract for such failure to pay, and acknowledges that, notwith- standing the non-payment, he is one of its members. 4 The 1 McGowan v. Supreme Council, 28 Knights Templar, 122 N. Y. 247; 25 N. Y. Supp. 177. N. East. Rep. 299; Stylow v. Ins. Co., 2 Metropolitan Ass'n v. Windover, 69 Wis. 224; 34 N. W. Rep. 151; El- 137 111. 417; 27 N. East. Rep. 538; mer v. Association, 19 N. Y. Supp. Johnson v. Ins. Co., 79 Ky. 403; Mur- 289. ray v. Association, 90 Cal. 402. 4 Modern Woodmen v. Jameson, 3 Metropolitan Ass'n v. Windover, 48 Kans. 718; S. C, 49 Kans. 677; 30 supra; Tobinv. Society, 72 Iowa 261; Pac. Rep. 460; 31 Pac. Rep. 733; Sty- 33 N. W. Rep. 663; Roswell v. Aid low v. Ins. 'Co., supra; Jackson v. Union, 13 Fed. Rep. 840; Rice v. So- Association, 78 Wis. 463; 47 N. W. ciety, 146 Mass. 248; 15 N. East. Rep. Rep. 733; National Mutual v. Jones, 624; 5 New Eng. Rep. 813; Erdmann 84 Ky. 110; Farmers! Union v. Wil- v. Ins. Co., 44 Wis. 376; Kenyon v. der, 35 Neb. 572; Shay v. Society, 7 ASSESSMENTS. 5S1 society has a right to declare the contract forfeited if the assessment is not paid within the stipulated time, but this for- feiture is for the benefit of the association, and the levy of an assessment upon a delinquent member is a clear recognition of the validity of the contract, and an acknowledgment of his rights as a member. Where a contract provides that a failure to pay an assess- ment shall cause it to lapse, and that the society reserves the right to cancel the contract, a default in payment will be waived, where the society does not declare a forfeiture, but continues to levy assessments. 1 A member of a society paid several assessments about a month after they were due, and paid the last assessment about two months after it was due. This last payment was made at its home office, when he was informed by the general manager that he was delinquent in another assessment, and that still another assessment would fall due on the following day. Xo forfeiture of his rights was suggested. It appeared that the notices of assessment stated that agents were not authorized to extend the time of payment of assessments, and that any delay beyond the stipu- lated time would be at the risk of the member. The member died about twenty days after his last payment, leaving two assessments unpaid, and the certificate remained uncanceled. Under these circumstances it was for the jury to say whether there had not been a waiver of the forfeiture. 2 On the trial of the case just cited the society offered to prove by its secre- tary and principal manager that he told the member on one occasion that some of his assessments were overdue, that he thereby lost his right to his certificate, and that he was delay- ing payment at his own risk and peril. This testimony was excluded, and, in reviewing this action of the court below the supreme court said: "We are unable to perceive the ma- teriality of this evidence. The court admitted in evidence no- N. Y. Supp. 287; Wrighl v. Supreme Koontz (Ind. App.), 30 N. East. Rep. Commandery, 87 Ga. 426; 13 S. E. 1 15. Rep. 564; Sweetser v. Association, 'Farmers' Union v. Wilder, 35 117 Ind. 97; 19 N. East. Rep. 722; Neb. 572; 58N. W. Rep. 587. Bankers' Association v. Stapp, 77 - Sweetser v. Association, 117 Ind. Texas 517; 14 S. W. Rep. 168; Millard 97; lit X. Bast. Rep. 722; aee Bankers' v. Supreme Council, si c ; ,l. :;|n : 22 Ass'n v. Stapp, 77 Texas, 517; 14 S. Pac. Rep. 864; Farmers' Mutual v. W. Rep. 168. 5S2 ASSESSMENTS. tices of assessments received by the insured, upon every one of which was printed substantially the same information, only in more emphatic terms. Insurance companies can not, how- ever, cither by printed notices or by verbal communications, continue their right to insist upon forfeiting a contract for non-payment of assessments, and at the same time habitually accept overdue assessments whenever tendered. After a for- feiture has occurred, a new assessment against the member, and an acceptance of the overdue assessment, inevitably waives the previous forfeiture, notwithstanding the notice that non-payment will be at the risk of the member. It was therefore wholly immaterial what the secretary may have told the insured concerning his delinquency and its effect upon his certificate, provided the course of dealings of the associa- tion, and the acts and declarations of its agents, were such as to induce him to believe that the time for payment would be extended as theretofore." ' § 306. But the levy of an assessment on a delinquent mem- ber may be made under such circumstances as to rebut the inference that by such levy it acknowledges him to be an exist- ing member. A waiver of a right presupposes a knowledge of the right waived, and is not to be inferred from a merely negligent act, or from one done under a misapprehension of the real condition of the rights of the parties at the time. 2 A waiver never takes place unless it is intended or unless the act relied on ought in equity to estop the party from denying that he intended it to be a waiver of the condition precedent. After a society had declared a contract forfeited for a viola- tion of its by-laws, and after it had notified the member of this fact, it passed a resolution directing that an assessment be levied on all contracts "in force at this date," and the treasurer assessed the forfeited contract by mistake. The member paid the assessment and claimed a waiver of the forfeiture, but the court held that there had been no waiver. 3 A certificate pro- vided that a failure to pay an assessment within forty days after notice of the death of a member, should work a forfeit- 1 See Painter v. Association, 131 102; Robertson v. Metropolitan Ins. Ind. 68; 30 N. East. Eep. 876; Mil- Co., 88 N. Y. 54. lard v. Supreme Council, 81 Cal. 340; 3 Diehl v. Mutual Ins. Co., 58 Pa. 22 Pac. Rep. 864. St. 443; see Leonard v. Lebanon Mu- 2 Miller v. Union Central, 110 111. tual, 3 Weekly Notes of Cases 527. ASSESSMENTS. 583 ure, and a rule of the society provided that a member whose policy had lapsed might be reinstated upon presenting a cer- tificate of good health and paying all unpaid assessments. Notices of the death of four members and the consequent as- sessments Avere sent at intervals to the member, but he paid nothing upon them. Afterward, when on his death-bed, a fifth notice of assessment was sent to him, and his brother-in- law, not knowing that the other assessments were unpaid, sent the money to pay this one. The secretary held the money, and wrote inquiring about the unpaid assessments. When this letter was written the member was dead, and when the society learned of his death it tendered the money to his personal representative. In deciding that there had been no waiver of the forfeiture the court said : u Were the assessment notices in themselves sufficient evidence of a waiver ? In considering this question regard must be had to the resolution of the company passed in 1872 providing that ' the secretary notify all those whose policies have lapsed from non-payment of assessments or dues, that they may be reinstated in the company by produc- ing to the company a certificate of good health from any reg- ularly graduated physician, obtained at their own expense, and the payment of all dues and assessments.' It appears by the testimony that the company acted under this resolution. The secretary says : ' I sent the notices to members that they might be reminded of their previous membership and might reinstate themselves, if possible.' This evidence was uncon- tradicted. This company appears, as its name implies, to have been organized upon the principle of mutual protection. A large amount of indulgence seems to have been extended to the members, and a liberal provision made by which default- ing members might be reinstated. It would be unjust to the company if this liberality should be turned against itself, and assessment notices which were intended for a diff erenl purpose should be held to be a waiver of a forfeiture in favor of apolicy holder who never paid nor offered to pay his dues. We fail to see sufficient evidence of a waiver to justify the submission of that question to the jury." ' Where a member is in default for non-payment of an assess- a Mutual Protection v. Laury, 84 Pa. St. 43; Crawford County Mutual v. Cochran, *S Pa. St. 835. 584 ASSESSMENTS. ment, which, by the rules of the society, forfeits his right to benefits, but does not terminate his fraternal membership or his right to reinstatement on conditions to the benefit class, the forfeiture is not waived by the society sending a notice of the next assessment, calling attention to the fact that the prior assessment remained unpaid. 1 The relations of the society and the delinquent member may be such under the terms of the contract that the levy of an assessment on him will not be construed as a recognition of full rights of membership in him. Where the contractual relation between the society and the member is not wholly dissolved by the non-payment within a certain time of the as- sessment called for, but the liability of the society on the con- tract of insurance is merely suspended by such non-payment during the time the assessment remains unpaid, the society does not, by the levy of a second or subsequent assessment during the period of default in the payment of a prior assess- ment and during the period of consequent suspension of lia- bility, remove the disabling consequences resulting to a mem- ber and his beneficiary from his neglect to pay his assessment. 2 The sending of notices of assessment after default, in such a case, will not be construed into an acknowledgment of liabil- ity upon the contract and a waiver of the suspension, but will be held to be reminders to the member that he may, under the contract, revive his certificate. A member of a mutual fire insurance company insured her property, and the policy contained a condition that, if such as- sessments as were laid by the company should not be paid within thirty days after notice thereof, the policy should be invalid so long as the assessment remained unpaid. In June, 1872, an assessment was made, and notice was given to the member, but she neglected to pay it. In May, 1873, another assessment was laid on policies in force on January 1, 1873, and an agent of the company sent a notice of both assessments to the member. The property was destroyed by fire, and the member tendered payment of the two assessments within 'Schmidt v. Modern Woodmen, 84 St. 230; Lantz v. Ins. Co., 139 Pa. Wis. 101; 54 N. W. Rep. 264. St. 546; 21 Atl. Rep. 80; Lyon v. 2 Leonard v. Lebanon Co. Mutual, Supreme Assembly, 153 Mass. 83; 26 3 Weekly Notes of Cases 52 ; Craw- N. East. Rep. 236. ford Co. Mutual v. Cochran, 88 Pa, ASSESSMENTS. 585 thirty days after receipt of her second notice. The tender was refused, and suit was brought by the member. It was held by the supreme court of Pennsylvania, that the act of the agent in sending the second notice of assessment was not in itself a waiver of the suspension of the policy, which had been worked by the non-payment of the assessment, and which was under the contract to continue until the assess- ment should be paid. And the court also held that, in order to recover, it was necessary for the member to further show- that the company had laid the second assessment on this policy, thereby recognizing it as in force on January 1, 1873, and au- thorizing the sending of the notice.' "Where the failure to pay an assessment does not absolutely avoid the contract of insur- ance, but the member is entitled to reinstatement to benefits under it within a certain time, the levy of an assessment on him within that time is not sufficient evidence of a waiver of forfeiture. When a delinquent member has a right to reinstatement to benefits under his contract of insurance, either with or with- out conditions, the making of subsequent assessments which he is required to pay before he can be reinstated, and the giv- ing him of notice thereof, do not in any manner waive his first default, but are entirely consistent with the duty of the society toward him until he has been in arrears for the time stipulated, within which he may be reinstated. 2 § 3<>7. Waiver of forfeiture — Attempt to collect assess- ments. — As has been said, the society must inflexibly abide by the terms of the contract in order to insist upon a forfeit- ure of it. Any act inconsistent with an intention to stand by its terms is evidence of a waiver of the forfeiture. A notice that an assessment has not been paid, suggesting that it should lie paid at once, is evidence of such a waiver. An as- sured died on June 2'.*, without having paid a premium which was payable June 28, on penalty of forfeiture of rights under the contract. After the premium was due, to wit. on July 2, the company addressed a letter to the assured, which con- 1 Leonard v. The Lebanon Mutual v. Modern Woodmen, S4 Wis. 101; Ins. Co., 3 Weekly Notes of Cases r>27. 54 N. W. Rep. 284; Stiepel v. As.su- * Leffingwell v. Grand Lodge, 86 ciation, 55 Mo. App. 224. Iowa 279; 53 N.W.Rep. 243; Schmidt 586 ASSESSMENTS. tained the following : " The premium on your policy fell due June 28. If you wish to continue this policy in force, you will please remit above amount to this office by return mail and oblige." The court held, in an action on the policy, that this letter clearly showed that the company had not elected to forfeit the policy for the failure to pa3 r the premium when due, but that the right of forfeiture reserved in the policy had been waived. 1 A mutual benefit society is estopped from claiming that a certificate of membership has been forfeited, where it recognizes its continued existence by notifying him that " it is now liable to immediate suspension, unless prompt attention be given to this notice." 2 In an action on a certifi- cate of membership, it was shown that notices of assessment and dues of date of January 1, of dues of March 1, and of May 1, were given to the deceased member, and default made in pay- ment. It was claimed that by the default the deceased mem- ber, under the terms of the contract, forfeited his rights of membership. It was conceded that, by the terms of the con- tract, the society might have treated him as having forfeited all his rights, but it was shown that a like notice of dues and assessment came from the office of the society addressed to the member of the date of July 1, following, and was taken from the postoffice at his place of residence July 8, the day before he died. This notice required him to pay $2.10 within thirty-five days and contained the statement that " having no deaths, we omitted our usual assessments for March and May; this includes deaths reported to date." And it was further shown that, by letter dated May 20, of the same year, the secretary advised the member that his assessment of Jan- uary had not been paid, and added: " You make a great mis- take in not keeping up the insurance. * * Let me hear from you by enclosed postal if you want to drop out." After the death of the member, and before the expiration of thirty- five days after the receipt of the notice of July 1, the plaintiff as beneficiary tendered payment of all unpaid dues and assess- ments, and the society refused to accept them. It was held that there was sufficient evidence to permit the jury to con- 1 Chicago Life v. Warner, 80 111. 2 Olmstead v. Farmers' Mutual, 50 411; True v. Association, 78 Wis. Mich. 200, 287; 47 N. W. Rep. 520. ASSESSMENTS. 5S7 elude that the society had continued the membership of the deceased and effectually waived his failure to make prompt payments. 1 A certificate provided for six assessments per annum, and that no claim should be made under it if payment was not made within thirty days from the date of notice that an assess- ment was due. The assessments of June 1 and August 1 were unpaid on September 1, and the society wrote the as- sured : " According to the conditions of your certificate of membership, an assessment amounting to s:> ( .i.-ki will be due and payable at this office on the 1st of October, l^ti." The assured died September 30, and it was held that the letter showed a waiver of the right to declare the contract forfeited for non-payment of the assessments of June and August. 3 A certificate provided that a failure to pay an assessment within thirty days after the mailing of the notice should terminate the contract and forfeit the rights of membership, but that for any valid reason the member might be reinstated and the con- tract renewed, by the payment of all assessments in arrears. A notice was sent to the member on June 1, and the assess- ment not having been paid within thirty days, a second notice was sent on July 5. The assessment was paid on July 21, after the death of the member, and the officers of the society, knowing of his death, gave a receipt in the ordinary form. It was held that the sending of the second notice was a waiver of the forfeiture for non-payment within the required time alter the first notice, and, having received such payment un- questioned, the society could not repudiate its liability on the certificate." The unauthorized acts of the ministerial officers of a subordinate lodge can not operate to dispense with ;i mem- ber's duty to comply with the laws of the supreme lodge in regard, to the prompl payment of assessments. A benefil so- ciety is not estopped from enforcing a forfeiture of a policy "Baker v. N. Y. State Mutual ler v. U. S. Association, 51 111. App. Benefit Aj»'n,27N. Y. Weekly Dig. 40. •it: see Worden v. Guardian Mu- ' Murray v. Association. st instance to institute a suit and recover judgment in a court of law upon a valid claim for sick benefits. 3 Where, after a claim has been rejected by the proper tribunal of a subordinate lodge, the supreme tribunal on mo- tion of one of its members reviews the ruling of the subordi- nate tribunal and affirms its rejection of the claim, the member need not formally prosecute an appeal, but may at once resort to the courts pf the land. 4 § 315. A strict construction must be given to provisions abridging a common right. — It is easy for a society to make such provisions in its contract as it may deem desirable and necessary, and there is no reason why such provisions should be extended by construction. When rules and articles of asso- ciation are resorted to against common right, courts lean to a strict construction. 6 A by-law of a society, which provides 1 Bauer v. Samson Lodge, 102 Ind. 4 McMahon v. Supreme Council, 54 262; 1 N. East. 'Rep. 571; Supreme Mo. App. 468. Council v. Garrigus, 104 Ind. 133; 5 Wallace v. Ins. Co., 41 Fed. Rep. 3 N. East. Rep. 818. 742; Strasser v. Staats, 13 N. Y. ■ Carlen v. Drury, 1 Ves. & Beanies Supp. 167. 154; White v. Brownell, 2 Daly 329. 3 Supreme Sitting v. Stein, 120 Ind. 270; 22 N. East. Rep. 136. ACTION ON CONTRACT OF SOCIETY. 601 for a right of appeal from the proceedings of a lodge "in all matters of form required by the constitution and laws of the order," does not apply to a resolution directing that sick bene- fits be, or be not paid, but only has reference to those observ- ances for breach of which there may be trial and punishment. 1 One of the by-laws of a society provided that " every matter in dispute between this institution, or any person acting under or on behalf of this institution, and any member thereof or person claiming on account of any such member, shall be referred, to, and decided by arbitrators appointed," etc. In construing this rule, it was held that it did not apply to the case of a claim by the administrator of a member for the amount of a certificate of insurance on the life of such member, and consequently, that those provisions were no answer to an action by an administrator on the certificate. The court said : " The case of an executor does not fall within this language, for he does not claim on account of the member, but on his own account." a The fact that the laws of a society provide that any sick brother shall report to the chief officer of the society, whose duty it shall be to draw on the treasurer for the sum allowed by law, if he is satisfied that the brother is entitled to sick benefits, does not make his decision final. In such case the officer acts merely as an agent of the lodge, and possesses no judicial authority. 3 The laws of a mutual benefit society provide that, on notice of the disability of a member, a board of physicians shall examine him, and report to the supreme council; that all proofs for death or disability benefits shall be approved by the subordinate council; and that, upon approval of satisfactory proofs of a member's dis- ability, he shall be entitled to a benefit. These provisions do not give the subordinate council the right to reject a claim for either a death or disability benefit. Such a right will never be presumed, but must be given in the clearest and most explicit terms. 4 A provision that in cases of dispute "the members shall exhaust their remedy in the order, before ■Mattoon v. Wentworth, 4 Cin. 8 Kentucky Lodge v. White, 5 Ky. Law Bull. 513. Law Rep. 41S. - Krlsall v. Tyler, 34 Eng. L. & Eq. * Albert v. Order of Chosen Friends, 588. The decision in this case is 34 Fed. Rep. 721; Grand Central placed mainly on another ground. Lodge v. Grogan, 44 111. App, 111. 602 ACTION ON CONTRACT OF SOCIETY. resortino- to a court of law" relates not to controversies with the order itself, but to controversies of members within the order. 1 A by-law provided : " Claims against the association shall be referred to the board of directors, and upon the approval of a majority of said board, with that of the president, the same shall be paid by the secretary and treasurer. It shall also be the duty of the board to examine all books, papers and accounts of the association, and know that the business is hon- estly and properly conducted. They shall decide all points of dispute and questions of doubt that may arise, and their de- cision shall be final." The court held that the questions on which the decision of the board was to be final were those which might arise from the examination of its accounts, the management of its business and the conduct of its internal af- fairs, but that the right was not conferred upon the board to decide finally on claims against the association for mortuary benefits under its contracts of insurance. 2 § 316. Authorities holding that the society may make the decision of its tribunal final. — In one case, in determin- ing whether the court would inquire into the suspension by the society of the payment of weekly benefits to a member, it w r as said : " Can the right to recover them be passed upon here ? Those were payable in case of sickness or inability to work. The association, by its rules, provided a means of as- certaining the circumstances under which, or by reason of which, the party should be entitled. The degree of sickness or inability was, in the very nature of the case, an open and indefinite matter. How much departure from the standard of full health would be necessary, or what the standard should be, or what would constitute inability to labor, would, in many cases, be very difficult to determine by any legal rules. The propriety, therefore, if not necessity, of leaving this mat- ter to be determined by the society or its committee, according to its own rules, assented to by all its members is, to my mind, very apparent. And as long as the society and its com- 1 Buckofzer v. Grand Lodge, 15 N. 35 N. East. Rep. 168; Railway Asso- Y. Supp. 922. ciation v. Loomis, 43111. 599; Daniher 2 Railway P. and F. C. Mut. Aid and v. Grand Lodge (Utah), 37 Pac. Rep. Ben. Ass'n v. Robinson, 147 111. 138; 245. ACTION ON CONTRACT OF SOCIETY. 603 mittee acted in good faith, without fraud, their determination should be deemed conclusive." ! The charter of a society provided that, under certain cir- cumstances, in case of sickness, a member was to be allowed a certain sum per week. " This allowance is to be made from the time of his application in writing to the president, whilst so much remains in the funds." In an action for benefits un- der the charter, plaintiff introduced the charter, proved mem- bership, sickness and application to the president. The record does not state whether there had been any decision on the ap- plication by the president, or the society. The supreme court of Pennsylvania, in deciding this case, said : " The corpora- tion is bound by the fundamental articles to pay only when it is in funds, and it has determined that it is not. As the plaint- iff in becoming a corporator assented to its acts prospectively to be done, according to the charter of its constitution, he is concluded by the decision of bis own forum. We are to be- lieve that the proper authorities passed judicially on his claim, and we are not to re-judge their judgment." 2 In one case it was held that a by-law of a mutual benefit society, which in- vests a committee with authority to determine whether a member claiming to be sick is entitled to the benefit provided for in the by-law, is valid and reasonable, and where a member applies to the society for aid, the decision of the committee is final. 3 A by-law of a society read as follows : " The executive com- mittee shall have power to pass on all death claims, and if in their judgment any such claim is not on its face a valid one, they shall notify the beneficiary or beneficiaries of the deceased members thereof, and give them or their attorneys an oppor- tunity to appear before such committee within sixty days thereafter, and present such evidence as they may have to establish the justness or validity of such claim, and the said committee shall try, hear, and decide upon the justness or va- lidity of such claim, and such decision shall be binding upon such claimant, unless an appeal is taken to the great camp. The notice of the appeal from the decision of the said com- 1 Fritz v. Muck. 62 How. Pr. 70. 378; 29 N. W. Rep. 863; 6 Western ! T6ram v. Association, 4 Pa. St. Rep. 132; see Robinson v. Templar 519. Lodge. 97 Cal. 62; 31 Pac. Rep. 609; s Van Poucke v. Society, 63 Mich, see § 49. 604 ACTION ON CONTRACT OF SOCIETY. mittee must be filed with the great record keeper within sixty- days thereafter. The decision of the great camp, in all such cases, shall be final, and no suit in law or equity shall be commenced or maintained by any member or beneficiary." A member holding a certificate for $1,000 died, and his wife as beneficiary presented her claim to the ccnnmittee, which decided against it on the ground that at the time of his death he was not a member in good standing, but had been duly and regularly suspended therefrom, in accordance with the rules and regulations. She then appealed to the grand camp, which also disallowed the claim, after a full examina- tion and hearing. She then brought suit, and judgment was rendered against her. The supreme court of Michigan said : * " It is claimed on behalf of plaintiff that the provision above quoted, which makes the decision of the great camp final, is contrary to public policy, and void, in that it ousts the court of jurisdiction. No charge is made that either the com- mittee or the grand camp acted fraudulently, or in any manner contrary to the rules and regulations of the order. I am unable to see any difference between the present case and that of Van Poucke v. Society. 2 These organizations are purely voluntary, and it may well be considered by their members important that claims of this character should be determined by methods more inexpensive than resorts to the courts. This reason is well expressed by my Brother Champlin in the case above cited. Plaintiff seeks to maintain a distinction between that case and the present one, in that the plaintiff was himself a member claiming for " sick benefits," while the plaintiff here is not a member, and had no voice in the selection of members of the tribunal. Her right depends solely upon the voluntary act of her husband in becoming a member. Her right to receive the benefit depended upon his complying with the con- stitution and rules to which he assented, and which became a part of his contract. I can see no reason why a different rule should apply to plaintiff than to a member making a claim for benefits. Similar provisions have been sustained by the courts." 3 1 Canfield v. Great Camp, 87 Mich. s Supra. 626; 49 N. W. Rep. 875; seeHembeau 3 Citing Anaconda Red Men v. Mur- v. Great Camp (Mich.), 59 N. W. Rep. bach, 13 Md. 91; Toram v. Associa- 417. tion, 4 Pa. St. 519; Soctiey v. Van- ACTION ON CONTRACT OF SOCIETY. 605 It was held that the decision as to the right to benefits under the by-laws of a mutual benefit society, made by the officer or body which the constitution required should decide it, was conclusive, and could not be reviewed by the courts. 1 Where a member of an incorporated mutual benefit society has a claim against the society for benefits under its by-laws, which has been disputed, and decided against him by the de- cision of the proper tribunal acting under the general laws and by-laws of the order, "whose decision," it is provided, "shall be final," a court of law has no jurisdiction over an action to recover such benefits. 2 The laws of a mutual benefit society provided that where a member had a cause of complaint against the society for benefits, he should appeal to the dif- ferent courts of the order naming them, and should he neglect to pursue this course, and bring a suit in court, he should be expelled from the society. A member presented a claim against the society to the proper tribunal of the order, appealed to each of the courts as provided in the laws, and in each of these courts his claim was denied. He then brought suit in the courts of the state of Maryland, but it was held, following Anacosta Tribe v. Murbach, supra, that the courts of that state had no jurisdiction of the claim. 3 A corporation was organized under the laws of Illinois for the purpose of providing for its members in case of permanent disability, and for their depend- ents in case of death, by assessments to be levied on surviving members. Its constitution provided: "All claims against the association shall be referred to the board of directors, whose decision shall be final," and "assessments shall not be made, except on its authority." A claim against the corporation for $2,500j on a contract of insurance issued by it upon the life of a deceased member, was made before the board of directors. The hoard of directors, at a regular meeting, after an investi- gation of the facts in regard to the claim, by a unanimous vote, refused to allow the claim and order an assessment for its payment, assigning as a reason that the deceased was at dyke, 2 Whart. 809; Woolsey v. In- hawk Lodge v. Wentworth, I ('in. dependent Order of Odd Fellows, 61 Law Bull. 518. Iowa, 492; 16 N. W. Rep. 576; Rood 'Anacosta Tribe v. Murbach, 18 v. Association. 31 Fed. Rep. 62. Mil. 91. 'Cincinnati Lodge v. Littlebury, B Osceola Tribe v. Schmidt, Adm'r, 6 (in. Law Bull. 2:37; see also Mo- 57 Mil. 98. 606 ACTION ON CONTRACT OF SOCIETY. least sixty days delinquent in the payment of his assessments at the time of his death. It was held that the power of these directors, in regard to the allowance of this claim, and the ordering of an assessment to pay it, was plenary and final, and that after the decision of the board, refusing payment of the claim, no suit could be maintained upon it. In his opinion the learned judge cites no authorities, but reasons as follows : " It was certainly competent for the members of this association to agree among themselves that the action of their board of directors in reference to any claim presented against the society should be final, and there can be no doubt, from the language of the clause of the constitution just quoted, that they have so agreed. The duty of the board of directors is two-fold; first, to approve the claim, and, second, to order an assessment to pay it, and no member is under any obligations, expressed or implied, to pay an assessment for the liquidation of a claim against the association unless the claim has been approved by the board of directors, and the assessment ordered by the board. "Waiving, therefore, all questions as to whether the board of directors would be under any more obligations to approve this claim after a judgment had been rendered in favor of this plaintiff than before, it is sufficient to say that it seems clear to me that the sole power of determining whether the association should or should not pay a claim, and an assessment be ordered to pay it, is vested in this board of directors, and no court can review or re-examine their decision in that regard. The constitution says the action of the board shall be final, and the courts must so treat it.' 1 ' § 317. Authorities holding that a society may not make the decision of its tribunal final. — There are two cases a which are sometimes cited as sustaining the broad proposition that a society which issues contracts of insurance, or agrees 1 Rood v. Railway Association, 31 respect for the distinguished judge Fed. Rep. 62. In Railway Associa- who rendered that decision, we are tion v. Robinson, 147 111. 138, 35 N. unable to yield our assent to its con- East. Rep. 168, this case was criti- elusions." See Railway Association cised, and the court said : " The case v. Loomis, 43 El. App. 599. of Rood against this same association 2 Bauer v. Samson Locige, 102 Lad. reported in 31 Fed. Rep. 62 is in point, 262: Supreme Council v. Garrigus, and in that case a different result was 104 Ind. 133. reached. While we have the highest ACTION ON CONTRACT OF SOCIETY. 607 to pay benefits, can not by provisions in such contracts and agreements compel a member or beneficiary to resort to the courts of the society and exhaust his remedies therein, before bringing an action in the public courts on such contract. While the discussion and argument of the questions involved took a wide range in these cases, the points decided by the court by no means sustain such a proposition. They hold that it is not within the power of individuals or corporations to create judicial tribunals for the final and conclusive settlement of controversies. 1 A society can not by provisions of its con- tract confer upon its own tribunals the exclusive power to pass upon the validity of claims against it, and thus deprive the courts of jurisdiction to entertain actions against it." In treating of the power of individuals or societies to create judi- cial tribunals, the court of appeals of New York said : ' " The effect of some of these provisions of these constitutions is to create a tribunal having power to adjudicate upon the rights of property of all the members of the subordinate lodges, and to transfer that property to others; the members of this tri- bunal being liable to constant fluctuations, and not subject in any case to the selection or control of the parties upon wln.se rights they sit in judgment. To. create a judicial tribunal is one of the functions of the sovereign power; and although parties may always make such tribunals for themselves, in any specific case, by a submission to arbitration, yet the power is guarded by the most cautious rules. A contract that the par- ties will submit, confers no power upon the arbitral or. and even where there is an actual submission, it may be revoked at any time. The law allows the party up to the last moment to ascertain whether there is not some covert, bias or prejudice on the part of the arbitrator chosen. It would hardly accord with his scrupulous care to secure fairness, in such cases, that parties should be legally bound by the sort of engagement that ■Elkhart Mutual -v. Houghton, 98 'Austin v. Searing, 1f> X. Y. 112, End. L49; Supreme Lodged. Schmidt, 123: sec Strasserv. Staats, 18 N. Y. 98 Ind. 874; Supreme Council v. For- Supp. 167; Railway Association v. singer, 125 Ind. 53; 25 N. Bast. Rep. Robinson* 147 III. 188; 85 X. East. 129; see§ 112: Bee § 19. Rep. 1(58; S. C, 38 111. App. ill. • Poultney v. Bachman, 10 Abb. X. Cas. 252; Daniher v. Grand Loilge (Utah) :;? l'ac. Rep. 845. 60S ACTION ON CONTRACT OF SOCIETY. exists here, by which the most extensive judicial powers are conferred upon bodies of men whose individual members are subject to continual fluctuation." In Scott v. Avery, 1 the Lord Chancellor said : " There is no doubt of the general principle that parties can not by contract oust trie ordinary courts of their jurisdiction. That has been decided in many cases." The articles of association of a society contained the follow- ing clause : " The directors shall have full power * * to adjust, settle and decide all claims and demands upon the society by the members thereof; or to decide and determine all disputes, controversies, and matters arising between the society and members of the society concerning insurances or claims upon, or liabilities by or to the society, and concerning the laws, rules, regulations and by-laws of the society; and the decision of the directors shall be final and conclusive, as well upon the society as the members thereof; and no member of the society shall be allowed to bring or have any action, suit or proceeding, or other remedy against the society or the members thereof, for any claims or demands upon or in respect of the society or the members thereof." On the author ■ ity of Scott v. Avery, supra, it was held that an action at law might be maintained against the society on a contract of insurance. 2 In another case it was said: 3 "While parties may impose as condition precedent to applications to the courts that they shall first have settled the amount to be recovered by an agreed mode, they can not entirely close the access to the courts of law. The law, and not the contract, prescribes the remedy, and parties have no more right to enter into stipulations against a resort to the courts for their remedy in a given case than they have to provide a remedy prohibited by law. . Such stipulations are repugnant to the rest of the contract and assume to divest courts of their established juris- diction. As conditions precedent to an appeal to the courts, they are void." The opinion of the supreme court of the 1 5 House of Lords Cas. 811. 38; Noyes v. Marsh, 123 Mass. 286; 2 Edwards v. Ins. Soc, L. R., 1 Q. McGunn v. Hamlin, 29 Mich. 476, B. Div. 563, 592, 598; see Hill v. 481; Contee v. Dawson, 2 Bland Ch. More, 40 Me. 515; March v. Railroad, (Md.) 264, 276; Cooke v. Cooke, L. 40 N. H. 548; Smith v. Railroad, 36 R., 4 Eq. Cas. 77. N. H. 458, 487; Pearl v. Harris, 121 3 Stephenson v. Ins. Co., 54 Me. 70. Mass. 390; Vass v. Wales, 129 Mass. , ACTION ON CONTRACT OF SOCIETY. 009 United States upon this question is shown by the following language : l " Every citizen is entitled to resort to all the courts of the country, and to invoke the protection which all the laws or all those courts may afford him. A man may not barter away his life, or his freedom, or his substantial rights. In a criminal case he can not be tried in any other jmanner than by a jury of twelve men, although he consent in open court to be tried by a jury of eleven men. In a civil case he may submit his particular suit by his own consent to an arbi- tration, or to the decision of a single judge. So he may omit to exercise his right to remove his suit to a federal tribunal, as often as he thinks fit, in each recurring case. In these aspects any citizen may, no doubt, waive the rights to which he may be entitled. He can not, however, bind himself in advance by an agreement, which may be specifically enforced, thus to forfeit his rights at all times and on all occasions, whenever the case may be presented." 2 § 317a. Arbitration clauses. — Clauses requiring that all differences or matters of dispute arising under contracts of life and accident insurance shall be submitted to arbitration are sometimes, though not often, contained in such contracts. There are man}' decisions on the construction and effect to be given to the exact language in which such provisions have been framed. An agreement that any matter of dispute be- tween the society and a claimant for benefits under the con- tract shall be submitted to arbitrators is void, and will not prevent the claimant from maintaining a suit at law or in equity, in the first instance, to enforce his rights under it. 3 1 Home Ins. Co. v. Morse, 20 Wall. Laws, 31; Street v. Rigby, 6 Ves. 818; 445; Barron v. Burnside, 121 U. S. Gourlay v. Somerset, 19 Ves. 431; 186: Nichols v. Clialir. I I Ves. 271 : 2 Pars. 'SeeNntev. Hamilton Mutual, 6 Corit. 707; Reed v. Ins. Co., 188 Mask Gray (Mass.) 174; Hall v. People's 575; 1 Story Eq. Jur. £670; Gere v. Mutual. 6 Gray 185; Boynton v. Ins. Ins. Co., 67 Iowa. 272; German Ins. Co.. 4 Met. 212; Reichardv. Ins. Co., Co. v. Steiger, 109 111. 254; Nurney 81 Mo. 518. v. Ins. Co., 63 Mich. 633; 30 N. W. ^Insurance Co. v. Morse, 20 Wall. Rep. 350; Liverpool v Creighton, 51 445; Kinney v. Association. 35 W. Ga. 95; Phoenix v. Badger, 58 Wis. Va. 885; 14 S. Hast. Rep. 8; Stephen- 288; Williams v. Ins. Co., 54Cal. 442; son v. Ins. Co., 54 Me. 70; Cobb v. Ins. Whitney v. Association, 52 Minn. Co.. 6 (Way 192; Smith v. Associa- 378; 54 N. W. Rep. 184. tion, 51 Fed. Rep. 520; 2 Tuck. Com. 610 ACTION ON CONTRACT OF SOCIETY. Courts of general jurisdiction have by the law of the land a right to take cognizance of such controversies, and parties may not by contract oust them of such jurisdiction. . But parties may by contract make the decision of arbitrators, or of any third person, a condition to a right of action, for such a con- tract contemplates a submission to court of the controversy, and merely makes the decision of the arbitrators, or third per- son, a condition precedent to the right to sue. 1 Unless, how- ever, the stipulation is definite and explicit that no action shall be brought until an arbitration is made, courts will not hold it to be a condition precedent to a right of action. 2 The decis- ions of the courts on arbitration clauses are conflicting, and those of the state in which the controversy is pending must be examined in order to determine the rule which will be there enforced. The decided weight of authority is to the effect that though the question of the liability of the society on the con- tract is not a proper one to require parties to submit to arbitra- tion under the terms of such a contract, yet the agreement to submit collateral, incidental and special facts for the decision of arbitrators will be upheld. § 318. Actions on by-laws for benefits. — In an action against a mutual benefit society for the recovery of sick bene- fits, the burden of proof is on the plaintiff to establish a by- law, rule or custom rendering the society liable for such sick benefits. 3 An action may be maintained by a member of a mu- tual benefit society upon a by-law of the society agreeing to pay benefits to members in case of sickness. In such an action the by-law is the basis and foundation of the suit, and it is not a sufficient averment that " it is a rule of the association that every member in good standing when sick shall be entitled to sick benefits." A mere rule is a thing which can be abrogated at the pleasure of the association, and has not the binding force 1 Condon v. Company, 14 Grat. (Va.) v. Association, 154 Mass. 77; 27 N. 314; Scott v. Avery, 36 Eng. Law and East. Rep. 769; Morley v. Ins. Co., 85 Eq. 1; Mentz v. Ins. Co., 79 Pa. St. Mich. 210; 48 N.W.Rep. 502; Camp- 478; Hamilton v. Ins. Co., 136 U. S. bell v. Ins. Co., 1 McArthur, 246; 2 242; 10 Sup. Ct. Rep. 945; Wood v. Big. L. & A. Cases, 16. Humphrey, 114 Mass. 185; Carroll v. 3 Mullally v. Irish Am. Ben. Soc, Ins. Co., 72 Cal. 297; 13 Pac. Rep. 863. 6 Pac. Rep. 78, decided by Supreme 2 Smith v. Association, supra; Kin- Court of California, but not reported ney v. Association, supra; Crossley v. in California Reports. Ins. Co., 27 Fed. Rep. 30; Badenfeld ACTION ON CONTRACT OF SOCIETY. 611 of a contract between the corporation and its members. 1 "Where it is provided in the by-laws, as a prerequisite to recov- ery of benefits, that the member applying shall furnish a phy- sician's certificate to the " sick committee," it must be fur- nished before an action will lie to recover such benefits. The mere exhibition of such certificate to a member of such a com- mittee is not sufficient. 2 If an incorporated benevolent society, the by-laws of which provide for the payment of a weekly allow- ance to a sick member upon the performance of a certain con- dition by him, refuses to fulfill its contract, the member in- jured thereby may at once maintain an action at law against it. where the by-laws of the society make no provision for a tribunal to decide questions arising between the society and its members. The by-laws of a society provide that a sick member on sending to the society " every week during his sick- ness " a certificate signed by a qualified surgeon, stating his illness, " shall be entitled to a weekly allowance of five dol- lars." A member of the society was taken ill in another state, and sent to the society a certificate stating his illness, signed by a person who was in fact a surgeon in attendance upon him, but who did not describe himself in the certificate as such. Accompanying the certificate was a letter from the member in which he spoke of it as the doctor's certificate. ISo other cer- tificate was furnished until after his return to Massachusetts about three months later, when he furnished a certificate that he had been ill since the date named in his first certificate. In a suit upon the by-law providing for sick benefits, it was held that the first certificate was a substantial compliance with the by-laws, and entitled the member to receive an allowance for one week, and that he was not entitled to any further allowance. 3 The by-laws of an incorporated mutual benefit society provided that a member who became incapable of working in consequence of sickness or accident, should receive fron the society a certain sum per week; that he could nut receive such benefit without making application in writing to the society, nor before two members appointed by the 1 Irish Catholic v. O'Xhaugnessev, s Dolan v. Court of Good Sainuri- 76 Ind. 191; Beneficial Society v. tan, 128 Mass. 487. White, 30 N. J. Law 313. 3 Harrington v. Benevolent Soci- ety, 70Ga. 340. 612 ACTION ON CONTKACT OF SOCIETY. president had visited him and made a report to the society. A member of the society became ill, and was unable to work. He gave notice in writing of his illness to the society, and a special committee visited him and reported his condition to the society. On a day named, he was entitled to receive from the society a certain sum for two weeks' illness, which was afterward tendered to him. On that day, he resumed work at his regular employment and - worked for two consec- utive da}^s, receiving his wages therefor, but during the two days he was not physically in a fit condition to work, and could only perform light work, and not even .that without unreasonable, excessive and harmful exertion. During the time he was so employed, a committee of the society visited his house, and afterward reported that he had returned to work, and the committee was discharged from further duty. At the expiration of the two days, he suffered a relapse, and was unable to work for a period sufficient to make four weeks from the date of his first illness by including said two days in • the computation. No notice of his illness was given to the society after the day when he so resumed work, and the society took no action thereon. He then brought an action for sick benefits. The court said : " The fact of having done some work is not the final test. The by-law must have a reasonable construction. A man recovering from an illness of about three weeks' duration may justly be deemed to be ' incapable of working,' although by unreasonable, excessive and harmful effort and exertion, he succeeds in doing light work for two consecutive days, and then, by reason thereof, suffers a relapse. That the recurrence of the plaintiff's illness was a relapse caused by excessive and harmful exertion, might fairly be inferred. The fact that he received wages for those two days is immaterial. But one report from the committee for a continuous illness is contemplated in the by-laws. Such report having been made, the plaintiff was not affected by what they did afterward, or by their discharge." ' The con- stitution of a mutual benefit society provided that a member " permanently disabled from following his or her usual or other occupation " was entitled to a benefit, and in another section defined such disability as one which should " perma- 1 Genest v. L'Union St. Joseph, 141 Mass. 417. ACTION OX CONTRACT OF SOCIETY. 613 nently prevent the member from following any occupation whereby he or she can obtain a livelihood." In construing these provisions, it was held that the words " or other occupa- tion " in the first mentioned section, could not be held to mean " or other of the same kind," and the definition in the latter section was conclusive against one, who, disabled in his own trade, had been working at another totally dissimilar business, — against one who, disabled from following the occupation of a barber was able to run a restaurant, or clerk in a store.' Where a member neglects to make a claim for sick benefits, as provided in- the by-laws, his administrator may not recover them after his death. 4 The measure of damages in an action for benefits is not such amount as the jurors' conscience may approve as just, but the amount provided for such a case by the laws of the society. A plaintiff can not recover for benefits accruing after the com- mencement of the action. 3 § 319. Effect of expulsion on the claim of the expelled member for benefits. — If, before a member has been expelled from a society, he becomes entitled under the contract of mem- bership to certain benefits promised by the society, his subse- quent expulsion will not prevent him from maintaining an action for such benefits. 4 A legal expulsion, however, at once terminates the contract of membership, and determines the member's right to future benefits. 5 Where a member makes a claim against a society for benefits, and is expelled because such claim is found to be fraudulent, the expulsion of the mem- ber for such cause is a bar to any inquiry by the courts into the merits of the claim. The society possessed jurisdiction of the snbject-matter in the proceedings in expulsion, and, in ex- pelling the member, acted in a judiciary capacity. Its decision will not be collaterally inquired into by the courts, but will be held as binding between the parties until set aside on appeal to the higher tribunals of the society, or on application 1 Albert v. ( irderof < Ihosen Friends, 3 B. & O. Ass'o v. Poet, 122 Pa. St. 34 Fed. Rep. 721; Bee Kelley v. A. O. 579; 15 Atl. Rep. 885. of H., 9 Daly 289; Supreme Council 'Bachman v. Arbeiter-Bund, 64 v. Fairman, 62 Howard Pr. (N.Y.) Bow. Pr. 442. 386. 5 Pfeiffer v. Weiashaupt, 13 Daly 2 Lucas v. Thompson, 116 Pa. St. 151. 815; 23 Atl. Rep. 321. 614 ACTION ON CONTRACT OF SOCIETY. for reinstatement in the courts. So long- as the judgment of expulsion for presenting the fraudulent claim remains in force, the courts will regard it as settled between the member and the society, that the claim is fraudulent and without merit. The plaintiff, a member of the defendant lodge, claimed certain benefits on account of alleged disa- bility, but the same were denied by the lodge, and he ap- pealed to the grand master under the rules of the order, who reversed the decision of the lodge, but the lodge appealed, under the rules, to the grand lodge; and meanwhile the defend- ant lodge had expelled the plaintiff for fraud and deceit prac- ticed in his efforts to receive the benefits in question, and this action of the defendant lodge was also carried by appeal to the grand lodge, and the grand lodge considered the last appeal first, and found plaintiff guilty of fraud and deceit as alleged, and sustained the action of the defendant lodge in expelling him therefor, and afterward the grand lodge further refused to consider the first appeal because the merits of the cases were involved in and determined by the decision of the second appeal. The court held that these facts constituted an adjudi- cation of the question involved in the first appeal, to the effect that plaintiff was not entitled to the benefits claimed, and that upon a showing of these facts, the district court properly dis- missed the action brought to recover the amount of such bene- fits from the defendant lodge. 1 Where, by the by-laws of a mutual benefit society, it is provided that if the insured mem- ber misrepresent his habits as temperate, the board of directors, upon hearing, may drop his name from membership, the action of the board upon the charge is conclusive and res adjudicate, and it may not be inquired into in a suit on the certificate of membership after the death of the insured. 2 Where a mem- ber has been expelled from a voluntary society, he may not collaterally question the rightfulness of his expulsion by a suit to recover the benefits to which he would otherwise have been entitled. He must first, if unjustly expelled, procure his res- toration to membership. 3 1 Woolsey v. I. O. O. F., 61 Iowa 3 Anacosta Tribe v. Murbach, 13 492; see Society v. Vandyke, 2 Md. 91 ; Society v. Vandyke, 2 Whar- Wharton (Pa.) 309. ton (Pa.) 309; see §§ 52, 53, 319. a Jones v. Association, 84 Ky. 110; 2 S. W. Eep. 447. CHAPTER XXIV. ACTION ON THE CONTRACT OF THE SOCIETY. § 320. Limitation as to the time when an action may he brought. 321. Limitation as to the place where an action may be brought. 322, 323. Pleading and evidence. 324. Competency of witnesses. 335. Admissibility of the declarations of a member. 326. Proofs of death . 327. Attachment of benefit fund, garnishment. 328. When fund may or may not be attached. § 320. Limitation as to the time when an action may he brought. — A mutual benefit society may, by proper provisions of its charter, by-laws or certificates, stipulate that any claim for benefits shall be made within a given period of time, or that no action against the society for the recovery of any claim upon the contract shall be maintained, unless commenced within a certain period after the cause of action shall have accrued. As the statutes of limitation only provide that no suit shall be brought on a claim after a certain number of years, there is nothing in these acts abridging the right of parties to contract for a shorter limitation of time. Such lim- itations are strictly construed and must be reasonable. Pro- visions of statutes of limitation relative to the bringing of a second action within a year after the reversal of the first, or after the plaintiff shall have suffered a non-suit, are irrelevant and do not apply, where a special limitation is agreed upon in the contract of insurance. 1 The contract in such a case relieves the parties from the general limitations of the statute, and, as a consequence, from its exceptions also. It is well settled that a partial paymenl takes the case out of the statute of limita- tion as to the remainder of the demand, and that as to such remainder the statute begins to run only from the date of the 1 Howard Ins. Co. v. Hocking, 180 v. Ins. Co., 74 U. S. 886; Wilkinson v . Pa. St. 170; 18 Atl. Rep. 61 I: Willson Ins. Co., 72 X. Y. 199; Arthur v. Ins. v. Ins. Co., 27 Vt. 99; Riddlesbarger Co., 78 N. Y. 462. (615) 616 ACTION ON CONTRACT OF SOCIETY. payment. A limitation by contract is governed by the same principle. The partial payment will take the case out of the agreed period' of limitation, and it will begin to run again from the time of the payment. 1 Where an insurance company does nothing to induce delay in bringing suit, the statute of limitations begins to run in its favor from the time it notifies a claimant that his claim is rejected. 2 Where the certificate of a mutual benefit society provides that all suits to recover benefits under it shall be begun within six months after the death of the member in- sured, and within that time an injunction, enjoining the bene- ficiary from receiving payment, prevents him from beginning suit until after the expiration of the six months, the six months' limitation no longer exists after the removal of the injunction, and suit may be brought at any time within the statute of limitations. 3 This contract period does not open and expand, like the period of limitations imposed by statute, so as to receive within it a period of legal disability, and then close together at each end of that period, as though the period of legal disability had never occurred; the contract period relates to the six months next after the loss, and the court has no right, as in the case of a statute, to construe it into a num- ber of days equal to six months, made up of the days in a period of time prescribed by the statute of limitations, in which the plaintiff may commence his suit. In such a case, where a cause intervenes which prevents the plaintiff from suing before the specified contract period expires, the contract bar can not be afterward revived, but is absolutely removed, and the plaintiff is then only bound by the limitation pre- scribed by statute. 4 Where the duly authorized agent of a company, before the expiration of the limitation fixed by the contract, led the beneficiary to believe that the loss would be paid without suit, and thereby induced him not to sue within that period, the limitation will be disregarded, though the con- tract also provides that no act of the company, its officers or agents, shall be deemed a waiver of any of its conditions, 1 Kentucky Mutual v. Turner. 89 3 Earnshaw v. Society, 68 Md. 465; Ky. 665; 13 S. W. Rep. 104. 12 Atl. Rep. 884. ' 2 Railway Ass'n v. Loomis, 142 111. 4 Senimes v. Ins. Co., 13 Wall. 158. 560; 32 N. East. Rep. 424. ACTION ON CONTRACT OF SOCIETY. GIT unless it be " in writing, signed by the president or secretary of the company." ' If the delay to bring suit within the designated period is a result to which the society mainly contributed by holding out hopes of an amicable adjustment, it will not be permitted to take advantage of such delay; and if, after the expiration of such period, it enters into any negotiations with the benefici- ary whereby it recognizes the continued validity of the cer- tificate, it will be held to have waived its right to plead the limitation. 2 Repeated promises from time to time that pay- ment or settlement will be made, and declarations that there is no need of proceeding by law to enforce payment, are a suf- ficient excuse for not prosecuting the claim against a society. 3 If the beneficiar} T is induced to delay his action on a certificate by the fraud of the society, or by its holding out the reasona- ble hope of payment, the limitation will be disregarded.' But mere negotiations for a settlement are not sufficient to show a waiver of the limitation of time/ AVhile any act which tmds to mislead the beneficiary, when the parties are dealing on friendly terms in order to avoid litigation, will be held to be evidence of a waiver of a limitation specified in the con- tract, it must be remembered that after suit has been brought and the parties are dealing at arms-length, the rule does not apply with the same strictness, and much more positive evi- dence of actual misleading, if not of intent to mislead, is nec- essary to prove a waiver by estoppel. In an action against it, a society may omit any special defense, and make only such as it shall think sufficient to defeat the plaintiff. If it suc- ceeds, it may urge its special defenses in a second action, for by risking its defense upon one ground, it does not waive its right in another suit to urge other grounds. Thus, a former suit on a contract of insurance was brought within sixty days after the furnishing of proofs of loss, and was held l>y the su- preme court to be premature. In a second action it was held. 1 Dwelling-House las. Co. v. Bro- 1st: f t. Paul F. & M. Ins. Co. v. Me- dio, 52 Ark. 11: US. W. Rep. 101(5. Gregor, 63 Texas 899i •Martin v. Ins. Co., 44 N. J. L. *Derrickv. Lamar Ins. Co., 74 111. 185; Jennings v. Ins. Co., 148 Mass. 404; Little v. Phoenix Ins. Co.. 128 61; is X. East. Rep. < - ><>i. Mass. 880. a HomeIns. Co. v. Myer. 93 111. 271: Allnnania Ins. Co. V. Little, 20 Andes Ins. Co. v. Fish, 71 111. 620; 111. A.pp. 131. Bish v. Hawkeye Ins. Co., 69 Iowa 618 ACTION ON CONTRACT OF SOCIETY. that the fact that the issue on which the former case was finally decided was not raised in the pleadings, so as to afford the plaintiff an opportunity to dismiss and bring a new suit after the sixty days and within the stipulated twelve months, but was held back by the society until the trial, after the twelve months had elapsed, did not waive the stipulated limitation in favor of a second action brought after the twelve months had passed. 1 Where the contract of insurance provides that no ac- tion on the contract may be maintained, " unless commenced within six months after the loss," — " unless commenced within one year after any claim shall accrue," " unless com- menced within a term of twelve months next after the loss or damage shall occur," etc.; and further provides that a loss shall not be payable until a certain time after the proofs of loss, or of death, have been furnished, the period of limitation does not bssin to run until the certain time fixed after the proofs have been furnished. The limitation begins to run from the date of proof of loss or death, and not from the date of loss or death. 2 Where an accident insurance company, by its certificate, undertakes to pay the insured certain amounts in case of bodily injury, and, in case of death resulting from such an in- jury, to pay to the wife of the insured a certain sum, and the certificate further specifies that no suit shall be brought to recover any sum unless commenced within one year from the time of the alleged accidental injury, an action may be brought on the policy by the widow of the insured more than one year after the accident, if it is brought within one year after the insured's death, since the widow's right of action does not accrue, and the prescribed period of limitation begin to run against her, until the death of the insured. 3 1 Howard Ins. Co. v. Hocking, 130 (Pa.) 86; Spare v. Home Mutual, 17 Pa. St. 170; 18 Atl. Rep. 614. Fed. Rep. 5(38: Friezen v. Allemania 2 Steen v. Ins. Co., 89 N. Y. 315; Ins. Co., 30 Fed. Rep. 352; Vette v. May on Insurance, § 479; 2 Wood on Clinton Ins. Co., 30 Fed. Rep. 668; Insurance, pg. 1029; Cooper v. Asso- Barber v. Ins. Co., 16 W. Va. 658; ciation, 10 N. Y. Supp. 748; Hay v. but see Johnson v. Ins. Co., 92 111. Star Ins. Co., 77 N. Y. 235; Ellis v. 91, and Refining Co. v. Ins. Co., 12 Council Bluffs Ins. Co., 64 Iowa 507; Ont. App. 418. Killips v. Putnam Ins. Co., 28 Wis. 3 Cooper v. Association, 132 N. Y. 472; Chandler v. St. Paul F. & M. 334; 30 N. East. Rep. 833; affirming Ins. Co., 21 Minn. 85; Mutual A. & 10 N. Y. Supp. 748. L. Ass'n v. Kayser, 14 W. N. Cas. ACTION ON CONTRACT OF SOCIETY. G19 A certificate of membership in a mutual benefit society merely stated that a certain person was a member, but named no person as beneficiary. The member died intestate, leaving a widow. The by-laws of the association provided that ben- efit money might be disposed of by will, otherwise to be paid to the member's widow. It was held that, as parol evidence was necessary in order to prove that the widow was entitled to the benefit money, the contract was not a written one, within the meaning of Rev. St. c. 83, § 15, which bars in five years actions on unwritten contracts. 1 § 321. . Limitation as to the place where an action may be brought. — It is a well settled maxim that parties can not by their consent give jurisdiction to courts where the law has not given it, and it seems to follow from the same course of reasoning that parties can not take away jurisdiction where the law has given it. 2 In one case it was said : " The rules to determine in what courts and counties actions may be brought, are fixed upon consideration of general concurrence and expe- diency by general law; to allow them to be changed by the agreement of parties would disturb the symmetry of the law, and interfere with such convenience. Such contracts might be induced by considerations tending to bring the administra- tion of justice into disrepute; such as the greater or less intel- ligence and impartiality of judges, the greater or less integrity and capacity of juries, the influence, more or less, arising from the personal, social or political standing of parties in one or another county. It might happen that a mutual insurance company, in which every holder of a policy is a member and, of course, interested, would embrace so large a part of the men of property and business in the county, that it would be diffi- cult to find an impartial and intelligent jury. * * There being no authority upon which to determine the case, it must be decided upon principle. The question is not without diffi- culty, but, upon the best consideration the court have been able to give it, they are of opinion that it is not a good defense 'Railway Ass'n v. Loomis, 142 'Hall v. People's Mutual, 6 Gray 111. 560; 82 N. East. Rep. 124; Kanz (Mass.) 185; Bee Bartlett v. Union v. Great Council, L8 Mo. A.pp. 841; Mutual. 16 Me.500; Reichardv.Man* Carr v. Thompson, 67 Mo. 472; Kin- hattan Ins. Co.. 81 Mo. "11 s : Auk-/ sey v. Louisa County. :s7 towa, 488; bury et al. \. Ins. Co., 6 Gray (Mass j Works v. Macalister, 40 Mi< h, 84. 596. 620 ACTION ON CONTRACT OF SOCIETY. to this action, that it was brought in the county of Suffolk,' and not in the county of Essex." : An agreement in a contract of insurance, that the insured waives the right to bring an ac- tion on it except in the courts of the state incorporating the company, is void as against public policy. 8 But under some circumstances and conditions limitations upon the place of bringing: actions have been held valid. 3 § 322. Pleading and evidence. — Independent of statutory provisions, the rules of pleading are the same in their applica- tion to contracts of insurance as to other contracts. The con- tract, or policy of insurance, must be declared on in haec verba, or according to its legal effect; the plaintiff's interest in the subject of insurance; the payment of the premium; the incep- tion of the risk; the performance of any precedent condition, or warranty contained in the policy, and the loss or happen- ing of the event on which, within the terms and meaning of the policy, the liability of the insurer attaches, must be al- leged. 4 The statutes in most of the states regulate to some extent the necessary averments in declaring on a contract of insurance. In a suit on a policy of life insurance, procured by the in- sured for the benefit of another, it is not necessary that the declaration should aver that the beneficiary had any interest in the life of the insured, but a different rule prevails where one procures an insurance on the life of another. In such a case, the plaintiff must aver in his declaration the facts show- ing that he had an insurable interest in the life insured. 5 The same rule prevails in suits on contracts of insurance in mutual 1 Nute v. Ins. Co., 6 Gray (Mass.) 19 Pac. Rep. 337; Hefferman v. Su- 174. The contract provided that any preme Council, 40 Mo. App. 605; action on it should " be brought at a Pierce v. Ins. Co.. 138 Mass. 151; proper court in the county of Essex." Brittv. Ins. Co., 105 N. C. 175; 10 S. "Eeichard v. Ins. Co., 31 Mo. 518; E. Rep. 896; Price v. Ins. Co., 17 see Matt v. Association, 81 la. 135; Minn. 497; McLean v. Society, 100 46 N. W. Rep. 857. Ind. 127; Mutual Benefit v. Cannon, •"Boynton v. Middlesex Mutual Fire 48 Ind. 264; Excelsior Mutual v. Rid- Ins. Co., 4 Met. (Mass.) 212; Arnet v. die, 91 Ind. 84; Richards v. Ins. Co., Milwaukee Mutual, 22 Wis. 516. 80 Cal. 505; Phoenix Ins. Co. v. Rad- 4 The rule is thus concisely laid din, 120 U. S. 183. down in Brooklyn Ins. Co. v. Bled- "Guardian Mutual v. Hogan, 80 soe, 52 Ala. 538; see also Kaw Life 111. 35; Franklin Life v. Safton, 53 Association v. Lenike, 40 Kan. 142; Ind. 380. ACTION ON CONTRACT OF SOCIETY. 621 bcsnofit societies. A stranger who obtains a membership for another in any such society, where the membership secures to him an insurance upon the life of the member, must aver and prove the facts showing an insurable interest in the life of the member. 1 In suits upon a policy payable to a stranger, it is proper to leave it to a jury to say whether, under all the cir- cumstances of the case, the contract was entered into by the parties in good faith, or as a means of procuring a wager upon life. 2 The mere payment of premiums by the beneficiary is not conclusive evidence that the policy was taken out by him. 8 Evidence tending to show that the beneficiary of a contract of insurance procured insurance to be effected on the life of the member in other societies, is admissible to show that the object was to defraud the society. 4 Where the interest of each beneficiary in the fund is a sev- eral interest, one may sue without making the others parties to the proceeding. In such a case separate actions may be maintained, even though the promise to pay is to the benefi- ciaries jointly. 5 Where a policy of insurance provides for the payment of different sums to different persons, it is improper for beneficiaries to join in one action to recover the several sums due, but, if they do, the court may order each benefi- ciary to file his separate petition, and defendant to answer each, without further service of process. 6 A contract of insur- ance in a mutual benefit society provided that the money should be payable, in case of a member's death, to his wife, 1 Elkhart Mutual v. Houghton, 98 considered together, they can not be Ind. 149. reasonably explained without ascrib- 2 Conn. Mutual v. Schaefer, 94 U. ing a particular motive to the perpe- S. 457; Mta& Life v. France, 94 U. trator, such motive will be consid- S. 561; Swick v. Home Life, 2 Dill, ered as prompting each act." 160; Langdon v. Union Mutual, 14 6 Emmeluth v. Association, 122 N. Fed. Rep. 272. Y. 180; 25 X. East. Rep. 384; 1 Add. "Tuston v. Hardoy, 14 Beav. 232: Cont. 79; 1 Pare. Cont. 11; Van Wart Armstrong v. Mutual Life, 13 Rep. v. Price, 14 Abb. Pr. 4, mite: I lees 71. v. Nellis, 1 Thump. & < '. 1 ls : Eccles- 4 Whitmore v. Supreme Lodge, 100 ton v. Clipsham, 1 Saund. L58, The Mo. 36: 18 S. W. Rep. 495; Ins. Co. v. words "share and share alike"' are Armstrong, 117 U. S. 598; 6 Sup. Ct. words of severance, and create a Bev- Rep.877. In the last case it was said : eral right. Emmeluth v. Associa- •• A repetition of acts of the same tion, supra; affirming 46 Hun 681. character naturally indicate the same G Keary v. Mutual Reserve, 30 Fed. purpose in all of them; and, if when Rep. 359. 622 ACTION ON CONTRACT OF SOCIETY. her executors, etc., as directed by said member in bis application, "or to such other person or persons as he might subse- quently direct by will or otherwise." In an action on the certifi- cate by the wife, it was held that she need not allege in her complaint that the deceased member had not directed the money to be paid to any other person, as that was a matter of defense. 1 Under the constitution of a mutual benefit society, which provides that the benefits shall be paid to the nearest relatives of the deceased, an allegation in the statement of claim that plaintiffs are the father and mother of deceased, " and his nearest relatives," is sufficient, without stating that deceased did not leave a widow, child, or children him surviv- ing. 2 Where a member has attempted to change the designa- tion of his beneficiary, and the original beneficiary brings suit on the certificate, he must aver and prove that the change attempted to be made was invalid. 3 Where a benefit certificate is made payable to a certain person in its inception, the bur- den of proof is upon parties claiming an assignment of such certificate to them to show a prima facie valid transfer of the benefit accruing from said certificate to themselves, in pursu- ance of the constitution and by-laws of the order. 4 In a suit on the by-laws of a society for benefits, plaintiff must state how the obligation to pay money arises, what the rules and regulations are, and that he has complied with them. A statement of demand, claiming a balance to be due during plaintiff's sickness at the rate of $3 per week, "the sum paid by the society to the sick of the society," does not con- tain a legal cause of action. 5 The burden is on the defendant to aver and prove the falsity of any statement in the applica- tion, or that the contract was issued contrary to the by-laws or rules of the society, and this is true although the by-laws, rules and application may be set out in full in the complaint or declaration, and whether the answers in the applica- tion are representations or warranties. There are cases in 1 Landenschlager v. Association, 36 3 Masonic Mutual v. Burkhart, 110 Minn. 181; 30 N. W. Rep. 447; Dennis Ind. 189; 11 N. East. Rep. 449. , v. Ins. Co., 84Cal. 570; Tripp v. Ins. 4 Henry v. Grand Lodge, 15 111. Co., 55 Vt. 100; Coburn v. Ins. Co., App. 151. 145 Mass. 226. 6 Beneficial Society v. White, 30 N. 2 Sherry v. Union, 139 Pa. St. 470; J. Law, 313. 20 Atl. Rep. 1062. ACTION ON CONTRACT OF SOCIETY. G23 conflict with this rule, but it is undoubtedly supported by the later and better authorities as well as by the better reason. 1 In Piedmont Ins. Co. v. Ewing, supra, it is said : " The num- ber of questions now asked of the assured in every application for a policy, and the variety of subjects and length of time which they cover are such that it may be safely said no sane man would ever take a policy, if proof, to the satisfaction of a jury, of the truth of every answer were made known to him to be an indisputable prerequisite to payment of the sum secured; that proof to be made only after he was dead and could render no assistance in furnishing it. On the other hand, it is no hardship that, if the insurer knows or believes any of the statements to be false, he shall furnish the evidence on which that knowledge or belief rests. He can thus sino-le out the answer whose truth he proposes to contest, and, if he has any reasonable ground to make such an issue, he can show the facts on which it is founded." In a suit upon a contract of insurance, where the issue is as to the truth of the answers of the insured in his application, the possible action which the company might have taken, if the insured had answered otherwise than he did, is inadmissible. 2 In an action on a mutual benefit certificate, made part of the petition, when defendant pleads a general denial, and the benefit certificate is not introduced in evidence, a judgment for plaintiff will be reversed for want of evidence. 3 It is not a defense to an action on a contract of mutual benefit insurance that the beneficiary has delayed the bring- ing of the suit, that under the laws of the society the amount of the certificate, if payable, must be paid by assessment on the members existing at the time of the member's death and on them only, that more than one thousand persons who were then members have, by death or otherwise, ceased to be such, and that several thousand other persons have since become members. Assessments to pay death losses operate with reasonable equality upon all the members. If a new mem her 'Piedmont Ins. Co. v. Ewing, 92 3 Knights v. Fortson, 7S Texas 47o; U. S. 377; Continental Life v. Rogers, 14 S. W. Rep. 923. 119 111. 474; 10 N. East. Rep. 242. S N. W. Association v. Hall, 113 111. 169; 8 N. East. Rep. 764. .624 ACTION ON CONTRACT OF SOCIETY. is assessed to pay an old loss, the probability is that he will escape assessments made after he ceases to be a member for losses accruing before he ceased to be such. 1 § 323. Where the plaintiff's right of recovery is dependent upon the fact that the deceased member was in good standing in the society at the time of his death, the burden of proof is on the plaintiff to show such good standing of the member. 2 In an action upon a certificate of membership, reciting that the deceased was a " beneficiary member in good standing " in the society, and that upon his death a sum would be paid " provided he be in good standing when he dies," the certifi- cate is proof of the good standing of the party named at the time of its issue, and such standing will be presumed to have continued, in the absence of contrary evidence. In such case, the burden is on the society to show that, by reason of his conduct, or his- failure to comply with the regulations or re- quirements of the society, the deceased had lost his good standing. 3 Proof that the society recognized the decedent as a member up to a short time before his death, in connection with the presumption that all persons follow such laws, rules and regulations as they are subject to, is sufficient evidence of the £Ood standing of decedent to maintain the action. 1 AVhen the by-laws of a society provide that the quarterly dues shall be payable " on or before the first meeting in each quarter " in order to show that the member is not in good standing by reason of not having paid his dues for a certain quarter, it must be shown that a meeting has been held since the com- mencement of the quarter. Testimony that the society holds meetings every week is not enough. 5 In an action to recover benefits from a society by one who claims that he is a member, the evidence of its medical examiner that plaintiff had never been examined by him as required by its rules is admissible. 6 1 Bachmeyer v. Association, 82 Wis. preme Lodge, 28 Mo. App. 463; Forse 255; 52 X. W. Rep. 101. v. Supreme Lodge, 41 Mo. App. 107; ' 2 Siebert v. Chosen Friends, 23 Mo. Elmer v. Association, 19 N. Y. Supp. App. 268. 289. 3 See §§ 251, 252; Millard v. Su- 4 Lazensky v. Supreme Lodge, 31 preme Council, 81 Cal. 340; 22 Pac. Fed. Rep. 592. Rep 864; Mills v. Rebstock, 29 Minn. 6 Mills v. Rebstock, 29 Minn. 380; 380; Supreme Lodge v. Johnson, 78 §§ 285, 286. Ind. Ill: Stewart v. Supreme Coun- 6 B. & O. Ass'n v. Post, 122 Pa. St. cil, 36 Mo. App. 319; Mulroy v. Su- 579; 15 Atl. Rep. 885. ACTION ON CONTRACT OF SOCIETY. 625 Where the by-laws provide that a member may at any time withdraw from the society by giving notice in writing of his intention to do so, a written notice of withdrawal by the mem- ber will sever his relations with it, though the society does not accept his resignation, or erase his name from its roll of members.' In an action on a contract of insurance, where the question of membership in the society is in issue, evidence showing that the deceased was not a member is admissible, though his resig- nation is not pleaded. 3 Where the circumstances attending the admission of deceased to the benefits of a certificate of insurance were fully shown by the testimony of the secretary of the insurer, a refusal to admit in evidence the minutes of a meeting of the insurer at the same time was not erroneous. 3 A provision of a certificate, that it shall be payable only on its surrender, is waived where the society refuses to pay solely on the ground of non-payment of assessments. 4 In an action on a contract of insurance issued by a mutual benefit society, proof by the society of its custom and usage in the manage- ment of its affairs and the payment of the assessments, and of the decisions of its officers respecting the construction of the contract, are inadmissible. 5 In actions on certificates of mem- bership issued by mutual benefit societies designed to secure the payment of money to those dependent upon their members, after the death of such members, courts should construe the rules and regulations of such societies liberally to effect the benevolent objects of their organization, and that doctrine of construction is applicable generally to rulings on questions of evidence, as well as in other respects. 8 § 324. Competency of witnesses. — In Georgia, it was held that under the statute of that state relating to competency of * Cramer v. Masonic Ass'n, 9 N. Y. Knights of Pythias, 31 Fed. Rep. 122: Supp. 856; see .^ 82. Bauer v. Samson Lodge, L02 [nd. 863; * Cramer v. Ass'n, supra. Thompson v. In.s. Co., luj {J. S. 252; 3 Grossman v. Supreme Lodge of Franklin Ins. Co. v. Humphrey, 65 Knights and Ladies of Honor, 6 N. Y. Ind. 549; Davidson v. Supreme Lodge, S. 821. 22 Mo. App. 268. 4 Himmelein v. Supreme Council 6 Supreme Lodge v. Schmidt, 98 (Cal.), 33 Pac. Rep. 1130. Ind. 374; Erdmann v. Order Her- 5 Manson v. Grand Lodge, 30 Minn, man's Sons. 44 Wis. 876; Supreme 509; 16 N. W. Rep. 395; Wiggin v. Lodge v. Abbott, 82 Ind. 1. 40 626 ACTION ON CONTRACT OF SOCIETY. witnesses, where the contract in issue had been made between an incorporated mutual benefit society and a member, and the latter had died, the officer or agent entering into the same in behalf of the corporation was an incompetent witness; but that the other members of the society were competent. 1 In an action on a contract of mutual benefit insurance by the beneficiary, to whom it is payable in express terms, mem- bers of the society, who are subject to assessment to pay mortuary benefits, are not incompetent witnesses under a stat- ute which declares that where any party to a contract is dead, and his rights therein have passed to the litigant who repre- sents his interest, no person whose interest is adverse to such decedent shall be a competent witness as to any matter occurring before the death. In such a case the deceased never had any right to the fund. It is payable to the beneficiary, if payable to any one, and he takes in his own right under the contract, and not as the representative of the deceased. 2 The officers of the society are competent witnesses to testify as to the giving of a notice of assessment. 3 § 325. Admissibility of the declarations of a member. — In ordinary life insurance, where the contract is between the company and the beneficiary, Avhere a vested interest passes to the beneficiary and the assured ceases to be a party in interest, it is held that the admissions of the assured after the issuing of the policy are not admissible to defeat the contract. 4 The reason upon which the rule is founded is that, after the con- tract of insurance is effected, the assured has no such relation to the beneficiary as gives him the power to affect or destroy 1 Georgia Masonic v. Gibson, 52 Ga. Ohio St. 292; Hurd v. Masonic Mu- 640. tual, 6 Ins. L. J. 792; Mobile Life v. a Hamill v. Supreme Council, 152 Morris, 3 Lea 101; Washington Life Pa. St. 537; 25 Atl. Rep. 645. v. Haney, 10 Kans. 525; Penn Mu- 3 Reichenbach v. Ellerbe, 115 Mo. tual v. Wiler, 100 Ind. 92; Kline v. 588; 22 S. W. Rep. 572; Bates v. Association, 111 Ind. 462; Valley Forcht, 89 Mo. 121; 1 S. W. Rep. 120; Mut. Life Ins. Co. v. Burke, 12 Ins. 1 Greenleaf Ev. 416. L. J. 337; Reid v. Ins. Co., 58 Mo. 421 ; 4 Swift v. Mass. Mutual, 63 N. Y. Valley Mutual v. Tewalt, 79 Va. 421. 186; Eddington v. Mutual Life, 67 The declarations of the assured were N. Y. 185; Dilleber v. Home Life, 69 held to be admissible in Kelsey v. N. Y. 256; Fitch v. Ins. Co., 59 N. Y. U. S. Ins. Co., 35 Conn. 225; Aveson v. 557; Rawle v. Ins. Co., 27 N. Y. 282; Lord Kinnard, 6 East. 188. Fraternal Mutual v. Applegate, 7 ACTION ON CONTRACT OF SOCIETY. 627 it hy bis statements. But in contracts of mutual benefit in- surance where the contract is between the society and the member, where the beneficiary has only an expectant interest, and the member insured has full power and dominion over the contract until the moment of his death, it has been held that the reason for the rule in ordinary insurance does not exist, and that there is no escape from the conclusion that, since the beneficiary has no vested interest in the contract, the member must have dominion over it, and that his declarations are ad- missible against the beneficiary just as they would be against his legal representatives. In Smith v. National Benefit Society, 1 the insured member had declared that he had taken out the insurance with intent to commit suicide. Upon the admissibility of this evidence the court said : " The deceased had the right, with the con- sent of the company, to change his beneficiary from time to time, without the consent of such payee or beneficiary. * * * -phg pi a i n tiff got no separate standing by the designation under the policy before the date of the death. Before that, the sole right was in (the member). The deceased, by his designation of plaintiff as beneficiary, did not make a case to exclude evidence of his declaration. He stood as owner until he died, and the plaintiff was in no better condition in respect to the policy than if the plaintiff's representative had brought the action. The case is therefore different from the class of cases which hold that evidence of the declaration of an assignor can not be received to impeach the title of the assignee." 2 It has been held, however, that in mutual benefit insurance the beneficiary of a certificate is in legal contempla- tion the owner of it, subject only to the right of the member to substitute other beneficiaries, and that the admissions of a member made after the issuing of the certificate can not affect the validity of the contract. This view was taken in Supreme Lodge v. Schmidt, 3 where the court said: " Hanson was also called as a witness, and counsel for the defendant offered to •51 Hun 575; 4 N. V. Supp. .V„M: hausen v. Association, 18 N. Y. Supp. 22 N. Y. St. Rep. 85'.': affirmed, 128 B6; Stewart v. Supreme Council, 36 N. Y. 85; 25 N. East. Rep. 197. Mo. A pp. 319; Nix v. Donovan, 18 8 See, also, Maynard v. Vander- N. Y. Supp. 485. werker, 24 N. Y. Supp. 932; Stein- »98Ind. 374. 628 ACTION ON CONTRACT OF SOCIETY. show by him that between the 21st and 25th flays of August, 1879, he accompanied Schmidt, the decedent, to the office of the supreme master of exchequer, at the time he went to see about getting reinstated, and that he, Schmidt, there admitted in the presence of Stumph that he had received notice of as- sessment No. 8, in contest, that he had not paid that assess- ment, and that he had been suspended for its non-payment. If this action had been upon an ordinary life insurance policy the decision of the court excluding what was proposed to be proven by Hanson would have been fully sustained by the authorities. This is conceded by counsel for the appellant, but it is insisted that the provision in the certificate before us, authorizing Schmidt to make a different disposition of the proceeds by ' will or otherwise ' takes it out of the rule ap- plicable to ordinary life insurance policies, recognized as above, and requires us to consider Schmidt as having been the real owner of the certificate until the time of his death; that Schmidt being thus the real owner of the certificate at the time fixed in the offered evidence, it was competent to prove admissions made by him affecting its validity as a chose in action. * * * From the time of the issuance of the cer- tificate until Schmidt's death" (the beneficiaries named in the certificate), " were, in legal contemplation, the owners of it, subject only to the right of Schmidt to ultimately substitute other beneficiaries by will, or in such other manner as the rules and regulations of the order might permit. But this rio'ht to ultimately substitute other beneficiaries did not em- power Schmidt to destroy the value of the certificate in the hands of the appellees by merely hearsay or irrelevant admis- sions concerning matters in issue between other parties. Schmidt having never exercised the right of substitution re- served to him, we are justified in assuming that he never intended to exercise it, and that as between the appellees and the order, the former have been the absolute owners of the certificate ever since it was issued. We are, consequently, unable to hold that the alleged admissions of Schmidt to Hanson in the presence of Stumph, were any more admissible as evidence in the case in hearing than they would have been in an action upon a life insurance policy issued in the usual form. In actions upon life policies, or certificates of member- ACTION ON CONTRACT OF SOCIETY. 629 ship issued by mutual societies designed to secure the payment of moneys to those dependent upon its members after the death of such members, courts should construe the rules and regulations of such societies liberally to effect the benevolent objects of their organization, and that doctrine of construction is applicable generally to rulings on questions of evidence, as well as in other respects." In an action on a certificate of indemnity, alleged to have been procured through fraudulent misrepresentations of the assured, a witness stated that she had known deceased four or five years prior to her death, and had " long ago " conversed with her about her health. It was held that the evidence was incompetent to prove declarations by decedent, as being too re- mote from the time of her examination by the physician of the insurer. 1 In an action by a beneficiary on a certificate issued to a member of a mutual benefit society, an application for rein- statement, made by the member, is not competent evidence to prove the fact of his suspension. A member may in any con- troversy with the society seek to avoid litigation, and his ap- plication will be considered as an attempt to have his rights recognized by the society. Whether or not his rights have been forfeited depends upon the facts in the case and the pro- visions of the contract, not upon the act of one of the parties in attempting to adjust the controversy or upon the opinion of one of the parties as to the validity of the forfeiture. The statement of a member that he had been suspended for non- payment of an assessment, is not sufficient evidence to prove that fact. 2 If the fact of his suspension for non-payment is 1 Grossman v. Supreme Lodge, 6N. ries." This law governed the cases of Y. S. 821; see Swift v. Ins. Co.,63N. Smith v. Society, 8itpra,'andSteinhau- Y. 186; section 18 of chapter 175 of sen v. Association, supra, but it does the laws of 1883, provides that not appear whether that statute was " membership in any corporation, as- applicable t<> the Grossman cast . As sociation, or society transacting the to declarations of the insured in con- business of life or casualty insurance, nection with an established fact, see or both, upon the co-operative or as- Union Central v. Cheever, 36 Oh. St. Bessment plan, shall give to any mem- 201; Schwarzbach v. Union, 25 W. ber thereof the right at any time, with V;i. 622; Valley Mutual v. Tewalt, the consent of such corporation, asso- 79 Va. 421; Edington v. Ins. Co., 67 ciation, or society to make a change N. Y. 185: Reid v. Ins. Co., 68 Mo. in his payee or payees, henetieiary or 421, Swift v. Ins. Co., supra. beneficiaries, without requiring the ' Mutual Reserve v. Hamlin, 139 U. consent of such payee or beneficia- S. 297; 11 Sup. Ct. Rep. 614; Dodge 630 ACTION ON CONTRACT OF SOCIETY. proved, his declarations are competent to show that he had knowledge of the fact. 1 A petition for reinstatement recit- ing that the member has been suspended for non-payment of a certain assessment, is a waiver of any formal defect in the notice of that assessment. 2 Evidence of a member's oral declarations made after he had received his certificate, is inad- missible to vary its construction, and his mere statement that it is intended for the benefit of a certain person, is insufficient to constitute a trust in favor of that person. 8 § 320. Proofs of death. — The furnishing of proof of the death of the member is usually made a condition precedent to the liability of the society upon its certificate. Preliminary proofs of death furnished to the society are evidence of the compliance by the beneficiary with the terms of the contract, but they are not evidence of the facts set forth in them. They may not be used in an action, on the contract to sustain the issue on the part of the plaintiff. The statements made in them may be used against the beneficiary as admissions against his interest, but he is not estopped by any such statements to show the facts. The most that can be said is that, having made the statements, the burden is upon him to show that they were made inadvertently or by mistake. 4 v. Friedman's Co., 93 U.S. 379: La- Co. v. Newton, 89 TJ. S. (22 Wail.) rensky v. Supreme Lodge, 31 Fed. 38; Home Benefit v. Sargent, 142 U. Rep. 592; Supreme Lodge v. Schmidt, S. 691; 12 Sup. Ct. Rep. 332; 31 Fed. 98 Ind. 379; 1 Greenl. Ev. at section Rep. 711; Germania Ins. Co. v. Cur- 171; see §294; ran, 8 Kan. 9; Hubbard v. Ins. Co., 1 Dilleber v. Ins. Co., 69 N. Y. 256; 33 Iowa 325; Commercial Ins. Co. v. Hansen v. Supreme Lodge, 140 111. Huckberger, 52 111. 464; but see 301: 29 N. East. Rep. 1121. Campbell v. Ins. Co., 10 Allen 213, 2 Hansen v. Supreme Lodge, supra, and Irving v. Ins. Co., 1 Bosw. 507, 3 Eastman v. Provident Mutual, 62 where it was held that the assured is N. H. 555; 65 N. H. 176; 20 Cent, bound by the statements contained Law Journal, 266; Wason v. Colbum, in his preliminary proofs, and will 99 Mass. 342; Supreme Council v. not be permitted to contradict them, Morrison, 16 R. I. 468; 17 Atl. Rep. 57. unless he notifies the company of the 4 N. Am. Ins. Co. v. Burroughs, 69 error before the trial of the case. Pa. St. 43; 1 Ins.L. J. 90; Dougberty The requirement in a certificate that v. Ins. Co., 154 Pa. St. 385; 25 Atl. Rep. the insurer shall be furnished with 739; Keels v. Mutual Association, 29 " satisfactory proof of the death" of Fed. Rep. 198; American Ins. Co. v. the assured does not entitle it to de- Day, 39 N. J. L. 89; Maher v. Ins. mand information as to the cause of Co. , 67 N. Y. 283; Spencer v. Ins. Co. , his death. See § 156. 23 N. Y. Supp. 179; Mutual Ben. Ins. ACTION ON CONTRACT OF SOCIETY. 631 "Where there is nothing in the contract requiring the notice of death to state its cause, plaintiff need only prove the death at the trial, since the cause is a matter of defense; but, where the physician who attended the deceased, during his last illness certified to a cause of death, which, if true, would have defeated a recovery, that part of his certificate stating the cause of death must be admitted in evidence, not as independ- ent evidence of any fact in the case, but in connection with the circumstances of its transmission to the society, as an ad- mission that the fact alleged is true. It is not incompetent evidence under a statute providing that a physician shall not be permitted to disclose any information which he acquired in attending a patient in a professional capacity. 1 Where the contract of insurance does not require the claimant to furnish proof of the cause of death, an infant beneficiary is not bound by the admission of his guardian, who, in furnishing the proofs of death, voluntarily included the attending physician's cer- tificate of the cause of death, which showed that the insured died from one of the excepted causes. A sworn statement by a widow in proofs of death, that her husband committed suicide while insane, does not estop her to show that she made the statement on the faith of w r hat others told her, and not from actual knowledge, and that he took poison by mistake. 3 In the absence of a statutory or consti- tutional provision making other evidence competent, nothing but common law evidence may be introduced in an action on an insurance contract, and where there is no rule making the records or books of the board of health evidence as to the cause of death in the trial of an action at law, when that question is material, such records or books are inadmissible.' AY here a policy provided for due notice and proof of the death of the insured, and of the just claim of the claimant, and the society had paid the amount of the policy to a party not en- titled by law to its benefits, he having presented proofs of the dentil of the insured to the society, and afterward the rightful 'Buffalo Trust Co. v. Aid Associa- v. N: W. Association. 40 Minn. 202. tion. 126 N. Y. 450; 27 N. East. Rep. 'Bachmeyerv. Association, 82 "Wi-j. 942: Goldschmidt v. Ins. Co., 103 N. 255; 52 N. W*. Rep. 101. Y. 486; 7N. East. R, p. 408; Ins. Co. 'Buffalo Trust Co. v. Ai Associa- v. Rodel, 95 U. S. 2:52; see Muller v. tion, supra, Geruiania, 18 N. Y. Supp, 794; B^utz 632 ACTION ON CONTRACT OF SOCIETY. beneficiary made proof by affidavit of the death of the insured, and of his own just claim, a general objection by the society to the sufficiency of the proofs is not good. The court said : " As the proofs of the death of the insured already in posses- sion of the defendant had been accepted by them as satisfac- tory, there is no merit in the contention of the defendant, that the plaintiffs have failed to comply with the terms of the policy in this respect. If the defendant has not already waived any proof of death by claiming that they had paid the loss to the person entitled, they did waive further proof than the affidavit by failing to specify any grounds of objection to it in form or substance." J Preliminary proof of death may be waived by a mutual benefit society.* Where, by the terms of the contract, the society is not bound to levy an assessment to meet a death loss, until sixty days after due proof of the death has been made, a declaration or complaint which fails to state that such proof has been made, is defective. 3 Where an attempt is made to aver notice and proof of death, as required by a certificate in a mutual benefit society, it may be aided by an averment that the society is in default for not paying the benefit according to the terms of the certificate.* Where proofs of death of the assured have been made, and the society retains them without suggesting any defect in the proof, and finally wholly refuses to pay the claim, it thereby waives any defect in the formal proof of death and acknowl- edges that the requisite proofs were received by it. But such proof must be to such a degree formal as to show that it is intended to be the preliminary proof of death. Where such proof has not been furnished as required by the contract, a refusal of the society to pay on other grounds, before the time for making proofs has expired, is a waiver of this require- ment. 5 Where a by-law of a mutual benefit society provides 'Timayenis v. Union Mutual, 21 When disappearance is evidence of Fed. Rep. 223; Wuesthoff v. Ger- death. Braunstein v. Ins. Co., 31 L. mania Co., 107 N. Y. 580, overruling J. R. Q. B. 17; Prudential Ins. Co. 52 Superior Ct. 208. v. Edmunds, 2 App. Cas. 487; John 2 Covenant Mutual v. Spies, 114 111. Hancock Ins. Co. v. Moore, 34 Mich. 463. 41; Tisdale v. Ins. Co., 28 Iowa 12; 3 Taylor v. Relief Union, 94 Mo. 35; Travelers Ins. Co. v. Sheppard, 85 6 S. W. Rep. 71. Ga. 751; 12 S. E. Rep. 18. 4 National Association v. Grauman, 6 Metropolitan Association v. Wind- 107 Ind. 288; 7 N. East. Rep. 233. over, 137 111. 417; 27 N. East. Rep. ACTION ON CONTRACT OF SOCIETY. 633 that upon receipt of notice of death of a member the secre- tary shall immediately forward to the beneficiary the proper blanks, and full instructions how to make proofs of death, and the society, upon notice of the death of a member, with a request to send the blanks and instructions as to the required proof, refuses to send the same on the ground that the decedent had failed to pay his assessments, and had ceased to be a member before his death, this refusal to send the blanks and instruc- tions is a waiver of the preliminary proof of death. 1 The laws of a society made it the duty of the secretary of the subor- dinate lodge, on the death of a member, to notify the supreme council thereof, in accordance with a form provided by it, con- taining particulars, many of which could ordinarily be known only to an officer of the lodge, and provided that proofs for benefits should be passed on by the subordinate lodge and then by the supreme council. Under these laws, it was held that all a claimant had to do was to notify the subordinate lodge of the death of the member, and the duty was then put on it of furnishing proof of death to the supreme council." Where the constitution and by-laws of a mutual benefit association do not require the beneficiary to make proofs of death of a member, the failure of the subordinate lodge to make a report of the cause of death of a member, as required by the consti- tution and by-laws, does not affect the right of the beneficiary to recover. 3 The obstinate and unjust refusal of a physician to furnish a certificate of the cause of the death of the member, so that those interested are thereby prevented from complying with a condition of the contract, can not deprive them of the right to enforce the policy. 4 § 327. Attachment of benefit fund— Garnishment. — In treating of the question as to who may by contract legally 538; Lazensky v. Supreme Lodge, 31 'Anderson v. Supreme Council Fed. Rep. 592. Chosen Friends, L85 X. Y. 107; 31 X. 1 Covenant Mutual v. Spies. 114111. East. Rep. 1092; affirming 16 N. V. 463; Kansas Protective Union v. Supp. 947. Whitt, 36 Kan. 760; 14 Pac. Rep. 27; -Supreme Council v. Boyle (Ind. Grattan v. Ins. Co., 80 N. Y. 281; App.), 37 X. Past. Rep. 1105. Evarts v. Association. 16 X. Y.Supp. *0'Neill V. Massachusetts Ass'n, 18 27; Meagher v. Union, 20 X. Y. Supp. N. Y. Supp. 22. 247. 634: ACTION ON CONTKACT OF SOCIETY. acquire the benefits of a certificate of insurance in a mutual benefit society, it is proper also to inquire whether those bene- fits may be reached by third parties by process of law. As a general rale, when the preliminary proofs of death, the making of which is a condition precedent to a recovery upon a life insurance policy, have been made, the amount due and owing to the beneficiary may be reached by attachment and garnish- ment in the same manner, and to the same extent, as other choses in action. In Girard Ins. Co. v. Field, 1 it was held that where a loss had occurred under the policy of insurance, a gar- nishment would lie against the fund, whether proofs of loss had been made, or not, at the time garnishee process was served, and that the simple operation of the garnishee process was to place the plaintiff in the garnishee proceedings into the same relation with the company that the defendant would have held, but for the proceedings in garnishment. 3 Several cases, how- ever, hold that the proceeds of a policy of insurance can not be made the subject of attachment or garnishment proceedings until such preliminary proofs have been made. They base their view upon the theory that, as the liability of the com- pany does not ripen into an indebtedness by the mere lapse of time, but upon the performance of some act by the other party to the contract, the company may, until such act has been per- formed, properly say that there is nothing due the beneficiary upon the policy. 3 § 328. When benefit fund may or may not be attached. — While, with regard to ordinary life insurance contracts, the rule is undoubtedly as above stated, it has, nevertheless, been held that contracts of insurance in mutual benefit societies can not be made the subject of attachment or garnishment proceed- ings. This immunity of the fund from such proceedings arises, if at all, from the provisions of the law providing for the organ- '45 Pa. St. 129. Ill Pa. St. 507. As to the rights of 2 Hanover Ins. Co. v. Connor, 20 an assignee of an insolvent in a policy 111. App. 297. payable to his executors, administra- 3 Love joy v. Ins. Co., 11 Fed. Rep. tors or assigns, see In re McKinney, 63; Martz v. Ins. Co., 28 Mich. 201; 15 Fed. Rep. 535; Brigham v. Ins. Bishop v. Young, 17 Wis. 46. A pol- Co., 131 Mass. 319; Bassettv. Parsons, icy of life insurance, pa3 r able to the 140 Mass. 169; Heyman v. Dubois, 13 legal representatives of the assured is L. R. Eq. 158; In re Russell's Policy not subject to attachment proceed- Trusts, 15 L. R. Eq. 26. ings during his life. Day v. Ins. Co., ACTION ON CONTRACT OF SOCIETY. 635 ization of such societies. A law of Massachusetts enacts that a corporation organized under it may "provide in its by-laws for the payment by each member of a fixed sum, to be held by such association until the death of a member occurs, and then to be forthwith paid to the person or persons entitled thereto, and such fund so held shall not be liable to attachment by trustee or other process." In construing this provision of the law, the court said : " In view of the object of these beneficiary corporations, of the limited number of persons for whose benefit they are intended, of the fact that the member of the corporation could not provide for his creditors by a benefit certificate, or dispose of the fund by testamentary bequest, we can not doubt that the fund due on the certificate is not sub- ject to the attachment while it remains in the hands of the corporation. If it were, it would be impossible for the mem- ber, in many instances, to provide for those for whom it was contemplated that lie should, by this method, be able to make provisions." The court held that, upon the death of the hus- band, the wife's interest in the benefit fund could not be at- tached in the hands of the society for her debt. 1 In another case 2 it was held that a certificate of member- ship in a mutual benefit society, payable to the widow of a member, is for the benefit of the member's family, and can not be seized, upon the death of a member, by the widow's cred- itors, where the charter of the association provides that the funds shall be for the relief of the member's family, and shall be exempt from seizure under execution or other Legal proc- ess, to pay any debt of the deceased member. This con- struction was given to this provision of the charter, on the ground that it harmonized with the legislative action upon the subject, as well as with the rule which, when applied to such organizations, requires a liberal construction of their charters in favor of the objects of their bounty, and to prevent the ap- plication of their funds to the benefit of those who are stran- gers to the organization. The charter of a society provided: "Ko part of the stock or interest, which any member, or his 1 Saunders v. Robinson, 1)1 Mass. *Schillinger v. Boes, 85 Kv. 857; 3 806; 10 N. East. Rep. 815; see Breckel s. \v. Rep, 127; see Vilbon v. Mar- v. Imperial Council, 11 N. Y. Supp. souin, 18 Lower Can. Jurist. 349; 831. Brown v. Balfour, 40 Minn. 88. 636 ACTION ON CONTRACT OF SOCIETY. widow, or children may have in said institution, shall be sub- ject to any debt, liability, or legal or equitable process against him, or any of them." A member died, and his son became entitled to $100 as a beneficiary of his certificate. A cred- itor of the son levied upon that sum in the hands of the society by attachment, and it was held that the money was subject to such attachment. The court said : " The money due to the representatives of a deceased member, is in no sense an inter- est ' in said institution.' It is a debt due from it to them, not as shareholders, but as creditors." ' In Hankinson v. Page, 2 it was held that the interest of an heir at law of a deceased member of a mutual benefit society, in a sum to be raised and paid by the society on the death of a member, was attachable in New York. In this case, it was insisted that the demand against the society was in the nature of equitable assets, and, therefore, could not be attached, but, upon this point, the court said : " Although an attachment is a special remedy at law, and. in the absence of statutory au- thority, does not reach property or interests which can only be realized by the assistance of a court of equity, the tendency of legislation in this country has been to enlarge the opera- tion of the writ, and subject interests and kinds of propert}' to seizure under an attachment, which are not subject to execu- tion at law." 3 The court held that, as the beneficiary could maintain a suit at law to enforce the contract against the as- sociation, and was not compelled to resort to equity, the point was not well taken. Where the law under which a mutual benefit society is organized provides that the benefit fund shall be exempt " from execution, and shall not be liable to be seized, taken or appropriated by any legal or equitable process to pay any debt or liability of such deceased member," the fund, after it has been received by the beneficiary, is not ex- empt from the claims of the creditors of such beneficiary. 4 1 Geiger v. McLin, 78 Ky. 232. 4 Bolt v. Keyhoe, 30 Hun 619; 2 31 Fed. Rep. 184. Crosby v. Stephan, 32 Hun 478. 3 Drake on Attachment at Sec. 7. CHAPTER XXV. ACTION ON THE CONTRACT OF THE SOCIETY. § 329. Plans and schemes of mutual benefit insurance. 330. Mandamus as a remedy. 331. Remedy in equity. 332. Contract to resort to equity. 333. An action at law is a proper remedy. 334. Pleading, breach of promise to pay. 335. Pleading, evidence, breach of promise to pay. 336. Averment of a demand for an assessment. 337. Plea or answer setting up that no fund has been raised by assess- ment. 338. Evidence, effect of the collection of an assessment by the society. 339. Evidence of the amount which might have been realized by an assessment. 340. Burden of proof. 341. Nominal damages in an action at law. 342. Substantial damages in an action at law. 343. Burden of proof and measure of damages discussed. 344. Measure of damages in certain cases. 345. Measure of damages for change of the plan of insurance. § 329. Plans and schemes of mutual benefit insurance. — Each mutual benefit society has its own form of contract of insurance. While these contracts differ in detail, they seem to be formed upon three general plans. First. Where the society agrees, on certain conditions, to pay a certain sum of money on the death of a member. Second. Where the society agrees to pay, on certain conditions, as many dollars as there are members of the society in good standing at the time of the death of a member. Third. Where the society agrees, on certain conditions, on the death of a member, to levy an assess- ment upon its members in a certain sum of money, and to pay the proceeds of such assessment to the beneficiary of the mem- ber. Actions upon certificates issued under the first plan, where the agreement is to pay a fixed sum of money to the beneficiary of a member dying in good standing, are governed by the same principles which obtain in suits upon ordinary (637) 638 ACTION ON CONTRACT OF SOCIETY. insurance policies. Concerning actions upon certificates issued under the second plan, where the society agrees to pay to the beneficiary of a member dying in good standing as many dol- lars as there are members of the society at the time of his death, little need here be said. There is nothing in such a con- tract suggestive of the idea that defendant's liability is depend- ent upon collections received from an assessment, and a com- plaint or declaration upon it states a cause of action, although it neither alleges the actual receipt of money upon an assess- ment to meet the loss, nor a neglect to make such assessment. 1 Parol evidence is admissible to show the number of members of the society at the death of the deceased member, in order to ascertain the sum recoverable under the contract. 2 Where the society agrees, on the death of a member in good stand- ing, to levy an assessment of a certain sum of money on each surviving member of the society, and to pay the proceeds thereof to the beneficiary of the member, many questions may arise. In the first place, let us inquire whether mandamus is the proper remedy for a breach of the contract. § 330. Mandamus as a remedy. — In the lower courts, the point is often made that the proper proceeding upon such a certificate of membership is neither by suit at law nor bill in equity, but is by mandamus to compel the officers of the soci- ety to make an assessment. But this point has seldom been pressed in courts of last resort, for an investigation readily shows that it is not well taken. It is elementary that a court has no jurisdiction by mandamus to compel the performance of executory contracts, and especially is this the case where, in the performance of such contracts, discretion and judgment must be exercised. 3 It is also laid down as the rule, both in this country and in England, that where a party has another specific legal remedy he may not resort to a proceeding by mandate. It has been held, upon this ground, that the bene- ficiary may not resort to such a proceeding. 4 In discussing the 1 Neskern v. Association, 30 Minn. People. 85 111. 396; High Ext. Rem. 406; see Curtis v. Ins. Co., 48 Conn, at section 321. 98. 4 Excelsior Mutual Aid v. Riddle, 2 Benefit Society v. Fietsam, 97 111. 91 Ind. 84; see State v. Turnpike Co., 474 . 16 Ohio St. 308 ; State v. Railroad Co. , 3 People ex rel. v. Dulaney et al. , 96 43 N . J. Law 505 ; State v. Bridge Co. , 111. 503; County of St. Clair v. The 20 Kan. 404; State v. Trustees of ACTION ON CONTRACT OF SOCIETY. 639 propriety of mandamus as a remedy in a case cf contract between parties and a breach thereof, the court said : " Such a writ does not purport to adjudge or decide any right. It is rather in the nature of an award of execution than of judg- ment. It is the mode of compelling the performance of ac- knowledged duty or enforcing an existing right rather than deciding what that right or duty is. The award is no finality. It concludes nothing. If the writ is denied, the relator can not have error, and if granted, the award could not be pleaded in law. If the writ were issued in this case, it could not direct the payment of any specific amount, as that is dependent upon the number of certificates in force at a given time, which must first be ascertained, so that a question might arise whether it would not be necessary to issue several in order to give the party adequate relief. But why should this be done while the defendant company denies all and any liability because of fraud or false representations ? Here is a question that should first be settled, and manifestly an ordinary trial in a court of law is the proper way of so doing. The argument that the company has no funds to pay a judgment, if one is recovered, can be no reason for issuing the writ. If it were, this court might be under the necessity of issuing it in the case of in- solvent debtors generally. Indeed, it may be said that a private corporation can not by the peculiar form of contract it enters into with individuals, nor because of its insolvency, or both, avoid an action at law upon a breach of its agreement, or confer original jurisdiction upon this court for the collec- tion of money demands." ' Where the by-laws of a mutual benefit association provide that its members shall be subject to but one assessment for each death loss, and one assessment is made from whieh only part of the amount due on a certificate is paid, mandamus will not lie to compel the levy of another assessment in order to pay a judgment obtained for the remainder found to be due, and it is immaterial in that regard whether the first assessment was sufficient to pay the claim in full or not, 3 In a suit upon a Salem Church, 114 Ind. 389; 16 N. * People ex rel. Meyers v. AsB'n, 126 East. Rep. 808. N. Y. 615; 27 N. Bast. Rep. L037, re- 1 Burland v. Association, 47 Mich, versing 12 N. Y. Supp. 171. 427; Bates v. Association, 47 Mich. 646. 64:0 ACTION ON CONTRACT OF SOCIETY. fire insurance policy issued by a mutual insurance company, which, in substance, provided that the loss as adjusted should be paid by assessments upon its members, it was held, that, as the society had adjusted plaintiff's loss, and had neglected to make the necessary assessment within the time stipulated in the contract, plaintiff was entitled, under sections 3375 and 3381 of the Code of Iowa, to an order of mandamus to com- pel the levy of such assessment. 1 § 331. Remedy in equity. — It has been held that courts of equity have jurisdiction to enforce specific performance of those contracts of insurance which provide, in substance, that, upon the death of a member who has complied with all the requirements of the contract upon his part to be performed, the society will levy an assessment upon its members, and col- lect and pay over to the beneficiary the proceeds thereof. The grounds of such equitable jurisdiction are not discussed at length in any of the cases holding this doctrine, though the relation of trustees and cestuis que trustent is, in a measure, assumed, and the inadequacy of the legal remedy seems to be the foundation of the decisions. Ordinary mutual life insur- ance companies are not, in any sense, trustees in their relations to their policy holders. 2 It has, however, been held that a mutual benefit society stands as a trustee of the fund which it collects for the beneficiary entitled thereto. 3 Whether rela- tions of trust exist between the society and its officers or between the society and its members need not here be inquired into, but it would certainly be difficult to define any general fidu- ciary relation between the society and a beneficiary of one of its contracts of insurance. When we consider that the contract is unilateral, binding upon the society in case the member desires to continue the contract, but not enforceable against a member refusing or neglecting to pay; that so many courts have held the leo-al remedy to be practicable and adequate; that assumed fidu- ciary relations between the parties are illusive, intangible and 1 Harl v. Ins. Co., 74 Iowa 39; 36 N. s Relief Association v. McAuley, 2 W. Rep. 880; see Rainsbarger v. As- Mackey, D. C. 70; Covenant Mutual sociation, 72 Iowa 191. Benefit Association v. Sears, 114 111. 2 Taylor v. Charter Oak, 9 Daly 108; In re Protection Life Ins. Co. , 9 489; Bewley v. Equitable Society, 61 Bissell 188; Wilber v. Torgerson, 24 How. Pr. 344: Cohen v. N. Y. Mu- 111. App. 119; see § 121 et seq. tual, 50 N. Y. 610. ACTION ON CONTRACT OF SOCIETY. 641 incapable of satisfactory definition, we may be in doubt as to equitable jurisdiction in such cases. Nevertheless, because of the peculiar provisions of the contract of insurance, and the power of a court of equity to give adequate and direct relief in the enforcement of its provisions, and because of the uncer- tain and narrow relief by execution on a judgment at law, it is certain that such contracts possess the essential elements and incidents which give to courts of equity the jurisdiction to compel the performance of them. A society issued to a member a certificate by which it agreed, upon his death, to make an assessment on each member of the society, and to pay the proceeds of such assessment, not exceeding the sum of twenty-five hundred dollars, to his beneficiary. After the death of the member, the beneficiary brought an action at law upon the certificate, but the supreme court Iowa, Beck, J., dissenting, held that, upon the refusal of of the defendant to make the assessment and pay over the proceeds of such assessment, an action at law could not be maintained for the recovery of such sum as it might be sup- posed would have been realized if the assessment had been made; 'that the remedy of the beneficiary was by a proceeding to compel the society to make the assessment. 1 In another case a decided by the same court three days after the case of Rainsbarger v. Association, sujjm, it was held that an action at law was properly brought on such a contract, but that in such an action nominal damages only could be recovered. A bill in chancery was brought to recover the bene lit fund agreed to be paid by the terms of a certificate of mem- bership in a society. Objection was taken to the jurisdic- tion of the court, that there was an adequate remedy at law. The supreme court of Illinois, in passing upon this question, said: ,k The certificate of membership docs not con- tain any contract to pay to the beneficiaries $5,000, or any sum, absolutely, but to levy assessments ratably upon all members holding certificates in force at the death of decedent, for an amount not less than the limit of the certificate, and 1 Ramsl>ar^t>r v. Association, 72 s Newman v. Association, 76 Iowa Iowa 191: 33 N. W. Rep. 626; Bailey 50; 33 N. W. Rep. 662. v. Association, 71 Iowa 689; 27 N. W. Rep. 770. 41 042 ACTION ON CONTRACT OF SOCIETY. to pay over the sura so collected on such assessments, less the collection costs. As the corporation is not organized for pecuniary profit, has no surplus, and relies entirely upon the mortuary assessments made upon each death for the payment of benefits to the beneficiaries of a decedent, it would be diffi- cult to realize anything by execution. And the association stands as a trustee of a fund in the hands of its numerous members, but belonging to the beneficiaries, which can be called in by assessment for their use. It would seem, then, that a court of equity might properly be resorted to as being capable of affording a more adequate remedy, by directing a specific performance of the contract of the defendant by the levying of the proper assessments." ' § 332. Contract to resort to equity. — "While parties may not, by contract in advance, waive all their remedies for a breach of a contract, yet they may waive some of them, and may stipulate in advance which remedies only may be pursued in case of its breach. The only limitation upon this abridg- ment of remedies is that the one stipulated to be pursued shall be capable of affording substantial relief. Such a waiver or stipulation must be in express and unequivocal terms. A society issued a certificate of membership in which it agreed that, if the member died in good standing, it would make an assessment upon the surviving members and pay over the pro- ceeds of the assessment, not exceeding $5,000, to the benefi- ciaries of the insured. The certificate contained, among other conditions, the following: "The only action maintainable upon this policy shall be to compel the association to levy the assessments herein agreed upon, and if a levy is ordered by the court, the association shall be liable under this policy only for the sum collected under an assessment so made." In an action at law on the policy, the court said : " If the policy provided in clear terms that the beneficiaries shall, in case of death, receive 'Covenant Mutual v. Sears, 114 East. Rep. 642; N. "W. Association v. 111. 108, distinguished and com- Wanner, 24 111. App. 357; Burdon v. mented upon in Ring v. Association, Association, 147 Mass. 360; O'Brien 33 111. App. 168; Suppiger v. Associ- v. Society, 117 N. Y. 310; 22 N. East, ation, 20 111. App. 595; Metropolitan Rep. 954; see also Taylor v. Union, Association v. Windover, 137 111. 417; 94 Mo. 35; 6 S. W. Rep. 71; Newman 27 N. East. Rep. 538; see Union Mu- v. Association, supra; Britton v. tual v. Frohard, 134 111. 128; 25 N. Supreme Council, 46 N. J. Eq. 102. ACTION ON CONTRACT OF SOCIETY. 643 a particular sum to be recovered by assessment, or to be paid by the company after making an assessment, if the company had refused to make an assessment, 1 am inclined to the opinion that an action at law might be maintained, especially if there was no provision in the policy itself forbidding it. But since the policy here does not fix upon the company an absolute lia- bility to pay any particular sum, but only a liability to pay | the proceeds of a particular assessment, to be levied in a par- ticular way; and since it further provides that the company shall only be liable in a proceeding to compel it to make the assessment, we are of the opinion that an action at law can not, at least in the first instance, be maintained. However in- equitable such a contract may be, it is undoubtedly within the power of the parties to enter into it, and, therefore, we think that the only remedy, according to the practice of this court, and under the terms of the policy, is by a proceeding in chan- cery to compel a specific performance." l § 333. An action at law is a proper remedy. — Though a beneficiary may resort to a court of equity to require the society to levy an assessment, upon its neglect or refusal to do so, he may, if he prefer, bring an action at law for damages for breach of the contract to levy the assessment. Nearly all of the adjudicated questions in mutual benefit insurance have arisen in suits at law. It is true that in many of these cases there is no discussion as to the proper form of action or the proper forum for the adjudication of the rights of the parties. This may at first impression seem to detract from their force as authorities in favor of the proposition that an action at law is a proper and adequate remedy, but the general ;ic< luiescence of the bench and bar in this proposition is certainly a strong argument in favor of its soundness. 11 1 E^gleston v. Association, 18 Fed. tis v. Mutual Benefit Life Co., 48 Rep. it: 19 Fed. Rep. 201. Conn. 98; Mutual Endowment Asso- ■ The following are some of the ciation v. Essender, 59 Bid 468; Yoe cases in which it is decided or as- v. Masonic Mutual. 69 Md. sir. Bates BUmed that an action at law for dam- v. Association. 17 Midi. 646; 1? N. W. ages is a proper and adequate remedy Rep. 67; Burland v. Association, 47 for a breach of the agreement to levy Mich. 427; 11 N. W. Rep. 269; Bank- an a-sessment and pay over the pro- inson v. Paige, 31 Fed. Rep. top page ceeds, and in which the questions 189; S. W. Mutual v. Swenson, 49 arising in the record are discussed Kans. 449. and decided upon that theory. Cur- 64-i ACTION ON CONTRACT OF SOCIETY. Where the contract provides that on the death of a member an assessment shall be levied on the surviving members, and the sura collected on such assessments shall be paid to the ben- eficiary, an action at law will lie for breach of the contract to levy the assessment. 1 Where the contract stipulates that the society shall pay a certain amount as a benafit fund, or such part thereof as may be raised by an assessment levied upon its members, an action at law for breach of the contract to levy the assessment is a proper remedy. 2 § 334. Pleadings, breach of promise to pay. — Where the contract of the society is to pay a specific sum of money, it is sufficient to aver, in a complaint or declaration on the con- tract, a breach of the promise to pay that sum. But where the contract provides that the society shall pay as many dol- lars, or as many times a specific sum, as there are members of the society in good standing at the time of the death of the member, it is evident that, in addition to an averment of a breach of the contract to pay, there must be an allegation of the 1 Covenant Mutual v. Hoffman, 110 i Metropolitan Association v. Wind- Ill. 603; Suppiger v. Covenant Mu- over, 137 111. 417; 27 N. East. Rep. tual, 20 111. App. 595; New Home 538; N. W. Ass'n v. Wanner, 24 III. Life Ass'n v. Hagler, 23 111. App. 457; App. 357; N. W. Ass'n v. Hall, 118 Abe Lincoln Society v. Miller, 23111. 111. 169; Mandego v. Association, 64 App. 341; Miller v. Georgia Masonic, Iowa 134; Kansas Protective Union 57 Ga. 221; Kaw Life Ass'n v. Lemke, v. Whitt, 36 Kan. 760; 14 Pac. Rep. 40 Kan. 142; 19 Pac. Rep. 337; Earn- 275; Supreme Council v. Anderson , shaw v. Society, 68 Md. 465; 12Atl. 61 Texas 293; Excelsior Mutual Aid Rep. 884; 11 Cent. Rep. 508; Oriental Ass'n v. Riddle, 91 Ind. 84; Elkhart Ins. Co. v. Glancey, 70 Md. 101; 16Atl. Mutual v. Houghton, 103 Ind. 286; Rep. 391; Taylor v. Relief Union, 94 Peck v. Association, 52 Hun 255; 5 Mo. 35; 6 S. W. Rep. 71; National N. Y. Supp. 215; Fulmer v. Associa- Ass'n v. Heckman, 86 Ky. 254; Jack- tion. 12 N. Y. St. Rep. 347; Freeman son v. Association, 73 Wis. 507; 41 v. Society, 42 Hun 252; O'Brien v. N. W. Rep. 708; Splawn v. Chew, 60 Society, 117 N. Y. 310; 22 N. East. Texas 532; Lenders' Executor v. Ins. Rep. 954; affirming 51 Hun 495; 21 Co., 12 Fed. Rep. 465; 4 McCrary, N. Y. St. Rep. 640; 4 N. Y. Supp. 149; Fairchild v. Association, 51 Vt. 275; Doty v. Association, 9 N. Y. 613; Darrow v. Society, 116 N. Y. Supp. 42; Fitzgerald v. Association, 537; 22 N. East. Rep. 1093; 42 Hun 5 N. Y. Supp. 837; Bentz v. Asso- 245; Silvers v. Association, 94 Mich, ciation, 40 Minn. 202; 41 N. W. 39; 53 N. W. Rep. 935; Bentz v. As- Rep. 1037; Stewart v. Association, 64 sociation, 40 Minn. 202; Herndon v. Miss. 499; 1 Southern Rep. 743; U. S. The Triple Alliance, 45 Mo. App. Association v. Barry, 131 U. S. 100; 426. Lawler v. Murphy, 58 Conn. 294. ACTION ON CONTRACT OF SOCIETY. 645 number of such members, in order to give the data from which the amount of the liability may be computed. The want of such allegation would, doubtless, be cured after verdict. It is also evident that, where the contract provides merely that the society shall levy an assessment upon its members and pay over the proceeds thereof to the beneficiary, it is not sufficient to aver a breach of the promise to pay. The facts must be alleged which raise the promise to pa} r , and it is necessary to aver, in a complaint or declaration on such a contract, either that an assessment has been levied and a certain amount col- lected thereon, which the society refuses to pay, or that the society has neglected or refused to levy an assessment upon its members and to pay to the plaintiff the amount which would have been realized from such an assessment. The want of such an averment is a fatal defect on demurrer, on motion in arrest of judgment, or when the question is raised for the first .time in the court to which an appeal has been taken, for there is not only an omission to state any facts to show the ground of the society's liability, but there is also a want of data to show the amount of such liability, or from which it ma}' be computed. Where, however, the contract provides that the society shall levy an assessment upon its members and pay to the beneficiary the proceeds thereof, not exceeding a certain sum, there is a division of authority as to whether it is neces- sary to allege either a neglect to levy suclfassessment and the amount which would have been realized had it been levied, or that an assessment had been levied and the payment of the proceeds refused. One line of authorities holds that, as the society has set the limit to its liability, and held out the hope that so large an amount may be realized from an assessment, the beneficiary may declare as upon an express promise to pay the maximum amount named in the contract, Leaving the society to aver, as a matter of defense, the facts which show the amount of the liability to be, in fact, less than that limit. 1 •Supreme Lori^e v. Kni^M, 117 Mutual v. Frohard, 184 111. ?28; 35 Ind. 489; 20 N. Bast. Rep 179; Elk- N. East. Rep. 642; Metropolitan \s- hart Mutualv. Eoughton, 103 Ind. sociation v. Windover, 137 III. 417; 286; Luders' Ex'rv. Ins. Co., VI Fed. 27 N. East. Rep. 588; Suppiger v. As- Rep. 465; 4 McCrary, 149; Kansas Bociation, 20 111. App. 595; Lawler v. Protective Union v. Whitt, 86 Kan. Murphy, 58 Conn. 2 l J4. 760; 14 Pae. Rep. 275; see also Union G46 ACTION ON CONTRACT OF SOCIETY. The other line of authorities holds that as the maximum amount is not absolutely promised, but is merely mentioned as the limit of liability, the rule of pleading is not changed by such words of limitation. 1 It has also been held, in another line of cases, that to entitle plaintiff to recoyer in an action at law for damages, he must allege in his declaration and show on the trial that the society has levied an assessment upon its surviv- ing members to pay the death loss, has collected the amount of such assessment, and has failed to pay the sum so collected; that it must appear both in the 'declaration and in evidence that the society has in its hands the money collected by assess- ment, which it ought to pay to plaintiff as beneficiary entitled to it; that if the association has failed to make the required assess- ment, or, having made the assessment, has neglected to collect the same, plaintiff's remedy is in some other form of action or proceeding. 2 Where the complaint or declaration alleges that the amount due the plaintiff is a certain sum, the failure to deny such allegation must be taken as an admission that that sum is due on the certificate, unless it is invalid for reasons stated in defense of the action. 3 An allegation in a complaint or declaration, that an assessment under the articles of incor- poration and by-laws at the time of the death of the member, and for a long time thereafter, far exceeded the sum named in the certificate, refers to an assessment such as the policy calls for, and evidence is admissible to show what an assessment under the contract would have amounted to. 4 § 335. Pleading? evidence, breach of promise to pay.— It is evident that, in those courts where it is held that the fix- ing of a limit to the amount which will be paid as a benefit 1 Curtis v. Ins. Co., 48 Conn. 98; 2 Smith v. Association, 24 Fed. Rep. Earnshaw v. Society, 68 Md. 465; 12 685; Newman v. Association, 76 Iowa Atl. Rep. 884; 11 Cent. Rep. 508; 56; 33 N. W. Rep. 662; Tobin v. So- Taylor v. Union, 94 Mo. 35; 6 S. W. ciety, 72 Iowa 261; 33 N. W. Rep. 663; Rep. 71; New Home Association v. Baily v. Association, 71 Iowa 689; 27 Hagler, 23 111. App. 457; Deardorff v. N. W. Rep. 770. Association, 89 Cal. 599; 27 Pac. Rep. 3 Doty v. Association, 9 N. Y. 158; Jackson v. Association, 73 Wis. Supp. 42. 507; Oriental Association v. Glancey, 4 Martin v. Association, 16 N. Y. 70 Md. 101; 16 Atl. Rep. 391; Mutual Supp. 279. Association v. Tuggle, 138 111. 428; 28 N. East. 1066; Meyers v. Ass'n, 17 N.Y. Supp. 727. ACTION ON CONTRACT OF SOCIETY. G4T fund, floes not change the rule of pleading, so as to permit the claimant to declare as upon an express promise to pay a speci- fied amount, a certificate of membership, providing that on the death of a member and due proof thereof, an assessment shall be levied upon the members holding certificates, and that the amount collected from such assessment shall be paid to his beneficiaries, not to exceed a certain sum, is not admissible in evidence under a declaration which avers a promise by de- fendant to pay a specific sum. In so deciding, it was said : " The certificate of membership read in evidence was clearly inadmissible under the declaration, which does not aver that any assessment was made, or the number of members liable to assessment, or the amount that could have been collected by such assessment, or aver any facts showing a duty by defend- ants to make such assessment, but avers a promise by defend- ants to pay plaintiffs a specific sum of s-k< )<>(). The certificate read to support this averment is a conditional promise to pay the amount collected of members by assessments, less cost and expense of collection. There is a fatal variance between the averments and the proof offered to sustain them." l But where the opposite rule obtains, such a certificate is admissible under an averment of an express promise to pay.* § 336. Averment of a demand for an assessment. — It is not necessary, in order to lay the foundation for a recovcrv. that the plaintiff shall make or aver that he has made a demand upon the society for an assessment upon its members to pay the death loss. The duty to make an assessment is 1 New Home Life Association v. sum under and subject to certain Hagler, '2-i 111. A pp. 457; Supreme conditions was not admissible inevi- Council v. Anderson. 61 Texas 29(5. dence under an allegation of t'.ie •' See § 340 et acq. In .Supreme complaint that the society had Council v. Anderson, supra, it was agreed to pay the full sum of *.">.( nit; held that where a society agreed to that such a variance was fatal. Set- pay '"a sum not exceeding $5,000 in Oriental Ins. Co. \. Glancey, 7c Mil. accordance with and under the pro- 101; l6Atl. Bep. :'>'.H: Curtis v. Mu- visions of the laws governing said tual Ben. Life Co., 48 Conn. 98; Tay- fund," the liability of the society was lor v. Union, !»4 Mo. 85; Earnshaw prima facie the full sum of $5,000, v. Sun Mutual. 68 Bid. 465. Hut in and that the burden was on the Hefferman v. Supreme Council, 40 society to set up and show thai the Mo. App. 606, it was held that the plaintiff was entitled to recover a variance was doI material, since it less sum: bul it was also held that a could not have misled the society. certificate agreeing to pay such a 648 ACTION ON CONTRACT OF SOCIETY. imposed upon the society by contract, and if the society faib in this duty, the 'beneficiary has the right to his proper remedy for such failure. 1 The furnishing of satisfactory proof of the death of the member to the society, according to the provisions of the certificate issued to him, should be held to be a demand for payment, and, impliedly, a demand upon the society to procure the necessary fund by an assessment if need be. 2 §337. Plea setting up that no fund lias been raised by assessment. — In an action of assumpsit on a certificate of membership, the society pleaded that it was provided in its by-laws that the money to be paid on the death of any mem- ber should be produced by an assessment of $2, to be levied upon each of the remaining members of the series of member- ship to which the decedent belonged, and that no such assess- ment had been levied or ordered. The court said: "This plea is bad, as it is the duty of the officers of the defendant to order an assessment on the death of a member, and to permit the defendant to set up the failure of duty of its officers, as a reason for defeating the plaintiff's action, would be to allow it to take advantage of its own wrong. 1 ' '' By a certificate of insurance issued to a member of a society, there was to be paid to the beneficiary, if living, in ninety days after due proof of the death of said member, a sum equal to the amount received from a death assessment, but not to exceed three thousand dollars. The fourth condition thereof provided that "the death claim under this contract shall be payable in ninety days, after satisfactory proof of the death of the said member shall have been furnished," as therein provided. In a suit by the beneficiary, after the death of the member, the society objected to the right of the plaintiff to maintain the action to recover the amount, upon the ground that the promise to pay was contingent, not absolute, as payment was to be made out of a special fund, the death fund, to be pro- cured from an assessment on the members of the society, and that the beneficiary was restricted to the fund thus specified; 1 Smith v. Association, 24 Fed. 2 Freeman v. Society, 42 Hun 252. Rep. 685; Kansas Protective Union 3 Birnbaum v. Passenger Conduct- v. AVhitt, 36 Kans. 760; 14 Pac. Rep. or's, etc., 15 Weekly Notes of Cases 275; S. W. Mutual v. Svvenson, 49 (Pa.) 518: see Hankinson v. Paige, Kans. 449. 31 Fed. Rep. 184-188-189. ACTION ON CONTRACT OF SOCIETY. 649 and, further, that there was no proof of the existence of such a fund. The court said : " It may well be that the beneficiary would be thus restricted, in case of due effort by the society to assess its members liable to assessment therefor. An amis- sion to make an assessment which, if made, would produce a fund equal or greater than the claim, would create an obliga- tion against the society, the same as if it had the fund on hand from which to make payment. It could not lie by, and omit. to put into operation the means possessed by it to obtain the fund, and omit payment because of its own neglect of duty. This would be to take advantage of its own wrong;, and it would pperate as a fraud on the beneficiary under the cer- tificate, since the obligation to raise the fund b\ 7 assessment, when shown to be adequate for that purpose, would take the place of the fund in determining the question of liability. So, too, the furnishing of satisfactory proof of the deatli of the member of the society, according to the provisions of the cer- tificate issued to him, should be held to be a demand 'for payment, and impliedly would also be a demand upon the com- pany to procure the necessary fund by assessment if need be. It should be further observed that according to the fourth condition upon which the certificate was issued and accepted, payment was to be made absolutely in ninety days after satis- factory proof of the death of the member was duly furnished to the society. So, too, the provision in the body of the cer- tificate, thai payment should be made of a sum equal to the amount received from a death assessment, not to exceed the sum specified, in ninety days after due proof of the death of the member was given, implies an obligation upon the company to proceed and make the necessary assessment to raise the fund within the time during which it was provided that the claim should remain in abeyance. For all these reasons, the objec- tion to recovery, on the ground that there was no proof of the existence of a death fund, must be held of no avail." 1 § 3:'>s. Evidence, effect of the collection of an assessment by society. — In an action on a certificate of membership, it appeared in evidence that the society had levied an assessment upon its members and realized the benefit fund with which to 1 Freeman v. National Benefit So- v. Society, t N. Y. Supp. 375; Law<- ciety 42 Hun (N. Y.) 253; O'Brien lerv. Murphy, 58 (una. 2 l J4. 650 ACTION ON CONTKACT OF SOCIETY. pay plaintiff's claim. The society offered to show the invalid- ity of the plaintiff's claim by proving the falsity of certain representations made by the member upon procuring the cer- tificate, which representations were made a part of the con- tract. The evidence was excluded, under the objection of the society, upon the ground that, as the society had acquired the money sought to be recovered, by virtue of assessments levied upon and paid by its members for the purpose of paying the claim, it thereby became the agent of its members for the pur- pose of paying the money upon the claim, and had no right to contest its validity or withhold the payment of the money. But, on appeal, it was held that the court erred in so excluding the evidence ; that it was the right and duty of the society to protect its members and the benefit fund from all invalid claims. 1 § 339. Evidence of the amount which might have been realized by assessment. — In one case 2 proof was introduced showing prima facie that an assessment upon the members liable to contribute to the death fund would have been ade- quate to the payment of the loss sued for. This proof was the report of the society made to the state insurance department only a few days after the death of the member. The evidence was objected to, as not the best evidence of the facts stated therein; and it was claimed that the books of the society should have been produced. The court said : " The report so made was, however, of equal dignity and certainty with the records of the society. It was made up by the society from its records — indeed, was itself a record required by law to be made by the society, and filed in the insurance depa. tment as a record. It was, therefore, competent evidence of the facts therein stated and certified, and the evidence of (a witness) went merely to calculations in elucidation of those facts, in connection with the table of the defendant's assessment rates, which evidence and table, it seems, were received as proof without objection. The report to the insurance department, with the other proof above referred to, made & prima- fade 1 Mayer v. Equitable Reserve, 42 Iowa 462; 39 N. W. Rep. 709; see Hun (N. Y.)237; see also Swett v. §309. Citizens Mutual, 78 Me. 541; 7 Atl. 2 Freeman v. National Benefit Soci- Rep. 394; Bock v. A. O. U. W.,75 ety, supra. ACTION ON CONTRACT OF SOCIETY. 651 case against the defendant on the point of its ability with due diligence to raise a death fund sufficient to answer the claim in suit; and no proof whatever was given or offered to gainsay such prima facie case. If it might have been the case, as is suggested by the defendant's counsel, that all persons who were members of the society December 31, 1885, when the re- port to the insurance department was made, were not also members when barrow (the deceased member) died, but twenty days previously; and that the members named in the report may not have been solvent and able to pay an assess- ment if one had been made; or, that each and every as- sessment would have been paid if made, these were matters to be shown by the defendant against what was fairly inferable from the case as made by the plaintiff on the evidence sub- mitted. The report was made during the time within which there should have been an assessment to meet and answer the plaintiff's claim. It was, therefore, to be inferred, in the ab- sence of all proof to the contrary, that it contained the facts constituting a proper and adequate basis therefor." ' AVhere each notice of assessment contained a statement of the number of members liable, as for instance — " AVe have now eleven hundred members and are adding thereto daily" — " We have eleven hundred and eighty-five members," etc., the court held such statements admissible to show the number of members; and, it being shown that such statements were made only a short time before the death of a member, the court held that this evidence had a tendency, a1 least, to prove that, at his death, there were as many as our thousand mem- bers, and was properly submitted to the jury tor that pur- pose.' Parol evidence is admissible to show the number of mem- bers in good standing, in order to ascertain the sum recov- erable under the contract. 1 The number of certificates of 'See Kaw Valley Association v. this case the certificate provided for Lemke, 40 Kans. 142 and (><>1; l'.» I'ae. an ;ississhh'mI of one dollar on each Rep. 837; O'Brien v. Society, 4 N. Y. surviving member to pay the death Supp. 275; 51 Idm 495; 117 N. Y. loss.bul also provided that the amount 810; 22 X. Bast. Rep. 954; Cuahman to he paid to the beneficiary >1 Id V. Society. 11 N. Y. Sll|)|). 428. 'lot exceed one thousand dollars. 'Fairchild v. North Eastern Mu* » Benefit Society v. Fietaam, Adm'r tual Life Associ. tion, 51 Vt. 613. In 97 111. 474. C52 ACTION ON CONTRACT OF SOCIETY. membership which have been issued by a society is prima facie evidence of the number of members in good standing, and the burden is on the society to show that any persons, to whom certificates of membership have been issued, have ceased to be members by forfeiture, suspension or otherwise. It has peculiarly within its possession the means of showing such facts, and to require a plaintiff to prove a negative in case of each person who has been received into membership,— that such person had not been suspended, or had not forfeited his membership — would be unreasonable and impracticable. 1 §34:0. Burden of proof. — Where the society covenants to maintain a death fund, to levy assessments whenever the fund shall have become diminished or depleted and to pay there- from a certain sum of money on the death of the member, it is not incumbent on the plaintiff to show that the fund is sufficient to pay the demand, or that the proceeds of proper assessments will be sufficient. 2 Where the contract provides that the society shall pay as many times a certain sum of money as there are members at the time of the death of the member insured, or where it merely provides that an assess- ment shall be levied upon the surviving members and the pro- ceeds thereof paid to the beneficiary, the burden is on the plaintiff to prove by proper evidence the number of members of the association, or the amount which would have been realized from the assessment. Where the contract provides, in substance, that an assessment shall be levied upon the sur- viving members, and the proceeds thereof, not exceeding a cer- tain named sum, shall be paid to the beneficiary, the society is, according to some authorities, prima facie bound to pay the maximum amount of its liability as specified in the con- tract, and the burden is on the society to prove that a less amount would have been realized by an assessment. 3 ^eskernv. Association, 30 Minn. 3 Supreme Lodge v. Knight, 117 406. Ind. 489; 20 N. East. Rep. 479: Elk- 2 Cushman v. Society, 13 N. Y. hart Mutual v. Houghton, 103 Ind. Supp. 428; La Manna v. Accident 2 6; 2 N. East. Rep. 763; Lawler v. Company, 10 N. Y. Supp. 221; Harl Murphy, 58 Conn. 294; Silvers v. As- v. Ins. Co., 74 Iowa 39; 36 N. W. sociation, 94 Mich. 39; Leuders' Exr. Rep. 880; Wadsworth v. Co., 132 N. v. Ins. Co., 12 Fed. Rep. 465; 4 Mc- Y. 540; 29 N. East. Rep. 1104; af- Crary, 149; Kansas Protective Union firming 9 N. Y. Supp. 711. v. Whitt, 36 Kans. 760; 14 Pac. Rep. ACTION ON CONTRACT OF SOCIETY. 653 In one case the court said : x " The certificates each provide that, upon the death of the assured, appellee is entitled to $1,000, or so much as may be realized from one assessment. The undertaking in each certificate is for $1,000. unless an assessment will not produce that much. That an assessment would not produce $2,000 we think is a matter of defense to be set up by appellant. It would be difficult, if not impossible, for appellee to know how many members of the association there are. The books of the association doubtless show the number. These books are in the possession and custody of the officers of the association. If the members are such in number that an assessment would not produce $2,000, that fact is known to the officers of the association, and they should set it up in an answer, and make good the answer by proof, as they readily could, if true." And in another case it Avas said: 2 "Despite some decisions to the contrary, this court can not hold otherwise than that when suit has to be brought, the recovery should be for the maximum insure. I. unless the defendant shows by pleadings and proof that said sum should be reduced. * * In the absence of any proof to the contrary, the sum recoverable should be against the corporation for the maximum insured. Any other rule would make this insurance scheme a mere delusion and snare." Put on the other hand, there are many authorities holding that the fixing of a maximum amount which the society will pay from the proceeds of an assessment does not relieve the plaint ill" from the burden of showing the amount which would have been realized from an assessment made pursuant to the con- tract.' It has been held that in an action on a certificate of 275; S. W. Association v. Swenson, ' Elkhart .Mutual v. Houghton, ntr 49 Eans. 449: 30 Pac. Rep. 405; pra. Suppiger v. Association, 20 111. App. - Lenders' Ex'r v. Ius. Co., supra. 51):); Union Mutual v. Frohard, lot 8 Earnshaw v. Sun Mutual, 68 Md. 111. 228; 25 N. East. Rep. 648; Metro- 465; 12 Atl. Rep. 884; 11 Cent. Rep. pol it an Association v. Windover, 187 508; Curtis v. Ins. Co., 48 Conn. 98; 111.417; 27 N. East. Rep. 538; Cove- Fairchild v. Association, 51 \'\. 618; nant Mutual v. Hoffman, 110 111.603; Ball v. Association. <;i N. h. j'.u : g Supreme Council v. Anderson, 61 Atl. Rep. l; Deardorff v. Associa- Tezas 296; Bentz v. Association. 40 tion, 89 Cal. 599; 'J7 Pac. Rep. 158. Minn. 202; 41 N. W. Rep. 1037; Jackson v. Association. ~s Wis. 403; 41 N. W. Rep. 708; see §335. G54 ACTION ON CONTRACT OF SOCIETY life insurance issued by a mutual benefit society, by the terms of which the plaintiff is entitled to the amount of one assess- ment, not exceeding five thousand dollars, he can recover nominal damages only in the absence of evidence of the amount of one assessment. 1 § 341. Nominal damages in an action at law. — When the contract provides, in substance, that, upon the death of a mem- ber in good standing, an assessment shall be levied upon the surviving members and the proceeds thereof paid over to the beneficiary, there is a conflict of authority upon the question as to the proper measure of damages in an action at law for a breach of the agreement to levy the assessment and pay the money. Some authorities hold that in such an action nominal damages only are recoverable. 2 A certificate provided that u an assessment shall be levied upon all the members holding certificates in force at the time of the death of said members, for the full amount named in their respective certificates, and the sum so collected on such assessments * * the associa- tion agrees to pay and cause to be paid to * * , but in no case shall the payment under this certificate exceed $5,000." The court said : " The theory of the plaintiff is that if the cer- tificate has not been forfeited, and the defendant disclaims all liability to pay the claim, and refuses to make the assessment, it thereby becomes liable to pay the maximum sum named in this certificate, provided its membership was large enough to have produced such sum, if an assessment had been made, and all the members had paid their assessments. But in our opin- ion the plaintiff's position can not be sustained. The extent of the defendant's obligation is fixed by the certificate of member- ship. The association does not agree to pay any sum from any general fund, nor does it provide any general fund. It merely 1 Ball v. Association, sujyra; Fair- ciety, 72 Iowa 261; 33 N. W. Rep. child v. Association, supra; O'Brien 663; Smith v. Association, 24 Fed. v. Society, 46 Hun 426; O'Brien v. Rep. 685; see Garretson v. Equitable Society, 4 N. Y. Supp. 275; 51 Hun Mutual, 74 Iowa 419; 38 N. W. Rep. 495; 117 N. Y. 310; 22 N. East. Rep. 127, where verdict for full amount 954; Martin v. Association, 9 N. Y. limited in the certificate was per- Supp. 16; Cram v. Association, 11 N. mitted to stand because no question Y. Supp. 462. of error in assessment of damages - Newman v. Association, 76 Iowa was raised in the record. 56; 33 N. W. Rep. 662; Tobin v. So- ACTION ON CONTRACT OF SOCIETY. C55 agrees to levy an assessment and pay over such sum as mavbe collected upon it. If the company, doubting or denying its liability in a given case, refused to levy an assessment, the contract is not thereby changed, and the company's liability extended. It may be conceded that a wrongful refusal to make an assessment would be a breach of the contract. But we are unable to see how more than nominal damages could be re- covered for such breach. No evidence was introduced in this case, and none could have been, showing how many members would have paid their assessment, and how many would have chosen to refuse to make payment, and suffer the only conse- quence of such refusal, namely, a forfeiture of their member- ships, nor can either party invoke any presumptions as to how many would have paid, and how many would have refused pay- ment. As to the wisdom or propriety of this form of insur- ance, or the difficulties in the way of realizing the benefit under the certificates issued, the courts have no responsibility. It is for them to enforce the contracts, according to their terms. which the parties have made for themselves." 1 In Smith v. Association, supra, the contract of insurance, in substance pro- vided that on the death of a member an assessment should be levied upon all the members, and the sum so collected on such assessments the society agreed well and truly to pay to the beneficiary, but in no case should the payment exceed the sum of twenty -five hundred dollars. In discussing the measure of damages in a suit at law upon the certificate, Dyer, J., in an opinion concurred in by Justice Harlan, said: "Conceding that the heirs of the decedent are the legal beneficiaries en- titled to the benefits conferred by the certificate, what arc the rights of the parties respecting a recovery upon the certificate on failure of the association to pay the death loss ? The the< »rv upon which this suit is brought is that, as in the case of an or- dinary life policy of insurance, the plaintiffs are entitled to re- cover the full sum named in the certificate without regard to the levy of any assessment upon certificate holders, or the collection by the association of any amount so levied. After deliberate consideration of the question, we are of opinion that this is an erroneous view of the relation and rights of the parties under the certificate. The association covenants 1 Newman v. Association, supra. 656 ACTION ON CONTKACT OF SOCIETY. in its agreement, not absolutely to pay the sum of $2,500, but to levy an assessment upon all members holding certificates at the time of the death of the deceased member, and to pay the sum so collected on such assessment as a benefit to the desig- nated beneficiaries, such payment in no case to exceed the sum of $2,500. Thus it is apparent that the obligation of the asso- ciation is only to pay whatever amount is collected from other certificate-holders, not exceeding the sum named. Suppose that no assessment whatever is made, or suppose, an assess- ment being made, nothing is collected, is the association liable absolutely for the sum named in the certificate in an action like the present ? If not, what is the remedy for failure to levy an assessment, or for failure to collect the amount of an assessment actually made, but not responded to by the holders of certificates? If it appeared that an assessment had been levied, and the amount thereof had been collected, but its pay- ment to the beneficiary refused, there would be no doubt, in the ; bsmce of other grounds of defense, of the plaintiff's rights to recover in a money action the sum so collected, not exceed- ing $2,500. But this state of the case is not alleged. And, indeed, it was admitted on the argument that no assessment was levied to pay this loss, and, therefore, no sum had been collected for that purpose by the association from certificate- holders. Hence the difficulties above suggested. It seems clear that the right acquired by virtue of the certificate held by the decedent was to an assessment upon all members hold- ing certificates, and the payment of the amount collected on such assessment within a prescribed period of time, the assess- ment not to exceed the limit of the particular certificate. We were at first disposed to think that it was incumbent upon the plaintiffs, in any view of the case, to make a demand for an assessment in order to lay the foundation of a recovery. But we are now convinced that the duty to make an assessment was imposed by the contract, and if the association failed in this duty, the beneficiaries had the right, by appropriate pro- ceedings to compel the performance of it. Undoubtedly, a court in such a proceeding could enforce the discharge of that duty by compulsory measures against the officers and mana- gers of the association, or, perhaps, through its own officers, by making the necessary assessment and collection at the cost of the association, or of the certificate-holders assessed. ACTION ON CONTRACT OF SOCIETY. C57 It is quite clear that every certificate-holder agreed to look for payment to the specific mode set out in the certificate; that is, by assessments and collections within a certain limit as to the amount to be assessed. The holders of certificates are co- members of the association, who have, in effect, agreed to insure each other, and have stipulated as to the mode in which their liability to the heirs or devisees of a deceased member may be ascertained and enforced. But this plan would be defeated altogether if such heirs or devisees could obtain a judgment against the association for the amount limited in the certificate, without regard to any assessment or any amount collected on an assessment, and enforce payment in the or- dinary mode in which judgments for money are enforced. To this it may be replied that the association is liable to suit for breach of covenant if it fails to make the required assessment. This may be so. But, if so, what would be the measure of damages ? To say that the measure of damages would be the amount of the certificate, with the interest from date when it should have been paid, and to give judgment therefor against the association, would be to ignore the fact that the parties have provided a special mode for the payment of the sum named in the certificate, viz., an assessment against and col- lection from the living members. The ordinary life policv rests upon the promise of the company to pay the sum therein named. A policy-holder in such a company is under no obliga- tion to pay anything for the benefit of the holders of other policies. Here the insured pays seven dollars to insure a mem- ber and agrees to meet mortuary assessments from time to time, as set out in the conditions of the certificate. The asso- ciation does not contract absolutely itself to pay the sum named in any certificate, but, as we have seen, only that it will assess the living members, and pay over within a certain time the sum collected on such assessment. * * To maintain this action it must appear that the association has in its hands the money collected by assessment, which it ought to pay to the plaintiffs as the beneficiaries entitled to the same." § 342. Substantial damages in an action at law. — The opinions of the supreme court of Iowa, Justice Harlan and ,) udge Dyer, are of great weight in determining such questions, and they have certainly covered the ground thoroughly in the 42 658 ACTION ON CONTRACT OF SOCIETY. presentation of the arguments in favor of the position assumed by them in these decisions. When the language of these opin- ions has been quoted, all has been said which can be said from that standpoint. But there is another line of decisions hold- ing that substantial damages may be recovered on such a con- tract in an action at law. As has frequently been said of con- tracts of insurance upon the assessment plan, the scheme is a peculiar one. While courts can not refuse to construe and enforce peculiar contracts, it is their duty to construe them in such a way that a society may not, because of the peculiar form and terms of its contract with individuals, avoid an action at law for the breach of its agreement, and such a construction of the .contract as will deprive the beneficiary of his right to damages at law for a breach thereof is to be avoided, unless that right is waived in express terms. 1 The contract of insur- ance is prepared by the society in advance, and in the con- struction of its provisions the member and his beneficiary have no hand whatever. According to a familiar maxim of the law, the provisions of this contract are to be construed most strongly against the society. It is safe to presume that some available and substantial measure of indemnity for the breach of the agreements made by the society was contemplated by the parties, and it is right and just to presume that they have left the law to apply its usual remedies, where the society has, in the contract, placed no limitation upon the remedy to be pursued by the beneficiary. All the authorities agree that the contract has been broken, when the society wrongfully neglects or refuses to levy an assessment, and the question under dis- cussion is, as to whether such wrongful neglect or refusal shall be held to be a technical or a substantial breach of that con- tract, or, to speak more exactly, whether for such a breach of contract substantial or merely nominal damages may be re- covered. To hold that such neglect or refusal is a technical breach of the contract for which nominal damages only can be recovered at law, and to lay down the rule as stated in the cases above quoted, namely, that the beneficiary can sue at law only for the proceeds of an assessment, and not for dam- ages for failure to collect the proceeds in the manner provided 1 Burland v. Association, 47 Mich. 424; Hankinson v. Page, 31 Fed. Rep. 184. ACTION ON CONTRACT OF SOCIETY. 659 for, gives to the parties an anomalous standing in court. For it places the parties to the contract in an anomalous and peculiar position, when the society is permitted in a court of law to say that nothing but nominal damages is due to the plaintiff, because of its own default in not doing what it has agreed to do; when the society is permitted, as in Newman v. Covenant Mutual, siipra, to set up in bar of the action, as to all but nominal damages, its own default in not making and collecting an assessment, and paying the proceeds to the bene- ficiary. As sustaining the necessity of this position, it is not suffi- cient to say that the contract shows upon its face that the society has no funds with which to pay a judgment, or a claim against it for a death loss, except from the proceeds of assess- ments. Courts have nothing to do with the physical impossi- bility of collecting money on executions on their judgments; and if they had, insolvent debtors would* be active in setting up their insolvency in resisting claims against them. If the contract is to be scrutinized upon this principle, and the ade- quacy of the remedy looked to, it might be answered that a court of equity might find it difficult to enforce a decree against a foreign corporation, requiring it to levy an assessment; that such a court might find it exceedingly difficult to collect anything in the manner suggested by Judge Dyer in Smith v. Covenant Mutual, «»j>/'a, namely, "through its own officers, by making the necessary assessment and collection at the cost of the association, or of the certificate holders assessed, " or to enforce a forfeiture of membership in the society for non-pay- ment of such an assessment. Nor can the necessity of such a position be sustained upon the theory that, while the damages at law are so uncertain and speculative as to be beyond the possi- bility of legal measurement, equity furnishes a direct and ade- quate remedy. The suggestion that equity can enforce the specific performance of such a contract presents to our minds. at first impression, an easy solution of many perplexing ques- tions, but an inquiry into the matter develops quite as much uncertainty, and quite as many difficulties as can possibly arise in the measurement of damages at law. The membership in a mutual benefit society is constantly changing. On the one hand, new members are constantly coming into the society, 660 ACTION ON CONTRACT OF SOCIETY. while on the other, members die from time to time, and others forfeit their membership. Suppose that a beneficiary, should file his bill in equity for specific performance of the contract to levy and collect* the assessment, and at the end of six months, or what is far more likely, a year and six months, at the hearing of the cause, the chancellor should find that the beneficiary is entitled to the benefit fund, and that an assess- ment ought to have been levied upon the surviving members, — say within three months after the death of the assured; what decree shall the chancellor enter? Shall he order an assessment upon all members in good standing at the date of such decree % Such an assessment might not be binding upon members who had entered since the death of the assured, for the by-laws of such societies usually provide, and the plan of mutual benefit insurance contemplates, that a member shall not be subject to an assessment for losses and expenses incurred prior to the date of Bis admission. The levy of an assessment for losses and expenses incurred prior to the admission of a member is invalid as to the new member, and non-payment Of such an assessment will not work a forfeiture of his policy. 1 But assuming, for the further investigation of this question, that under the insurance contract in the particular instance, the society may lawfully assess new members for deaths occurring prior to their admission into the society, will such a decree be just to the parties ? If between the time when the society should have levied the assessment, and the time when the decree of the court is executed, the membership liable to assessment has decreased by five hundred members, the court is not rendering to the beneficiary the full measure of his rio-ht. And if during that time the membership of the society has increased in the number of five hundred members, the decree will give to the beneficiary a larger benefit than he is entitled to, and will operate unjustly and oppressively to the society. Shall the chancellor enter an order requiring the society to assess only those members who were in good stand- ino- at the date when the assessment should have been levied % If so, what account is to be taken of those members who have 1 Roswell v. Union, 13 Fed. Rep. J. L. 33; Farmers' Mutual v. Chase, 840; Ins. Co. v. Houghton, 6 Gray 77; 56 N. H. 311. Columbia Ins. Co. v. Kenyon, 37 N. ACTION ON CONTRACT OF SOCIETY. CGI since that time died, or forfeited their membership? If the innocent beneficiary is not to suffer this loss, an adjustment must be made upon the same principles by which courts of law* measure the damages for a breach of the contract to levy the assessment. "What decree, then, shall the chancellor enter, which will demonstrate the alleged peculiar and ade- quate remedy which may be administered by a court of equity ? ' No case can better illustrate the inefficiency of the remedy in equity against a foreign corporation than Newman, Trustee, v. Covenant Mutual, etc., supra. After the judgment of the lower court in the action at law was reversed on the ground that in such an action no more than nominal damages could be recovered, and after the cause was remanded to that court, the plaintiff amended the prayer of his petition and demanded that the society proceed to make an assessment upon its members, collect the money and pay off the certificate. A hearing was had, and a decree was entered, ordering an as- sessment to be made. The remainder of the proceedings and the judgment may be stated in the language of the supreme court of Iowa : " The defendant refused to make the assess- ment ordered by the decree of the court. This decree was entered January 5, 18S8, and the defendant was ordered to make return of its doings in that behalf by the first day of the next term to which the cause was continued. On the 5th day of April, 1888, it being the March term of said court, a sup- plemental petition was filed, in which the decree of the former term was recited, and it was therein alleged that the defend- ant had disregarded and defied said decree by neglecting and refusing to make any assessment whatever, and that by reason thereof the plaintiff was unable to realize any thing upon said certificate, and that defendant has a large amount of assets and property, and praying for a judgment for the amount of the certificate, with interest from the time an assess- ment should have been made before the suit was first insti- tuted. A demurrer t<> this supplemental petition was overruled. The defendant stood on its demurrer, and the court, upon the record before it, and without the introduction of further 1 See decrees in Lindsey v. Society, Newman v. Association, 76 Iowa 56; 84 Iowa 734; 50 N. W. Rep. 29; 40 N. \V. Kep. 87. 6G2 ACTION ON CONTRACT OF SOCIETY. evidence, entered judgment as prayed in the supplemental petition. It is claimed that this judgment is erroneous, and that the only power possessed by the court was to punish the officers of the company for contempt in disobeying the order to make the assessment. We think the judgment was not erroneous. It may be that the officers of this association honestly believed when proofs of loss were made that the as- sociation was not liable, or, rather, was under no legal obliga- tion to make an assessment to pay the loss. The record shows that they were in error in refusing to provide for the pay- ment of the loss. They postponed it for nearly six years. It is well understood that the membership of these assessment associations are constantly changing; that new members are not assessable for losses which occur before they become members; and that assessments can be made only on the members liable to pay when the losses occur. It appears from the answer of the defendant that when this loss was pay- able there were at least 5,000 members liable to assessment in the sum of one dollar each for the payment of this death claim. No court, so far as we have observed, has determined just what is the liability of one of these assessment companies. This court, and most of the other courts of the country, have held that an action at law to recover the amount of the policy will not lie. 1 The defendant's position is that, if the officers refuse to make an assessment, the remedy is punishment for contempt, which is a fine of $50. This is a safe refuge, and, if adopted by the courts, it discharges the corporation from all liability, and for that matter the court in this case would have been powerless to punish the officers for contempt. ' They are be}^ond the jurisdiction of the court in the state of Illinois. Some one should answer for any shrinkage in an as- sessment now to be made on account of the delay. The party should suffer for it who is in the wrong, and the defendant is obviously that party. It should make good to the plaintiff what he has lost by its breach of its contract to make an as- sessment, collect the money, and pay it to the plaintiff. To require less upon the record made in this case would be a license to natural persons to organize corporations as a cover 1 (The court is evidently mistaken in this assertion; see § 333 and cases cited). ACTION ON CONTRACT OF SOCIETY. GG3 to the grossest frauds. Something is said in argument to the effect that the court had no jurisdiction to enter the decree because the defendant is an Illinois corporation. The proposi- tion is not sound. The defendant was properly brought into court, the decree was a personal decree, and the judgment is a personal judgment. It can not be enforced by execution by the courts of this state, but, being a personal judgment against the corporation defendant, it will be entitled to full force and credit in the courts of Illinois." ' The truth is, the more we analyze this plan of insurance, and inquire into the remedial rights of the parties to the con- tract, the greater and more numerous seem to be the legal dif- ficulties which present themselves. It may be that it is im- possible to give to these contracts a logical and harmonious construction. Any rule which a court may lay down as to the remedial rights of the parties seems to do violence to some provision of the contract. Under these circumstances, courts have generally brushed away, as far as possible, those peculiarities, anomalies and inconsistencies which relate to matters of detail, and have attempted to effectuate the gen- eral purposes of the societies by the application of general principles of law. A reasonable construction of the above contract between the society and the member is that the bene- ficiary shall look to the assessment made and collected by the society, for the payment of the death loss; 3 and an answer or plea by the society, admitting its liability, setting up the levy of an assessment, notice thereof to its members as required by the contract, and alleging that no money had been received by means thereof, within the time stipulated for the pay- ment of such assessments, would certainly state a good de- fense to the action. But where the society denies all liability on the contract and refuses to make an assessment and pay the benefit fund, the law will give to the beneficiary his or- dinary remedy for breach of a contract, and hold thesocietvto respond in damages in such an amount as might have bean collected by making the assessment. It ought not to be a 1 Newman v. Covenant Mutual, 76 39 N. W. Rep. 312; Hesinger v. Aaso- Iowa 56; 40 N. W. Rep. 87. see c-iation, 41 Minn. 510; 43 N. \V. Rep, Lindsey v. Society, 84 Iowa 7:54. 481. 2 Kerr v. Association, 39 Minn. 174; 664: ACTION ON CONTRACT OF SOCIETY. matter of great difficulty to show with reasonable certainty what could have been realized upon an assessment at any given tima. Members die from time to time, and assessments are made every few weeks. Some contracts provide that they shall not be levied more than once in each calendar month. Even where the contracts provide that, after proof of death of a member in good standing, an assessment shall be levied without delay, the officers of the society may exercise their discretion about waiting a reasonable time before making the assessment for the payment of the death loss. 1 Very fre- quently the levy is postponed for a few days, in order that no- tice of assessments for two or more death losses may be given at one time. It will be an easy matter to show what was realized upon an assessment made at a time when the assess- ment upon the particular certificate of membership sued on might have been made. And where, by custom, or the con- tract of insurance, the assessments are made in one month for all death losses, of which proof has been made in the preced- ing month, the amount may often be reduced to a certainty. It is practically impossible for litigation to arise on such a contract of insurance, unless the society denies its liability, and refuses to make an assessment. When the society con- tests the claim, it certainly can not complain that the ordinary legal remedy is unjust or unreasonable. § 343. Burden of proof and measure of damages dis- cussed. — Courts of law have in many cases taken notice of the fact that ordinary insurance companies " send their agents all over the land, with directions to solicit and procure applica- tions for policies, furnishing them with printed arguments in favor of the value and necessity of life insurance, and of the special advantages of the corporation which the agent repre- sents," that " they pay these agents large commissions on the premiums thus obtained," etc. And, from these facts, these courts lay down certain doctrines, and among them, that the powers of an insurance agent are prima facie, co-extensive with the business intrusted to his care. 2 Courts may with equal pro- priety refuse to shut their eyes to the fact that mutual benefit societies send men all over the land to establish subordinate 'People's Ins. Co. v. Allen, 10 2 Union Mutual v. Wilkinson, 13 Gray (Mass.) 297. Wall. 222. ACTION ON CONTRACT OF SOCIETY. G65 lodges, furnishing them with printed arguments in favor of assessment insurance, as against ordinary " straight line " insurance — wherein these societies hold out to their members, and all persons solicited, the hope and expectation that they may pay the maximum sum limited in the certificate; and from these facts courts may reasonably and justly hold that prima facie they are liable for the maximum amount named in their policies, and must assume the burden of alleging and proving that an assessment would have realized a less amount. The society has set the maximum sum which it will pay in any event; it has within its possession the records which show the number of members in good standing, and from which it can know with reasonable certainty how much can be realized from an assessment, and this rule can not operate harshly or oppres- sively. In Newman v. Covenant Mutual, supra, stress is laid upon the fact that no evidence could possibly be introduced showing how many members would have paid the assessment on the certificate, and how many would have refused to do so, and the court says : " Nor can either party invoke any pre- sumptions as to how many would have paid, and how many would have refused payment." If these insurance societies carry on business with proper method and attention to details, a society should be able to show by proper evidence, and witli reasonable accuracy, the proportion of those who forfeit their membership by non-pa} r ment of an assessment, as compared with those who pay an assessment. From the fact that the contract is unilateral — payment of an assessment not being enforceable — it must not be assumed that a great number of 11 H -i nbers forfeit their membership at the levy of an assessment. Mn the appeal of the widow, the supreme court of Georgia held that the amount of the verdict was 1 Union Mutual v. Frohard, 184 I1L 228. 663 ACTION ON CONTRACT OF SOCIETY. substantially correct; that the assessment should be made on those who were members of the society at the date of the resolution of the directors, and not on such as were members at the time of the disappearance. In the opinion the court said: " Whether the defendant could have resisted the pay- ment of the plaintiff's claim for want of proper proof of Mil- ler's death, if the foregoing action of its board of directors had not been taken, it is not necessary to decide; but even the action of the board of directors does not fix the time of Mil- ler's death. Inasmuch as the plaintiff relies on this action of the defendant's board of directors to show its liability to her for the death of Miller, the basis of her recovery should have baen. the number of members belonging to its company, of Miller's class, liable to be assessed at the time the defendant recognize:! the death of Miller, and ordered the assessment to be made, and not the number of that class, which belonged to its company at the time of the reported disappearance of Miller, in November, 1869, the defendant not being satisfied from the evidence then before it (the same not being such as its by-laws required) that he was dead. The defendant is made liable, not because the death of Miller was proved in accordance with the requirements of its by-laws, but because it recognized his death in June, 1871." ' A contract to pay as a benefit a sum " not exceeding $1,000," with no other provisions helping it out, is an agreement to pay one thousand dollars. 2 By its contract a society agreed to pay " an amount equal to $1.50 for each certificate in force at the time such amount shall become due, but not to exceed $4,000 * * within ninety days after the receipt by the association of due notice and proof of death of (the member); and this association promises to pay the full amount of this certificate at its maturity : provided, there shall be sufficient moneys in the fund from which this certificate shall become payable; and provided, further, that said moneys shall be distributed pro- portionately in payment of this and any other certificate be- 1 Miller v. Georgia Masonic, 57 Ga. People, 18 Mich. 84; Senserv. Bower, 221. Presumption of death by rea- 1 Pa. 450; Hull v. Rawls, 27 Miss. 471 ; son of absence for seven years; John- Harris v. Harris, 8 111. App. 57. son v. Johnson, 114 111. 611; Rex v. ' 2 Robyn v. Supreme Sitting, 55 Mo. Twyning, 2 B. & Al. 3S6; Yates v. App. 198. Houston, 3 Texas 449; Dixon v. The ACTION ON CONTRACT OF SOCIETY. 6G9 coming due and payable the same quarter; such payment in no case to exceed the amount named in this certificate." In determining the measure of plaintiff's damages in a suit on this certificate the court said : "There is some dispute over the terms of the policy in relation to the extent of the defend- ant's liability to beneficiaries; but it is obvious, Ave think, that the obligation is to pay not less than $1.50 for each certificate in force, nor more than $4,000 to be paid from the assessment fund. * * An action for the full amount of $4,000, which would in any case be the limit of liability, could only be main- tained upon its being shown that there was that amount in the assessment fund subject to be applied to the claim ratably with others in the same quarter; which fact is not alleged or found. * * The measure of plaintiff's damages is, there- fore, the sum of $1.50 for each certificate in force." ' A cer- tificate declared that the amount therein mentioned should be payable from the death fund at the time of death, or from any moneys which should be realized to the fund from the next assessment and that " no claim should be otherwise due or payable except from the reserve fund, as hereafter provided." It also provided that if the death fund was insufficient to meet existing claims by death, an assessment should then be made upon every member at the date of the death last assessed for, and 80 per cent, of the net proceeds thereof should go into the death fund. The constitution provided that the death fund should be used only for the payments of death claims: that payment should be made to the beneficiaries, of the amount to which they were entitled, according to the terms of their certificates; that, so long as the mortuary fund was sufficient to pay existing claims, no assessment should be made; and that, whenever a single assessment was insufficient to meet a death claim in full, there should be paid, in full satisfaction of such claim, a sum pro rata of the membership and benefits in force at the time of death. The company required each person proposing to become a member to pay what was called the "first assessment." The insured was the first member to die, and the death fund at his death was insufficient to pay the claim, and assessments were made to meet it. It was held that the claim was not satisfied by pay- 1 Kerr v. Benefit Association, 39 Minn. 174; 39 N. W. Rep. 312. 670 ACTION ON CONTRACT OF SOCIETY. ing the amount of the death fund o» hand, and that the pro- ceeds of the assessment made to meet It should be appro- priated to the full satisfaction thereof. 1 A recovery may be limited to the amount in a particular fund, or to the amount which may be brought into it by proper assessments according to the plan of the society." A certificate set forth the obligation of the society to pay " the sum of five thousand dollars from the mortuary fund of the society, and not otherwise, except from the reserve fund as hereinafter provided," and provided that all claims on the mortuary fund, arising between stated intervals of assessment, should be -psddpro rata out of the next succeeding mortuary call, " but not to exceed the face of each certificate." The society was held to be liable only for the pro rata part of the mortuary fund, where it appeared that the reserve fund was not available. 3 In an action on a death claim for $3,000, testimony by the secretary of the society that the assessment levied to meet plaintiff's claim produced only $600, does not preclude a recovery for a larger sum, where the evidence shows that, in circulars and advertisements issued by it and statements made by its officers at or about the time plaintiff's claim matured, it claimed to be prosperous and to have a large membership and reserve fund. 4 § 345. Measure of damages for change of plan of insurance. — A deceased member of a mutual benefit society held a certifi- cate which stipulated that it should be governed by the laws of the order then in force or thereafter enacted, and the con- stitution provided that it and the by-laws should be amend- able by the supreme lodge. The certificate also stipulated for the payment on his death to his beneficiary of $2,000, or, 1 Wadsworth v. Co., 132 N. Y. 540; 228; Elkhart Association v. Hough- 29 N. East. Rep. 1104; affirming 9 ton, 103 Ind. 286; Kansas Union v. N. Y. Supp. 711. Whitt, 36 Kan. 760; Kansas Union v. 2 Hesinger v. Association, 41 Minn. Gardner, 41 Kan. 397; Bentz v. As- 516. sociation, 40 Minn. 202; O'Brien v. s Gyllenhammer v. Society, 24 N. Society, 46 Hun 426; 4 N. Y. Supp. Y. Supp. 930; see Wadsworth v. Co., 275. The beneficiary may be entitled 132 N. Y. 540; 29 N. East. Rep. 1104; only to the amount of an assessment. La Manna v. Accident Co., 10 N. Y. See Kentucky Mutual v. Turner, 89 Supp. 221. As to payment from re- Ky. 666. serve fund and from assessments, see 4 Wabash Union v. James (Ind. Union Mutual v. Frohard, 134 111. App.), 35 N. East. Rep. 919. ACTION ON CONTRACT OF SOCIETY. 671 if there should be less than two thousand members of the class to which he belonged, then only $1 for each member. The number of members increased to sixteen thousand, when, by an amendment of the constitution and by-laws, a new class was established with an assessment based on life expectancy, which was less expensive for young men than the old rank', but was more expensive for old men. The } T ounger members of the old class were rapidly transferred, and at the deceased member's death, some three years later, only one hundred and seventy-three members of the old class remained. During his membership of nine years he had paid to the society $240. The new plan was adapted in good faith, to ben- efit the society in general. The deceased and his benefi- ciary, upon learning of the new plan, notified the society that they protested against it. In an action on the certificate, set- ting up these facts and making the proper allegations as to the death of the member and proof thereof, it was held that the beneficiary could recover only 8173 on the certificate; that the change of plan was within the scope of the powers of the society, and was not a violation of the contract of insurance made with the deceased; that if the acts of the society, in de- pleting the class to which deceased belonged, were a breach of the contract of insurance, only nominal damages would be recoverable, as the loss occasioned thereby would be so remote and conjectural as not to form the basis of a recovery. Upon tli is last point the court said: "The result that would have followed had not the s} T stem been changed is a mere matter of speculation and conjecture. It can not be said that, if no change had been made, there would have been no reduction in the numbers of the class. If the system originally adopted was not one (and this the facts stated make very probable) that would maintain itself, then the appellee would have been much worse off than she is now. Whether it would have endured can only be conjectured. The damages are both con- jectural and remote. There is no connection between the change in the system and the depletion of the class of which Ilussey was a member, that can be Legally said to be proximate and natural." ' 1 Supreme Lodge v. Knight, 117 Ind. 439; 20 N. Bast. Rep. 479. CHAPTEE XXYI. PAYMENT OF THE BENEFIT FUND. § 346. Payment is not a gift. 347, 348. Payment of the benefit fund, rights of parties. 349-351. To whom the money is payable when the contract is for the benefit of a creditor of the member. 352. Payment from reserve fund. 353. Contract to surrender the certificate when the fund is paid by the society. 354. Payment of the fund into court, interpleader by the society. 355. Payment of a less amount than is due, receipt in full. 356. Settlement procured by the fraud of the society. 357. A member may not enjoin payment. 358. Payment procured by fraud. 359. Right to double payment. 360. Interest on the amount of the benefit fund. 361. Proceedings to obtain payment of judgment. 362. Restricting the operation of the judgment against a society. § 346. Payment of the fund to the beneficiary is not a gift. — The payment by a mutual benefit society of the benefit fund to the beneficiary named in the contract of insurance is not voluntary, and in the nature of a gift. It is the fulfill- ment of the contract of insurance entered into for a valuable consideration between the member and the society for the benefit of the bsneficiary. If, therefore, payment be made by the society to the wrong person, under the mistaken belief that he is the proper beneficiary, when he is not, the society may recover the money back. 1 § 347. Payment of the benefit fund, rights of parties. — It is often difficult to decide whose receipt for the money due on a certificate will discharge the society from further liabil- ity, and who is entitled to bring an action against the society 1 Townsend v. Crowdy, 8 C. B. (N. McGiloray, 4 Gray 518; National Life S.) 98 E. C. L. 477; Kelly v. Solari, 9 Ins. Co. v. Minch, 53 N. Y. 144; Gil- Mees. & W. 54; Dails v. Lloyd, 12 Q. bert v. Moose, 104 Pa. St. 74. B. 64 E. C. L. 531; Appleton Bank v. (672) PAYMENT OF BENEFIT FUND. 673 when it has refused to pay. "Where a person is expressly desig- nated as the beneficiary of the certificate, such designation is conclusive, in the absence of some question of insurable in- terest, proper change of beneficiaries, or rights of creditors. He may sue for and recover the amount due at the maturity of the contract, and the receipt of such person will, generally speaking, discharge the society from further liability. In such case the legal representative of the member has no claim upon the fund, and can not maintain an action therefor. But where the fund forms a part of the estate of the member and is be- queathed as a part of the estate, under the general term of "all my estate and effects," subject to the payment of his debts, it is not payable to the devisee, but to the administra- tor of his estate for due administration and distribution.' A contract of insurance expressly promised " to pay to E. P., his executors, administrators or assigns, for the sole use and bene- fit of " his four children named therein, a certain sum of money. After his death the question arose as to whether the money was payable to the administratrix of his estate or directly to his children, and it was held that, as the insurance, although for the sole use and benefit of the children, was payable, not to them, but by the terms of the contract to his own legal representative, the administratrix was alone entitled to the money. 2 Where the contract is that the benefit fund shall be paid to the representative of the member, rather than to the beneficiaries, such representative is the only proper party to maintain an action for its recovery. "When collected, the fund is held by him as trustee under an express trust for such bene- ficiaries as may be entitled to it. This doctrine is founded on reason as well as authority and is in harmony with the entire line of decisions upon this question. In Gould v. Emerson,' the contract was made payable to the assured, his executors, administrators or assigns, for the benefit of his widow, if any. and Ins surviving child or children. The court said : "The contract of the insurance company having been made with • Wint erhalter v. Association, 75 25 N. East. Rep. 716. and cases cited; Cal. 245; 17 Pac. Rep. 1. Rindge v. Society, 140 Mass. 286; 15 * Stowe v. Phinney, 78 Me. 250: 3 N. East. Rep. 628. Atl. Rep. 914; 2 N. Eng. Rep. 74; see 3 99 Mass. 157. Flynn v. Association, 152 Mass. 288; 43 674 PAYMENT OF BENEFIT FUND. the assured, his executors, administrators and assigns, the de- fendant, as his administrator, might by law collect the amount of the policy." In Bailey v. New England Ins. Co., 1 the as- sured procured a policy upon his life payable to him, his exec- utors, administrators and assigns for the benefit of his widow. Suit was brought in the name of the beneficiary against the company, and judgment was rendered in favor of the defend- ants. The court in referring to two previous decisions 2 makes use of the following language : " The principle upon which these decisions rest is, that in policies of this kind the executor, administrator or assignee, becomes a trustee under an express trust, and the legal title being in him, he can maintain an action in his own name against the company. It therefore necessarily follows that the eestuis que trust can not main- tain such action, but must have their rights determined be- tween themselves and the trustee in other forms of proceed- ing. This brings this class of trusts within the general rules governing all trusts, and renders the practice simple and uni- form. To allow cestuis que trust to maintain actions in their own names, might subject insurers to several suits on the same policy, or call upon them to determine who has the beneficial interest, or force them to resort to a bill of interpleader to ascertain the equitable rights of the parties." 3 A contract of insurance was taken out by a husband " for the sole use of his wife," and it was held that the fund was payable to his ad- ministrator in trust for the widow. 4 In Mass. Mutual v. Robinson, 5 the promise of the company was to pay the sum insured to the " assured, his executors, ad- ministrators or assigns," for the express benefit of C. M. Ii., wife of the assured, and their children. The court held that the executrix of the assured was the proper party to bring suit upon the policy. In another case, 6 however, where the loss was payable to " the assured, his executors, administrators or assigns," for the benefit of his daughter, it was held that the 1 114 Mass. 177. 588; Campbell v. Ins. Co., 98 Mass. 2 Burroughs v. Assurance Co., 97 381. Mass. 359; Gould v. Emerson, supra. * Unity Association v. Dugan, su- 3 See Mass. Mutual v. Robinson, 98 pra. 111. 324; Unity Association v. Dugan, 5 98 111. 324. 118 Mass. 221; Stokellv. Kimball, 59 6 Hogle v. Ins. Co., 6 Robertson N. H. 14; Cables v. Prescott, 67 Maine 567; 4 Abb. N. S. 346. PAYMENT OF BENEFIT FEND. t'»75 daughter was the party in interest, and, as such, entitle* 1 to maintain the action under a provision of the code of New York, requiring actions to be in the name of the real party in interest. 1 The cases just treated of are unlike those cases where by the terms of the contract, it is expressly promised, that the amount shall be paid, either absolutely or upon the happening of some expressed contingency, to the beneficiaries themselves, instead of to the legal representative of the member. Thus, in Martin v. ./Etna Ins. Co., 2 the insurance money was pay- able to the wife, her executors, administrators or assigns, if she survived her husband, otherwise to their children. She did not survive him, and the court held that by her death the promise inured to the children who alone could avail themselves of the promise. 3 A policy was taken out by a man " for the benefit of his wife and children,' 1 payable to " the said assured, their executors, administrators or assigns or the guardian of the children under age," and it was held that the benefit fund was the property of his widow and children, and that the adminis- trator could not collect it. 4 A contract of insurance contem- plated that the designation of a beneficiary should be made during the lifetime of the member, but, having made no such des- ignation, he bequeathed the fund to his second wife. After his death, the fund was claimed by his widow, by his children by his first wife, and by his executor. The society admitted its moral obligation to pay the fund to whomsoever the court might direct it to be paid, and the court rendered judgment that the executor of the estate of the member take it, to be distributed as the probate court might direct. 5 The probate court distributed it according to the will, holding that the second wife was entitled to it as against the testator's child pen, and on appeal this order was affirmed.' §318. If a person, not the proper beneficiary under the contract of insurance, has received money paid to him in the belief that he was the proper beneficiary, the law implies a i Bee Price v. Ins. Co., 17 Minn. *Cragin v. Cra K in. 66 Me. 517. 497; 2 Ins. L. J. 223; Hillyanl v. 'Order of Mutual Companions v. Ins. Co., 35 N. J. L. 415; 2 Ins. L. J. Griest, 76 Cal. 494; 18 Pac Rep. 662. 137. " /" '' Griest's Estate, 70 Cal. 497; *73 Me. 25. 18 p ac. Rep. 654. 3 See Knickerbocker Ins. Co. v. Weitz, 99 Ma«s. 159. 676 PAYMENT OF BENEFIT FUND. promise on his part to pay it over to the rightful owner. The beneficiary may recover from him the amount thus wrongfullv received. 1 Where money has been paid without cause or con- sideration to one who was not entitled in law, honor or o-ood conscience to receive it, the person paying it may recover it back, provided it was paid under a palpable misconception of the law essentially bearing upon and affecting the contract. A mutual benefit society issued a certificate of membership by which it agreed to pay the benefit fund, upon the death of the, member, to a person who was not a member of his f amity. When the certificate was issued, the officers of the society be- lieved that it had the right under its charter to make such a contract, and, after the death of the member, they paid to the beneficiary named in the certificate the amount of the benefit fund, believing that he was entitled to it under the contract. Under the charter, the society had no power to make such a contract, for by its terms the fund was payable to the widow and children of the member taking out a certificate, and it could not be diverted from these charter beneficiaries by any act of the society or the member. Afterward the widow and children of the deceased member brought an action against the society to recover the benefit fund, and the society insti- tuted a proceeding against the person to whom it had paid the fund to recover the amount which it had paid under a mistake of law. The court held that the society might recover the amount which it had paid to such person under a mistake of law, less the amount of all assessments which he had paid upon the cer- tificate, and the amount expended by him in making out proofs of loss, and further held that he was chargeable with interest only from the date of the judgment. 3 Where money has been collected upon a contract which had its inception in a scheme of mere speculation upon the life of the person who was the subject of insurance, or where insur- ance is taken out by a debtor as a security for the benefit of his creditor, the expense of procuring and continuing the con- tract being borne by the debtor, the authorities justify the conclusion, in either case, that the amount collected, less the 1 Bolton v. Bolton, 73 Me. 299; Mel- 2 Gibson v. Society, 8 Ky. L. Rep. lows v. Mellows, 61 N. H. 137; Hoi- 520. land v. Taylor, 111 Ind. 121. PAYMENT OF BENEFIT FUND. l> 4 I debt secured or the sums advanced in obtaining and keeping the contract in force, may be recovered by the personal repre- sentatives of the person insured. 1 The payment by the society of the whole amount of the benefit fund to certain persons, under the supposition that they were the heirs at law of the beneficiary and entitled to the fund, is no defense to a claim of one of such heirs, to whom no payment has been made, for his share thereof.* Where the charter expressly provides that the widow and children of a deceased member shall take the benefit fund, they are entitled to it, even though the certificate is made pay- able to another person, and the charter beneficiaries, as be- tween themselves and the beneficiary named in the certificate, do not waive their right to the fund by consenting that it may be paid to him, unless there is some consideration for the waiver, or something to operate as an estoppel. 3 The innocent payment by the societ}^ of the benefit fund to the person whom the deceased member in his lifetime desig- nated as his beneficiary and represented to be his wife is a bar to the claim of the widow against the society. A society was formed for " benefiting and aiding the widows and or- phans of deceased members " and its by-laws provided that a member might designate his beneficiary, and if no designation were made, then the fund should be paid to the widow, child or children, mother or legal heirs, in the order named. A member, before his death, made the following direction : " The payment allowed to me by the constitution and by-laws of the grand Lodge to be made to Fanny Supplee (my wife)." Under this designation, the fund was, after the death of the member, paid to the person named. This person never had, in point of fact, been the wife of the deceased member, who had been dur- ing the whole period of his membership, married to another woman. The widow brought- suit, against the society for the amount of the benefit fund, and it was held that in ab- 1 Amickv. Butler, 111 Ind. 578; 12 American Life v. RobertehaMT, 20 N. East. Rep. 518; 9 West. Rep. 842; Pa. St. 189; Mathews v. Sheehan, 69 Gilbert v. Moose, 104 Pa St. 71: N. Y. 585; Bruce v. Garden, 5 Ch. Cammadk v. Lewis, 15 Wall. 643; App. C. 32. Page v. Burnstine, 102 U. S. 601; » Mutual Aid Society v. Miller, 107 Warnock v. Davis, 104 U. S. 775; Pa. St, 102. Dutton v. Willner, 52 N. Y. 312; 8 Gibson v. Society , supra. 678 PAYMENT OF BENEFIT FUND. sence of notice to the proper officer of the society, or of the subordinate lodge to which the deceased member belonged, that she was the widow, prior to the payment to the bene- ficiary designated, she was not entitled to recover. 1 Where a society has paid over the benefit fund to the assignee of a certificate on the faith of the assignment, and the original beneficiary seeks to recover the benefit fund on the ground of fraud upon the member by the assignee, before recovery may be had against the society it must be shown that it had notice of the fraud prior to the payment to the assignee. 2 Where a party insures his life in favor of a person who has no insur- able interest in his life, and the society pays the amount to the person stipulated in the contract, the society will not be com- pelled to pay it again to the heirs of the deceased or to the executrix of the estate, although notified not to pay the bene- ficiary by the heir and widow of the deceased.* A member died leaving a will in which he left all his property to his wife and grandchildren. There was a policy of insurance upon his life in favor of Catherine Bernhard, who had no insurable interest in his life. Notice was given by the widow and heirs to the society that they claimed the benefit fund, and that it must not be paid to the beneficiary named in the policy. But, in disregard of such notice, the society paid it to the bene- ficiary named in the certificate of membership. The court said : u The defendant paid the money according to the terms of its contract, and to the person named in the certificate of membership. The company did not agree to pay the amount of the insurance to the estate of the person, on whose life the risk was taken. * * There was no contract with the widow and heirs, and no right of action or legal capacity existed in them, as such, to collect the money or to forbid its payment to the beneficiary." 4 In one case it was held, that where a member had changed the designation of his beneficiary in a manner other than that provided for in the laws of the so- ciety, and the society had consented to such change, and, after the death of the member, had paid the benefit fund to the 1 Supplee v. Knights of Birming- 3 Smith v. Pinch, 86 Mich. 484; 45 ham, 18 W. N. Cas. 280. N. W. Rep. 183. n - N. W. Mutual v. Roth, 87 Pa. St. 4 Bomberger, Ex'tr, v. Society. Pa. 409. St. (not reported), 6 Atl. Rep. 41. PAYMENT OF BENEFIT FUND. 679 beneficiary in whose favor the change had been made, the original beneficiary could not maintain an action for the fund.' Though a sale of a certificate to one who has no insurable interest in the life of the assured is void as being against pub- lic policy, that, as a matter of contract right, is a question between the society and the purchaser, and, where the society recognizes its validity by issuing a new certificate, in which the purchaser is named as the beneficiary, and upon the death of the member, pays the money due under the certificate to such purchaser, no stranger or volunteer may assail the valid- ity of the payment. 2 § 349. To whom the money is payable when the contract is for the benefit of a creditor of the member. — Unless pro- hibited by the provisions of its charter and by-laws, a creditor may in good faith take insurance on the life of his debtor, by procuring membership for his debtor in a society and either having himself made the beneficiary of the certificate, or hav- ing it assigned to him. The amount of such insurance, how- ever, must bear some just proportion to the debt, or to the extent of the obligation assumed by the beneficiary, and the probable contingencies attending the future maintenance of the certificate. The circumstances must be such as not to raise the presumption that the transaction on its face was a mere speculation. 3 But in such case, the amount of insurance which may be contracted for is not limited to the amount of such debt or obligation. If it were, the creditor would inevitably be compelled to lose whatever sums he might be required to pay in effecting the insurance and paving assessments. The beneficiary takes the chance of all future contingencies, includ- ing the -continued solvency of the society; and that a sufficient number of members will continue to pay their assessments to reimburse him for his advances of assessments. Where the creditor insures with his own funds, for an amount in fair proportion to the amount of his debt, he may recover as his just measure of damages the full amount of the contract; and the debtor's representatives have no claim upon him for any •Manning v. A. O. U. W., 86 Ky. 3 Amick v. Butler. 111 Ind. 578; 12 136; 5 S. W. Rep. 385. N. East. Rep. 518; Fox v. Ins. Co., 'Stoelker v. Thornton, 88 Ala. 841; 4 Big. L. & A. his. Rep. 468; Mowry 6 So. Rep. 680. v. Home Life etc., 'J R. I. 346. > 680 PAYMENT OF BENEFIT FUND. excess over the debt and expense of maintaining the contract. 1 In Grant v. Kline, 2 A, being indebted to B, his brother-in-law, in the sum of $743.56, insured his life for the benefit of B, in in the sum of $3,000, B paying all assessments. Upon A"s death, the society paid the amount of the insurance to B, against whom the administrators of A brought a suit to recover the $3,000, less the indebtedness and assessments paid. It appeared that A was considered by the society a good risk, and that the transaction between A and B was in perfect good faith. The court held that the disproportion between the ac- tual indebtedness and the sum insured did not, under the cir- cumstances, create a presumption that this was a wagering contract, nor, in the absence of positive proof, that it was in- tended as a collateral security merely. Where, however, the disproportion between the amount of a contract taken out by a creditor on the life of his debtor and the debt thereby secured is very great, as where the insurance is $5,000, and the debt $1()(>, it is the duty of the court to declare the transaction a waerer. as a matter of lav/. A contract of insurance taken out by a creditor on the life of his debtor ought to be limited to the amount of the debt, with interest, and the amount of the cost of maintaining the contract, with interest thereon, during the expectancy of the life insured, according to the Carlisle tables. 3 A creditor who takes out certificates in mutual bene- fit societies, amounting to $6,500, on the life of his debtor, who owes him $1,000, where the amount to be realized from such certificates depends on the number and persistency of the members can not be said to be acting in bad faith, for, in view of the character of the certificates, and the manner in which such societies bind themselves to pay, it can not be said that the disproportion between the debt and the real amount and value of the contracts of insurance is so great as to warrant a sentence of condemnation against the transaction as being a mere speculation on wager on the life of the debtor; and where such creditor pays all mortuary assessments, and, on the death of the debtor, realizes only $2,121.82 on the certificate, he is » Bliss on Insurance, §§ 30, 326; 3 Cooper v. Schaeffer, 117 Pa, St. Amick v. Butler, supra. (not reported); 11 Atl. Rep. 548; 9 2 115 Pa. St. 618; 9 Atl. Rep. 150. Cent. Rep. 601. PAYMENT OF BENEFIT FUND. GS1 entitled to retain the remainder, after deducting the debt, in- terest and expenses. 1 § 350. In case the certificate originates in a transaction which the law condemns, or where the debtor, having taken insurance on his own life, at his own expense, merely pledges the certificate as a security for an existing debt, the holder, whether by assignment or otherwise, who receives the entire- proceeds, will be regarded as a trustee of the representatives of the insured fur the amount received, less the amount of his debt, or the sums advanced on the certificats, with interest." If the insurance is effected at the expense of the debtor, either with his prior consent, or by his not objecting to charges made against him for assessments paid in maintaining the con- tract, and it appears to have been intended as a security only, the debtor or his representative is entitled to the surplus after payment of the debt, and, on payment of the debt, the debtor is subrogated to the rights of the ereditor and is entitled to the policy. 3 A society issued a certificate on the life of a member, payable to his creditor. There was nothing tending to impeach the good faith of the transaction. The member owed his creditor about $600. He afterward died without having paid any part of his debt, and without having paid any part of the cost of procuring and continuing in force the certificate of membership. The society paid the creditor about si ,003 in discharge of its liability upon its contract. After deducting the amount of the indebtedness and the sums advanced for the insurance, it was found that there remained 1 Rittl.T v. Smith, 70 Md. 261; 16 tinguishing Cooper v. Shaeffer, su- Atl. Rep. 890. Defendants insured j>nr. Shutter v. Spangler, 144 Pa. St. their debtor, a healthy man of 42 323; 22 Atl. Rep. 865. y< are, in the sum of $3,000, to protect *Amick v. Butler, supra. a debt of about $100. Eisexpectancy 3 Bliss on Insurance, §326; Levy of life, according t<» the Carlisle ta- v. Taylor, 60 Texas ('..v.': American hi. », was 26 years, and the assess- Life v. Robertshaw, 26 Pa. St. 189; mints and annual dues during such Mathews v. Sliechan. <>'.i N. Y. 585; time would hare amounted, together Gilbert v. Moose, 104 Pa. St. 74; ( !am- witli interest, to $4,336.31. It was mack v. Lewis, 15 Wall. 643; Equita- held thai this was not a gambling ble Life v. Hazlewood, 75 Texas 338; transaction, and that defendants were 128. W. Rep. 621; Schonfield v. Tur- entitled to the full amount of the ner, 75 Texas 824; 12 8. W. Rep. 626; policy, though the assured died within Tateuni v. Ross, L50 .Mass. 440; 28 X. a few years. Ulrich v. Reinoehl, 143 East. Rep. 280. Pa. St. 238; 22 Atl. Rep. 862; dis- 682 PAYMENT OF BENEFIT FUND. of the sum received from the society, $1,259.58. This sum the administrator of the member demanded from the benefi- ciary of the certificate, and upon his refusal to pay, the ad- ministrator brought suit for the amount. It appeared in evidence that the creditor had agreed to pay the expense of procuring the insurance and keeping it in force, and that he had also agreed that the debtor might at any time pay the debt, reimburse the creditor for such expenses, and thereby entitle himself to an assignment of the certificate. Upon these facts the court said : " The amount thus collected became the property of the beneficiary, unless the parol agree- ment to turn the policy over to the debtor upon the conditions already stated affected the creditor with an enforceable trust in favor of the personal representative. We can discover no prin- ciple upon which a trust can be maintained in the absence of any offer by the debtor in his lifetime to pay the debt and reim- burse the creditor for his advances. * * In the absence of an offer to comply with his agreement, we can discover no rational ground upon which the court can now compel the appellant to surrender money to which, according to every principle of law, he has a perfect title, and in which neither the debtor nor his representatives ever had any interest, legal or equitable. A distinguishing element in the determination of cases of this character is, whether the one whose life is insured so contracts himself to pay the premiums that an action could be maintained against him by the creditor for that amount. If such a contract is shown, then the policy is to be regarded as a collateral security, and the debtor is entitled to it upon the extinguishment of the principal debt; while, on the other hand, if the creditor pays the premiums, and the debtor is under no obligation to repay them, the right of the creditor is absolute." l Where a creditor charges his debtor upon his books with the amount paid on assessments on a certificate, it is evident that he understands that such sums are to be consid- ered, as between him and the debtor, simply as loans; and where the circumstances under which the creditor was made the beneficiary of the contract show that it was done solely to 1 Amick v. Butler, supra; see Gottlieb v. Cranch, 4 De G., M. & G. Freme v. Brode, 2 De Gex & J. 582; 440; Godsal v. Webb, 2 Keen 100. Knox v. Turner, L. R., 5Ch. App. 515; PAYMENT OF BENEFIT FUND. 6S3 give to the creditor a security for the debt then existing, ar.d for such sums as he should have to pay in the way of assess- ments to keep the obligation alive, he may not, as against the debtor or his representative, retain an excess of money derived from the certificate and secure the payment of subsequently acquired claims against the debtor. 1 In a recent English case it was held that a creditor who had insured the life of his debtor could retain all the sums he had received from the pol- icies, without accounting for them to the representatives of the debtor, unless there was distinct evidence of a contract to the effect that the creditor should take out the insurance, and that the debtor should pay the premiums, in which case only could the policy be said to be held in trust for the debtor. 2 §351. It was formerly held in England that though the creditor had an insurable interest in the life of his debtor at the time the policy was issued, yet, if his debt was paid in the lifetime of his debtor, and his interest had therefore ceased, he could not recover, because in such case the contract of life insurance, like the insurance of property, was one of indem- nity. But it is now the settled rule in that country that aeon- tract of life insurance is not one of indemnity, but is an agree- ment to pay a certain sum of money upon the death of the person insured, in consideration of certain payments during his life, and hence, if the contract be valid at the time it was entered into, notwithstanding the fact that the interest of the creditor has ceased during the life of his debtor, he may still recover on the policy though the result may be that he will be twice paid for his debt — once by his debtor and again by recovery on the policy. 3 Where the creditor takes out insur- 1 Levy v. Taylor, 66 Texas 652; see but there was no evidence that the Johnson w Alexander, 125 Inu. 575; account had ever 1 a shown to him, 25 N. Kast. Rep. 706. or that he knew his accounl was 'Bruce v. Garden, L. R., 5 Ch. App. charged with tin- premiums. The 83, In this case an army agent, to amount received from the policies by whom an officer was Largely indebted 1 1 1 * - creditor was Dearly twice as much on account, effected in his own name as the debt due him from his debtor, policies on the life of the officer, and Freme v. Brode, 3DeG. & J. 58&; charged the account of tin- officer Brown v. Freeman, 4 De G. & 8m. with premiums paid ami with inter- 444. est 'in tin- balances including the a Dalby v. India, etc., Company, 28 premiums. The office) was aware Eng. L. & Eq. $12; 15 C. B. 365. that the policies had been effected, GS4 PAYMENT OF BENEFIT FUND. ance on the life of his debtor entirely independent of the latter, and continues to pay for its maintenance, the partial or full payment of the debt or the discharge of the debtor in bankruptcy, will have no effect upon the creditor's rights under the contract. 1 In Ferguson v. Massachusetts Mutual" it was said : " No statute has gone so far as to declare that a life policy, valid in its inception, because of a cred- itor's interest in the life of his debtor, shall be invalid the moment the debt is paid. Besides, from the nature of the con- tract, which is paid for by the creditor, he needs the payment of the policy to do complete justice to him. Suppose he has received, subsequent to payment of premiums for years, the debt due from his debtor; he has thus received only what it may be assumed he has advanced or loaned to his debtor. He has received nothing for the series of premiums he has deliv- ered over from year to year to the insurer to keep alive the policy. So, too, in the case at hand, if we were to hold that the policy was avoided by payment or discharge in bank- ruptcy of the debt, the creditor would surely be the loser of the premiums paid, after the payment of his debt or the dis- charge in bankruptcy, and the insurance company would be the gainer. It would keep in its coffers moneys which it received as a consideration for its promise which it had not kept. It would be the gainer by the accidental circumstance that the debtor had paid what only he justly owed his creditor, or what he had escaped paying by obtaining a discharge in bankruptcy. Surely no such contingency was taken into mind or measured in fixing the amount of premiums demanded for the policy. That amount was ascertained b} r the standard tables relating to the probabilities of human life upon which life insurance companies anchor when they fix and determine the schedule of premiums to be exacted in the conduct of their ' Bawls v. American, etc., Ins. Co., 438; 6 Atl. Rep. 213; Phoenix Mutual 36 Barb. 357; affirmed 27 N. Y. 282; v. Bailey, 13 Wall. 616; May on In- St. John v. American, etc., Ins. Co., surance, §§ 115, 116, 117; Conn. Mu- 3 Kern. 31, and note at pg. 41; S. C, tual v. Schaefer, 94 U. S. 457; Bliss 13 N. Y. 31 ; Olmstead v. Keys, 85 on Life Insurance, § 327; Goodwin v. N. Y. 593; Mutual Life v. Allen, 138 Mass. Mutual, 73 N. Y. 497; Rittler v. Mass. 24; Clark v. Allen, 11 R. I. 439; Smith, 70 Md. 261; 16 Atl. Rep. 890; Amick v. Butler, 111 Ind. 578; 12 N. Ferguson v. Mass. Mutual, 102 N. Y. East. Rep. 518; Johnson v. Van Epps, 647; affirming 32 Hun 306. 110 111. 562; Corson's Appeal, 113Pa. St. 2 32 Hun 306. PAYMENT OF BENEFIT FUND. CS5 business. * * Both upon principle and authority we should say that the insurer is bound to fulfill its contract, valid in its inception, notwithstanding the debtor upon whose life it runs may have paid his creditor or obtained a discharge in bank- ruptcy therefrom." § 352. Payment from reserve fund. — The board of direct- ors or other officers, charged with the management of the affai rs of the society and the payment of death losses, must, of neces- sity, be permitted to exercise their discretion to a great extent in the payment of death losses out of any reserve fund in the treasury of the society. Where the reserve fund has not ex- ceeded any limit which the law may have placed upon the amount which may be held as a reserve, it must be left to the discretion of such officers, whether they will pay a loss in whole or in part from the reserve fund, or levy an assessment upon the members to pay it. The idea of a reserve fund im- ports permanency to some extent, and, if losses were required to be paid out of this fund as they occurred, the fund would soon be depleted and destroyed; the very object for which it was created would be defeated. A member can not, there- fore, insist that the amount of money held in the reserve fund be applied to the payment of losses before he shall be required to pay his assessment. The officers of the society may use a part or all of the fund to pay death losses, but they can not be compelled to do so. It is in their discretion to hold the reserve fund and lay an assessment to pay the loss. A statute providing that a mutual, benefit society " shall have the right to hold, at any one time, as a death fund, belonging to the beneficiaries of anticipated deceased members, an amount not exceeding one assessment," does not require that losses as they occur shall be paid from this fund, but the officers, in their discretion, may lay an assessment to pay such losses. 1 .^' -553. Contract to surrender certificate when fund is paid by the society. — Though a contract provides for the payment of the fund upon the surrender by the beneficiary of the certificate, still if the society positivelv refuses to pay because the claim is unjust and invalid, the beneficiary niav sue on it and recover without proving that he offered to ■Cressman v. Mass. Mutual, 143 Mass. 433: 9N. East. Rep. 753. v 686 PAYMENT OF BENEFIT FUND. surrender it on payment of the fund. 1 A certificate was delivered to the designated beneficiary. After the death of the member, it was decided that the fund could not be paid to the person named, because he was not within the classes of beneficiaries set forth in the charter. The society, to prevent the loss or waste of any part of its funds in litigation in resist- ing illegal claims, provided in the contract that it should not be required to pay any claim for a death loss until the cer- tificate was surrendered. The designated beneficiary refused to surrender it to the person entitled to the fund under the by-laws. The court decreed that the certificate was void, directed that it be surrendered for cancellation, and that the fund be paid to the proper person. 2 § 354. Payment of the fund into court, interpleader by the society. — It has been held in some cases that when the society brings the benefit fund into court, and asks that the court determine the rights of certain claimants of the fund and discharge it, it does not thereby confess or deny the right of any one of the claimants; that the payment of the money into court for the benefit of the person who may be declared to be entitled to it, in no way improves or prejudices the legal position of either party against the other, but that it is the duty of the court to see that the money is paid out as directed and required by the contract of insurance, and that the party who succeeds must make out a case which would have entitled him to recover against the society in a suit on the contract. 3 ^chwarzbach v. Union, 25 W. Lodge, 38 Mo. App. 543; Supreme Va. 622; Kern v. Zeigler, 13 W. Va. Council v. Bennett, 47 N. J. Eq. 39; 707; Smith v. Lewis, 24 Conn. 621; 19 Atl. Rep. 785; Ballou v. Gile, 50 Borden v. Borden, 5 Mass. 67; Smith Wis. 614; Wendt v. Iowa Legion of v. Smith. 25 Wend. 405; Williams v. Honor, 72 Iowa, 682; 34 N. W. Rep. Bank, 2 Peters 96; as to surrender of 470. In the Wendt case it was con- certificate, see Mulroy v. Supreme tended that the company only could Lodge, 2-> Mo. App. 463; Bock v. A. object to the insufficiency of the O. U. W.. 75 Iowa 462. A failure to change of the beneficiary, and as it surrender the certificate according to had paid the money into court, it the terms of the contract may affect had recognized the change as valid, the question of interest; see § 360. but the court expressly dissented 2 Britton v. Supreme Council, 46 from that view. In Ballou v Gile, N. J. Eq. 102; 18 Atl. Rep. 675; Cro- supra, an action was originally katt v. Ford, 25 L. J. Ch. 552. brought by the plaintiff against a 3 See § 222; Grand Lodge v. Sater, mutual benefit society to recover the 44 Mo. App. 445; Keener v. Grand sum of $3,000 which she claimed was PAYMENT OF BENEFIT FUND. cs; In some cases the rights of the parties were adjudicated upon without reference to the fact that the society had paid out the money. 1 In other cases the fact that the money had been paid into court by the society, without objection to the manner in which one of the parties had been designated as a beneficiary, or without objecting to him as an improper beneficiary under the contract, has been commented on as tending to give him a better standing in court. 2 In one case it was said: " The society has paid the money into court, and has been released from all obligation respect- ing it. This payment, however, is an admission on its part that the benefit certificate was rightly issued, and hence all contention as to whether its rules and regulations respecting due to her upon a benefit certificate held by her husband at the time of his death. The society did not dis- pute the indebtedness, but alleged that several other persons made claim to the benefit fund, naming such persons, asked to be permitted to pay the money into court, and that the contestants for the fund be made defendants in its place; and thereupon it was permitted to, and did pay the money into court. The contestants were made defendants in its place, and the action was dismissed as to the society. In discussing the effect of this payment of the fund into court, tlic supreme court of Wisconsin said : "The fact that the association lias paid the money into court, in- stead of paying it directly to the widow, to avoid litigation with the other claimants, can make no differ- ence as to the rights of the persons claiming the same. It' the appellant could not have recovered this money in a direel action against the associ- ation, he can not recover it in this action. The association not having, for prudential reasons, paid the money to the party entitled thereto. the court must see that it is paid out as directed and required bj- the rules and regulations of the society. * * * * It is quite immaterial whether the local council or the supreme council have the right, under the rules and regulations of the order, to direct to whom the money shall be paid, in case the brother lias failed to designate the person in the man- ner prescribed by such rules. The money having been paid into court, the court must now determine who is the proper person to receive the money, irrespective of the action of either council." In National Life v. Pingrey, 141 Mass. 411, it is said that one who interpleads assumes that he is merely a stakeholder. 1 Tollman's Appeal, 92 Pa. St. 50; Stephenson v. Stephenson, 64 Iowa 534; Knights of Honor v. Nairn. GO Mich. 44: 26 N. W. Rep. 826; Day v. Case, 43 Hun 179; see Mellows v. Mellows, 61 N. H. 137: Holland v. Taylor, 111 Ind. 121; 12 N. East. Rep. 116: Hotel Men's Mutual v. Brown, 33 Fed. Rep. 11; Ireland v. Ireland. 42 Hun 212. 3 Johnson v. Knights, 68 Ark. 255; 13 S. W. Rep. 794; Gladding v. Glad- ding, 8 N. Y. Supp. 880; see Lamont v. Grand Lodge, 33 Fed. Rep. 177. ? 688 PAYMENT OF BENEFIT FUND. these matters had been complied with is out of the case, and is entirely disposed of." ' A bill of interpleader by a society to determine conflicting claims to the proceeds of a certificate, the money having been paid into court, is not a proceeding in rem; and a judgment by default against a claimant who is served outside of the state and who does not appear in the suit, is a nullity. 2 § 355. Payment of a less amount than is due, receipt in full. — Where payment of a smaller amount than is actually due to the beneficiary is accepted, a receipt in full given, and the certificate surrendered on the faith of the statement made to the beneficiary by the officers of the society that such sum was all he was entitled to on the certificate, the remainder due on the certificate may be recovered, if such statement is incor- rect in law, and false in fact. 3 The son of a member of a mutual benefit society was in fact entitled to the whole fund payable on his father's death, but his guardian on making claim therefor was informed by the president that only a part of the fund was due to the son, and that the balance belonged to another person who had been named as a beneficiary. The guardian, in good faith, without disputing this, accepted a smaller sum and signed a receipt in full. The remainder of the money was then paid to the person supposed to be entitled thereto. It was held that a suit might still be maintained by the son for the balance of the fund, and that the guardian's passive assent to the payment of the balance to the wrong per- son did not amount to an estoppel. In such a case, the receipt of a part of the sum due is not a consideration sufficient to sup- port a release executed by the guardian to the societ}^ in full satisfaction of the entire sum due. 4 A member of a mutual benefit society died holding a certificate which provided for the payment of $1,000 to his widow on certain conditions. It was claimed that one of these conditions was broken, in that the member had not paid his clues and assessments promptly, and that the society was not liable to the widow on the certifi- 1 Tits-worth v. Titsworth, 40 Kan. - Gary v. Association (Iowa), 50 N. 571; 20 Pac. Rep. 213; citing Man- W. Rep. 27. ning v. A. O. U. W., 86 Ky. 136; 5 "York Association v. Myers, 11 W. S. W. Rep. 385; andSplawnv. Chew, N. Cas. 541. 60 Texas 532; see Knights of Honor 4 Tyler v. Association, 145 Mass. v. Watson, 64 N. H. 517; 15 Atl. Rep. 134; 13 N. East. Rep. 360. 125; 6 N. Eng. Rep. 880; see § 222. PAYMENT OF BENEFIT FUND. 6S9 cate. But the by-laws of the society provided as follows : " The heirs of a deceased member, who through tardy payment has come out of benefit, can claim no more than $50 at the death of a male member." The society refused to pay her anything on the certificate, but paid her $50, and took her receipt in full of all claim upon the society. Afterward she brought an action upon the certificate, and the society set up the payment of the $50 in bar of the action. The court held that the re- ceipt of this money did not prevent her from maintaining an action for the recovery of the sum actually due.' § 356. Settlement procured by the fraud of the society. — Where a life insurance company by its authorized agent falsely and fraudulently represents to the assurcd's executor, whose mental faculties are at the time impaired by age, finan- cial disasters and domestic affliction, that sufficient evidence has been discovered to avoid the policy, and that such com- pany will contest and defeat its collection, and thereby procures a settlement of the claim and a surrender of the policy by pay- ment of an amount grossly unjust to the estate of the assured, such settlement may be set aside, and the remainder due on the policy recovered. The fact that the insurance company paid such money to the executor a few days before he could have legally demanded and enforced its payment is immaterial, where it does not appear that such payment constituted any part of the consideration for the settlement. 3 When the will of the beneficiary has been coerced by threats, or constrained ;hk1 overpowered by any form of intimidation which is at- tempted to be practiced upon him, the court will relieve him from the consequence of his act in making a settlement with the society at a smaller sum than is due and giving a receipt in full of all claims. 1 The Mo. 221; Supreme Council v. 8 Britton v. Supreme Council, 46 Franks 187 111. 118; 27 X. East. Rep. X. J. Eq. 102; 18 Atl. Rep. 675; see 86; Heialer v. Stose, L31 III. 893; 23 § 353. N. East. Rep. 847; Hanover [ns. Co, *Courtney v. Association (Iowa), v. Lewis, 28 Fla, 209; 10 So. Rep. 53 X. W. Rep. 238; bul Bee N. W. 297. Association v. Schauss, 148 111. 304; 5 Perine v. Grand Lodge, 51 Minn. 35 X. East. Rep. 717. 224; 53 X T . East. Rep. 867j Newman 691 PAYMENT OF BENEFIT FUND. solvent can not be made to appear until an investigation has been had. Whether the sequestration provided for under the statute (How. St. § 8153) is proper or not, or whether resort should be had to assessments to satisfy the relator's claim, are questions that can not be properly considered upon this mo- tion. They necessarily involve a construction of the statute under which respondent company is organized, and a con- struction of the articles of association, and the by-laws made thereunder as well; and that construction will, to a greater or less extent, be modified by circumstances surrounding each particular case wherein it is sought to be applied. It is mani- fest that mandamus is entirely inadequate in this class of cases, and that equity alone can furnish the proper remedy. Sequestration can be had in no other court. The examination of the affairs of a corporation, and the legal proceeding by which its assets are taken and applied to the payment of its debts, are particularly subjects of equitable cognizance, and what acts should be done or performed by its officers in the payments of its debts can only be ascertained and enforced Avhen the true situation of the corporation is fully known, and its ability to pay and means of payment are judicially estab- lished. A court of equity is the proper forum for such pro- ceeding's, and the writ in this case must therefore be denied." l § 362. Restricting the operation of the judgment against a society. — After a general verdict has been rendered against a mutual benefit society for a breach of its covenant to make, levy and collect assessments on its members to pay the plaint- iff's claim, it is error, in the judgment or after judgment ren- dered thereon, by order, to restrict the operation of the ver- dict, judgment and execution to assessments collected and to be collected by the society from its members. The verdict in such a case is the amount of damages for the default of the 1 Miner v. Association, 65 Mich, the person obtaining such judgment 84; 31 N. W. Rep. 763; How. St. or decree, or his representatives, the § 8153. " Whenever a judgment at circuit court within the proper law or a decree in chancery shall be county may sequestrate the stock, obtained against any corporation property, things in action, and effects under the laws of this state, and of such corporation, and may ap- an execution issued thereon shall point a receiver of the same." See have been returned unsatisfied in People v. Masonic Association, 126 part or in whole, upon the petition of N. Y. 615. PAYMENT OF BENEFIT FUND. 695 society, and judgment should be for that amount absolutely. Having a judgment in his favor for the amount of his damages, the plaintiff has the undoubted right to collect it by any means the law affords him. 1 The by-laws of a mutual benefit society provided that losses should be paid by bi-monthly assessments, that each loss should be payable pro rata out of the next assessment after proof of death, or if the claim were contested, and judgment recovered against the society thereon, the judgment should be paid pro rata out of the assessment next after its rendition. A claim having been contested and reduced to judgment in another state, suit was brought on the judgment. It was held that the facts that the pro rata share of the assessment next after the judgment would amount to less than the judgment, and that the society had disputed the claim, believing it to be unjust, constituted no reason for not paying the judgment in full, since the extent of the liability of the society was determined by the judgment. 3 1 Seitzinger v. New Era Life Asso- J People's Mutual v. Werner, 6 Ind. ciation, 111 Pa. St. 557; McKnight v. App. 614; 34 N. East. Rep. 105. New Era Life Association, 15 Weekly Notes of Cases, 400. PAET III. THE LAW OF ACCIDENT INSURANCE. THE LAW OF ACCIDENT INSURANCE. CHAPTER XXVII. ACCIDENT INSURANCE. § 363. Generally. 364. What is an accident ? 365. Negligence on the part of the insured contributing to the injury. 366. Due diligence for personal safety and protection. 367-372. Voluntary exposure to unnecessary danger; obvious risk. 373-378. External, violent and accidental means. 379. External and visible sign. 380, 381. The nature, cause or manner of death unknown, or incapa- ble of direct and positive proof: burden of proof. § 363. Generally. — While accident insurance is of modern origin, it has become an established branch of business, both in this country and in England. The first company organized in England was formed in London in 18-18, and the first Amer- ican company was formed about 18G3. The history of acci- dent insurance companies in this country records a few suc- cesses and many failures, and at the present time the business is done by a very few regular companies and a large number of mutual benefit societies. In life insurance there are stand- ard life tables which give, as the result of many years of ob- servation and compilation, the death rate, and from which the expectation of a life may be computed; but as yet no accident tallies have been published, and there are no statistics known to the public from which the probability of accidental injury or denth in ;i given case maybe determined. The several companies keep their own records and statistics, but do not make known the results of their labors. It is frequentlv stated, however, that the claims for injuries or death arising from accidents in travel by rail or water do not aggregate seven per cent of those made against accident com panics, while the claims growing out of the use of horses and carriages exceed in number those arising from all other causes com- bined.' 1 7 Am. L. Reg. 583. (699) 700 ACCIDENT INSURANCE. There are two plans of doing business in accident insurance. In one, the organs of the body are appraised at a specified sum, and the company agrees to pay a certain fixed amount for the loss of a hand,* the breaking of a leg, the loss of an eye, etc. This system is used almost entirely in Europe. By the other plan, the company insures indemnity for injury by payment of a specified weekly allowance during the time the insured is disabled by the injury, or compensation for death by payment of a fixed sum if the insured dies in consequence of an acci- dent. This is called the American system, though the two plans are sometimes in a great measure combined in the poli- cies issued here. Some policies cover all classes of accidents, while others are limited to those of a specified nature, as, for instance, accidents while traveling by public conveyance. Accident insurance is more analogous to fire than to life in- surance, being a provision for indemnity, except in case of death by accident, when it becomes a contract to pay a fixed sum, and, as a general rule, the law of fire and life insurance applies also to accident insurance. § 364. What is an accident ? — Courts have in many cases been called upon to decide whether injury from particular causes was, or was not, accidental, but as yet they have laid down no definition of an accident, which has been generally accepted as satisfactory. An accident has been defined as " an event that takes place without one's foresight or expectation; an event which proceeds from an unknown cause, or is an un- usual effect of a known cause, and therefore not expected; " ? " an event which takes place without the oversight or expecta- tion of the person acted upon or affected by the event; " 2 " an unusual and unexpected result attending the performance of a usual act; " 3 " an event or occurrence which happens unexpect- edly, from the uncontrollable operations of nature alone, and without human agency, as when a house is stricken and burned by lightning or blown down by tempest, or an event result- ing undesignedly and unexpectedly from human agency alone or from the joint operation of both ; " 4 " not merely inevitable 1 Webster's Diet. 310; IT. S. Association v. Barry, 131 2 Ripley v. Ins. Co. , 2 Bigelow's L. IT. S. 100. & Ace. Cases 738; Richards v. Ins. "Morris v. Piatt, 32 Conn, on pg. Co., 89 Cal. 170; 26 N. East. Rep. 762. 85. 3 Provident Life v. Martin, 32 Md. ACCIDENT INSURANCE. 7<»1 casualty, or the act of God, or what is called via major or irre- sistible force, but rather such unforeseen events, misfortunes Losses or ((missions as are not the result of any negligence of misconduct in the party who seeks the relief." ' It is some- thing which happens by chance, or does not take place accord- ing to the usual course of things. 2 Some violence, casualty or vis major is necessarily involved in the term " accident." '' It means, in short, in insurance policies, an injury which happens by reason of some violence, casualty or vis major to the as- sured, without his design or consent, or voluntary co-opera- tion. 4 § 364a. " Horse or vehicle policies," insuring an employer against liability for accidental injuries to others than em- ployes, caused by horses or vehicles of the assured; "eleva- tor policies" insuring against accidental or personal in- juries caused by elevators or their appurtenances; "general liability policies," insuring against liability for accidental per- sonal injuries to any persons other than employes or persons injured by elevators, for which the assured may be liable as landlord or tenant; and " outside liability policies," insuring builders and contractors against liability for accidental per- sonal injuries to workmen employed by other contractors, and to the public, caused by the assured or by his workmen — are v accident" insurance policies within the meaning of an act providing that companies may be formed to insure against " bodily injury and death by accident," and within a certifiU eate issued by the commissioner entitling a foreign company to transact ••accident insurance" in the state. 6 § 365. Negligence on the part of the insured contribu- ting to the injury. — It has been repeatedly held in this country and in England that the contract of insurance is an exception to the rule which denies compensation for an injury of which 1 Alexander v. Bailey, 70 Tenn. (2 Travelers' Ins. Co., 112 N. Y. 472; SO Lc;n on pg. 689; Wait's Actions and N. Bast. Rep. 847. Defenses, VoL 1, 162; Story's Equity, 'Sinclair v. Assurance Co., 107 Vol*li Sec. 78. Eng. Com. I, (8 E1.& El.) 478. ! j3chneiderv. Ins. Co., 24 Wis. 28; * Am. L. Review, 588; Duncan v. N. A. Ins. Co. v. Burroughs, 69 Pa. Association. 18 X. Y. Supp. 680; I St. 43; Barry v. Accident Association, Am & Eng, Bncyc. Law, pg. 87. 23 Fed. Rep; 712; Mallory v. Travel- B Employers' Liability Co. v. Merrill ers' Ins. Co., 17 N. Y. 62; Paul v. 155 Mass. 404; 29 N. East. Rep. 529, 702 ACCIDENT INSURANCE. the party's own negligence or want of due care has been the cause, and it may be laid down as the settled law of insurance, whether life, fire, accident or marine, that, unless there is a stipulation to the contrary, mere negligence or carelessness on the part of the insured or others is no defense to a policy. Protection against such casualties is one object of insurance. 1 But a company may stipulate that it does not assume a certain risk, and an injury arising from the negligence of the insured may be excepted from the benefits of the contract. 2 Such neg- ligence as raises a presumption of bad faith, amounting to fraud or design, avoids a policy; 3 and negligence which amounts to misconduct is not insured against. 4 The fact that a person insured against injury or death by accident was guilty of negligence which contributed to an in- jury received by him, will not prevent a recovery on the pol- icy, where such policy merely provides that it does not extend to injuries by reason of his " willfully and wantonly exposing himself to any unnecessary danger or peril." 5 1 National Ins. Co. v. Webster, 83 4 Chandler v.Ins. Co., 3 Cush. (Mass.) 111. 470; Waters v. Ins. Co., 11 Peters 328; Levi v. Ins. Co., 2 Wood (U. S. 213; Columbian Ins. Co. v. Lawrence, C. Ct.)63; Citizens' Ins. Co. v. Marsh, 10 Peters 507; Firemen's Ins. Co. v. 41 Pa. St. 386; May on Insurance, Powell, 13 B. Mon. (Ky.) 311; Nelson §§408, 411. v. Ins. Co., 8 Cush. 477; Sanford v. 6 Schneider v. Ins. Co., 24 Wis. 28. Ins. Co., 12 Cush. 541; Cumberland The court said : "Avery large pro- Valley Mutual v. Douglas, 58 Pa. St. portion of those events which are 419; William v. Ins. Co., 31 Me. 219; universally called accidents, happen Germania Ins. Co. v. Sherlock, 25 through some carelessness of the Oh. St. 33; St. Louis Ins. Co. v. Glas- party injured, which contributes to gow, 8 Mo. 713; Walker v. Maitland, produce them. Thus, men are in- 5 Barn. & Aid. 175; Dixon v. Sadler, jured by the careless use of fire-arms, 5 Mees. & Wels. 405; Shaw v. Rob- of explosive substances, of machin- berds, 6 Ad. & El. 75; Miller v. Mu- ery, the careless management of tual Benefit Life Ins. Co., 31 Iowa horses, and in a thousand ways, 216; Holterhoff v. Ins. Co., 4 Big. where it can readily be seen after- Life & Ace. Cas. 395; U. S. Associa- ward that a little greater care on tion v. Barry, 131 U. S. 100. then- part would have prevented it. s Travelers' Ins. Co. v. Seaver, 19 * * ft is true that accidents often Wall. 539; City v. Ins. Co., 9 Gray happen from such kinds of negli- (Mass.) 97. gence. But, still, it is equally true 3 Toledo, etc., R. W. Co. v. Pindar, that they are not the usual result. If 53 111. 447; Henderson v. Ins. Co., 10 they were, people would cease to be Rob. (La.) 164; see authorities alxrve guilty of such negligence. But cases cited; see also Aurora Ins. Co. v. in which accidents occur are very Johnson 46 Ind. 315. rare m comparison with the number ACCIDENT INSURANCE. ro3 In Kentucky it was held in an early case, where there was no provision in the policy concerning the use of due care on the part of the insured for his personal safety, " that if a party causes or contributes to the accident, the company is not lia- in which there is the same negli- gence without any accident. A man draws his loaded gun toward him by the muzzle, the servant fills the lighted lamp with kerosene — a hun- dred times without injury. The next time the gun is discharged, and the lamp explodes. The result is unusual, and therefore as unexpected as it had been in all the previous in- stances. So there are, undoubtedly, thousands of persons who get on and off from the cars in motion without accident, where one is injured. And, therefore, when an injury occurs, it is an unusual result and unexpected, and strictly an accident." See Tooley v. Assurance Co., 3 Bissell 399; 2 Ins. L. J. 275. Where the contract ex- empts the insurer in case of willful and wanton exposure of the insured to any unnecessary danger or peril, contributory negligence on the part of the insured will not prevent a re- covery, where he received the injury in consequence of getting from the platform at a railroad depot upon the cars while in motion at a rate of speed less than that of a man walk- ing. In Schneider v. Ins. Co., supra, it was said: "The question, there- fore, remains, whether the attempt (it the deceased to gel Upon the train was within this provision, and con- stituted a ' willful and wanton ex- posure of himself to unnecessary danger.' I can not think so. The evidence showed that the train, hav- ing once been to the platform, had backed so that the cars stood at some little distance from it. While it was waiting there, the deceased was walk- ing back and forth on the platform. It is very probable that he expected the train to stop there again before finally leaving. But it did not. It came along, and, while moving at a slow rate, not so fast as a man would walk, he attempted to get on, and, by some means, fell either under or by the side of the cars, and was crushed to death. The act may have been imprudent. It may have been such negligence as would have prevented a recovery in an action based upon the negligence of the company, if there had been any. But it does not seem to have con- tained those elements which could be justly characterized as willful or wanton. The deceased was in the regular prosecution of his business. He desired and expected to leave on that train. Finding that he would be left, unless he got on while it was in motion, it was natural enough for him to make the at- tempt. The strong disinclination which people have to being left, would impel him to do so. The rail- road employes were getting on at about the same time. Imprudent though it is. it is a common practice tor others to get on and oil in th. same manner. lie had undoubtedly seen it done, it he bad not d > it himself, many times, without injury. I can not regard it. therefore, as a willful and wanton exposure of him- self to unnecessary danger, within the meaning of the policy." In Champlain \. Assurance Company, () Lans. (N. Y.i 71. it was held that an accident policy, covering risks while traveling, Insured th.' holdei against an accident which occurred while he was getting into a public conveyance for passengers, while in 704 ACCIDENT INSURANCE. ble, and, therefore, where the insured inadvertently put his arm out of the window of a railroad car, and it was hit by a post, so that he was disabled for many weeks, as the accident was produced by his fault, and resulted from the dangerous position in which he had needlessly and negligently placed his arm, and which, if not to be expected from the position in which he placed it, was at least probable, and as it did not re- sult from any of the dangers common to passengers upon that or other railroads, he had deprived himself of all right to com- pensation." ' But this decision has been generally condemned as being unsupported by reasoning or precedent. 2 It is un- doubtedly true, however, that where the negligence of the in- sured has been so gross as to raise the presumption that he designed the infliction of the injury, or where he has reck- lessly, willfully and Avantonly exposed himself to unnecessary danger, he can not recover, though there be no provision in the contract as to due care on his part, for no man can be per- mitted in a court of justice to profit by his own wrong; he can not lay the foundation of a claim to insurance in his own reckless and willful act or misconduct. It is incumbent on the compan3 r in such cases to prove the misconduct and gross negligence of the insured. § 366. Due diligence for personal safety and protection. — It is common for accident insurance policies to contain a provision that the insured shall use due care for his personal safety. When the contract contains such a provision, negli- gence or want of due care on the part of the insured will avoid it. Under such a contract it is always a question of fact for motion. In cases where the founda- contract, the observance of due care tion of the action is an injury occa- and diligence on the part of the as- sioned by the negligence of the sured, is no element of the contract defendant, and the liability of the on his part, and can in no way affect latter grows out of such negligence, the right of action thereon. Provi- it is always a good defense to show dence Life v. Martin, 32 Md. 310; contributing negligence on the part Tooley v. Assurance Company, 3 of the plaintiff, but the rule is Biss. 399; 2 Ins. L. J. 275. different where the liability of ] Morel v. Ins. Co., 4 Bush (Ky.) the defendant is created by a con- 535; see dictum in Brown v. Ins. Co., tract, one of the chief objects of 45 Wis. 221. which is to protect the insured - Bliss on Insurance, § 400; May on against his own mere carelessness or Insurance, § 530; 7 American Law negligence. Unless stipulated in the Review 594. ACCIDENT INSURANCE. TOO the jury to determine, under all the circumstances of the case, whether the exposure of the insured to the injury done was such as a prudent man would subject himself to, and whether, in doing 1 or omitting to do an act, he exercised that degree of care which a prudent man would exercise. 1 The requirement that the insured shall " use all due diligence for personal safety and protection 1 ' is a very general phrase, and does not mean that he may not recover for an accident to which some want of care on his part may have contributed. lie is not required to use all possible diligence, but only all due diligence. Due diligence or care is a relative, not a precise term, and is con- sistent with inadvertence or with running such risks as pru- dent and cautious persons habitually run. It would not be reasonable to hold that this clause requires of the insured a higher degree of diligence than prudent persons are accustomed habitually to use.' The question of negligence is not always to be tried by the same tests, for what a prudent man might naturally do under some circumstances he might shrink from doing under others; and it is therefore necessary that the jury should be enlightened as to the particular facts of each case. Where the assured, in building a barn, stepped upon a joist in the second story to examine the work, fell from there and died from the injuries received, it was shown to the jury that lie was an awkward man, that he had on two overcoats at the time of the accident, and that the joist broke from a concealed defect, causing his fall to the ground. The court held that it was for the jury to say whether the deceased had used "all due diligence for personal safety and protection;'' and that their verdict against the company was warranted. 3 The insured was struck by a locomotive engine while he was walking along a railroad track, and it was held that he had not used due diligence for his protection. 4 In an action on an accident insurance policy it appeared that the insured, while 1 Providence Life v. Martin, 32 Md. 3 Adm'rs of Stone v. Casualty Co., 310; Travelers' Ins. Co. v. Beaver, 19 aupra; Wilson v. Association (.Minn.). Wall. 581; Adm'rs of Stone v. Casvi- 55 X. W. Rep. 636. alty Co., 34 N. J. L. (5 Vroom) 371; 4 7 Am. L. Review 595; Cornish v. Tooley v. Assurance Co., 3 Bias. 399; Ins. Co., 23 L. R., Q. B. D. 453. 2 Ins. L. J. 875. * Keene v. Association (Mass.), 36 N. East. Rep. 891. 45 706 ACCIDENT INSURANCE. crossing railroad tracks in going to the station, when part way over, had his view obstructed of the further track, and, as he was approaching it, was called to by an employe of the rail- road company to " look out for the express," and was shouted to by others, and, hastening forward, was killed by the express train. It was held that the question whether he had used " all due diligence for personal protection," as required by the policy, was for the jury. 1 Where the insured is required by the contract to use all due diligence for his personal safety and protection, no recovery can be had for his death, caused by his being struck by a railroad train, while running along the track in front of it in the night time, for the purpose of getting on a train approaching in an opposite direction on a parallel track. 2 A passenger on a railway car, who was injured by being thrown from the steps of the car, where he was standing while the train was approaching a station, is not entitled to recover on a contract providing for the exercise of due diligence on the part of the insured for self-protection. 3 It is not negligence^/' se to ride on the platform of a street car. 4 Whether one is exercising due diligence for his personal safety in crossing in the clay time the railroad tracks at a sta- tion at a place where they were commonly crossed by persons, and in carrying at the time, to protect himself from rain, an umbrella which cut off his sight of the tracks, is a question to go to the jury. 6 To climb over or between stationary cars, without looking to see whether they are attached to an engine or not, is gross negligence, and precludes a recovery for injuries received while making the attempt. 8 If an injury happen while the insured is traveling and is occupying a place provided for the accommodation of passengers, nothing fur- ther is ordinarily necessary to show due care. But when he leaves such a place and occupies an exposed position, as upon 'Duncan v. Preferred Mut. Ace. 231; 42 N. W. Eep. 936; Sawtelle v. Ass'n, 13 N. Y. S. 620. Assurance Co., 15 Blatchford 216. 2 Tuttlev. Ins. Co., 134 Mass. 175; 4 Sutherland v. Standard L. & A. Lovell v. Ins. Co., 3 Ins. L. J. 877; Ins. Co. (Iowa) 54 N. W, Rep. 453: Travelers' Ins. Co. v. Jones, 80 Ga. Nolan v. Railway Co., 87 N. Y. 63. 541; 7-S. E. Rep. 83. 6 Keene v. Association (Mass.), 36 3 Bonv. Assurance Co., 56 Iowa 664; N. East. Rep. 891. see Marx v. Ins. Co., 39 Fed. Rep. . 6 Beam v. Assurance Co., 50 Mo. 321 ; Hull v. Accident Ass'n, 41 Minn. App. 459. ACCIDENT INSURANCE. TOT the platform of a car, it must appear upon some ground of necessity or propriety, that his position was consistent with the exercise of proper care and caution on his part. 1 Where 'it is a condition of the policy that "the party insured is required to use all due diligence for personal safety and pro- tection," the burden is on the company to show that he has not used all due diligence. 2 Where, in a suit on a policy, providing that the assured, a railroad switchman, should at all times use due care for his personal safety, the company pleads that the assured failed to use due care, but contributed directly to his injury by getting off a moving engine with his back in the direction in which it was going, a replication which does not deny that the assured failed to use due care, but only alleges that he was insured as a switchman, and that the injury occurred while in the discharge of his customary duties, is insufficient in assuming that the policy would cover all such injuries, whether the assured was in the exercise of due care or not. 3 § 3CT. Voluntary exposure to unnecessary danger — Ob- vious risk. — Negligence and " exposure to unnecessary dan- ger " have been held to be equivalent terms, 4 but there is a difference between negligence and "willful and wanton expos- ure to unnecessary danger." 6 As was stated in a preceding paragraph, where the liability of a company is created, not by negligence, but by a contract, one of the principal objects of which is to protect the insured against his own mere careless- ness, contributing negligence on his part is not a good defense 'Bon v. Assurance Co., supra; which courts have recognized, in Hickey v. R. R. Co., 14 Allen (Mass.) compelling the insurance company 4-29; Lucas v. R. R. Co., 6 Gray 04; to allege and prove the want of com- Redfield on Railways, Vol. 2, pp. 260, pliance with any particular proviso 267 and cases cited; Damount v. or condition on which it relies as a Railway Co., 9 La. Ann. 141: Marx defense. Piedmont Ins. Co. v. Ew- v. Ins. Co., 39 F.-d. Rep. 821; Hull v. ing, 92 C. S. :'>77: Duncan v. Asso- Accident Association, 41 Minn. 281; ciation, 18 N. V. Supp. 620; Baden- 12 N. W. Rep. 936. feld v. Association, L54 Mass. 77: 27 •' Freeman v. Travelers 1 Ins. Co., N. East. Rep. 1069. 141 Bfass. 572; L2 X. East. Rep. 872; standard Lite v. Jones, 94 Ala 16 Ins. L. J. 822; 86 Alb. L. J. 127. 184; LOSo. Rep. •"■>:',(>. The court was divided upon the 'Saw telle v. Assurance Co.. 15 point. In an action on a policy con- Blatchford 216. tainin^ many provisos and condi- 'Schneider v. Ins. Co., 24 Wis. 28; tions, there is a practical wisdom, see -j 305. 708 ACCIDENT INSURANCE. to such liability, unless there be a stipulation that the contract shall not extend to death or injury caused by his negligence, by his want of due diligence for his self -protection, or by vol- untary exposure to unnecessary danger. Where some such limitation on the liability of the company is inserted in the contract, the negligence, want of diligence, or exposure of the insured, is fatal to a recovery, and is measured by much the same tests as are applied to the acts or omissions of a person who has been injured through the negligence of another; ' and whatever would constitute contributory negligence in an action of tort may be set up as a defense to an action on such a con- tract. It must be remembered, however, that in an action for damages for the negligence of the defendant, the burden is on the plaintiff to show affirmatively due care on his part, and that, in an action on an accident policy, death through vio- lent, external and accidental means having been proved, the burden of proof is on the defendant to show a voluntary ex- posure to unnecessary danger, or a want of due diligence. The burden of proof, therefore, is different, and the questions of due diligence and of voluntary exposure to unnecessary dan- ger arise, not upon general principles of the law of negligence, but upon the construction of the contract of insurance against accidents. It is evident that such a contract should be con- strued with more liberality to the assured than the rules of the common law would be where he sought under them to put the responsibility for his accident upon another. 2 "Voluntary exposure to unnecessary danger," in an accident insurance policy exempting the insurer from liability for death produced from such exposure, means wanton or grossly imprudent ex- posure. 3 A locomotive engineer, while backing his engine down a grade with a car in front as a precaution to check its speed, directed the fireman to run it, went upon and over the tender 'Bon v. Assurance Co., 56 Iowa 3 Manufacturers' Indemnity Co. v. 664; Scheiderer v. Ins. Co., 58 Wis. Dorgan, 58 Fed. Rep. 945; Equitable 13; Sawtelle v. Assurance Co., 15 v - Osborn, 90 Ala. 201; 9 So. Rep. Blatchford 216; Travelers' Ins. Co. v. 869; Bean v. Assurance Co., 50 Mo. Seaver, 86 U. S. 531; Cornish v. Ins. A PP- 459 - Co., 23 L. R., Q. B. D. 453. 2 Keene v. Association (Mass.), 36 N. East. Rep. 891. ACCIDENT INSURANCE. 709 to get into this car to draw the brakes, and in doing so slipped and fell between the car and the tender, and was instantly killed, by the tender passing over his body; and it was left to the jury to say whether he had willfully exposed himself to unnecessary danger within the prohibition of the policy. 1 A contract of insurance provided : " No claim for insurance shall be made when death or injury may have happened in consequence of exposure to unnecessary danger, hazard, or perilous adventure." The assured died by falling from the platform of a railroad car, about midnight, when the train was in full motion, in attempting to pass from one car to another. The court said : " There were no disputed facts, and no dis- putable inferences of fact, which presented a question for the jury. The naked question, therefore, is one of law, whether or not the act of passing from car to car while the train is at full speed, and in the night time, is negligence; and this ques- tion must be resolved in the affirmative. Doubtless, circum- stances of such peril might exist, as would justify a passenger in attempting to escape from the car in which he might be located; but no such circumstances were shown here. If the deceased had fallen from the platform and been injured by the breaking of the coupling between the cars, the railroad com- pany could have successfully defended an action to recover damages, upon the ground of his concurring negligence, although it might have been shown that the coupling gave way because of defects in its fastening or material. Negligence is the absence of that care which a reasonable and prudent man would exercise under the circumstances of the case; and, can it be doubted, that a prudent man would understand that he was acting at his peril, if he attempted in the night time and while the train was under" full headway, to pass from one car to another? Such are the undulations of a railway car, when the train is in rapid motion, that locomotion within the car is a task of some difficulty. The passenger moves with uncer- tain step, and seeks assistance by grasping the seats, as the car sways to and fro. But, the passage from ear to ear is attended with greater difficulty. The din and clamor of the train, the rushing of the wind and dust and smoke, the con- 1 Providence Life v. Martin, 32 Md. 310. The jury decided that he had not. 710 ACCIDENT INSURANCE. sciousness that a misstep or miscalculation of distances may be fatal, tend to confuse or excite the faculties and disturb the judgment; and, although it is a common practice thus to pass from car to car, it is rarely accomplished without experiencing a sense of relief when it has been safely done. When dark- ness adds another condition of uncertainty to the attempt, there can be no justification of the act, in the mind of any pru- dent man." 1 § 368. It is an " obvious risk," within the meaning of a policy for an insured to walk on a railroad track, on a dark and rainy night, at a time when he knows that trains are fre- quently passing upon, it and other tracks lying beside it. If he is injured in so doing, it is not enough that he did not see or hear the train which struck him, because he was engaged in avoiding another train. The danger was certain and ought to be present to the mind of a man of ordinary sense and prudence. The words " obvious risk," designate not only a risk which may be readily perceived by the eye or the senses, but also one which may be perceived by the intellect. Hunting, bathing and many other acts daily done involve some obvious risk or danger, but the test seems to be whether the insured ran a greater danger than a man of ordinary or reasonable prudence would encounter. 2 A policy provided that no claim should be made under it "when the death or injury may have happened in consequence of exposure to any obvious or unnecessary dan- ger," and it was held that no recovery could be had for the death of the insured, caused by his being struck by a railroad train, while running along the track in front of it in the night- time, for the purpose of getting on a train approaching in an opposite direction on a parallel track. 3 1 Sawtelle v. Assurance Co., supra, new force or power which inter- 2 Lovell v. Ins. Co., 3 Ins. L. J. 877; vened, of itself sufficient to stand as 5 Ins. L. J. 559; Duncan v. Associa- the cause of the misfortune; that it tion. 13 N. Y. Supp. 620. was for the jury to determine 3 Tuttle v. Ins. Co., 134 Mass. 175. whether or not the railroad corpora- The court in this case said: " The tion was negligent; and that, if so, plaintiff contends that it was not the the negligence of the assured, if it exposure or negligence of the assured existed, was too remote to defeat the which caused his death, but the com- policy. Louisiana Mutual v. Tweed, ing upon him of the locomotive en- 7 Wall. 44; Milwaukee, etc., R. W. gine, the bell or whistle of which may Co. v. Kellogg, 94 U. S. 469. 475; not have sounded; that this was a Scheffer v. Railroad Co., 105 U. S. ACCIDENT INSURANCE. 711 The assured undertook in the day time to cross the railroad tracks at a station, at a place where the} r were commonly crossed by persons, and he was struck and killed by detached freight cars which had been " kicked " along the track, the sight of which was cut off by an umbrella which he was car- rying to protect himself from rain. It was held that his acts were not necessarily a voluntary exposure to unnecessary danger, and that a jury should determine whether or not they were. 1 The insured, on his way to work, after waiting ten or fifteen minutes, undertook to pass between cars in a freight train standing at a crossing, though he could have gone around it. He made no investigation as to whether an engine was at- tached or not. His foot was caught between the drawheads and mashed. It was held that the exposure was voluntary and unnecessary, and that no recovery could be had on the policy. 2 For a person with two packages in his hands or arms to attempt, during a dark and rainy night, by choice, to pass 249. 252. But, without speculating as to possible cases, we do not think that the doctrine relied on is appli- cable to this case. If a person volun- tarily places himself in a position where he is exposed to an obvious danger, and the precise injury Imp- pens to him, which there is reason to fear, it can not fairly be held that tbe language of this policy was not in- tended and understood to be appli- cable to such a case. For example, if one while walking on a railroad track is assaulted by a robber or a dog, or is struck by lightning, bis act of traveling there bas no tendency to produce the in jury, and is not to be deemed a contributory cause thereof. But, on the other band, if one who goes int<> a battle is hit by a bullet, or if one who goes up in a balloon i* blown out to sea by the currents of air, or if one who makes a railroad track his path for travel is run over by a passing locomotive engine, he must ordinarily in any legal question be held to take the risk of those results. There is in each of these cases such an association of cause and effect, that the one must be held to have contributed to the other. To bold that the death of the assured in the present case did not happen in consequence of his exposure to the risk, but from a new force or power which intervened, would be to fritter away the language of the policy by metaphysical distinctions too fine to enter into the understanding or con- templation of parties engaged in the practical business of making a con- tract of insurance. We must assume that the assured read his policy and was acquainted with its language and attached some practical meaning t<> it." Travelers" Ins. Co. v. Beaver, 86 I". S. 531; (lull" v. Ins. Co.. 18 Allen 808, 319; S. C, 99 Mass. 817, 829; Barperv. Ins. Co., 19 Mo. 506; White v.Lang. 128 Mass, 598; Cornish v. In-,. Co.. 28 L. R., Q. B. D. 158. 'Keen- v. Association 'Mass.), 36 N. East. Rep. 891. ■ Bean v. Assurance Co., 50 Mo. App, 459. 712 ACCIDENT INSURANCE. over a trestle which he knows to be dangerous, other ways of travel being open to him, is, on his part, " voluntary exposure to unnecessary danger, hazard or perilous adventure," notwith- standing this was his usual way of travel, his usual route to his home, and he and many others had been going that way for ten years. 1 The rule is well settled that a party can not walk on a railroad track without being guilty of negligence, but this means walking on a railroad track in the ordinary sense — using it as a public highway. The using of a track to cross a street or the crossing of a track at its intersection Avith a street is not necessarily a negligent act. 2 But one. about to cross the track, or to use it as a street crossing, must look both ways before attempting to go upon it. and, if he omits to do that, he is guilty of negligence and voluntary exposure to unnecessary danger. An insured, after he had been warned not to do so, drove into a train yard of a railroad company, where he could have no business, became entangled in a net- work of tracks, and was killed by a locomotive. It Avas held that he had voluntarily exposed himself to unnecessary danger. 3 § 369. There is a clear distinction betAveen a voluntary act and a voluntary exposure to danger. A hidden danger may exist, and yet the exposure to it, Avithout any knoAvledge of the danger, does not constitute a voluntary exposure; nor does an approach to an unknoAvn and unexpected danger make the act a voluntary exposure thereto. The result of the act does not necessarily determine the moti\ T e Avhich prompted the ac- tion. The act may be voluntary; and at the same time the exposure may be involuntary. Where the danger is unknoAvn, the injury is accidental, and not the result of voluntary ex- posure. To make an insured guilty of a " voluntary expos- ure to danger," he must intentionally have done some act which reasonable and ordinary prudence would pronounce dangerous. A railway train stopped on a draAvbrulge at night. Several passengers alighted and stood near one end of the car. A brakeman stood near them Avith a lantern Avhich Avas so 1 Travelers' Ins. Co. v. Jones, 80 Ins. Co. v. Osborn, 90 Ala. 201 ; 9 So. Ga. 541; 7 S. East. Rep. 83. Rep. 869. 2 Wright v. Ins. Co., 29 Up. Can. C. 3 Neill v. Ins. Co., 7 Can. L. J. 44; P. 221; Duncan v. Association, 13 N. 31 Up. Can. (C. P.) 394; 7 Up. Can. Y. Supp. 620; Equitable Accident App. 570. ACCIDENT INSURANCE. 713 placed that the insured could see the floor of the bridge near it, but could not see the floor at the foot of the steps of the car on which he was standing. He stepped off the car in plain sight of the brakeman, and no notice was given to passengers that it was dangerous to get out of the coach where it stood. The floor had been torn up, and instead of landing on it, he fell through a hole, and was killed. The court held, that his act of stepping off the coach was not a voluntary exposure to unnecessary danger. 1 The cleaning of a gun not known to be loaded, which is discharged, on account of an unknown defect, is not a voluntary exposure to unnecessar}^ danger within the meaning of an accident policy. 2 A complaint on an accident policy charged that the plaint- iff fell asleep from weariness and the motion of the cars, and when it was quite dark "and while he was in a, <1<>z<'<1 and un- conscious condition of mind, and not knowing or realizing what he was doing, involuntarily arose from his seat and walked unconsciously to the platform of said car, and, with- out fault on his part, fell therefrom to the ground."' and was thereby injured; and it was held to sufficiently show that the injuries were not the result of voluntary exposure to unneces- sary danger. 3 § 370. Whether the action of a railroad employe in attei 1 1 1 >t - ing to board a moving train is a " voluntary exposure to un- necessary danger," within the meaning of an accident policy precluding recovery for injuries sustained by such exposure, is a question for the jury under all the circumstances of the case.' Where the insured received a fatal injury while in the dis- charge of his regular duties as yard switchman or brakeman of a railway company, a recovery can not be defeated on the ground <>t' voluntary exposure to danger, when the accident was one contemplated by the parties to the insurance." Where 1 Burkhard v. Ins. Co., 102 Pa. St. 4 Gotten v. Fidelity & ( fcsualty ( .... 202: 48Am. I^.j.. jor> : Duncan v. As- 41 Fed. Rep. 506. sociation, 13 N. Y. Supp. 020; Terre "National Benefit Ass'n v. Jackson, Haute, etc., R. R. Co. v. Buck, 96 114 III. :>:'»::: Pacific Mutual v. Snow- Ind. 340. den, 58Fed. Rep. 342; Wilson v. \>- - Miller v. Am. Ace. Company, 92 sociation. 53 Minn. 470; 55 X. W. Tenn. 167: 21 S. W. Rep. 39. Rep. 020. 8 Scheiderer v. Ins. Co., 56 Wis. 13; 46 Am. Rep. 618. 714: ACCIDENT INSURANCE. the business of the insured was known to the company, and he injured his spine by lifting a heavy burden in the course of such business, the company will not be heard to assert that the injury was occasioned by exposure to unnecessary risk. 1 The lifting or over-exertion, to take the case out of the contract, must be a voluntary and unnecessary act of the insured; one from which injury might reasonably be anticipated, and which might, in the exercise of reasonable care, have been avoided. An effort to lift, put forth in an emergency of danger, as for instance, in the effort to save one's self from being crushed by a descending weight, is not within the exception of the con- tract. 2 It is not an obvious risk or a voluntary exposure to unnecessary danger, within the meaning of a policy, for one who can swim to bathe in deep water. 3 It is not a voluntary exposure to obvious risk for an insured who is subject to faint- ings and " swimmings in the head," to go driving in a carriage with another person. 4 § 371. It is not negligence^;' se for one to voluntarily risk his own safety or life in attempting to rescue another from impending danger. The question whether one so acting should be charged with contributory negligence in an action brought on an accident policy for injuries received or death incurred in attempting the rescue, is one of mixed law and fact, and should be submitted to the jury uoon the evidence, with proper in- structions from the court. While a recovery may not be had where one rashly and unnecessarily exposes himself to danger, yet, where another is in great and imminent danger, one who attempts a rescue may be warranted by surrounding circum- stances in exposing his limbs or life to a very high degree of danger, and in such cases he should not be charged with the consequences of errors of judgment resulting from the excite- ment and confusion of the moment. In such cases, if the res- cuer does not rashly and unnecessarily expose himself to dan- ger, and is injured or killed, the company is liable. 6 Injuries received while attempting to rescue persons from supposed 1 Martin v. Ins. Co., 1 Foster & Fin. 4 Shilling v. Ins. Co., 1 Foster & 505. Fin. 116; see § 391. 2 Reynolds v. Association, 17 N. Y. 6 Pennsylvania Co. v. Langendorff, St. Rep't'r, 337. 48 Ohio 316; 28 N. East. Rep. 173; y See§ 392. Linnehan v. Sampson, 126 Mass. 506; ACCIDENT INSURANCE. 715 danger are not within the exception of an accident policy that the insurance "shall not extend or cover voluntary exposure to unnecessary danger." ' It is the duty of every per- son to aid in the rescue of others from perils and danger; and where an insured went to the rescue of a shipwrecked crew, and was drowned, it was held that his death was not " directly or indirectly in consequence of any voluntary exposure to any unnecessary danger," there being no evidence that in attempt- ing to rescue the crew he exposed himself to any more danger than was necessary in the undertaking. 2 In an action on an ac- cident policy it appeared that after deceased had crossed the rail- road track he met two men going toward it, who were slightly in- toxicated, and warned them to look out for an approaching train. The men crossed the track, and passed on, deceased going in an opposite direction. Deceased must have afterward returned, for the engineer of the train, which was running about four miles an hour, testified that when he first saw him he was standing by the track, and that, when the engine was about twenty-five feet from the crossing, he stepped upon the track, and squatted down, so that he was struck by the engine and killed. It was held that the court should have dismissed the suit on the ground that the death of the deceased resulted from " voluntary exposure to unnecessary danger," within a clause of the policy precluding a recovery in such case, and a submission of the question to the jury on the theory that deceased was following the two men to save them from pos- sible injury was unwarranted. 3 si :>72. A policy contained, among others, the following clause: "This insurance does not cover disappearances, nor in- juries of which there is no visible mark on body, nor accident. nor death or disability resulting wholly or partly, directly or indirectly, from any of the following causes, or while so en- Donahoe v. Railway Co. , 83 Mo. ."".(JO; 'Tucker v. Life Co., 1 X. V. Supp. Beach, Contributory Negligence, p. 505; 50 Hun 50; 121 .V Y. 718; 24 X. 45, § 15; Wharton, Negligence, ?' 814; East. Rep. L103. Pierce, K. R. 839; Carroll v. Railroad "Williams v. Association, 188 N. Y. Co., 14 Minn. .".7; Pennsylvania Co. 866; :il X. East. Rep, 822; Finch and v. Roney, s '-» End, 458; ( lottrill v. Rail- Maynard, JJ., dissenting; reversis way Co., 47 Wis. 634; 3 N. W. Rep. 14 X. Y. Hupp. 728. 376. 1 Williams v. Ass'n, 14 N. Y. Supp. 728. 716 ACCIDENT INSURANCE. gaged or affected. * * " Voluntary exposure to unnecessary danger." The woman, from whose room deceased attempted to get away at the time he was killed, testified that he came to her room about half-past five o'clock in the evening; that a few minutes afterward policemen came to her room, ham- mered at the door with their clubs, and demanded admittance, which she refused; that deceased went into the halhvay twice to get down by the stairs, then returned and prepared to go out of the front window; that he took a piece of selvage about six inches wide, which was lying on the floor, torn from bed- ticking cloth. He tried the strength of it over his knee, with both hands, and then under his foot, and said he knew it would hold him. He then tied it to the leg of a sewing machine sit- ting near the window, and, holding to the strip, started out of the window to let himself down to the brick sidewalk about fifteen feet below. Persons out in the street stated that they saw deceased come out of the window, and let himself down a foot or two, when the strip of bed-ticking broke, and he fell, striking his feet against an iron circle which projected from the store door beneath him. This turned him over, so that he struck the walk on his head, and received such injury as caused his death. The court said : " The bare statement of the man- ner in which deceased came to his death, brings it, we think, clearly within the clause of the policy of ' voluntary exposure to unnecessary danger,' and fully justified the trial court in taking the case from the jury, and directing them to find for appellee." ' A policy provided that the insurance should not extend to injuries caused by certain acts of the insured, " or generally by his willfully exposing himself to any unnecessary danger or peril." The insured accosted a woman in the street, persisted in doing so in the face of remonstrances, was knocked down by the man in whose company she was at the time, and re- ceived injuries from which he died. Lord Coleridge said : " I can not bring my mind to think that any such thing was pointed at as a man either in his senses or out of his senses, either morally or immorally going up and speaking to a woman, and in the course of speaking to a woman getting knocked down ' Shaffer v. Travelers' Ins. Co. (111.), 22 N. East. Rep. 581; S. C, 31 111. App. 112. ACCIDENT INSURANCE. 717 by somebody who thought he had a right to protect her. I can not think that is willful exposure to unnecessary danger or peril, coming after this proviso : ' by entering or leaving a car- riage whilst a train is in motion, or otherwise by his acting in violation of a railway company's by-laws, or riding races or steeple-chases,' and so on. That is the conclusion I put upon it; and as to that point in the case lam strongly in favor of the plaintiff." Denman, J., said : "I am not prepared to go so far as to say that the rule of ejusdem generis would necessarily ap- ply so as to exclude such a peril or such a danger as that to which it is alleged that the deceased man exposed himself in this case. As at present advised, and without expressing any very strong opinion about it, it appears to me that it was a matter with regard to which there was evidence for the jury." ' § 373. External, violent and accidental means — Exter- nal and material cause. — When a contract insures against injuries or death caused by external, violent and accidental means, it is not sufficient that an injury or death was caused by any one of these means, but it must have been caused by all of them combined, to bring it within the contract. The burden is on the plaintiff to show a deatli or injury by such means. 2 Where an insured, in diving, after the manner of bathers in deep water, by a slight accidental turn of the body, brings his ear in contact with the water, so that it is ruptured, the injury is the result of violent external causes; but if he dives, meets with no interference or obstruction in entering or in moving under the water, has no unusual circumstance happen to him to occasion injury, but feels a pain in his ear when he comes out of the water, it can not be said that the pain comes from accidental causes. 3 In a suit on an accident policy, where the death was alleged to have occurred by reason of the rupture of a blood vessel, sustained while exercising with Indian clubs, it was held that, if the deceased volun- tarily took in his hands the clubs for exercise, and used them for such exercise in the way ami precisely as he intended to do, and without anything occurring to interfere with his in- 1 Mairv. Assurance Co., 37 L. T. R. 127 U. S. 661; 17 Ins. L. J. 585; 8 (N. S.)356. The case was reversed Sup. Ct. Rep. 13G0. on another point. 3 Rodut stipulated that no claim should be made where the death had been caused by lifting 1 , or by over-exertion. The insured was ;i bridge builder, and the evidence tended to show that while raising the bents of a bridge, t he fool of one of the posts slipped, and an unexpected weight was thrown upon the pike-poles in the hands of the men. and that the insured a\;is either struck by the *'nd of his pole, or subjected to a strain (if great severity, and that he was at once disabled ami soon afterward died. It was held that his death was effected through external, violent and accidental means, within the meaning and intent of the contract of insurance, and that an effort to lift or an over-exertion put forth in an emergency of danger as, for instance, in the effort to save one's self from being crushed by a descending weight, was not within the exception of the policy. 1 A policy of insurance extended to any bodily injury arising- from any accident or violence,." provided that the in- jury should be occasioned by any external or material cause operating- on the person of the insured."' The company was held liable for an injury to the spine of the insured, caused by lifting a heavy burden in the course of his business." While an insured was driving upon a public street, his horse became frightened at an unsightly object, ran away without upsetting the carriage or coming in contact with anything, and was at length brought under control. He and his children were apparently greatly endangered at the time, and he suffered so severely, eit her from fright or strain caused by his physical exertion in restraining the horse, that he died within an hom- ager the accident. The court held that his death ensued from bodily injuries effected through external, violent and accidental means." It has been held that death by the taking of poison is not effected through such means, within the meaning of a policy, for, tl gh the action of the poison may be violently destruct- ive to life, it can not fairly be said that there is any violence 1 Reynolds v. Accident Association, 'McGlinchey v. Fidelity and Cas- 1 N. V. Sup. 788. ualty Co., 80 Me. 251; 14 Atl. Rep. 1 Martin v. Ins. Co., 1 Foster & 13. Fin. 505. 46 722 ACCIDENT INSURANCE. in the act of taking a dose of poison. 1 But the reasoning upon which this rule is founded has been declared to be too reiined and technical to have been in the minds of the parties to the contract, and the rule itself has been disapproved as too strict, and as against the principles governing the construction of insurance policies. 2 § 375. An insured who was subject to epileptic , fits, was found dead in a plunge bath in almost a standing position. There was an abrasion between his eyes, and a bruise on one side of his head. His physician testified that, on account of his peculiar condition of health at the time, his hot bath prob- ably brought on an epileptic attack, and that the blows which caused the abrasion and bruise were not sufficient to have caused his death. It was held upon this evidence that the deceased came to his death through other causes than "ex- ternal, violent and accidental means," within the meaning of his policy. The court said : "When it is considered that the evidence shows that the abrasion and bruise were but slight, and that deceased, when found, was in almost a standing po- sition, with his right hand firmly grasping the supply-pipe, it is impossible to believe that his death was caused by a fall or a blow. In view of all the facts and circumstances of the case, considering the condition of the deceased at the time of and just previous to his death, the probable effect of the heat of the bath upon one in his condition, his position when found, and the condition of his body after death, it seems to me to be clear that he came to his death through other causes than ' external, violent and accidental means, within the intent and meaning ' of the policy in suit, and I must so find." 3 A mariner, about to sail on a voyage, was insured " in the event of his sustaining any personal injury during said intended voy- ' Pollock v. Accident Association, 2 Paul v. Ins. Co., 112 N. Y. 472; 102 Pa. St. 230; Bayless v. Ins. Co., 20 N. East. Rep. 347; affirming 45 14 Blatchford 143; Hill v. Ins. Co., Hun 313, and overruling Hill v. Ins. 22 Hun 187, Follett, J., dissenting. Co., 22 Hun 187; Healey v. Associa- But the case of Hill v. Ins. Co., supra, tion, 133 111. 556; 25 N. East. Rep. was disapproved on this point in 52; McGlinchey v. Casualty Co., 80 Paul v. Ins. Co., 45 Hun 313, and the Me. 251; 14 Atl. Rep. 13; Pickett v. opinion of Follett, J. , was commended Ins. Co., 144 Pa. St. 79; 22 Atl. Rep. as declaring the true and more lib- 871 ; § 393. eral rule. See also Paul v. Ins. Co., 3 Tennantv. Ins. Co., 31 Fed. Rep. 112 N. Y. 472; 20 N. East. Rep. 347. 322. ACCIDENT INSURANCE. 723 age, from or by reason or in consequence of any accident whatsoever." He sailed to India, and, while on board his ship, was sunstruck and died. The court held that the com- pany was not liable, and said : " The disease called sunstroke, although the name would at first seem to imply something of external violence, is, so far as we are informed, an inflamma- tory disease of the brain, brought on by exposure to the too intense heat of the sun's rays. It is a disease to which per- sons exposing themselves to the sun in a tropical climate are more or less liable, just as persons exposed to the other natural causes to which we have referred '(cold, damp, the vicissi- tudes of climate or atmospheric influences)' are liable to dis- astrous consequences therefrom. The deceased, in the dis- charge of his ordinary duties about his ship, became thus affected and so died. We think, for the reasons we have o-iven that his death must be considered as having arisen from a 'natural cause 'and not from 'accident,' within the meaning of this policy." l In an action on an accident policy, it was shown that de- ceased had had a fall, of the effects of which he complained for several days, and then fell sick. From this sickness he never recovered and throughout its continuance he complained of the hurt, and bore a bruise. His attending physicians testi- fied that he died of typhoid fever, and that this disease was never produced by a bruise. His nurse, a competent one, of long experience, testified that he did not have typhoid fever 1 Sinclair v. Ins. Co., 107 Eng. Com. dicta therein, do not apply to death L. Repts. ; 3 El. & El. 470; Dozier v. from atmospheric causes where no Casualty Co., 46 Fed. Rep. 446. Of specific disease is produced: and the death by freezing it was said by a argument that death in Dr. Bean's learned writer in 7 Am. Law. Rev. case (freezing to death on Mount on pg. 592: "That freezing is an acci- Blanc) was qo1 an injury of which dent, where it occurs without want there was any externa] and visible of due care and needless exposure by signj is answered by denying the the insured, would seem to follow fact The frozen body was itself a from the analogy of drowning, or of visible sign of the injury. Frost in suffocation by gases in a coal mine the corporeal tissues and ice in the or carbonic acid in a chamber. The arteries are as visible signs of injury effect of exposure to the heat of the as extravasated blood around the spot sun is hardly analogous. Sunstroke where a blow b struck. We have no is a specific disease, and is as positive doubt how this point will be decided an affection oi the brain as apoplexy whenever it receives adjudication." or paralysis. Sinclair's case and the 724 ACCIDENT INSURANCE. and it was admitted that bruises might produce other forms of fever. It was held that the evidence was sufficient to support a verdict that the death of deceased was the result of acci- dent. 1 § 376. In Eipley v. Assurance Co. 2 the opinion was ex- pressed that a person waylaid and killed by robbers had died from violent and accidental means. " Perhaps, in a strict sense," said the court, " any event which is brought about by design of any person is not an accident, because that which has accomplished the intention and design, and is expected, is a foreseen and foreknown result, and therefore not strictly accidental. Yet I am persuaded this contract should not be interpreted so as thus to limit its meaning, for the event took place unexpectedly and without design on Ripley's part. It was to him a casualty, and, in the more popular and common acceptation of the word, ' accident,' if not in its precise mean- ing, includes any event which takes'place without the foresight or expectation of the person acted upon or affected by the event. A man goes to a livery for a horse and carriage, and is given one. But the horse is sure to run away if he is driven. This the liveryman knows, the hirer does not. The horse is taken, driven, and runs away, injuring the hirer. ]STow the event was foreseen and expected by the owner of the horse, but un- foreseen and unexpected to the hirer, and, therefore, it seems to me it was accidental to him, and within view of this policy would be regarded an accident. A man throws a train of cars off the track, and one or more passengers are injured or killed. To those in the cars it • is an accident, a casualty, while in the exact sense % murder is not an accident. I think in construing a policy of insurance against accident, issued to all sorts of people, a majority of whom do not, as the company well know, nicely weigh the meaning of words and tei;ms used in it, courts are called upon to interpret the con- tract as a large class not versed in lexicology are sure to re- gard its terms and scope. That which occurs to them unex- 1 Standard Life v. Thomas (Ky.). Pac. Rep. 383; Eailroad Co. v. Sut- 17 S. W. Rep. 275. As to the ad- ton, 42 111. 438; State v. Davidson, 30 mission in evidence of statements Vt. 377. of the assured made to his physician a 2 Big. L. & Ace. Cases, 738; 1 while treating him, see Equitable Dillon 403. Mutual v. McCluskey, 1 Colo. 473; 29 ACCIDENT INSURANCE. 725 pectedly, is by them called accident. The company fix the terms of this contract, and are to be held, in the absence of plain and unequivocal exceptions and provisos, to intend what, in popular acceptation, the insured party is likely to understand by its terms. The question is not, perhaps, entirely free from doubt, I find no case in which the exact point has been de- cid 'I." ' The word "accident " in an insurance policy will be given its ordinary and usual signification, as being an event which takes place without one's foresight or expectation, and it may include an injury received by one in a common law affray, where no fault on his part is shown." In Ilutclicraft's Ex'r v. Travelers' Ins. Co.,' it was said : ••Accidents are of two kinds; first, those that befall a person without any^ human agency, as the killing of a person by lightning. Here the elemental ) roperties of lightning and its flash are not caused or contracted by human agency, but the tint that the person Avas struck by unintentionally placing himself within its range is, as to him, an accident; second, those that are the result of human agency. The latter are divided as follows : First, that which happens to a person by his own agency, as if he is walking or running and accidentally falls and hurts himself. Here he falls by reason of his asrencv in walking or running, but he did not intend to fall; he did not foresee that he would fall in time to avoid it; the fall was. therefore, accidental. Second, that which befalls a person by the agency of another person without the concurrence of the l,i tier's will, as where one standing on a scaffold anintentionallv Lets a brick fall from his hand and it strikes a person below. Here the dropping of the brick, as it was not intended by the former and was unforeseen by the latter, is. in the broadest sense, as accident. Third, that which a person intentionally does, whereby another is unintentionally injured, us. where one intentionally li res a gun in the air and accidentally shoots An- other person. Nov the ;iet of firing the gun was intentional but the shooting of the person was unintentional; therefore, on ■On appeal the case was decided said the court, "tli.it because :t des- on another point. Se< Riplej v. As- perado waylays, assails and wounds surance ('<>.. 16 Wall. 336; 2 In-. I., a member intentionally, thai wound- J- 588. ing is nut an accident to the member. Supreme Council v. Garrigus, 104 within the laws, etc., of the order." Ind. 133. " It will not do t<» say," B 87Ky. 801. 726 ACCIDENT INSURANCE. the part of the person firing the gun, the shooting of the other would be accidental, though not in as broad a sense as in the formei case, because some part of his act was intentional, but, as to the person shot, it was by purely accidental means. Fourth, so, also, as we think, if one person intentionally injures another, which was not the result of a re-encounter or the misconduct of the latter, but was unforeseen by him, such injury as to the latter, although intentionally in- flicted by the former, would be accidental. When the injury is not the result of the misconduct or the participation of the injured party, but is unforeseen, it is as to him accidental, although inflicted intentionally by the other party. It is con- ceded that in the three instances first named the injury would be by ' accidental means.' 1ST or, doubtless, will it be denied that if a person were to maliciously fire his gun into a crowd of per- sons for the purpose of general mischief, or were to mali- ciously wreck a train of cars for the purpose of injuring what- ever might be on board, whereby one or more persons were shot or mashed, that the casualty befalling these persons, as far as they were concerned, would fall within the term of ac- cidental means. In other words, we do not regard it as essen- tial, in order to make out a case of injury by accidental means so far as the injured party is concerned, that the party injur- ing him should not have meant to do so, for, if the injured party had no agency in bringing the injury on himself, and to him it was unforeseen — a casualty — it seems clear that the fact that the deed was willfully directed against him, would not militate against the proposition, that, as to him, the injury was brought on by ' accidental means.' " § 377. Under a policy stipulating that it only covers in- juries effected by external, violent, and accidental means, an injury not anticipated, nor naturally to be expected by the assured, though intentionally inflicted by another, is an acci- dental means, within the meaning of the contract, where it does not in terms provide against a recovery if the death was caused by injury intentionally inflicted by the assured or any other person. 1 Where the insured is found dead with a pistol 1 Accident Ins. Co. v. Bennett, 90 Rep. 1-360; Hutehcraft's Ex'r v. Ir.s. Tenn. 256; 16 S. W. Rep. 723; clis- Co., 87 Ky. 300; 8 . S. W. Rep. 570; tinguishing Travelers' Ins. Co. v. see Warner v. U. S. Association McConkey, 127 U. S. 661; 8 Sup. Ct. (Utah), 32 Pac. Rep. 696. ACCIDENT INSURANCE. iZi bullet through his heart, it may not be presumed from the mere fact of the death that he was murdered, but such infer- ences and conclusions as to the cause of his death may be drawn as the facts and circumstances will justify. 1 In an action on an accident policy, testimony of physicians that the assured bore on his back marks of extreme violence, ap- parently recently inflicted, and that his injuries produced his death, is prima fair evidence of death resulting from bodily injuries, "through external, violent, and accidental means." Unless such injuries were intentionally self-inflicted, or in- tentionally inflicted by some other person, the legal pre- sumption is that they were accidental. Xo presumption can be indulged that the law has been violated, as it would have been were the injuries inflicted by another. 2 There may be a prima facie case of accidental death, but the burden of proving accidental death is on the plaintiff. 3 Where it appears that a violent death was either the result of accidental injuries or of a suicidal act of the deceased, the presumption of law is against the latter. 4 j? 37S. In Scheiderer v. Ins. Co., 5 it was alleged in the pleading that while the insured, who was traveling in a rail- way car, " was in a dozed and unconscious condition of mind, a mi not knowing or realizing what he was doing, [he] involun- tarily arose from his seat, and walked unconsciously to the platform of the car, and fell therefrom to the ground;" and it was held that this constituted a good cause of action upon a policy of accident insurance. In commenting upon this case, Dyer, J., said : " "Since the moving cause was the involuntary act of leaving 'Travelers 1 Ins. Co. v. McConkey, Rep. 388; Knickerbocker Ins. Co. v. 137 U. S. 861. Jordan, 7 ('in. Law Bull. 71; Travel- 'Cronkhite v. Ins. Co., 75 Wis. ere' Ins. Co. v. McConkey, 127 U. S. 116; 43 N. W. Rep. 731. 661; 17 In.s. L. .J. 585; 8 Sup. Ct. Merrett v. Accident Association. Rep. 1866; Cronkbite v. Travelers' 68 Mich. 388. Ins. Co., 75 Wis. 118; 48 N. W. Rep. 'Ingersoll v. Knights "f Golden 731; Accident Ins. Co. v. Bennett, 90 Rule. 17 Fed. Rep. 272; Washburn v. Tenn. 256; 16 S. W. Rep. 728. Society, 16 N. Y. Supp. 866; Whit- • 58 Wis. L4; 16 N. W. Rep. 17; 16 ladi v. Co., 28 N. Y. Supp. 951; Am. Rep. 618. Wright v. Ins. Co., 29 Up. Can. C. * CrandaJJ v. Ins. Co., 27 Fed. Rep. P. 221; Mallory v. Ins. Co., 47 N. Y. 40. 52; Leman v. Ins. Co. (La.), 15 So. 728 ACCIDENT INSURANCE. the seat and walking to the platform, the case suggests the inquiry, if for example, a person in a fit of somnambulism, or in delirium, not knowing or realizing what he is doing, involun- tarily inflicts injury upon himself — that is by means of his own hand, and death ensues, is not such an injury as much the result of accident as if in the same circumstances, the injury results from other external forces, such as falling from the platform of a moving train ? " As an answer to this question the learned judge held in this case that death from hanging, when the insured was insane, was a death effected through external, accidental and violent means, within the meaning of a policy of accident insurance ; and on appeal this decision was affirmed. 1 § 379. External and visible sign. — A clause providing that the insurance "does not extend to any bodily injury of which there shall be no external and visible sign upon the body of the insured," does not apply to fatal injuries, but only to those not resulting in death. It would be unjust to hold that this condition applied in cases of death, for it would preclude recovery in all instances where death occurred by drowning, freezing, poisoning, suffocation — means of death leaving no outward mark— and also where the insured has been killed and his body is missing. And where this clause is followed by another, providing, " nor to any death caused " in certain named ways, the context shows that the first clause is only applicable to injuries not resulting in death. There are rea- sons for the condition applying to a surviving claimant. He has an opportunity for feigning an internal injury if disposed to defraud the insurers, but no such protection is required where the accident causes death. The dead body is an ex- ternal and visible sign that an injury was received, when death 1 Accident Ins. Co. v. Crandal, 120 enhauer v. Ins. Co., 7 Heisk. 567; 19 U.S. 527; 7 Sup. Ct. Rep. 685; see Am. Rep. 623; Moore v. Ins Co., 1 Am. upon this subject, as tending to deter- L. T. Rep. (N. S.) 319; Hartman v. mine the principles involved, Black- Ins. Co., 21 Pa. St. 466; Phillips v. stone v. Ins. Co., 74 Mich. 592; Mu- Ins. Co., 26 La. Ann. 404; 21 Am. tual Lifev. Terry, 82 U. S. (15 Wall.) Rep. 549; Van Zandt v. Ins. Co., 55 580; Bigelowv. Ins. Co., 93 U.S. 284; N. Y. 169; 14 Am. Rep. 215; Nimick Manhattan Ins. Co. v. Broughton, v. Ins. Co., 3 Pittsburg (Pa.), 293; 109 U. S. 121; Equitable Life v. Pat- Conn. Mutual v. Groom, 86 Pa. St. erson, 41 Ga. 338; Breasted v. Trust 92; 27 Am. Rep. 689; Gay v. Ins. Co., Co., 4 Hill 74; 8 N. Y. 299; Easta- 9 Blatchford 142; Adkins v. Ins. Co., brook v. Ins. Co., 54 Me. 224; Phad- 70 Mo. 27: 35 Am. Rep. 410; Chap. ACCIDENT INSURANCE. 729 follows an accident. 1 While an insured was driving, his horse became frightened, ran away without upsetting the carriage or colliding with anything, and was at length brought under control. He was in great danger at the time, and suffered so severely, either from fright or strain caused by his physical exertion in restraining tha horse, that he died within an hour. It was held that the company was Liable, though there was no external and visible sign of injury upon the body of the in- sured. 2 While chopping wood in a place made slippery by the sleet and hail which had fallen, the insured slipped, fell across a log and immediately expired. There was no visible mark upon his body, but the company was held liable. 8 Under such a clause in a policy, there must bean external and visible sign of the injury, but it doss not necessarily fol- low that the injury must, be external. Visible signs of injury, within its meaning, are not to be confined to broken limbs or bruises on the surface of the body. There maybe other external indications or evidences which are visible signs of internal injury. If an internal injury produces, for example, a pale and sickly look in the face, if it causes vomiting and retching, or bloody or unnatural discharges from the bowels; if it sends forth to the observation of the eye, in the struggle of nature, any sign of the injury, these are external and visible signs, provided they are the direct result of the injury.' Where the insured was found dead in bed. with a ball of tough froth over his mouth, slightly tinged with blood, and some red splashes on the side of his face and on his breast, the room being lull of coal gas. it was held to be a question to he decided by the jury, under the evidence, whether the.-' were the visible and external signs of injury.'' A nosebleed may he a visible external sign of an injury, and a bloody discharge from the man v. Ins. Co.. c» Biss. 238; Cooper berger v. Association, it Fed. Rep. v. Ins. ('.... 102 Mass. 227; :'. Am. 170. Rep. 151; Jacobs v. bis, Co., 1 McAr- 'McGlinchy v. Casualty Co., supra. thur ili. i '. i •'.:!•,»; Dean v. Ins. Co., 4 B Eggenberger v. Association, 41 Allen mi. Fed. L72. McGlinchy v. Fidelity & Casualty ' Barry v. Accidenl Ass'n, 23 Fed. Co., 80 Me. 251; 14 At I. Rep. L8; Paul Rep. 712. v. Ins. Co., 1'illun 818; affirmed 112 S U. 9. Ace. Ass'n \. Newman, 84 X. Y. 172; 20 N. East. Rep. 847; Mai- Va. 52; :'■ 8. K. R< p. 805; Bee ; 894. lory v. Ins. Co.. 47 N. Y. 52; Eggen- 730 ACCIDENT INSURANCE. bowels, even two or three weeks after an injury, may be its direct and visible result. Complaint of pain or soreness is not, however, such a sign. 1 In an action on an accident policy which provided that the insurance should not extend " to in- juries of which there should be no visible mark on the body of the insured," where the answer admitted the death of deceased from erysipelas ensuing upon the accidental cutting and laceration of one of his fingers, the subsequent allegation that " there was no visible mark of said alleged accidental injury upon the body of plaintiff's testator" is repugnant to the admission, and the defense is not well pleaded. 2 "Where it is provided that the insurance shall not cover injuries of which there is no visible external mark upon the body of the insured, and his injury is a strain, which was not externally visible until shortly after the accident, he is entitled to recover. Such a clause does not require that the effects of the accident shall be immediately visible, or that there must be broken limbs, or bruises, contusions, or lacerations on the body. 3 An injury may not be visible to the eye, and still have an external or visible sign. A strain of the recti muscles which can be ascertained by a physician through the sense of feeling by applying his hands upon the exterior of the body may be said to be " visible," within the meaning of an accident policy, since it is noticeable and apparent to the touch. 4 §380. — The nature, cause or manner of death unknown, or incapable of direct and positive proof — Burden of proof.— Where the evidence in a case is sufficient within the rules of law to prove that the death of the insured was the result of external, violent and accidental means, the language of the policy requiring the evidence to be " direct and affirma- tive " on the subject can not be construed to take the case out of the ordinary rules of evidence. 6 Circumstantial evidence is regarded by the law as competent to prove any given fact, 1 Whitehouse v. Ins. Co., 7 Ins. L. 6 Reynolds v. Accident Association, J. 23; U. S. Association v. Barry, 131 1 N. Y. Supp. 738; 17 N. Y. St. TJ. S. 100. Reptr. 337; Utter v. Ins. Co., 65 2 Bernays v. United States Mut. Mich. 545; 32 N. W. Rep. 812; 161ns. Ace. Ass'n, 45 Fed. Rep. 455. L. J. 532; see section 388; Badenfeld 3 Pennington v. Ins. Co., 85 Iowa v. Ass'n, 154 Mass. 77; 27 N. East. 468; 52 N. W. Rep. 482. Rep. 769; Richards v. Ins. Co., 89 Cal. 4 Gale v. Association, 21 N. Y. Supp. 170; 26 Pac. Rep. 762. 893. ACCIDENT INSURANCE. 731 and sometimes it is as cogent and irresistible as direct and positive testimony. Such a requirement of a policy as to direct and positive proof does not make it necessary that the i/laintiff shall establish the fact and attendant circum- stances of the decedent's injury by persons who were actually present when the injury occurred. The fact that the injury was caused by external violence may be directly and positively established by the proof given of the nature and character of the injury, and the presumption is that an injury was caused by accidental means rather than that it was the result of design, either on the part of the decedent or of any other per- son.' Under a policy stipulating that the insurance should not extend to any case of death, the nature, cause, and manner of which is unknown, or incapable of direct and positive proof, it is not necessary to establish the fact and circumstances of death by witnesses actually present, but these may be inferred from the circumstances, and it is not error to charge that the jury may find any fact proved which may rightfully and rea- sonably be inferred from the evidence. 2 A policy provided : " This insurance shall not be held to extend to mysterious disappearances, nor to any case of death or disability, the nature, cause, or manner of which is unknown. or incapable of direct and positive proof." The insured was found dead in a cattle-guard on a railway, having been run over by a passing train. The cattle-guard was at the end of ;i nlatform of the railway station, where the deceased might have fallen into it accidentally, but there was no evidence as to i lie circumstances of his death. The court said : " We think it would be a perversion of the true meaning of this clause to hold that, where the immediate cause of death is indisputable and evidenced by outward violence caused by a train running over the body, and an accident prima foci* within the direct •Cronkhite v. Travelers' Ins. Co., 89 0al. 170; 26 Pac. Rep. 762; Baden- 7.") Wis. 75; 4:5 X. \v. Rep. 781; Trav- feld y. Ass'n, supra. elers' Ins. Co. v. McConkey, 127 U. 'Accident fas. Co. v. Bennett, 90 S. 661; 8 Sup. Ct. Rep. 1880; 17 Ins. Tenn. 266; 16 S. W. Rep. 738; E_ L.J. 585; Miillory v. fas. Co., 47 N. berger v. Association, 41 Fed. Rep. Y. 52; Peck v. Accidenl Association, 172; Tennant v. Ins. Co., 81 Fed, 52 111111205; 5 N. V. Supp.215; Free- Rep. 822; Travelers' In-. Co. v. Shep- manv.Ina. Co., 144 Mass. 572; 12 N. pard,85Ga. 751; 12 s. E. Rep. 18. East. Rep. 372; Richards v. Ins. Co., 732 ACCIDENT INSURANCE. meaning of the insurance, it can be any objection that no hu- man eye witnessed the precise manner in which the deceased fell into or got into the cattle-guard. A large proportion of accidental deaths occur under such circumstances that evidence is wanting as to the precise manner in which the deceased met his fate. Where the visible injuries plainly account for death, it can hardly be necessary to explain step by step how it happened." ' Insured was found on a railroad track in a sit- uation which showed that he had been killed by a certain train. There was evidence that before the arrival of that train he was waiting in the train-house for a train which passed fifteen min- utes later on a track west of that on which he was found. There was no evidence of the cause of his fall on the track, or of his proximate acts. There was evidence that the platform east of the track on which he was run over was for trainmen only, and that the place intended for and generally used by passengers taking or leaving cars on that track was between that track and the one to the west. It was held that the court properly refused to instruct that if deceased, while on the east platform, or while getting off a car in motion, fell on the track, there could be no recovery of the insurance, there being no evidence upon which to base such instructions. 2 i "Wright v. Ins. Co., 29 Up. Can. were such as to make it negligent. If C. P. 221; Trew v. Assurance Co., 6 the jury could surmise that he left H. & N. 839; Fitton v. Ins. Co., 17 C. the car when it was in motion, under B. N. S. 122; Mallory v. Ins. Co., 47 circumstances which rendered the N. Y. 52; Knickerbocker Ins. Co. v. act negligent, they could equally well Jordan, 7 Cin. L. Bull. 71 ; Badenfeld surmise that he left it under circum- v. Ass'n, supra; Peck v. Association, stances which would show that the 52 Hun 255; 5 N. Y. Supp. 215; Ac- act was not negligent. It may be cident Ins. Co. v. Bennett, 90 Tenn. said, in general, in regard to each of 256; 16 S. W. Rep. 728. the defendant's prayers for rulings 2 Badenfeld v. Association, 154 Mass. and instructions, that there is no evi- 77; 27 N. East. Rep. 769. The court dence of the act of the deceased prox- said: " The defendant asked for in- imate to his injury, and, of course, structions upon the hypothesis that no evidence of the circumstances deceased fell while leaving the car which characterize the act as negli- when it was in motion. There was gent or otherwise. If the jury infer no evidence that he so fell, but, if it an act, they are not, without evi- could be inferred, it would not be dence, at liberty to infer the circum- conclusive of his negligence. That stances which made the act negli- would depend upon the circum- gent. The jury could not properly stances, and there would be no pre- found their verdict upon particular sumption that the circumstances facts found without evidence. The ACCIDENT INSURANCE. 733 § 381. An insured was in his usual health until one night when he got lip from his bed and went down stairs. When he came back he said he had fallen down the back stairs, hit and hurt the back of his head and almost killed himself. He complained greatly of his head, appeared taint, and vomited. He grew worse and died in four days. No one saw or heard him fall down stairs. The company was sued on the ground that his death was caused by his accidental fall, and the only evidence on that point at the trial was the testimony of his wife and son as to the declarations made by him when he came back to his room. The court held that these declara- tions were competent evidence of an accident from external, violent and accidental means. 1 While the burden is upon the plaintiff to show that death was caused by external, violent and accidental means, he need not negative the limitations and conditions of the policy, which provide that it does not cover disappearance, intentional injuries, and the large num- ber of speciiied injuries, or death from the variety of causes named in it. 2 And the burden is on the company to show that the insured did not use due diligence for Ins personal safety. 3 A policy contained tins condition : " Provided, always, that no claim shall be made under this policy by the said insured in respect of any injury, unless the same shall be caused bysome outward or visible means, of which proof satisfactory can be furnished." The language does not require thai proofs of the cause of the injury shall be made and presented to the com- pany as an act precedent, to a right to recover. The injury must be caused by some outward or visible means, of which proof "can be furnished," but the language does not import that such proof must lie made before there is a righl of re- real question was whether the facts supra; Hall v. Am. Ace. Association, directly proved by the evidence and v »> Wis. ."iis-. .">; N. \v. Rep. 866. those inferred from them sustained 'Travelers' ins Co. \. McConkey, the burden of proof, which was upon K'7 U.S. 661 ; 1 7 ln>. L. J. 585; < Joburn the defendant; and this was clearly v. Travelers' ln>. Co., 145 Mass; 226; a question tor the jury, and not for 18 N. East. Rep. 607; 1? Ins. L. J. 40; the court, unless the court could rule Cronkhite v. Travelers' Ins. Co., 75 that there was not sufficient evi- Wis. 116: 48 N. W. Rep. 731. dence." Badenfeld v. Ass'n, 154 Mass. 77: 1 Travelers' Ins. < 'o. v. Mosley, 75 27 N. East. Rep. 769; Freeman v. Ins. l\ s. (8 Wall. i 897; Clifford, J.,dis- Co., ill Mass. 572; 16 Ens. I.. J. 822; senting; see Richards v. Ins. Ce., 36 All.. L. J. 127; 12 N. East. 372. 734 ACCIDENT INSURANCE. covery. The terms of a policy may make it a condition prec- edent to the right to recover the stipulated amount that proof of the happening of the accident and the causes of the injury shall be furnished to the company, but there is no rule of law requiring such proof as an act precedent to such right. 1 By satisfactory proof of accidental death or injury is meant such proof as shall appear satisfactory to a court, according to the rules of evidence, and not such as shall be satisfactory to the company. 2 1 Railway Assurance Co. v. Bur- v. Garden, 101 N. Y. 387; 4 N. East, well, 44 Ind. 460; 3 Ins. L. J. 281 Rep. 749; Miesell v Ins. Co., 76 N. Y. 2 Dennis v. Ben. Ass'n, 120 M Y 115, 496; 4 N. East. Rep. 843; Boiler Co. CHAPTER XXVIII. ACCIDENT INSURANCE. § 382-385. Accidents while traveling by public or private conveyance. 386. While traveling in compliance with all rules and regulations of common carriers; violation of rules of employment. 387. Walking on railway track. 388. Intentional injuries inflicted by the insured or any other person. 389. 390. Intoxication: under the influence of liquor. 391. Fits, vertigo, fainting. 392. Drowning. § 382. Accidents while traveling by public or private conveyance. — Where a contract of accident insurance sti pulates that the insured shall not be wanting in diligence for his self- protection, shall not expose himself to unnecessary danger, or obvious risk, or shall not contribute to an injury by his own neg- ligenee, the liability of the insurer for an accident to the insured, and his own acts in relation to the cause of the injury, are to be measured much as if the rights of the parties depended, not upon contract, but unon the tortious injury of one through the negligence of the other. 1 The decisions in the books on ques- tions of negligence and contributory negligence are, therefore, often in point in such cases, though of course, the doctrines of willful negligence and comparative negligence do not apply. A traveler might, under these last named doctrines, have a good causeof action for an injury againsl the common carrier transporting him, while an accident insurance company would not be liable to him under such a contract for the same injury, but an insurance company can never be liable for an accidental injury to a traveler holding such acontract of insurance, where the common carrier would be exempt from liabilit v on account of his contributory negligence. IT any injury happen to an insured traveler while he is occupying a place provided tor the accommodation of passengers, nothing further is ordinarily necessary to show due care on his part. But when it is shown 1 See § 367. (785) 736 ACCIDENT INSURANCE. that he had left the place assigned for passengers, and was occupjdng an exposed position, the company is not liable, unless it is also made to appear, upon some ground of necessity, that his position was consistent with the exercise of proper care and caution. 1 Bringing a train to a full stop near the regular station, after having given the usual signal indicating the arrival at the sta- tion, is an implied invitation from the company to the passen- ger to alight; and a passenger is not necessarily guilty of contributory negligence, who, without knowledge of the dan- gerous place at which a train has stopped, and in a dark night, steps from a train which has been brought to a full stop, near the usual stopping place, at the regular time for stopping, after the customary signal indicating the arrival at the sta- tion. 2 If a person insured while traveling by public or private conveyance, having a right to leave a train at a station, is in- formed or notified in any way that the train is about to start, and an opportunity is thus given to him to take his place again upon the train, but he chooses to remain until the train is put in motion and is then injured in getting on the train, it may be said that ^ is negligent, in other words, that he takes the risk of getting on the train while thus in motion. But if, having alighted at a station, he has no notice by bell, whistle or otherwise, of the movement of the train, or he has not the opportunity, after notice is given, to get on the train, and, intending to go farther he attempts to get on the train and is injured, there is not the same measure of responsibility upon him. It would be natural for a man — for a, prudent man — intending to go farther on the train to make an effort, even when the train was in motion, to regain his place on the train. 3 The insured took a train and went to Kankakee. The practice was for the train to stop at the station, and then pass on to the coal-bin, provided the entire train was to go be- yond Kankakee. The train stopped at the station and sev- '.Hickeyv. R. R. Co., 14 Allen 429. road Co. v. Aspell, 11 Harris 14T; 2 McLean v. Burbank, 11 Minn. Terre Haute, etc., R. R. Co. v. Buck. 277. 288; Maury v. Tahnadge, 2 Mc- 96 Ind. 346; Burkhard v. Ins. Co.. 102 Lean 157; Laing v. Colder, 8 Pa. St. Pa. St. 262; 48 Am. Rep. 205. 479; Stokes v. Saltonstall, 13 Peters 3 Tooley v. Assurance Co., 3 Biss. 192; Montgomery, etc. R. R. Co. v. 399; 2 Ins. Law J. 275; Schneider v. Boring, 51 Ga. 582; Pennsylvania R. Ins. Co., 24 Wis. 28. R. Co. v. White, 88 Pa. St. 327; Rail- ACCIDENT INSURANCE. 737 eral persons left the cars, the insured among others. The train remained at the station several minutes and took in water. The bell was rung, the conductor signaled with his light, and the train went on to take in coal. There was a platform extending from the station along the side of the railroad track toward the water tank and coal-bin. When the train moved, the insured, who was standing by a door of a station, started forward on the platform to overtake the train. "When he reached the train, he ex- tended his hands to grasp the car rails, fell between the two passenger cars, and was run over and instantly killed. There was evidence tending to show that his journey ended at Kankakee, but evidence to the contrary was also shown. A clause in his policy limited the liability of the company to an accident received bv the defendant " while actuallv traveling in a public conveyance provided by common carriers, and in compliance with all rules and regulations of such carriers." The court said : " Tooley must have actuallv been a traveler in or upon the train; but it can not be said that the responsi- bility ceased whenever he stepped out of the car to alight at a station, and that it never became operative again until his foot entered the car to resume his journey. That would be giv- ing too narrow a meaning to the clause of the policy. ^Ye think that the fair construction of the liability assumed by the defendant in this respect was, that it included injuries re- ceived by Tooley while necessarily getting on or off the train, as a traveler upon it. * It is a question of fact to be de- termined by the jury — was Tooley at the time the injury was received by him, a traveler on the train '. And this will depend upon the fact whether his journey terminated at Kan- kakee. It is claimed on the part of the defense that that was the termination of his journey, and. if SO, then lie was nut a traveler on this train at the time of the accident. * * According to the view which we take of the contract between the parties, if he were a passenger proceeding beyond Kan- kakee, on the train, he had the right to leave the car at Kan- kakee and return to it; he was not bound to remain inside the car all the time." ' 'Tooley v. Assurance Co., supra. 47 738 ACCIDENT INSURANCE. § 383. A policy insuring "against any accident while traveling by public or private conveyances for transportation of passengers," covers an accident occurring while the insured was attempting to enter a public conveyance for passengers while in motion. 1 But where such a policy provides that the company shall not be liable for an injury incurred in con- sequence of the negligence of the insured, it has been held that the company will not be liable if the insured is injured in at- tempting to get off or on a conveyance while in motion, whether the motion is rapid or slow; a but it has also been held, under such a provision of the policy, that the test of liability is whether the insured, in attempting to get upon a conveyance while in motion, used that degree of caution and diligence which a prudent man would use under the circumstances in which he was placed — or in other words, it has been held that the question whether the insured acted prudently, reasonably and diligently, under the circumstances of the case, is one for the jury to determine under the evidence. 3 Under the pro- visions of a policy insuring the holder against accidents while traveling on the conveyances of any common carrier, pro- vided he complied with the rules and regulations of such carrier and exercised due diligence for self-protection, it was held that a passenger on a railway car, who was injured by being thrown from the steps of the car, where he was stand- ing while the train approached a station, in violation of a known rule of the company, was not entitled to recover. 4 . A contract of accident insurance provided : " Standing, being or riding upon the platform of moving railway coaches, * * or entering or attempting to enter or leave any public conveyance using steam as a motive power while the same is in motion, * * are hazards not contemplated or covered by this certificate, and no sum shall be paid," etc. This ex- ception, however, was not made to apply to the exposure of railway employes in the performance of their duty. The 1 Champlin v. Assurance Company, Hickey v. E. R. Co., 14 Allen 429; 6Lans. 71; see § 365 et seq. Damount v. R. R. Co., 9 La. Ann. 2 See §365; Sawtelle v. Assurance 441. Co.. 15 Blatch. 216; see § 367; Hull v. 3 Tooley v. Assurance Co., 3 Biss. Association, 41 Minn. 231; 42 N. W. 399, 403. Rep. 936; Miller v. Travelers' Ins. Co., 4 Bon v. Assurance Co., 56 Iowa 39 Minn. 548; 40 N. W. Rep. 839; 664. ACCIDENT INSURANCE. 739 assured, a shop hand of a railway company, while being car- ried homeward from the shops at the close of the day's work, upon one of the company's trains, went out upon the platform while the train was in motion, intending to get off when it should stop, for the purpose of crossing over by a switch to another track. This was done wholly for his own convenience and purpose, and was not prompted by any sudden emergency or necessity. He was thrown off the platform, and killed. The case was held to be within the specific exceptions in the contract, and the insurer was not liable. 1 It can not be said that a passenger on a railroad train, who goes out upon the platform of the car while the train is in motion, because he is overcome by the heat of the car, or is suffering from nausea, voluntarily exposes himself to unnecessary danger, within the meaning of a policy of accident insurance. 2 § 384. A policy insured the holder against any accident happening to him "from railway accident whilst traveling in any class carriage on any line of railway,'' etc. The assured traveled in a railway carriage to a certain place. In getting off of it after the train had stopped, on a rainy morning, with- out any negligence on his part, his foot slipped from the step, and he sustained an injury. This was held to be a railway accident whilst traveling, within the meaning of the policy. Pollock, C. 13., said: "The first question is, whether this is a railway accident, within the meaning of the policy. We are of opinion that it is. * * It is quite plain that the plaintiff was a traveler on the railway; it is quite plain that though at tin' time of the accident his journey had in one sense termi- nated by the carriage having stopped, he had not ceased to be connected with the carriage, for he was still on it. The ac- cident also happened without negligence on his part, and while doing an act which, as a passenger, he must necessarily have dour, for a passenger must get into the carriage, and get cut of it when the journey is at an end, and can not he considered as disconnected with the machinery of motion until the time lie has, :is it were, safely landed from the carriage and got upon the platform. The accident is attributable to his being a passenger on the railway, and it arises out of an act imme- 1 Hull v. Accident Association, 41 * Marx v. Travelers' Ins. Co., 39 Minn. 231; 42 N. W. Rep. 936. Fed. Rep. 321. 740 ACCIDENT INSURANCE. diately connected with his being such passenger. Under these circumstances we think this was a railway accident within the meaning of the policy." Anderson, B., said : " As to railway accidents, my notion of a railway accident is an accident oc- curring in the course of traveling and arising out of the fact of the journey. It does not necessarily depend on an accident to the railway or machinery connected with it." ' Where a policy insured " against any accident while travel- ing by public or private conveyances for transportation of passengers," and the insured was injured in attempting to get into an omnibus on a public street, the supreme court of New York said : " Was the plaintiff traveling when the accident happened % He was in the act of getting into a public convey- ance for that purpose, and was injured while upon the outside step thereof. It would be a very strained construction of a con- tract like this to hold that he was not traveling. If he was not traveling it is difficult to say wrtiat he was doing. We think that as he was actually going from one place to another, he was traveling." a An insurance was procured against " any accident while trav- eling by public or private conveyances provided for transporta- tion of passengers." An accident occurred to the insured while she was going on foot over the customary route from a steam- boat-wharf, where conveyances were to be had for hire, to a railway station about seventy rods from the wharf. At the time of the accident she was in the prosecution of her journey, intending to continue it by rail. The supreme court of Xew York held that the accident was not covered by the insurance, but the court of appeals reversed this decision and said : " It must be conceded that the injury received by the plaintiff's intestate does not come within the strict literal words of the contract of assurance. * * The intestate was not actually traveling upon any public or private conveyance provided for the transportation of passengers at the time of receiving the injury which caused her death. * * The policy must be construed so as to carry into effect the intention of the parties, so far as such intention can be determined from the language 1 Theobald v. Assurance Society, 26 2 Chauaplin v. Assurance Co., G Law & Eq. (Eng.) 432; 10 Exch. 45; Lans. 71. 2 Big. L. & A. Cas. 393. ACCIDENT INSURANCE. 741 used, construed in the light of well-known extrinsic facts, which must be presumed to have been known to the contract- ing parties at the time of making the contract, and in refer- ence to which it was entered into. One fact of this character, very important in the present case, is that of the frequent change required from one train of cars to another at inter- mediate stations upon the same journey. * * Can it be said that a passenger is not traveling within the meaning of this contract by public conveyance, while passing from one train to go on board another in the actual prosecution of his journey ? * * I think that such passenger, within the meaning of this contract, and also within the fair construc- tion of the language, is a traveler by public conveyance, * although he may walk a short distance from the ferry- boat to the train, * or from one train to another, when such changes are made at intermediate stations. An injury received while so necessarily walking in the actual prosecution of the journey, is received while traveling by public convey- ance, within the meaning of the policy, as such walking is the actual and necessary accompaniment of such travel. * * It surely can make no difference in principle, that the space to be walked over, in going from one conveyance to another, is a Cew steps more or less. Nor does it affect the question that the intestate might have procured a hack to carry her, had she so have chosen. She pursued the same course that the great majority of passengers did. This she had the right to do under the contract." ' 1 Nbrthup v. Assurance Co., 43 N. fire-engine in the Bowery, or knocked Y. 516', reversing 2 Lans. Kifi: 2 Big. down by a falling brick from a build- L. & A. Cas. 129. An able writer in ing, and yet bold the company liable commenting upon this case, says: for an injury which is manifestly ex- " This construction of the contract is eluded in contemplation of their con- open to the objection that theprin- tract, and not covered by their pre- ciple laid down would apply equally mium based on statistics of rail and to walking across the whole city of steamboat casualties. The court say : New York on a through trip to Wash- ' It can surely make no difference in ington, as well as to going from the principle that the space to he walked ferry-boat at Jersey < ilv to the train over, in going from one conveyance m the adjoining station. A traveler, to another, is a Few steps more or therefore, in prosecuting his journey less.' Such construct ion reallv makes •by public or private conveyance' anew contract, which is all tile more might find himself run over by an hard on the insurers, because they omnibus in Broadway, or hurt by a issue a ' general accident ticket,' 742 ACCIDENT INSURANCE. An accident policy provided that it should be payable " only in the event of death or disability of the assured when caused by an accident while traveling by public or private conveyance/' The insured traveled by steamboat to a certain wharf, and started thence on foot for his home, some eight miles distant. When he reached a point on the highway about half way home, he was waylaid, robbed, beaten and bruised, so that he died within a Aveek from his injuries. In an action upon the policy one of the questions raised was whether the insured was traveling by private conveyance at the time he received his injuries. The court below said : u When the term ' private conveyance ' is used, as in this policy, to indicate a mode of traveling, its ordinary popular acceptation means a vehicle or instrument of conveyance other and dilferent from the person or thing to be conveyed. It will not answer any just rule of construction to hold that in one sense it is possible to say that a man walking on foot is a private conveyance for himself, and, therefore, such must be its interpretation. The ordinary import of the language, and not the possible import, must control. My opinion is, therefore, wholly with the defendant on this question, and defeats a recovery by the plaintiff." 1 This decision was affirmed on appeal to the supreme court of the United States, and the following opinion on this subject was expressed by that court : " That the deceased was travel- ing, is clear enough, but was traveling on foot traveling by public or private conveyance? The contract must receive the construction which the language used fairly warrants. What was the understanding of the parties, or rather, what under- standing must naturally have been derived from the language used \ It seems to us that walking would not naturally be presented to the mind as a means of public or private convey- ance. Public conveyance naturally suggests a vessel or vehicle which is this precise risk, and for ance risks. No construction contra which the premium is accordingly proferentem should enlarge a con- graduated. Manifestly no form of in- tract of insurance by implication, so surance can be safe which does not as to undermine its very foundation, rest on averages exact and denned, and yet this is the effect of the decis- Accidents while traveling by public ion of the court of appeals." 7 Am. and private conveyance are a class by Law Rev. 605. themselves. A person walking is ex- ' Ripley v. Assurance Company, 1 posed to manifold risks which are ex- Dill. 403; S. C, 2 Big. L. & A. Caa. eluded in the computation of convey- 738. ACCIDENT INSURANCE. 743 employed in the general conveyance of passengers. Private conveyance suggests a vehicle belonging to a private individual. If this was the sense in which the language was understood by the parties, the deceased was not, when injured, traveling within the terms of the policy. There is nothing to show that it was not." ' An accident ticket insured the holder against " accident while traveling by public or private conveyance provided for the transportation of passengers." The insured was a loco- motive engineer and was killed on an engine while in charge of a train of cars. It was contended that a locomotive or en- gine was not a conveyance provided for the transportation of passengers. The court said : " This is certainly true, and if the ticket applies solely and exclusively to passengers or trav- elers, the position that the company is not liable can not be controverted. A passenger would have no right to go upon an engine, and if he was so indiscreet as to venture on such a place, and injury ensued, he would not be protected." 2 § 385. Where a policy insures the holder against accidental injuries received within a specified time, "subject always to the conditions indorsed," the fact that one of these conditions states that this covers only the hazard of travel on the public conveyance of a common carrier, shows no ambiguity or con- flict between the general insuring clause and the limiting con- dition, such as to require its interpretation in favor of the assured to cover risks other than those of a passenger. Where the policy plainly limits the risk covered to that <>(' ;i pas senger on a common carrier's public conveyance, and there is no mistake or fraud, representations of the general agenl issu- ing the policy that it will cover as well all accidents happening to insured while oaring for and selling horses which he is 1 Ripley v. Assurance Co., 83 U. S. construes it, because of the acts and (16 Wall.) 336; 2 Lis. 1-. .J. 538; 3 Big. knowledge of the agenl of thecom- L. & A. Cas. 832, note. pany in issuing it to the insured, Brown v. Assurance Co., 15 Mo. who was known to be an engineer, 221. The court, in this case, holds the andwhomighl reasonably bave sup- company liable on another ground, posed from the sale of the ticket to but the opinion is certainly vague and him thai the engine was to be con- unsatisfactory. It is impossible to sidered as a part of the " public con- tell \n hether the court erroneously as- veyance," — the train of ears.—" pre- sumes that the contract is one against vided for the transportation of pas- accidents in general, or whether it so Bengers." 744 ACCIDENT INSURANCE. taking by railroad to market transgress the agent's apparent authority, and do not bind the company. 1 § 386. While traveling in compliance with all rules and regulations of common carriers; violation of rules of em- ployment. — When the contract provides for insurance against accidents while traveling in a public conveyance provided by common carriers, and in compliance with all rules and regula- tions of such carriers, it is not necessary that the insured, while traveling on a railway train, shall examine the time card to make himself acquainted with all the rules which may be contained upon the time card and ascertain all the minutiae connected with the management and running of trains, but he must obey all such rules as a general traveler may be pre- sumed and ought to know. Any other construction than this, of such a clause in a policy, would operate as a snare upon travelers, and be unreasonable. 2 A person who was injured by being thrown from the steps of a railway car, where he stood while the train was approaching a station, in violation of a known rule of the company, is not entitled to recover. 3 But where a rule, forbidding passengers on a railroad train to ride on the platform of a car, is generally disregarded by both passengers and trainmen, it can not be said that to so ride is a violation of " a rule of a corporation," within the meaning of a policy of accident insurance. 4 Under the defense that the accident occurred u while or in consequence of violating the laws or the rules of a company,'" within an exception in the policy, it may be shown that there was a general and well- known custom of doing the act complained of at the time and place of the injury. 5 The fact that a policy insures a person with reference to a particular employment, and provides that the insurer shall be exempt from liability for injuries resulting from a violation of the rules of employment, does not impose on the insurer the duty of informing the assured as to the existence of such rules, 'Fidelity &Cas. Co. v. Teter(IncL), 3 Bon v. Assurance Co., 56 Iowa 36 N. East. Rep. 283; Rogers v. Ins. 664. Co., 121 Ind. 571: 23 N. East. Rep. * Marx v. Travelers' Ins. Co., 39 498; Ins. Association v. Kryder, 5 Fed. Rep., 321. Ind. App. 430; 31 N. East. Rep. 851. "Duncan v. Association, 13 N. Y. ' 2 Tooley v. Assurance Company, 3 Supp. 620. Biss. 399, supra. ACCIDENT INSURANCE. 7tt5 but the insured is bound to inform himself. Such an exemp- tion must be specially pleaded by the insurer before it can be made available as a defense; and, if it be not pleaded, the court may exclude any evidence offered to establish the rule which it is claimed has been violated. 1 § 3S7. Walking on railway track, etc. — Where an insur- ance policy contains prohibitions against walking on a railway track, it means walking along a railway track in the ordinary sense — using it as a highway. The mere using of a track for the Width of a street, or the crossing of a track at a street- crossing, are not the kinds of k - walking on the track " against which prohibitions are leveled. Common language distin- guishes between standing, walking and crossing. To stand or to walk on a road-bed implies some sensible duration of the act, and does not describe a mere crossing for a justifiable purpose. 2 An insurance did not cover injuries happening to the insured while " walking or being on the road-bed or bridge of any railway/' The insured stepped off a railway train when it came to a stop on a drawbridge at night, fell through a concealed hole in the bridge, and was killed. The court held that the accident was covered by the policy, because the evident intent of the prohibition was to guard, not against in- jury resulting from a defective road-lied or detective railway bridge, but against the danger of injury from trains passing thereon. The court said: "If the design was to apply the Language to bridges defectively constructed or out of repair, it would not have been restricted to railway bridges. It would have included all bridges, both fool and wagon. The purpose is not to avoid liability for injuries resulting from being on bridges unsafe in themselves. The manifest intent is to ex- empt from responsibility for damages caused by collision with trains moving thereon." J Where an insured was struck by a locomotive engine while he was walking along a railroad track, it was held that he had not used due diligence for his protec- tion. 4 Where one who is running rapidly toward an ap- proaching train for the purpose of getting the mail-bags, 1 Standard Life v. Jones, 94 Ala, Burkhard v. Ins. Co., 102 Pa St. 484; L0 So. Rep. 580. 262; see Dougherty r. In-. Co., 154 -' Wright v. Ins. Co., 29 Up. Can. Pa, st. 885; 36 At 1. Rep. 789. C. I'. 221; Duncan v. Association, (8 ' J Am. I.. Etep. 595; Tattle v. Ins. N. Y. Supp. 020. Co., 134 Mass. 175; LoveH v. [ns. Co., 746 ACCIDENT INSUKANCE. stumbles as he nears the track, and falls against the engine, the injury is clearly not " intentional " within the exception of an insurance policy; nor can it be construed as the result of " walking or being on a railroad track," or of " voluntary ex- posure to unnecessary danger," within the meaning of other exceptions. 1 Where a policy provides that walking or being on the road-bed of any steam railway are hazards not covered by it, and the insured while walking between the tracks of the railway, was struck by an engine and killed, the company is not liable. 2 § 388. Intentional injuries inflicted by the insured or any other person. — Policies of insurance usually contain a clause providing that no claim shall be made under it where the death of the insured is caused by " intentional injuries in- flicted by the insured, or any other person." If the insured is murdered his death is caused by intentional injuries inflicted by another person, and no recovery can be had under such a policy. 3 But all such special provisions in a policy are to be strictly construed, and courts have been very loth to exempt accident companies under them unless the case came within their exact language. A policy contained this condition : " This insurance shall not be held to extend to disappearances, or to any cause of death, or personal injury, unless the claim- ant under the policy shall establish by direct and positive proof that the said death or personal injury was caused by external violence and accidental means, and was not the result of design either on the part of the insured or of any other person." The insured was struck under the eye by a man who was attempt- ing to blackmail him, and there were circumstances tending to show that the assailant did not intend to kill him. The insured died about thirty-five days afterward from the effect of the 3 Ins. L. J. 877; 5 Ins. L. J. 559; 38 Mo. App. 640; Fischer v. Ins. Travelers' Ins. Co. v. Jones, 80 Ga. Co., 77 Cal. 246; 19 Pac. Rep. 425; 541; 7 S. East. Rep. 83; Cornish v. Hutchcraft v. Ins. Co., 87 Ky. 301; 8 Ins. Co.. 23 L. Rep. Q. B. D. 453. S. W. Rep. 570; 38 Alb. L. J. 68; De 1 Equitable Ace. Ins. Co. v. Osborn, Graw v. Accident Society, 51 Hun 90 Ala. 201; 9 So. Rep. 869. 143; Travelers' Ins. Co. v. McCarthy, 2 Piper v. Ace. Association (Mass.), 15 Colo. 351; 25 Pac. Rep. 713; Gresh- 37 N. E. Rep. 759. am v. Ins. Co., 87 Ga. 497; 13 S. 3 Travelers' Ins. Co. v. McConkey, East. Rep. 752; Guldenkirch v. As- 127 U. S. 661; 8 Sup. Ct. Rep. 1360; sociation, 25 N. Y. St. Rept'r 945. 17 Ins. L. J. 585; Phelan v. Ins. Co., ACCIDENT INSURANCE. 747 blow. In an action on the policy the following instruction was given by the court: " If the death of (the insured) was caused by a blow dealt him by (the assailant), that would not prevent plaintiffs from recovering in this action, if you believe from the evidence that when (the assailant) inflicted such blow he did not mean to kill (the insured)." The supreme court ap- proved the instruction, and held that the condition of the pol- icy, so far as it applied to the circumstances of the case, merely stated that the death should not be the result of the design of any person; that is, that it must not be caused by the act of one whose design was to cause death by the act, and that the condition did not include a case where a blow, not intended to kill, unfortunately and undesignedly produced death. 1 Whether an injury was intentionally inflicted is a question of fact to be inferred from the act itself and from the surrounding circum- stances." A soldier was shot by a deputy sheriff who attempted to arrest him. There was a conflict of evidence on the point as to whether the officer knew at the time of the shoot- ing that the party shot was the soldier, and also as to whether the killing was in self-defense. The court held that, if the officer did not know that the person he fired at was the soldier, and did not intend to kill the soldier, it could not be said, as a matter of law, that he had lost his life by the de- sign of the officer, within the meaning of an accident policy insuring him, but providing that "the insurance shall nut ex- tend to any case of death or personal injury unless the claim- ant establish by direct and positive proof that the death or injury was caused by external violence and accidental means. and was not the result of design, either on the part of the deceased, or any other person." : 1 Richards v. Ins. Co., 89Cal 170; titter was killed in a house of ill- 26 Pac. Rep. T*')'-': see Blackstone v. fame in Los Angeles, by a pistol shot Ins. Co., 74 Mich. 592. fired by one Berry, a deputy sherifl 2 The beneficiary of a contract may <>r Los Angeles county. It seems not recover where the death of the that the captain of the company to assured was intentionally caused by which TTtter belonged learned <>l' his his act. Insurance < '<>. v. Armstrong, whereab »ul ;. an i t >lpgrapb id I i I 'i ■ 117 U. S. 5'.)!); Schreiner v. High sheriff a description of Utter, stating Court, 35 111. App. 576. t li.it he was a deserter. This tele. ; rtter\. Ins. Co., 65 Mich. 545; 32 gram was shown to Berry, and he N. W. Rep. 812; 10 Ins. L. J. 53'3. was instructed by the under-sheriff 748 ACCIDENT INSURANCE. It will not be presumed that an insured was murdered from the mere fact that he was found dead on a public highway to arrest Utter. Berry, without any- other warrant, process, or other authority-, went to this house where Utter was, and shot and instantly killed him. The facts as to the kill- ing were conflicting, as stated by the different witnesses. There was no dispute with regard to the fact that the officer intended to s,hoot and intended to inflict bodily injury upon some person. The officer de- posed that he knew it was Utter when he fired, but the evidence of a wit- ness who was present, tended very strongly to show that he did not know it was Utter he had shot, and, after he came into the room, thought another man was Utter, until in- formed by this man that he had shot Utter and "had killed his man." The court said: "It is claimed by the counsel for the plaintiff that the 'design' mentioned in the policy must be considered 'as a design to kill Utter, and that there was evidence in the case sufficient to go to the jury tending to show that the act that caused the death of Utter was not done with the design of killing him. In other words, if Berry went to the house where Utter was, not with the intention of killing him, but for the purpose of arresting him, and when the door was opened, by reason of Utter's drawing a pistol, or any other cause, he fired, not knowing it was Utter, although the death of Utter was caused thereby, and Berry meant to kill whoever it was, it can not be held that the death of Utter was caused by design; that when the de- sign was to kill, it must also be a de- sign to kill Utter, then formed in the mind, and into nt'onally carried out by the act. If a person should draw a pistol in a crowded street, and de- liberately fire the same, with the in- tent of killing some one, or with a reckless disregard of human life, and a person was killed or wounded, would such killing or wounding lie an accident, h i the meaning of this policy or would it be by the design referred to therein? There would undoubt- edly be a design to kill or wound some one, but no design to kill or wound the particular person injured. Suppose that, for the purpose* of plunder, persons arrange to throw a passenger train off a railroad track, knowing that such act is liable to kill or injure some one, but having no malice against any individual there- on, or any design to kill any partic- ular person, and the train is derailed and the assured killed, can it be said that his death was not accidental, under this policy, but by the design of some person ? The argument may be carried further. Suppose one fires a pistol in the air. He fires by design but does n >t intend to kill any one. The shot strikes the assured, and kills him. The act which causes the death — the shooting of the pistol— is de- signed, and therefore not accidental, but the killing is certainly accidental and not designed. If the pistol is fired at one man, and hits another, is it any less accidental, as far as the person hit is concerned, to the mind of the person who does the shooting ? And, if the shot is fired at the assured in the belief that he is another man, is not the character of the act the same ? If one designedly roll a stone down a mountain side with no intent to injure any one, and in its course it crush a man, it is an accident. If it were purposely rolled down to crush one man, and it is deflected from the course intended, and it kills another, ACCIDENT INSURANCE. 749 with a pistol bullet through his heart, but such inferences as to the cause of his death may be drawn as the surrounding cir- is it not equally an accident? The design or purpose was not to kill the one injured, because it was intended to kill another and not him. The criminal intent of the one putting the stone in motion may render him guilty, and respon rible for the actual result, though not intended: yet the death of the person thus killed must be considered, as far as he is con- cerned, an accident, as his death was not intended by any one. It seems to me that the design in- tended by the terms of this policy must be the design that intended the actual result accomplished, and not the design of the act itself, which act resulted in the killing of one contrary to the design of the act. If, when Berry fired this shot, he did not know the man he fired at was Utter, and did not intend to kill Utter, it can not be said that Utter lost his life by the design of Berry. Nor can it be held, as a matter of law, that Utter was engaged in an unlawful act, within the meaning of this policy. If he had been shot in the act of desert- ing, this claim might be made with some reason and propriety, but such was not the cas ■ here. Neither was he shot because he was a deserter, nor because he was in a house of ill-fame. He wasshot, if Berry is to be believed, because he did Hot throw up his hands when commanded to, and was in the act ,,f drawing a pistol. He was killed, if Branagan is to be be- lieved, without provocation, and in a wanton and murderous manner, as soon as his head appeared in thedoor. Whether he was. doing anything un- lawful at the time of the shooting Was also a question for the jury, to be determined by them under all the circumstances of the ■ If, on being refused admittance after rapping on the door, the officer had fired through the door, and killed Utter, it could not be claimed that Utter was killed by design, or be he was engaged in any unlawful act; nor if Berry fired at the first head he saw poked out of the door, not know- ing or caring who it was, can it be held that the death was by design against Utter, or in consequence of any unlawful act on his part. The clauses in the policy requiring direct and positive proof that the death was caused by external violence and acci- dental means, and was not the result of design, either on the part of the in- sured or of any other person, can not be allowed to govern the courts in cases of this kind. The intent of Berry is locked within his own breast. and can only be determined by his own evidence, or the inferences to be drawn from his acts, which latter would be in the nature of circum- stantial proof. If Berry himself had been killed, it would have been im- possible.' by direct ami positive proof,' to show what his real design was, and it would also be manifestly against the policy of the law. and diametric- ally opposed to justice, to allow his own testimony of his own motives, however unsatisfactory it might be. t<> lie control line;, when all the facte of his actions and language at the time contradicted his positive assertions of hi- intent upon the trial. If this clause can be allowed to stand, any person accidentally killed, when no one is by, is debarred from the benefit of his insurance. Circumstances may plainly and almost certainly indicate that he was killed i>\ accident, an 1 yet 00 positive and direct proof can be furnished. If an accident happ< n 750 ACCIDENT INSURANCE. cumstances will justify. 1 It is not to be presumed that an in- jury was self-inflicted, or that it was intentionally inflicted by any other person ; the burden is on the society to establish such defenses." The fact that a person insured engaged in a upon a railroad by the fault of one of its employes, who is killed by the accident, his design in causing such accident can not be shown by direct and positive proof, and the benefi- ciaries of an assured person killed by such accident can not recover. The design of the person responsible for the killing can in no case be directly and positively proved except by his own evidence or admissions. Courts will not permit the course of justice, upon trials before them, to be stipu- lated or contracted in such manner as to defeat the ends to be subserved by such trials. The parties to the contract can not agree to oust the courts of jurisdiction over such con- tract. Tlie operation of this clause, requiring direct and positive proof, in many cases would, in effect, preclude the court from jurisdiction and bar recovery. If they can make this agreement they can also stipulate that the evidence must come from certain persons, or make any agree- ment they see fit, controlling and directing the course of proceeding upon the trial. They may contract in relation to a condition prec- edent before bringing suit, or in relation to anything going to the remedy, but not to the right of re- covery itself. Wood on Ins., 750. Circumstantial evidence is regarded by the law as competent to prove any given fact; and sometimes it is as cogent and irresistible as direct and positive testimony. The case should have been submitted to the jury. The ' design ' mentioned in the policy must be considered a design on the part of Berry to kill Utter; and if, at the time he fired the pistol shot, he did not intend to kill Utter, or did not know that the man he was shoot- ing was Utter, there is nothing in the present record to prevent a recovery by the plaintiff." 1 Travelers' Ins. Co. v. McConkey, 127 U. S. 661; 8 Sup. Ct. Rep. 1360; 17 Ins. L. J. 585; Washburn v. Soci- ety - , 10 N. Y. Supp. 366. 2 Peck v. Accident Association. 52 Hun 255; Mallory v. Ins. Co., 47 N. Y. 52; Wright v. Ins. Co., 29 Up. Can. C. P. 221; Washburn v. Society. 10 N. Y. Supp. 368. In an action on an accident policy, it appeared that the assured was found dead in the back room of a house, shot through the heart. He had been dead about half an hour, and there were no powder marks on his flesh or clothing. A door opposite to where his body lay opened into another room, hi which was found, mortally wounded, a woman, who had b^en shot with a pistol ball in the side, and whose flesh and clothing were powder burned. Near her was a pistol, but it was not shown whether loaded or not, nor was it shown that the wounds in the two bodies were made by this or a pistol carrying the same sized ball. She had been the mistress of assured for some time, and had lived with him as such, but it was not shown whether or not tins was notorious and open. The day previous, assured had stated to a friend that he was tired of the woman, and intended to break with her next summer when she went home to visit her family. As- sured was a quiet, timid man, of good reputation for peace, and did not intimate to this friend that he ACCIDENT INSURANCE. 751 fight, though he liimself was not the aggressor, brings the in- juries received by him within a condition of his policy, provid- ing that it would not cover accidental injuries resulting from or caused directly or indirectly, wholly or in part, by fighting. 1 It makes no difference in such a case whether the slayer is sane or insane. 2 § 389. Intoxication— Under the influence of liquor.— A provision in a policy exempting the insurer from liability for any injury which might happen to the assured while intoxi- cated, or in consequence of his having been under the influ- ence of intoxicating liquor, is sufficient to exclude liability for all injuries suffered while the assured was intoxicated, whether the intoxication contributed to the injury or not. A policy provided, " No claim shall be made under this policy where the death or injury may have happened while the in- sured was, or in consequence of his having been, under the in- fluence of intoxicating drinks." The insured was accidentally shot, while intoxicated, by a drunken companion, with whom I13 had been drinking. It was held that the policy was avoided, that the provision avoided liability, if the insured was in the condition of intoxication, without regard to whether it had any agency in producing the death or injury. The court said : " The cases which hold that the insurer must show that the relation of cause and effect exists between the thing prohibited and the death or injury, have no application to the clause under consideration, as it avoids liability if the insured was in a certain prohibited condition, without regard to whether it had any agency in producing death or injury. By putting himself under the influence of liquor, he deprived the company of tin' security it would otherwise have had that he would do nothing to expose his life or health unnecessarily to injury." The limitation in the policy related to the con- used, or intruded m use, any violence tion of facf arose from the evidence toward her. The court charged thai thai assured was either killed l>\ the the presumption of law was that as- woman or committed suicide. A.cci- sured did not commit suicide, and dent Jns. Co. v. Bennett, 90 Term. was not murdered, but that these 856; 16S. w. Rep. 738. presumptions might be overcome by 'TJ. S. Association v. Millard, c; facts showing the contrary, which 111. App. 1 18. the jury were to consider. This 'Gresham v. Ins. Co.,87 Ga. 197. charge was correct, as no presump- 752 ACCIDENT INSURANCE. dition of the insured, not to the cause which might pro- duce his death. The intention, evidently, was to limit the liability of the company and not to incur any responsibility when the injury occurred while the insured was directly under the influence of, or where the result was remotely produced by, intoxicating drinks. 1 If there is an inconsistency between the terms of the application for the policy and the policy itself, excepting injuries resulting from intoxication or received while under the influence of intoxicants, the policy must control; but where the application uses the words, " any acci- dental injury which may happen to me while under the in- fluence of intoxicating drinks, or in consequence of having been under their influence," and the policy excepts injuries " happening to the insured while intoxicated, or in conse- quence of having been under the influence of any intoxicating drink," there is no material difference between the two; and it is not necessary, in order to make out the defense, that intoxication should have contributed to the injury. 2 § 390. In an action on an accident policy to recover for the death of the insured, where the defense is that the accident was caused by the deceased falling out of a window while drunk, it is not error to refuse to admit testimony that on a previous occasion the deceased, while drunk, attempted to jump from the window. As a general rule it is inadmissible, even where the issue is whether a person did a particular thing, to put in evidence the fact that he did a similar thing at some other time; 3 and the issue of self-destruction is entirely different from the one presented in such a case. In such an action testimony of a witness that shortly before the accident the deceased did not appear to be drunk, that she found him lvino- on the ground insensible early the next morning, when a physician was immediately sent for; the testimony of the attendant physician that when he first saw the deceased he thought he was drunk, but that this idea on examination was quickly dispelled; also testimony that the deceased took a glass of beer just before going home, and was not drunk then, 'Shaderv. Assurance Co., 5 Thomp. Ala. 434; Sharler v. Assurance Co., & C. 643; affirmed 66 N. Y. 441; 5 Life & Ace. Ins. Reps. 331; 5 Standard Life v. Jones, 94 Ala. 434; Thomp. & Cook (N. Y.) 643. 10 So. Rep. 530. 8 1 Whart. Ev. § 29. ' 2 Standard Ins. Co. v. Jones, 94 ACCIDENT INSURANCE. 753 that he had only had three glasses of beer, and never drank whisky — is sufficient to sustain a finding that the deceased was not drunk at the time of the accident. 1 A witness may state whether or not a person had the appearance of being- intoxicated, for that would be a statement of a fact. Sanity, intoxication, and the state of health are facts which may be proved by appearances. 2 It is competent for the company to show what insured's condition was when he received the injuries, and in order to do this witnesses may be asked whether he impressed them as being intoxicated; whether he was drunk or sober; and whether, in their judgment, he was as capable of taking care of himself as though he were sober. 3 A provision in an accident policy that none of its conditions can be waived by any agent of the company is valid, and a condition that the insurance does, not cover a death resulting from intoxication is not waived because the agent who received and filled out the application knew that the applicant was an intemperate man, though the application stated that his habits were correct and temperate. 4 Evidence that when last seen, late one night, insured was more or less drunk, and some distance from his home, near which were a bridge with low rails, and lowlands then covered by the river, is not so conclusive that he met his death while drunk as to warrant a non-suit. 5 § 391. Fits, vertigo, fainting. — One who is subject to faintings and " swimmings in the head," is not on that account subject to "epileptic or other fits," and he may so declare in liis application for insurance.* An insured, while at a railway station, was seized with a lit and fell forward off the platform across the railway, when a passing train ran over his body and killed him. It was held that the train passing over his body, and not the fit, was the cause of his death. 7 AVhile fording a •Travelers' Ins. Co. v. Harvey, *2 6 Conadeau v. Am. Ace. Co. (Kv.i. Va. 949; 5 S. E. Rep. 658. 25 S. W. Rep. 6. 2 Cook v. Ins. Co.. 84 Mich. 12; 47 6 Shilling v. Ins. Co., 1 Foster & Fin. N. W. Rep. 588; state v. Pike, 49 N. 110: see g 870. H. 407. '.Lawrence v. bis. Co., 7 L. R., Q. 3 Cook v. Ins. Co., supra. B. Div. 216; see g 397. 4 Cook v. Ins. Co.. supra; Newman v. Association, 76 Iowa 36. 48 751 ACCIDENT INSURANCE. river an insured was seized with a fit, fell into the water and was drowned. It was held that the death did not arise from disease, but from accidental drowning. 1 Under a provision of an accident policy, stating that the risk shall not extend to " accidental injuries or death resulting from or caused, directly or indirectly, by fits, vertigo or other disease," an accidental death by drowning results from and is caused indirectly by fits, vertigo, or other disease if the fall into the water, from which drowning takes place, is caused by such disease. 2 A provision in an accident policy stating that the risk shall not extend to death caused by bodily infirmities or disease, does not include fainting produced by indigestion or lack of proper food, or any other cause which would show a mere temporary disturbance or enfeeblement. 3 It is not a voluntary exposure to obvious risk for an insured who is subject to faintings and " swimmings in the head " to go driving in a carriage with another person. 4 An insured, who was subject to epileptic fits, was found dead in a plunge-bath in almost a standing position. There was an abrasion between his eyes and a bruise on one side of his head. His physician testified that his hot bath had probably brought on an epileptic attack, because of his peculiar condition of health at that time, and that the fall or blow which caused the abrasion and bruise was not sufficient to have caused his death. Upon this evidence it was held that the death of the insured was caused by disease and not by accident. 5 § 392. Drowning. — When it is shown that the insured died in the water, it is for the jury to determine whether he died from the action of the water, or from natural causes. The jur} r may reasonably presume that" he died from drowning, for while it is true that in some instances death occurs in the water from natural causes, as from apoplexy or cramp in the heart, such cases are rare and bear a small proportion to the number of deaths which take place from the action of the water. If they decide that he died from the action of the water causing asphyxia, that is a death from external vio- 1 Winespear v. Ins. Co., 6 L. R., Q. 3 Manufacturers' Indemnity Co. v. B. Div. 42; see §§ 392, 397; see Rey- Dorgan. 58 Fed. Rep. 945. nolds v. Ins. Co., 22 L. T. Rep. N. S. 4 Shilling v. Ins. Co., 1 Foster & Fin. 820. 116. 2 Manufacturers' Indemnity Co. v. 5 Tennant v. Ins. Co., 31 Fed. Rep. Dorgan, 58 Fed. Rep. 945. 322; 16 Ins. L. J. 476. ACCIDENT INSURANCE. 755 lence within the moaning of a policy — whether he swam to a distance and had not strength enough to regain the shore, or, on going into the water, got out of his depth. The discharge of water from the lungs of a person who has been drowned is a sufficient showing of an injury by some outward and visible means, and external and material cause operating upon his person.' The action of the water in cutting off or stopping respiration is an external force, and is the immediate cause of death. The insured, while crossing a stream, was seized with an epileptic fit, fell, and was drowned. He did not sustain any personal injury to occasion death, other than drowning. His policy covered only injury or death "caused by some outward and visible means," and the compan}^ was held liable. 2 A policy provided that they should only be liable in case the death or injury should be occasioned by some external and material cause operating upon the person of the insured. A\ nile in a pool about one foot deep, the insured became sud- denly insensible from some unexplained internal cause, and fell into the water with his face downward. A few minutes afterward, he was found lying dead with his face in the water, and water escaped from his lungs in such a manner as to prove that he had breathed after falling into the water. The imme- diate cause of his death was suffocation by "the water, but. the pool being shallow, such suffocation would not have taken place had he not been incapable of helping himself, in conse- quence of his insensibility. It was held that the company was liable, the court saying: " In this case the death resulted from the action of the water on the lungs, and from the consequent interference witli respiration. 1 think that the fact of the deceased falling in the water from sudden insensibility was an accident, and consequently that our judgment must he for the plaintiff." * A drowning caused by a temporary trouble to which the insured was not subject, but which was entirely unusual and uncommon, whereby he fell into the water, is l Trew v. Assurance Co., ( .t W. It. 'Winespear v. Ins. Co.. 43 L. T. 871; 30 L. J. Ex.li. 317; 6 Hurl.&N. Rep. 460; S L. R..Q. B. Div. 12; 13 839; Reynolds v. Insurance <'<>.. is L. T. Rep. 900; 22 Alb. L. J. 22 W. I:, mi; 22 L. T. (N. S.) 820; • Reynolds v. Las. Co., 22 L. T. R. N. Tucker v. Mutual Ben. L. Co.. 4 N. S.) 820; all the justices concurring. y. Sup. 505; 50 Hun ."><); see §§ 373, 379. 756 ACCIDENT INSURANCE. accidental, within the meaning of a policy of insurance. 1 Death by drowning is caused indirectly by disease, within the meaning of an accident policy, if the fall into the water was caused by such disease. 2 Where the insured fell, struck his head against some sharp substance, fell into the water and was drowned, his death was held to have been caused by accidental, and violent means, of which there were outward and visible signs. 3 An insured was a healthy man and a good swimmer. He went in bathing, became disabled from cramps or other- wise, was unable to swim, cried for help, but not securing timely assistance, sank out of sight, and was found dead the next day beneath the water. It was held that his death was caused by " outward force and accidental means." 4 It is not an obvious risk or a voluntary exposure to unneces- sary danger, within the meaning of a policy, for one who can swim to bathe in deep water. § 392a. A member of a benefit society left his home, with soap and towel, stating that he intended to bathe in Lake Michigan, which was about a mile distant, but he never re- turned. His clothing and money were found on the shore, and there were footprints leading to the water's edge. No reason was shown why he should abandon his family. There was evidence that the lake was dangerous at that place. It was held that there was sufficient evidence to warrant a verdict that the member was dead. Evidence that other persons had been drowned in the same locality was slightly relevant to show that that part of the lake was dangerous. 5 Proof that the body of the insured, whose temper and cir- cumstances almost precluded the idea of suicide, was found in the river long after his disappearance, with no mark of vio- lence or robbery, made a case for the jury of accidental drown- ing. 6 1 Manufacturers' Indemnity Co. v. App.), 37 N. East. Rep. 1105; see Tis- Dorgan, 58 Fed. Rep. 945. dale v. Ins. Co., 26 Iowa 170; S. C, 2 Idem. 28 Iowa 12; Ins. Co. v. Moore, 34 3 Mallory v. Ins. Co. , 47 N. Y. 52. Mich. 42. 4 Knickerbocker Casualty Ins. Co. 6 Conadean v. Am. Ace. Co. (Ky.), v. Jordan, 7 Cin. L. Bull. 71. 25 S. W. Rep. 6. 5 Supreme Council v. Boyle (Ind. CHAPTER XXIX. ACCIDENT INSUR^^CE. § 393. Poison. 394. Inhaling gas. 395. Death or disability caused by any surgical operation or medical or mechanical treatment for disease. 396. Hernia, erysipelas. 397. 398. Proximate cause of the death of the insured. 399. Bodily infirmity. 400. Loss of foot, eye or hand. 401-405. Permanent or total disability. 406. A company may be liable for sick benefits, though not liable for the death of the insured. § 393. Poison. — In its ordinary meaning, poison is a sub- stance taken internally, seriously injurious to health and often fatal to life; and "death by poison" is understood to mean death arising from the taking of poison. Such a phrase would never be applied to death from the bite of a rattlesnake or from blood poisoning. Death by inhaling coal or illuminating gas is not death by poison, using that word in its proper sense. Such gases kill by shutting off the supply of oxygen and pre- venting the discharge of carbonic acid in the blood. Death is caused in this way by suffocation, choking and drowning, and it is quite as proper to say of a man drowned that he was poi- soned by water, as to say that a man was poisoned by gas." When the insured died from malignant pustule produced " by the inllictioii of animal substances upon the holy." by the ac- cidental deposit of putrid and poisonous animal substance from the bodies, skins or hides of animals suffering from a pndiar disease, it was held to be a death from disease, a "death by poison in any manner or form," within the meaning of the exception set forth in the policy, and not a death from violent, external and accidental means.'' 1 See § 394. ing 44 Hun 599: 3 N. Y. Supp. -Bacon \. \.(i.l,nt Ass'n. 123 N. Justices O'Brien an: Martin v. Ins. caused by poison taken by the as- Co., I Fost. & Fin. 505; Winspear v. sured through mistake or ignorance. Ins. Co., 6 Q. B. D. 42; (3 1...). Rep. See Equitable Life \. Paterson, 41 459; McGlinchey v. Casualty Co. 80 Ga. 338; Bealey v. Association. 138 Me. 251; Bealey v. Association, 133 111. 556; 25 X. East. Rep. 52; Coll v. 111. 556; 25 \. East. Rep. 52; Pickett [hs. Co.,54N. Y. 595; Dilleberv. Ins. v - '"-• Co., Ml Pa. St. 79; 22 Atl. Co., 6!» X. Y. 256; Bailey v. Ins. Co.. Repi 871; Martin v. Association, 16 80 N. Y. 21. The means ,,f death by N. Y. Supp. 279; see § :;? i. poison are violent, not natural, or v Mernavs v. United States Mut. spontaneous; and not occurring from Ace. Ass'n, 15 Fed. Rep. 155. usual and natural causes. The degree "Picket! \. Ins. Co., 144 Pa. St. 79- of force or violence is not material. 22 Atl. Rep. 871. Southard v. Assurance Co., JJ4 Conn. 760 ACCIDENT INSURANCE. provision of the certificate, requiring the death to be caused by external and violent means to bring it within the terms of the contract. 1 But death by inhaling illuminating gas, which accidentally escaped into the room where the insured was sleeping, is within an exception of an accident policy, which states that it " does not insure against death or disablement arising from anything accidentally taken, administered or inhaled, inhaling gas or any surgical operation." 2 It has been held that, under this exemption, a recovery may not be had in case of death caused by the inhalation of illu- minating gas, where it is uncertain whether the death w T as the l Paul v. Travelers' Ins. Co., 112 N. Y. 472; 20 N. East. Rep. 347: S. C, 45 Hun 313. The court said: "I agree with the counsel of the re- spondent in his suggestion that if the exception is to cover all cases where death is caused by the presence of gas, there would be no reason for using the word ' inhale.' If the pol- icy had said that it was not to extend to any death caused wholly or in part by gas, it would have expressed precisely what the appellant now says is meant by the present phrase, and there could have been no room for doubt or mistake. * * That a death is the result of accident, or is unnatural, imports an external and violent agency as the cause." See also TJ. S. Mut. Ace. Ass'n v. Newman, 84 Va. 52; 3 S. East. Rep. 805; 17 Ins. L. J. 97; § 379. 2 Menneiley v. Assurance Corpora- tion, 72 Hun 477; 25 N. Y. Supp. 230. The court said: " It has been held by the court of last resort in this state that the words ' inhaling gas ' in a similar exception contained in the contract of another insurer against accidents, ' the company can only be understood to mean a voluntary or intelligent act by the insured, and not an involuntary and unconscious act.' Paul v. Ins. Co., 112 N. Y. 472; 20 N. East. Rep. 347. So that if the exception of death or disablement by • inhaling gas ' was the one relied upon by the defendant here, the au- thority cited would be conclusive against its contention. But such is not the case. The exception here re- lied upon, which was not in the policy in the case of Paul, expressly describes an act not voluntary and intelligent, but, on the contrary, ac- cidental. The death or disablement excepted is one ' arising from any- thing accidentally inhaled," and here was the death of the insured arising from illuminating gas acci- dentally inhaled. It seems difficult to elaborate or prolong an argument upon this statement. Here is no room for interpretation. * * * The exception here relied upon, if ex- pressly framed to avoid the con- struction put upon that in the case of Paul, supra, could not more success- fully have accomplished the purpose. It would be a contradiction in terms to apply the words ' accidentally in- haled ' to the voluntary and intelli- gent act of inhaling an anaesthetic in aid of a surgical operation, which the court say was apparently the reference in that case." ACCIDENT INSURANCE. 761 result of an accident or of suicide. 1 Where the insured was found dead in bed, with a ball of tough froth over his mouth, slightly tinged with blood, and some red splashes on the side of his face and on his breast, the room being full of coal gas, it was held to be a question of fact, properly determinable by the jury, whether these were visible and external signs of injury. 2 § 395. Death or disability caused by any surgical opera- tion or medical or mechanical treatment for disease. — Death caused by the act of taking medicine, done with the intention to cure, is a death caused wholly or in part by med- ical treatment for disease; and where a specified dose of opium was prescribed to the insured by his physician to allay ner- vousness and restlessness, and. by inadvertence, he took more opium than he intended, and his death resulted from such overdose, it was held that the company was not liable under his policy, as it expressly excepted , " any death or disability which may have been caused wholly or in part by any surgi- cal operation or medical or mechanical treatment for dis- ease." 3 Where a person, injured in an accident resulting in hernia, dies after a dangerous and unsuccessful surgical opera- tion resulting in peritonitis, performed when death seemed in- evitable without it, the accident is the proximate cause of his death. 4 'Richardson v. Ins. Co., 46 Fed. must be voluntary or involuntary in Rep. 843. In this case the proofs order to exempt defendant from lia- sho wed that the assured retired to his bility. * * This case can also, as 1 room in the hotel at which he was a think, be differentia ted from | Paul v. guest, and on the next morning was Ins. Co.), in this: that in that case it found dead in his bed, with illumi- was found as one of the facts that the nating gas escaping freely fromoneof death of the assured was occasioned tlic gas burners in tin- room. In by accidental means. Bere the proof Bpeakingof the case of l'anl v. Ins. will allow no such finding. It liases Co.. supra, Judge Blodgett said: the fact wholly unsettled as to "The reasoning by which that court whether the death was the result of reached its conclusion is not satisfac- accident, or whether it was occa- toi\ to my mind. The language of Bionedby his suicidal act and intent," the policy is-. . dear as to require no '-U.S. Mm. A.cc. Ass'n v. Newman, construction. The words an- un- supra. equivocal that the defendant docs 8 6ayless v. Ins. Co., 14 Blatchf ord not insure against death caused by 143; Sins. L. J, 100. inhaling gas. There is nothing in * Travelers' Ins. Co. v. Murray, 10 the terms of the policy intimating or Colo. 296; 26 Pacific Rep. 77 1. suggesting that the inhalation of gas 7G2 ACCIDENT INSURANCE. § 396. Hernia, erysipelas. — A policy excepted any liability for "hernia, erysipelas, or any other disease or cause arising within the system of the assured before, or at the time, or following such accidental injury, whether causing death or disability directly or jointly with such accidental injury." It was held that death from strangulated hernia caused solely by external violence, followed by a surgical operation per- formed for the relief of the patient, was covered by the policy, not being included within the terms of the exception. The court said : " It is to my mind merely a question whether the proviso at the end of the first condition, that the company does not insure against death or disability arising from hernia, means hernia generally, whether arising from external violence or arising within the system, or whether ' hernia ' is governed by the other words ' or any other disease or cause arising within the system of the insured before, or at the time, or following such accidental injury.' * * Look- ing at the language of the policy, and taking the first con- dition all together, upon the best interpretation I can put upon it, I am of opinion that it means to exempt the company from liability only where hernia arises within the system. * * Hernia is not in all cases a disease arising within the system. It may or may not do so. I think the company, is not relieved from responsibility where the hernia is caused by external violence." ' It seems that rheumatism and gout are constitutional diseases and always arise within the system, but that hernia and erysipelas may arise within the system or from external violence. Where a policy provides that the insurance does not cover disability or death resulting wholly or partly, directly or in- directly, from medical or surgical treatment or hernia, and the insured, injured in an accident which brought about hernia, dies after a dangerous and unsuccessful surgical operation re- sulting in peritonitis, performed when death seemed inevitable without it, the company is liable on the ground that the ac- cident is the proximate cause of his death. An insurer against death " from bodily injuries effected through external, violent and accidental means," but excepting death from hernia, is not relieved from liability where death results from hernia, 1 Fitton v. Ins. Co., 112 Eng. Com. Law (17 C. B. N. S.) 122. ACCIDENT INSURANCE. 703 caused by " external, violent and accidental means." 1 In an action on a policy of accident insurance for the death of the insured from hernia caused by an accident, where the defense is that for years before, he was afflicted with chronic hernia, testimony as to his continued good health, bodily vigor and ability to work is admissible. It may also be shown that during a surgical operation no trace was found of the ex- istence of a case of chronic hernia. 2 In a suit on an accident policy, where the petition alleged that deceased died from erysipelas, resulting from an accidental laceration of a finger an answer averring that in his contract with the insurer, deceased had warranted " that he had never had, and had not then, any bodily or mental infirmity, whereas in truth * * * sa ij deceased had on various occasions prior thereto been afflicted, and was then subject to and infected with erysipelas, and that he eventually died of erysipelas," is demurrable, as failing to state a defense in that it does not show that erysipelas was an infirmity which increased the risk of death in the event of an accident. 3 § 397. Proximate cause of the death of the insured. — Whether a cause is proximate or remote does not depend alone upon the closeness in the order of time in which certain things occur. In other words, the application of the principles relat- ing to proximate cause is not necessarily controlled by time or distance, or by the succession of events. An efficient, adequate cause when found, must be deemed the true cause unless some other, not incidental to it, but independent of it, is shown to have intervened between it and the result/ In an action on an accident policy where it is shown that the deceased sus- tained an accidental injury to an internal organ, and that this necessarily produced inflammation, and that the inflammation produced a disordered condition of the injured part, whereby ^Travelers' Ins. Co. v. Murray, 16 Co. v. Kellogg, 94 U. S. 469; Law- Colo. 296; 26Pac. Rep. 774. rence v. [ns. Co., 7 L. R.Q.B.Div. Travelers' Ins. Co. v. Murray. 216; McCarthy v. Ins. Co., 8 Biss. 862; supra. Mallory v. Ins. Co., IT N. Y. 52; Ins. Bernays v. Association, r> Fed. Co. v. Crandal, 120 U. B. 527; 7 Sup. Rep. 155. Ct Rep. 685; Blackstone v. Ins. Co., 1 Kellogg v. Railway Company, 26 74 Mich. 592, insanity: Travelers' Wis. 223; Perley v. Railwaj Co., 98 Ins Co. v. Murray, L6 Colo. 296; 26 Mass. 114; Milwaukee, etc, Railway Pac. Rep. 774. hernia. 764 ACCIDENT INSURANCE. other organs of the body could not perform their natural and usual functions, and in consequence the injured person died, the original injury will be considered as the proximate and sole cause of death; but if an independent disease or disorder, not necessarily produced by the injury, supervened upon the injury, or if the alleged injury merely brought into activity, a then existing, but dormant disorder or disease, and death resulted wholly or in part from such disease, the injury can not be considered the sole and proximate cause of death. 1 A policy issued against " injuries accidentally occurring from material and external causes, operating upon the person of the insured, where such accidental injury is the direct and sole cause of death to the insured; but it does not insure in case of death arising from fits, * * or any disease whatsoever arising before or at the time or following such accidental in- jury, whether consequent upon such accidental injury or not, and whether causing such death directly or jointly with such accidental injury." The insured, while at a railway station, was seized with a fit, fell forward on the track and was run over by a passing train. The falling forward of the insured off the platform was in consequence of his being seized with a fit or sudden illness, and but for such fit or illness he would not have suffered death in this manner. The court said : " The question arises whether, according to the true construction of the proviso, it can be said that this is a case of death arising from a fit; because if this death did not arise from the fit, ac- cording to the true construction of the policy, the remainder of the clause does not come into existence at all, and is inap- plicable. * * According to the true principle of law, we must 1 Barry v. Accident Association. 23 etc., R. R. Co. v. Reany, 42 Md. 117; Fed. Rep. 712; Southard v. Assurance Tuttlev. Ins. Co., 134 Mass. 175; Peck Co., 34 Conn. 574; N. Am. Ins. Co. v. v. Accident Association, 23 N. Y. St. Burroughs, 69 Pa. St. 43: Whitehouse Rep. 465; 52 Hun 255; Standard Life v. Ins. Co., 7 Ins. L. J. 23; McCarthy v. Thomas (Ky.), 17 S. W. Rep. 275; v. Ins. Co., 8 Ins. L. J. 208; 8 Biss. Isitt v. Assurance Co., 5 Times L. 362; National Ass'n v. Grauman, 107 Repts. 194; L. R, 22 Q. B. 504; Ander- Ind. 288; see Terr e Haute, etc., R. R. son v. Ins. Co., 17 Session Cases (4th Co. v. Buck, and cases cited and re- series) 6; Cawley v. Association, 1 viewed; Insurance Co. v. Seaver, 86 Cababe & Ellis, 597, where death U. S. (19 Wall.) 531; Scheffer v. Rail- would not have ensued from the ac- road Co., 105 IT. S. 249; Insurance Co. cident had the insured not at the v. Tweed, 74 U. S. 44; Baltimore, time been suffering from gall stones. ACCIDENT INSUKANCE. 765 look at only the immediate and proximate cause of death, and it seems to me to be impracticable to go back to cause upon cause, which would lead us back ultimately to the birth of the person, for if he had never been born the accident would not have happened. * * Supposing a man were out in the field following sports, and he were to be seized with a lit, either a fainting fit or epileptic fit, or any other fit, ami had retired to one side of the field and remained there recovering from the fit, and being there, a sportsman not knowing he was there, ac- cidentally shot him, it might be said, in the same manner that the cause of death arose from a fit. It seems to me only to require to be stated, to show the entire absurdity of it. The only difference between that case and this is in the time that intervened between the time of the fit and the person being placed within the influence of the succeeding accident, which in this case was very short; but I fail to see in point of reas< m that there is any difference between one hour or one minute or one day. The break in the chain of causes seems to be equally complete. I therefore put my decision on the broad ground, that, according to the true construction of this policy and its proviso, this was not an act arising from a fit, and therefore, whether it contributed directly or indirectly, or by any other mode to the happening of the subsequent accident seems to me wholly immaterial." ' A policy contained a proviso that the insurance should not extend "to any injury caused by or aris- ing from natural disease or weakness or exhaustion consequent upon disease." While the insured was lording a stream lie was seized with an epileptic fit, fell into the stream and was drowned. It was held that the company was liable on its pol- icy, since the death was not caused by any natural disease or weakness or exhaustion consequent upon disease, but by the ac- cident of drowning." Under a provision of an accident policy, stating that the risk shall not extend "to any case except when the accidental injury shall be the proximate and sole cause of disability or death," if the insured suffer death by drowning, the drowning 'Lawrence v. Ins. Co., 7 L. R., Q. ' 2 Wingpear v. Ins. Co., L. R.. 6 Q. B. Div. 216; 45 L. T. Rep. (N. S.) 29; B. Div. 42; 43 L. T. Rep. N. S. 459. see Reynolds v. Ins. Co., 22 L. T. R. N. S. 820. 766 ACCIDENT INSURANCE. is the proximate and sole cause of death, no matter what the cause of falling into the water, unless death would have been the result without the presence of the water. 1 § 398. A policy insuring against death, effected through external, violent, or accidental means, but excepting all cases in which there should be no visible sign of bodily injury, or in which death should occur in consequence of disease, or in which the injury was not the proximate cause, does not relieve the insurer from liability, where death results from peritonitis occasioned by a fall; and this, even though the assured had previously had peritonitis, and had thus been rendered pecul- iarly liable to a recurrence. In such a case an instruction that there must have been visible signs of injury effected through external, violent or accidental means, and that such injury must alone have occasioned death, to enable the assured to recover, was sufficiently favorable to the insurer. 3 A policy insured against cuts, stabs, concussions, etc., " when accidentally occurring from material and external cause, where such accidental injury is the direct and sole cause of death to the insured, * * but it does not insure against death or disability arising from * hernia, or any other disease or cause arising within the system of the insured before or at the time, or following such accidental injury, whether causing death or disability directly or jointly with such accidental in- jury." The insured accidentally fell with violence on the floor of his room, and was immediately ruptured in his bowels, and became at once afflicted with strangulated hernia in his abdo- men. A surgical operation was necessarily performed for the purpose of relieving him, and he soon afterward died from the hernia and from the surgical operation. It was held that the policy should be construed to mean that hernia arising within 1 Manufacturers 1 Indemnity Co. v. McDonald v. Snelling, 14 Allen 290; Dorgan, 58 Fed. Rep. 945; Winspear Perley v. Railroad Co., 98 Mass. 414; v. Ins. Co., 6 Q. B. Div. 42; Reynolds Metallic Compression Casting Co. v. v. Ins. Co., 22 Law Times (IT. S.) Fitchburg Railroad Co., 109 Mass. 277; 820; Lawrence v. Ins. Co., 7 Q. B. Benefit Ass'n v. Grauman, 107 Ind. Div. 216; Ins. Co. v. Crandall, 120 U. 288; 7 N. E. Rep. 233; Insurance Co. S. 527; 7 Sup. Ct. Rep. 685; Trew v. v. Burroughs, 69 Pa. St. 43; Sheanon Assurance Co., 6 Hurl. & N. 838. v. Insurance Co., 77 Wis. 618: 46 N. s Freeman v. Association, 156 Mass. W. Rep. 799; Insurance Co. v. Tweed, 351; 30 N. East. Rep. 1013; citing 7 Wall. 44; Insurance Co. v. Seaver, Marble v. Worcester, 4 Gray 395; 19 Wall. 531. ACCIDENT INSUEANCE. 767 the system independently of external violence was not insured against, but that death from hernia, caused solely and directly by external and accidental violence and a necessary surgical operation, was not within the exception. 1 A. policy of insurance against death from accidental injury contained the following condition: " This policy insures against all forms- of cuts, * * when accidentally occurring from material and external cause operating upon the person of the insured, where such accidental injury is the direct and sole cause of death to the insured, but it does not insure against death arising from * erysipelas, or any other disease or second- ary cause or causes arising within the system of the insured, before, or at the time of, or following such accidental injury, whether causing such death directly or jointly with such acci- dental injury." The assured accidentally cut his foot against the broken side of an earthenware pan. Five days afterward erysipelas supervened, and seven days afterward he died of that disease. The erysipelas was caused by the wound, and but for the wound he would not have suffered from it. In an action on the policy, it was held, that the company was pro- tected by the above condition, and was not liable. 2 In Harris v. Ins. Co., 3 the insured, who was a fireman, was accidentally buried under a falling wall. He was soon rescued with out apparent injury, and continued his work for about three months, when he took poison and died. In a suit on the policy on the ground that the accident rendered him insane, it was held, that, if he was insane on account of the accident, the death was too remote to be covered by the policy, which in- cluded only proximate results. 4 Where the plaintiff's evidence tended to show that the death of the insured was caused by embolism or throbus, the direct result of the breaking of his arm a few days before, while the evidence for the company tended to show that death was caused by pneumonia, the court refused to disturb the finding of the jury, that the frac- 1 Fitton v. Ins. Co., 112 Eng. Com. were placed in the policy after the Law (17 C. B. N. S.) 122; 84 L. J. C. decision in the case of Fitton v. Ins. P. 28; Travelers' Ins. Co. v. Murray. Co., supra. 16 Colo. 296; 26 Pac. Rep. 77 1. 3 Superior Court of Chicago (1868), Smith v. Insurance Co., 5 L. R. 7 Am. L. J. 589. Exch. 802; 22 L. T. Rep. N. S. 861. * See Schefferv. Railroad Company, The words "or secondary cause" 105 U. S. 249. 768 ACCIDENT INSURANCE. ture of the decedent's arm alone caused his death, and that it was the sole and proximate cause. 1 The evidence in a case showed that death was caused by blood-poisoning occasioned by the inoculation of some poisonous substance into a wound when or very soon after it was made. It was held that if the in- oculation occurred at the time the wound was made, and was a part of the accident, the accident was the sole and proximate cause of the death, though blood-poisoning ensued. 2 In an action on an accident policy to recover for the death of the in- sured caused by falling from a window, an instruction to the jury, that if the deceased got up in his sleep, and while asleep fell from the window, they should find for the company, was properly refused. Such an instruction excludes the idea that the deceased could possibly have gotten up in his sleep, have then awakened and again fallen to sleep. It was, therefore, calculated to mislead, by making the jury think, that, because the deceased might have gotten up in his sleep, and subse- quently, and after having awakened, fallen out of the window while asleep, somnambulism was the proximate cause of the accident. 3 § 399. Bodily infirmity — Disease. — A company can not es- cape its liability under an accident policy on the ground that the insured, who was deaf, signed an application stating that he was not subject to any bodily infirmity, where it appears that its agent who took the application had full knowledge of the physical condition of the insured. 4 Where an agent of an accident insurance society knows that a person has some bod- ily infirmity, but nevertheless solicits him to take out insur- ance, and recommends him as a proper person to be insured, these facts may be shown to rebut the presumption that the society was induced to take the risk by the representation in the application that the insured was not subject to any bodily tPeck v. Accident Association, 52 377; 14 S. E. Rep. 923. The knowledge Hun 255; 23 N. Y. St. Rep. 465: see of the agent will be imputed to the Standard Life v. Thomas (Ky.), 17 company. 11 Am. & Eng. Enc. S. W. Rep. 275; Martin v. Indemnity Law, 323; Fishbeck v. Ins. Co., 54 Co., 15 N. Y. Supp. 309; Martin v. Cal. 422; Eggleston v. Ins. Co., 65 Association, 16 N. Y. Supp. 279. Iowa 308; 21 N. W. Rep. 652: Ins. Co. 2 Martin v. Association, supra. v. Fish, 71 111. 620; Mullin v. Ins. Co., 3 Travelers' Ins. Co. v. Harvey, 82 58 Vt. 113; 4 Atl. Rep. 817; Shafer v. Va. 949; 5 S. E. Rep. 553. Ins. Co., 53 Wis. 361; 10 N. W. Rep. 4 Follette v. Association, 110 N. C. 381; Ins. Co. v. McCrea, 8 Lea 513. ACCIDENT INSURANCE. 769 infirmity. 1 Near-sightedness is not a bodily infirmity. 2 An anaemic murmur, indicating no structural defect of the heart, but arising simply from a temporary debility or weakened condition of the body, is not a bodily infirmity within the meaning of a policy. 3 A provision in an accident policy, stat- ing that the risk shall not extend to death caused by bodily infirmities or disease, does not include fainting produced by indigestion or a lack of proper food, or any other cause which would show a mere temporary disturbance or enfeeblememV In an application for accident insurance, a warranty of freedom from bodily or mental infirmity does not extend to temporary debility. Vertigo or swimming in the head is not a bodily infirmity where the trouble is merely temporary, the result of indigestion, and does not affect the general health of the ap- plicant. 5 In his application for an accident policy the insured stated that he was not subject to fits, or any disorder which would render him liable to accidental injury. A few days after the policy was issued, the insured, on entering a store, tripped, fell against a stove, struck his forehead, and became uncon- scious for several minutes. He grew worse from day to day, became insane, and, a few days later, died. Afterward, in a suit on the policy, there was evidence that he had several times, before making the application, fallen or been thrown from his buggy and rendered unconscious, and that he had also several times fallen down, without apparent cause, trem- bling and acting strangely. Persons who had known him for ma n v years testified that he was strong, robust and rugged in health, and that they had never known of his havingany ail- ment. The jury found that he had made no misrepresenta- tion as to his physical condition, and the court refused to dis- turb the finding." Where insured, while a boy, received injuries "Follette v. Association, 107 N. C * Manufacturers' Indemnity Co. v. 240, L2 s. E. Rep. 370, where the Dorgan, 58 Fed. Rep. 945. agent knew that the applicant %v:lh 'Manufacturers' Indemnity Co. v. deaf; Humphreys v. Association, 189 Dorgan, 58 Fed. Rep. 945. Pa. St. 864, 20 Atl. Rep. 1047, where .Mutual Benefit v. Daviess, s? Ky. the agent knew that the applicant 541; '•» 8. W. Rep. 812. had but one eye. 'Brink v. Accident Association, 7 l Cotten v. i 'asualty Co., 41 Fed. N. Y. Supp. 847; Bee Ins. Co. v. Fran- Rep. 506. Cisco, IT Wall. 07^. 49 770 ACCIDENT INSURANCE. from which he recovered so that they did not increase his liability to accidental injury, or contribute to the accident which resulted in his death, his policy was not forfeited by a statement in his application that he had never been physically injured, or subject to bodily or mental infirmity or disease; the insured being entitled to a liberal construction in his favor. ' In a suit on an accident policy providing that the benefits should not extend to death caused by bodily infirmity or disease, it appeared that the insured suddenly fell, striking his head. There was no evidence of any external cause for the fall, and the uncontradicted testimony of the experts who conducted the post mortem showed that the heart and brain were generally diseased, and that this caused the fall and death. It was held that there could be no recovery. 2 § 400. Loss of foot, eye or hand.— One can not, under an accident policy, recover as for the loss of a foot, where, by reason of an injury to his back, he is deprived of the use of his leg, except when wearing an artificial support for his body. 3 But he may, under such a policy, recover as for the loss of both feet, where by reason of an accidental injury his legs become permanently paralyzed and useless. 4 § 401. Permanent or total disability. — It is provided in the laws of some states that societies may be organized for the purpose of furnishing accident or permanent disability indem- nity to members. The contracts of insurance issued by some societies stipulate that accident and permanent disability in- demnity shall "be paid according to their provisions, and under the provisions of the by-laws. 5 There are few adjudicated cases on questions of permanent or total disability, and even these are not agreed upon the construction to be given to certain words and phrases used in most contracts of indem- 1 Standard Life v. Martin, 133 Ind. the paralysis of the legs and feet of 376; 33 N. East. Rep. 105; Bancroft the assured continued until his death, v. H. B. Association, 120 N. Y. 14. and that he was not able to stand up 2 Sharpe v. Association (Ind.), 37 or use them after the injury. The N. East. Rep. 353. action was commenced in his life- 3 Stever v. Association, 150 Pa. 132; time, and he died more than ninety 24 Atl. Rep. 662. days after the accident. 4 Sheanon v. Ins. Co., 77 Wis. 618; 5 See May on Insurance, § 514 et 46 N. W. Rep. 799; S. C, 83 Wis. seq.; Bliss on Life Insurance, §702 507; 53 N. W. Rep. 878. In this case et seq. the evidence was uncontradicted that ACCIDENT INSURANCE. 771 nity. A review of these cases will show very plainly the neces- sity of scrutinizing closely the exact language of the contract, as stress is sometimes laid upon the very form of the expres- sion in which the contract is clothed. A policy which merely provides for indemnity for loss of time in a certain sum per Aveek during the period of disability to Avork does not entitle the administrator of the insured to any damages in case of an accident causing the instantaneous death of the insured. 1 AVhere the contract states the occupation and classification of the insured, and provides for the payment of a certain sum per week for the " immediate, continuous and total loss of such business time -as may result from accidental injuries," the words " loss of such business time" have reference to the occu- pation of the insured, and the loss of time in such business means the loss of time in the business of the insured. 2 Under a policy insuring one against loss of time resulting from certain injuries " which shall, independently of all other causes, immediately, Avholly and continuously disable him from transacting any and every kind of business pertaining to his occupation," the company is not liable for loss of time resulting from a physical injury, when it affirmatively appears that thirty days elapsed after the injury before he Avas so dis- abled that he could not attend to his business, and that during the thirty days he gave more or less attention to his business. The Avord "immediately" being preceded, by the words "in- dependently of all other causes," is a word of time, and not of cause and effect, and the time which it indicates is not the same as that which would, be indicated by the phrase " within a reasonable time." 3 § 402. Permanent or total disability — Strict construc- tion. — A contract of insurance provided that, in case of acci- dental injuries which should "wholly disable and prevent him from the prosecution of any and every hind of business per- taining to his occupation," tin? insured should be indemnified against loss of time thereby " for such period of continuous 'Dawson v. Ins. Co., 38 Mo. App. B Williams v. Association, 91 Ga. 855. 698; 17 S. E. R st, 122 169. Pa. St. 579; 15 Atl. Rep. 883. 77-i ACCIDENT INSURANCE. whole being done by the same person. The fact that leather- cutting is more hazardous than the mercantile portion of the insured's business, undoubtedly served to fix the classification and the rate of indemnity, but can not control the provision in respect to the disability which shall entitle him to that in- demnity. One of the appended provisions on the face of the policy is that he shall not be entitled to indemnity ' beyond the money value of his time.' His time during his disability may have been used by him as a merchant to greater profit than if he had continued at his occupation of leather- cutting. The meaning and purpose of the specification that he is insured under the ' medium' classification are not that his occupation is specified under that classification, for it is not; nor is the specification necessary to show the amount he is to receive in case of an accident resulting in death or temporary disability, for that has already been distinctly stated just be- fore. But this specification derives its chief significance from the provision which follows, relating to his engaging in some occupation more hazardous than those enumerated in that classification. It does not do away with the statement that he is insured as a leather-cutter and merchant. On the whole, we are of the opinion that, to entitle the plaintiff to recover, he must show a disability both as a leather-cutter and as a merchant." An accident policy insured against death or total disability resulting from bodily injuries effected through external, vio- lent and accidental means. The "total disability" was de- fined as follows : " If said member shall sustain bodily injuries by means, as aforesaid, which shall, independently of all other causes, immediately and wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which he receives membership." Plaintiff in the contract stated his occupation to be that of a "retired," the term "gentleman" or the equivalent being evidentlv omitted by clerical error, and in an action on the policy testified that he had no occupation except to amuse himself, that his income was derived from investments, that he had a shop at his house, where he sometimes amused him- self, was a director in a wagon company and at times used some of its machinery in connection with his amusement. ACCIDENT INSURANCE. 775 While operating a buzz-saw at the wagon-shops, he received a severe and painful wound on the back of the hand which de- prived him of the use of it for some time. It was held that the injury was not covered by the policy, as plaintiff was not totally disabled, and prevented from any and every kind of business pertaining to his situation. 1 Provisions of the constitution and by-laws of a society grant- ing benefits "in case of sickness," and providing that "when any member takes sick," he shall be entitled to such benefits " if it be so that he is not able to attend to his daily labor," do not extend to the case of a permanent bodily injury which does not affect the general health of the person injured. 2 A contract provided for benefits in case the insured should " fall sick, lame or blind, or be otherwise disabled from work." The proof showed that the insured was "unable to work by reason of natural decay," but it was held that incapacity to work arising from natural decay, as the result of old age, did not entitle him to benefits under the contract. 3 §403. Permanent or total disability — Liberal construc- tion. — Total disability from the prosecution of one's usual em- ployment means inability to follow his usual occupation, busi- ness, or pursuits in the usual way. Though he may do certain parts of his accustomed work, and engage in some of his usual employments, he may yet recover, so long as he can not to some extent do all parts, and engage in all such employments. 4 A contract provided that the assured should be indemnified, if he should receive injuries which should " wholly disable and prevent him from the prosecution of any and every kind of business pertaining to the occupation under which lie is insured." This was construed to mean, not that he must be so disabled as to prevent him from doing anything whatsoever pertaining to his occupation, or any part of his business pertaining to his i Knapp v. Association, 6 N. Y. Court of Mass.), 8 Law Reg. (N, S.) 288; Supp. 57. 1 Big. Life & Air. Ins. Cas. 889. This ' Kelly v. Ancient Order of Hiber- case does Tint seem tt> haw heen ap- nians, 9 Daly 289. pealed. Hooper v. Ins. Co., 5 H. & s Dunkley v. Harrison, 56 Law N. (Exch.) 545; affirmed in the Exch. Times Rep. 660. Ch. 6H.&N. 839; S.C., 8Big. L & A. 4 May on Insurance, §£ 522, 523; Cas. 573; Wolcott v. Association, 8 Bliss on Insurance, §403; Sawyer v. N. Y. Supp. 203. United States Casualty Co. (Superior 776 ACCIDENT INSURANCE. occupation, but that he must be so disabled as to prevent him from doing any and every kind of business pertaining to his occupation. The court said : " He was not able to prosecute his business, unless he was able to do all the substan- tial acts necessary to be done in the prosecution. If the pros- ecution of the business required him to do several acts and perform several kinds of labor, and he was able to do and per- form only one, he was as effectually disabled from performing his business as if he could do nothing required to be done, and while remaining in that condition he would suffer loss of time in the business of his occupation. * * He was not required to prove that his injury disabled him to such an extent that he had no physical ability to do what was necessary to be done in the prosecution of his business, but * it was sufficient if he sat- isfied (the jury) that his injury was of such a character and to such an extent that common care and prudence required him to desist from his labors and rest as long as it was reasonably necessary to effectuate a speedy cure, so that a competent and skillful physician called to treat him would direct him so to do." 1 A policy provided that the company should be liable if the accident should " cause any bodily injury " to the insured, of " so serious a nature as wholly to disable him from following his usual business." The insured sprained his ankle, and though confined to his bedroom for some weeks by the injury, was at no time confined to his bed. He was a solicitor and registrar of a county court. He was not able to pass his accounts as registrar, nor to follow his usual occupation as a solicitor, but he read and gave directions to his clerks. The court held that he was wholly disabled within the meaning of the policy, since he was disabled from following his usual business in the usual way. 3 Under a by-law providing that if a member should become permanently disabled from following his " usual or some other occupation" he should be entitled to a certain ben- efit, a member who is disabled from following his usual employment is entitled to it, though he is not disabled from following some other occupation. 3 1 Young v. Travelers' Ins. Co., 80 3 Neill v. Order of United Friends, Me. 244; 13 Atl. Rep. 896; 6 N. Eng. 28 N. Y. Supp. 928. The court held Rep. 432. that the expression "some other oe- 2 Hooper v. Ins. Co., supra. cupation" was not the equivalent of ACCIDEXT INSURANCE. ( ( t On a policy for the payment of a certain sum weekly during total disability from accident, a physician is entitled to pay for a time when he was confined to his bed by an accident, though during that time he occasionally examined and pre- scribed for patients who came to his bedside, and at times without leaving his bed reached for or received certain medi- cines in his room, which he advised to be administered. 1 §404. An accident policy stipulated for the payment of a specified sum for disability incurred by the insured while en- gagedin his occupation as "an ice man, proprietor," provided his injuries produced total inability to attend to the employ- ment or occupation in which he was engaged. The court construed the language above quoted, in which the occupation of the insured was described, to mean the proprietor of an ice business, in which he was a practical laboring ni.ii). engaged in theactual delivery of ice in his own behalf; and. as the evi- dence showed that the insured was not able, by reason of his personal injuries, to carry on the business of delivering ice. it was held that he was totally disabled within the meaning of the policy; although, notwithstanding his injuries, he was able to give general directions to a person who took his place as an ice man during the period of his disability." A policy provided that if the insured should from violent and accidental injury suffer " the loss of two entire feet," he should be paid ;i cer- tain sum of money, and it was held that where he was acci- " all other occupations," and was of But the same rule would not apply to opinion that the Language of the pro- the caseof a professional man, whose vision of the contract was chosen for duties require the activity of the the purpose of raising disputes as to brain, and which is not necessarily tlic right of a beneficiary to recover, impaired by serious physical injury, rather than to make plain the intent If a person engaged in the general and meaning of the contract. practice of medicine and surgery is 'Wolcott v. Association, 8 X. Y. unable to go about his business, enter Supp. 263. In it> i pinion the courl his office and make calls upon bis sai.l: "Total disability must, of the patients, but is confined to the bed, as necessity <■(' the ease. !»• ;1 relative in this instance, and enabled only to matter, and musi depend largely exercise his mind on occasional ap- nj.on the occupation and employ- plications to bira for advice, he may iiani in which the party insured is be said to be totally disabled, within engaged. One can readily under- the meaning of the provisions of this stand how a person who labors with policy." Ins hands would l>«- totally disabled 'Neafie v. Accident Indemnity Co., only when he can not labor at all. £ jf t y Supp. 202. 778 ACCIDENT INSURANCE. dentally shot in the back, and the injury produced total pa- ralysis of the lower part of the body and entirely destroyed the use of both feet, he had suffered the loss of two entire feet within the meaning of the contract. 1 For the " total and per- manent loss of the sight of both eyes " an accident insurance society agreed to pay a member one thousand dollars. Before taking the insurance he had lost the sight of one eye, and this fact was known to the society. Subsequently he lost the sight of the other eye. The court held that he was entitled to re- cover the amount of the policy. 11 1 Sheanon v. Ins. Co., 77 Wis. 618; and this was just as complete in the 46 N. W. Rep. 799. plaintiff's case as though both eyes 2 Humphreys v. Association, 139 had been lost during the life of the Pa. St. 264; 20 Atl. Rep. 1047. In policy. Assuming that the company passing upon the question of the intended to insure the plaintiff against liability of the society the court said: something, and that that something " It is evident the plaintiff was seek- was the loss of his sight, the most ing insurance against the total and that can be said is that having but permanent loss of his sight. The one eye the risk was increased; company insured him against that but the risk was not increased after or it did not insure him at all, which the policy was issued. The general is not to be considered. There ap- agent knew precisely what the risk pears to have been no fraud or con- was when he took it, and neither he cealment practiced by the plaintiff nor the company can be now heard upon the company, and we are not to aver that the risk was greater in willing to believe that the latter took the case of a man with one eye than his premium without giving any in- of one with two. There can be no surance as regards his eyesight. The reasonable doubt that the plaintiff loss of one eye to him was precisely paid his premium, and accepted the the same as the loss of both eyes by policy under the belief that the words an ordinary man. It is total blind- ' total and permanent loss of the sight ness in either case. There is no pro- of both eyes ' were equivalent to the vision in the policy for the loss of one loss of eye-sight. He had a right to as- eye, as there is for the loss of one arm sume this in view of the fact that the or one leg. The reason is plain. The policy was issued to him with knowl- loss of one eye does not produce a edge on the part of the general agent total and permanent loss of sight, that he had but one eye. * * Is it For all practical purposes a man with reasonable that the parties did not one eye can still follow his occupa. intend the policy to cover the matter tion and gain his living, while the of eye-sight at all? Yet this is the loss of an arm or leg is a disability conclusion we must come to, if we which seriously interferes with his sustain the defendant's contention, ability to earn his bread; hence it * * When the words are, without was that the policy provided, or violence, susceptible of two interpre- rather defined the loss of sight as the tations, that which will sustain his loss of both eyes. It was the loss of claim, and cover the loss, must in sight which was insured against, preference be adopted." ACCIDENT INSURANCE. 779 A switchman on a railroad, by the loss of the fingers of one hand, is disabled, within a provision of the constitution of a society, stating that "a member who, by reason of a disability * * * becomes unable to direct or perform the kind of busi- ness or labor which he has always followed, and by which alone he can thereafter earn a livelihood, shall be deemed enti- tled to disability benefits," and whether he can earn a liveli- hood b}^ some other business is a question of fact for the jury.' A certificate of membership in an accident insurance associ- ation provided for relief for accident resulting in " total per- manent" or "partial permanent" disablement, and there was no provision in the certificate itself for the payment of any benefits for an injury which resulted in partial disablement unless it was also of a permanent character. It was held that the liability of the company was not enlarged so as to embrace cases of merely partial disablement of a temporary character by an indorsement on a certificate, which provided that if the mem- ber shall sustain bodily injuries, whether partially or totally disabling, " by means as provided for in this certificate," the payment of the weekly relief should exonerate the company from all further liability, followed by a schedule designating different kinds of injuries, with a specified period of relief for each, and a statement that " injuries not included in the above schedule will be adjusted on their "merits." 2 A contract stipulated for the payment of a certain sum " in case of total disability." Insured, an old man, was attacked with bron- chitis and asthma, and the proof showed that he was perma- nently disabled from doing any manual labor. It was held that the disability was within the terms of the contract. 3 The fact that the insured could pursue his usual occupation by wearing a mechanical appliance will not lessen the character of the disability as a total one, when the use of the appliance would endanger his life, or would subject him to intolerable discomfort. 4 §405. A clause in an application for mutual accident in- demnity, agreeing that the benefits to which the applicant ■Hutchinson v. Supreme Tent, 22 s Dotlds v. Aid Association, 19 On- N. Y. Supp. 801, tario Repts. 70. 'Hollobaugh v. Association, 138 * McMahon v. Supreme Council, 64 Pa. St. 5y it, is not classed as non-in- surable.' 1 § 4:08. It is a matter of common observation that in large cities men work in special branches of certain trades, while in smaller places, a man in a certain trade works in the several brandies. In a city a man may be a shingler, a lather, or a stairlmilder. and may do no other carpenter's work, while a 1 Provident Life Ins. Co. v. Fennell, 47 X. W. Rep. 988; San ford v. A- 49 111. 180. sociation. 68 < Sal. 548; >«■.■ ,i 166. 8 Provident Life v. Fennell, supra; 'Wilson v. Association, 53 Minn. Provident Life v. Martin,82 Md. BIO. 470: 55 N. W. Rep. 6:20. s Hobbs v. Association, 82 Iowa 107; 784 ACCIDENT INSURANCE. carpenter ordinarily shingles roofs, puts on laths and builds stairs. It is usually a mason's work to point up and finish brick walls, though, in cities, there are men who do only the work of pointing and finishing walls of large and elegant buildings. Where the classification prepared and adopted by the accident company does not divide these several branches into separate occupations or trades, a recovery can not be de- feated, in a suit on a policy, because the insured voluntarily exposed himself to the dangers incident to work in a special branch of his trade.' Where a person is insured in a certain class or occupation, the company assumes the risk of accidents to him from the dangers incident to such class or occupation. Voluntary exposure to such incident dangers is contemplated by both parties to the contract. 2 A person who is classified and insured under an accident policy, in a certain occupation, may rightfully do whatever is customary, under like circum- stances, among reasonable, prudent persons of like occupa- tion; and in an action on the policy for injuries received in his occupation, it is not prejudicial error to permit him to show what is common practice among persons in that occupation. 3 When an application for accident insurance states that the ap- plicant is a conductor on a passenger train, and contains noth- ing indicating that the policy will have any restrictions against entering and leaving moving trains, such risks will be held to be insured against; and if an action is brought on the contract made by the application and its acceptance, re- covery may be had for an accident caused by such risk, though it is excluded by the policy. Where, however, action is brought on the policy, and the accident, though alleged not to have happened from such risk, is shown to have been so caused, recovery can not be had under the pleadings. 4 A policy of life insurance, conditioned that the insured should not, without the written consent of the insurers first obtained, engage in any sea service, had annexed to it a per- 1 Wilson v. Association, supra. * Dailey v. Preferred Masonic (Mich. - See Dailey v. Preferred Masonic 57 N. W. Rep. 184. In this case, (Mich.), 57 N. W. Rep. 184. though the contract was complete 3 Pacific Mutual v. Snowden, 58 and the policy forwarded by mail, Fed. Rep. 342; Wilson v. Association, it did not reach its destination until sajirit; National Association v. Jack- after the death of the insured mem- son, 114 111. 533; 2 N. East. Rep. 414. ber. ACCIDENT INSURANCE. 785 mit to engage in sea service on " the prior payment any year of an additional premium." The insured paid the first addi- tional premium and continued in sea service for more than a year without payment of another additional premium. It was held that the policy was forfeited.' A policy stipulated that it was to be void " as to all accidents occurring in an y occupation, profession, or employment or exposure not named, or incident to the occupation under which he receives mem- bership." The insured, who stated his occupation to be that of a retired gentleman, was injured while operating a buzz saw for his own amusement. It was held that the opera- tion of the buzz saw was not incident to the occupation or con- dition of a retired gentleman." An applicant stated that his occupation was that of a " livery stable proprietor (not work- ing)," and that his duties were " such as were required of him in that occupation." The evidence showed that he hired men to do the work about his stable, though he sometimes hitched up a horse, and drove persons out. It was held that this state- ment of his duties sufficiently apprised the company of their character, and that, if anything more definite was required, it was the duty of the compan} T to ascertain the facts by proper inquiry. 3 An accident policy contained the following condi- tion : " This insurance does not cover entering, or trying to enter or leave, a moving conveyance using steam as motive power; * * * railroad employes excepted." Assured was baggage checker of a transfer company. His business required him to meet and board incoming trains, and check baggage to other railroad lines, and to residences in the city. It was held that assured was a railroad employe, within the meaning of the foregoing exception. The words of such an exception have reference to the character of employment, rather than to the corporation who is the employer. 4 The term " supervising farmer," in the classification of risks, covers a person who employs farm laborers and does but little work himself. 6 The 1 Ay er v. N. Eng. Mutual, 109 Mass. * Gotten v. Casualty Co., 41 Fed. 430. Rep. 506. 2 Knapp v. Association, 6 N. Y. 4 National Accident Soc. v. Taylor, Supp. 57. 42 111. App. 97. 3 Brink v. Accident Association, 7 N. Y. Supp. 847. 50 786 ACCIDENT INSURANCE. jury were warranted in finding that insured was not "a grocer delivering goods, by occupation," so as to reduce his maximum death indemnity under the policy, when there was evidence that, though insured occasionally delivered goods, his son de- livered the most of them. 1 The word " occupation," as used in accident policies, must be held to have reference to the voca- tion, profession, trade or calling in which the assured is engaged for hire, or for profit, and the statement of his occupation by the insured does not preclude him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations. 2 § 409. Change of occupation. — A change of occupation means " an engaging in another employment as a usual busi- ness." It does not apply to temporary employments during leisure hours, to acts done outside of. one's usual and ordinary business, or to casual employment in a different business. A teacher out of employment, who builds one or two houses by contract, and superintends them, does not thereby change his occupation and become a builder. 3 And an engineer who leaves his cab on a locomotive engine to perform the duty of a brakeman, while his train is in motion, does not thereby change his occupation. 4 In his application assured stated his occupation to be an " earthenware manufacturer." There was no evidence that he had changed his occupation, but the proof was that, while on a visit at a farm, he had assisted in loading hay, and in so doing had received his fatal injury. It was held, that there had been no change of occupation within the meaning of the policy. 5 A farmer, living on the shore of Lake Ontario, was insured as a farmer. A schooner was driven aground, about one hundred rods from the shore, by a storm. A flag of distress was exhibited, and the insured, who lived near, went with his neighbors to rescue the crew, con- sisting of eight men and one woman. In so doing he was drowned. The policy provided that the liability should not extend to any injuries received by the insured " while era- 1 Hall v. Am. Ace. Association, 86 4 Provident Life v. Martin, 32 Md. Wis. 518; 57 N. W. Eep. 366. 310. * Union Mutual v. Frohard, 134 111. 5 N. A. Life v. Burroughs, 69 Pa. 228. St. 43. 3 Adm'rs of Stone v. Casualty Co., 34 N. J. L. (5th Vroom) 371. ACCIDENT INSURANCE. 7S» ployed in wrecking." The court said: "lie was a farmer and not, by occupation, a wrecker. As well might a farmer who should be smothered in attempting to rescue his neigh- bors from their burning dwelling be called a fireman as this man a wrecker." ' A land .owner building a bridge on his farm can not be said to have changed his occupation from that of a farmer to that of a bridge builder, and a person driving a post by means of an axe or sledge is not engaged in the occu- pation of a pile driver. 2 A farmer does not change his occu- pation by acting temporarily as superintendent of police at a state fair. 3 An accident policy, providing for the payment of a specified sum for disability incurred while engaged in his occupation as " an ice man, proprietor," covers accidents occurring to the in- sured, who is the proprietor of an ice business, while engaged in the delivery of ice, though the rules of the company provide that a proprietor may insure at a fixed rate, while one deliver- ing ice can not receive so large a weekly sum.* 'Tucker v. Ins. Co., 50 Hun 50; 4 and his ability to earn moneys. The N. Y. Supp. 505; 23 N. Y. St. Reptr. weekly payments provided for by the 957. policy are graduated according to 2 National Accident Soc. v. Taylor, the ability of the party insured to 42 111. App. 97. earn money in his employment, or 3 Travelers' Association v. Kelsey, occupation or profession. There is a 46 111. App. 371. provision in the policy that if a per- 4 Neafie v. Accident Indemnity Co., son receives an injury while engaged 8 N. Y. Supp. 202: 55 Hun 111. This temporarily or otherwise in ;in occu- decision is placed upon the exact pation or employment classified as terms of the statement of the occu- more hazardous than the one stated pation of the insured. The court in his application indemnity shall be said: "The expression which is afforded only at the rate provided used in the policy is not that of a for the occupation or employment in mere proprietor, who conducts a which the injury is received. No general ice business by advices from partial defense is available to the de- his office, but on the contrary, it was fendant under this provision for the that of an ice man, or a man who reason that our construction of the might be a deliverer of ice, and who language above quoted is that the was at the same time the owner or occupation or employment of the proprietor of such business. The plaintiff as an ice man. adding the plaintiff received the injuries while words 'as proprietor,' did not de- engaged in the manual duties per- scribe him as only engaged in the taining to the delivery of ice to his management of a business, hut was customers. The circumstance that broad enough to include a practical lie was the proprietor is important and laboring man. engaged in the only as showing the value of his time, actual delivery of ice in his own be- 788 ACCIDENT INSURANCE. § 410. Verbal testimony is not admissible to prove an agreement on the part of an applicant for insurance that he would not act in certain capacities and in certain lines of labor, when the written contract does not embody such an agreement. Evidence of a verbal agreement pertaining to the subject-matter of a written contract, made before or at the time of the execution of the written contract, and not embraced therein, is not admissible for the purpose of restricting, en- larging, or in any way varying the terms of the written con- tract, and this rule applies as well to an insurance contract as to any other. 1 An applicant having stated his occupation to be that of " machinist and railroader," and it being so written down in the application, the fact that he agreed to strike out the word " railroader " is not a defense to an action on the policy, as this was not equivalent to an agreement not to act as brakeman on a railroad, and the striking out of the word " railroader " could not have obliterated the knowledge of the company that the applicant was acting as a brakeman. 2 § 411. Change of occupation — Classified risks. — It is com- petent for the parties to a contract of accident insurance to agree that if the insured shall be injured in any occupation rated by the association as more hazardous than that given by the insured as his occupation, his insurance shall only be as much as the premium paid will purchase at the rate fixed bv the association in its tables for such increased hazard. The contract of insurance depends essentially upon an adjustment of the premium to the risk assumed, and it is proper for an association to provide against an increase of risk after the issuing of its contract. 3 The following provision was in the body of a certifi- cate : " If the insured member be fatally injured, while doing half. Had he not been actually the 2 National Association v. Heck- proprietor of his own business, then, man, 86 Ky. 254; see Wright's Admr doubtless, the policy would not have v. Ins. Co., 91 Ky. 208; 15 S. W. Rep. provided any payment to him above 242. five dollars a week, placing him in 3 Standard Life v. Martin, 133 Ind. a class of mere laborers." 376; 33 N. East. Rep. 105; Aldrich n. 1 Insurance Co. v. Mowry, 96 U. Association, 149 Mass. 457 ; 21 N. S. 544; White v. Ashton, 51 N. Y. East. Rep. 873. 280; White v. Walker, 31 111. 422; National Mutual v. Heckman, 86 Ky. 254. ACCIDENT INSURANCE. TS9 or performing any act or thing pertaining to an occupation classed by this association as more hazardous than the occu- pation under which this certificate is issued, the insured mem- ber, or his beneficiary, as the case may be, shall be entitled only to the indemnity of the class in which such more hazardous occupation is classified by this association." The member was insured as a stationary engineer in class 3. The occupation of a wood-chopper was placed in class 5, and rated as more hazardous. While chopping wood for his own use in a place made slippery by the sleet and hail which had fallen, the in- sured slipped, fell across a log and immediately died. It was claimed by the society that the insured was fatally injured while doing an act pertaining to an occupation classed by it as more hazardous than the occupation under which the certificate was issued, and that the indemnity of the class in which such more hazardous occupation was classified was all that could be recovered. The court instructed the jury to determine from the evidence whether, under the circumstances, and within the terms of the policy, at the time of his death, the insured was engaged temporarily in an occupation more hazardous than that of a stationary engineer, but it did not submit to the jury the distinct question to be determined, whether the insured was fatally injured while performing an act peculiarly embraced in the occupation of a wood-chopper, and not in that of a stationary engineer. A new trial was granted for the reason that, while it might be difficult, in many cases, to say what acts or things are properly incident to one occupa- tion, which are not so to any other, still it should have been submitted to the jury to determine from the evidence, whether the act or thing which the insured was doing or performing at the time of his death more properly pertained to the busi- ness of a wood-chopper, and did not belong to his own occu- pation. 1 A certificate of membership permitted an employment dif- ferent from that designated as the regular or usual employ- ment of the assured, in his application and certificate. If injured while thus engaged, temporarily or otherwise, in an employment classified by the association as more hazardous than the one thus stated as the regular employment of the 1 Eggenberger v. Association, 41 Fed. Rep. 172. 790 ACCIDENT INSURANCE. assured, the indemnity to be paid, in case of death, was to be at the rate specified for the occupation in which he was, at the time of the injury, actually engaged. In his application the insured had been asked to state his occupation; " if more than one, state them all; state your duties." His answer was, " spare conductor, through freight." The society classified the employments of conductors and brakemen at different rates. In case of the accidental death of a brakeman, his ben- eficiary was entitled to $250, while the beneficiary of a con- ductor would be entitled to $2,000. The society had not clas- sified the occupation of a " spare conductor," nor determined what indemnity the death of a member, while engaged in that occupation, should entitle the beneficiary to receive. The insured was killed while performing the duties and doing the work of a brakeman on a mixed through train, under the direc- tion of another person as conductor. The evidence showed that the duties of a spare conductor were to do anything and go anywhere on any train at any time and in any capacity. It was contended that the assured was legitimately within his duty as a spare conductor when killed, although actually doing the work and incurring the hazards of a brakeman. !No general use of the term in this sense was shown, nor did it appear that the society had any knowledge that it was so used upon the road where the insured was employed. The court said : " The defendant must have insured him according to the meaning of those words as ordinarily understood. When insured as a conductor on a freight train, it was to be inferred that his duties were those of a conductor. The adjective " spare," in its ordinary lexical sense, would mean "supernumerary," or " held in reserve; " " to be used in an emergency." Worces- ter, Lex. Webster, Lex. It would properly distinguish one occasionally from one regularly and continuously employed. The word gave no intimation that he was engaged, or desired to be insured, in the performance of any other duties than those of a conductor. When words, having an established place in the language, are employed and apparently used in no technical or peculiar sense, they must be construed according to their use as established. 1 The defendant was not obliged to inquire what sense the applicant attributed to the word " spare " in the ^diorne v. Insurance Co., 101 Mass. 551. ACCIDENT INSURANCE. 791 connection in which he used it. It was for him to have defined it, if that sense was unusual. Where there had been a classi- fication of the various employments in which the insured was engaged, the defendant could not suppose that he sought to be insured except as a conductor, or that by this word he sought to embrace the otherwise distinct employments. The insured having been actually engaged as brakeman when he was killed, the beneficiary is therefore entitled to recover only the sum of $250.' The constitution of a corporation organized to afford relief to employes of certain railroad companies pro- vided relief to those injured " by accidents while in the dis- charge of duty, and in the service of " the companies. It was held that an employe who fifteen minutes after having quit work for the day, and while going home from work, in crossing the railroad tracks, was killed by cars, was in dis- charge of his duty, and in the service of the company, within the meaning of the constitution. a A person who is insured against accidents while in the discharge of certain duties must, if the policy so provides, use due diligence for his personal safety while in the discharge of those duties. 3 § 412. A policy contained a stipulation that it should not cover accidents, injuries or death from trying to enter a mov- ing steam vehicle, this provision, however, not being applicable to railway employes. The insured, a banker, was killed while attempting to get on a moving railway train. Another provis- ion of the policy limited the liability of the company to a less sum than that named in the policy, if the insured should be injured in any occupation or exposure classed as more hazard- ous than that specified in the policy, and it was claimed that a recovery should be allowed for such smaller sum. The court said : "The terms ' occupation or exposure classed by this com- pany as more hazardous,' etc., refer, as we understand, to dis- tinct, classified occupations or employments, such as railroad conductors, railroad brakemen, railroad engineers, blacksmiths, carpenters, etc. To bring a case within the provision limiting the liability of the company to a less amount than that named 1 Aklrich v. Accident Association, "Standard Life v. Jones, 94 Ala. 149 Mass. 457; 21 N. East. 873. 434; 10 So. Rep. 530. 2 Kinney v. B. &0. Association, 35 W. Va. 385; 14 S. E. Rep. 8. 792 ACCIDENT INSUKANCE. in the policy the assured must be within one of such classes; that is, engaged in one of the more hazardous occupations. * * The construction which the appellants would have us put upon this provision would render of no effect the more plain condition of this contract; that this insurance does not cover accident nor death or injury resulting * from * entering, or trying to enter, or leaving a moving steam vehicle." l A slave whose life was insured was a laborer in a tobacco ware- house, and the policy stipulated that he was not to be employed in a more hazardous occupation. He was subsequently drowned in a river by falling from a plank while walking on it from a steamboat to the shore, having been sent by his master to be employed on a sugar plantation. The company was held liable, and the court based its opinion upon the following ground : " Conceding that a sugar plantation is a more hazard- ous employment than tobacco warehouses, still, the slave was not lost whilst working thereupon. He had not reached the plantation. It* plaintiff had not had the intention of employ- ing him upon a plantation, but had been taking the slave at the time of his death to work in a tobacco warehouse in Virginia, there could then be no doubt of the liability of the defendant. The intention to employ him on a sugar planta- tion was not the cause of his death; but a strong wind which caused him to lose his balance and fall in the water in passing on a plank from the steamer to the shore. * * There is nothing in the policy which liberates the defendant from lia- bility on account of the intentions that plaintiff might enter- tain during the existence of the policy of violating its terms." '' § 413. An accident policy was indorsed with the following stipulation : " Policy holders insured under the preferred class will not be entitled to recover for injuries received in any employment or by any exposure either more hazardous in itself, or classified by the company as more hazardous than the occupations named in the preferred class." In construing this indorsement it was held that it had reference to hazard- ous employments, and not to individual acts incident to other occupations, and further that, being an indorsement not re- 1 Miller v. Ins. Co., 39 Minn. 548; 2 Summers v. Ins. Co., 13 La. Ann. 40 N. W. Rep. 839. 504. ACCIDENT INSURANCE. 793 ferred to in the body of the policy, it was no part of the con- tract. 1 1 Adm'rs of Stone v. Casualty Co., 34 N. J. Law (5 Vroom) 371. The court said : " The injuries excluded from the compensation of the policy are described as those that are 're- ceived in any employment, or by any exposure, either more hazardous in itself, or classified by the company as more hazardous.' These tern is. literally rendered, require that the assured, to come within their effect, must, at the time of the injury, be in an employment more dangerous than his own. The language has respect to employments and not to individ- ual acts It is true that a certain degree of ambiguity is introduced by the expression ' other exposure,' but, looking at the body of the policy we find these terms used in the sense of the risks arising from a business or occupation. By adhering to the literal signification of the terms em- ployed these in I orsements prefixed to the several classes of employments lose all force as independent stipula- tions, and serve the simple purpose of graduating such employments for the service of that provision of the policy which prohibits the assured from passing, at his own option, from one business to another. Un- derstood, in this view, they are prop- erly a part of the classification, but if they are to be received as a »ntain- ing new terms of the contract, they are entirely out of place. If the company intended to say to the as- sured that if he 'liil any act which did not stri do so in plain language. Such a stipulation would obviously be one of a very important character, and we would expect to find it in the body of the instrument. A qualification of the agreement so restrictive of the rights of the party insured ought not to be admitted un- less the terms of this indorsement will bear no other rational inter] no- tation. If the terms used are imper- fect or ambiguous, it is the fault of the defendants: it is their contract, and the construction of it must be strongly against them, contra prefer. entes. Nor do I think the liberal in- terpretation of this clause, which the defense contends for, a practical one. It would be difficult to put it in practice; for who can say, in many cases, what acts are properly inci- dent to one occupation, and which are not so to any other? The subdi- visions of employments are so nu- merous and minute, that in actual life it is impossible to separate them by any visible and exact line: for in- stance, in the first of these classifica- tions the shop-keej>er is placed, and in the second the laborer. The em- ployments of these are distinct: but with respect to particular acts it would be extremely difficult, if not impossible, to classify them into those winch are common to both occupa- tions, and into those which are pecul- iar to each. It doe-. Hot seem to IDC proper to bring into this agreement this confusion and uncertainty by construction. It certainly is not nec- essary f or tin reasonable protection of the company, lor there are other restrictions in this instrument which are. apparently, sufficient to debar a party insured from doing acts apper- taining to other occupations, which are of a particularly hazardous na- ture. 1 refer to the clauses refer- ring to undue exposure. Even the 794 ACCIDENT INSURANCE. A by-law of a society provided : " Any member, who shall change his occupation, to any other more hazardous than the one in which he was classified when insured, shall immediately notify the secretary of such change; and any member, receiving an injury while engaged temporarily or otherwise, in another occupation more hazardous than the one in which he was en- gaged when insured, he or his benficiary, shall be entitled to receive only such indemnity as provided for in the class or occu- pation in which he is engaged at the time of the injury." The certificate issued to a member contained this clause : " It is expressly stipulated and agreed.that in the event of the mem- ber being either fatally injured, or otherwise disabled while engaged temporarily, or otherwise, in any act or occupation classed as more hazardous than the one in which he is accepted, according to the classification given by the rates and by-laws of this association, then an amount shall be paid equal to the rate of the occupation in which the member is engaged when receiving the injury." It was provided in the classification of risks that, in the event of the death by accident of a member in division A, a sum not exceeding $5,000 should be paid and that, in the event of such death of a member of division E, which was designated therein as " hazardous " a sum not ex- case put of an attorney driving a herein contained or referred to, and steam engine would probably come upon the express agreement that the within this prohibition. But there statements and declarations of the is still another, and, as it seems to insured in his application for this in- me, a decided objection against the surance are warranted to be true in admission of this indorsement, as all respects, and that said application, constituting in itself a substantive together with the company's classifi- agreement. That objection is this: cation of hazards indorsed hereon That considered in this light it can are referred to, and made a part of not be received as any part of the this contract.' This specification of contract between these parties. As I the parts going to make up the agree- have stated, this clause is a prefix to ment is clear, and it does not embrace the classification on the back of this prefix in question, if such prefix the policy, and such prefix is not is to be taken as a modification of the referred to in the body of the in" body of the policy in a most material strument. The policy itself is very respect. On these various grounds I explicit as to what shall be comprised incline to the view that the indorse- in the contract. Its language is, that ment in question does not consti- this policy 'is issued and accepted tutea substantive stipulation, but is subject to all the provisions, con- merely explanatory of the stipula- ditions, limitations and exceptions tions to the extent already indicated." ACCIDENT INSUKANCE. 795 ceeding 8^,000 should be paid. Merchants were placed in division A, and hunters in division E. The facts and the decision of the court in a case arising- un- der this contract can not be better stated than in the language of the opinion. This was as follows : " The principal con- tention of appellant is that the deceased was killed while en- gaged temporarily in an act or occupation classed as more hazardous than the one in which he was accepted, and that appellee is therefore entitled to recover only the amount pro- vided for such hazardous risk and occupation. The contention of appellee is that there was no change of occupation, within the meaning of the by-laws and certificate of insurance. The deceased was a hardware merchant. He did not follow the occupation of a hunter for hire or profit. He was killed while engaged in the act of hunting as a recreation, and it does not appear that he had hunted with a gun on any occasion since the issuance of the policy other than that upon which the acci- dent occurred. In our examination of the provisions of the by-laws and contract of insurance, we will first ascertain the proper construction to be placed upon the former. The lan- iruau'e, as we have heretofore seen, is : 'Anv member receiving an injury while engaged temporarily, or otherwise, in an occu- pation more hazardous than the one in which he was engaged wlx 'ii insured,' etc. ' Occupation' is defined by lexicographers to mean ' that which occupies or engages the time or atten- tion; the principal business of one's life; vocation; employ- ment; calling; trade.' The classification of hazards in the by-laws is made upon the basis of occupations. Merchants, ami those following other like vocations, are placed in division A; grain-measurers and others in division I>; paper-hangers and others in division ( '; teamsters and others in division D; and boatmen and others in division E. The by-laws in ques- tion must receive a reasonable construction. It would be un- reasonable and absurd to hold that the merchant, who at one time measured ;i few bushels of grain, at another hung a lew- rolls of wall-paper upon his own premises, at another drove a team of horses in ;i carriage or wagon, and at still another rowed a skiff for exercise or recreation, became, within the true intent and meaning of these by-laws, at these several times, a grain measurer, a paper-hanger, a teamster, and a 796 ACCIDENT INSURANCE. boatman, respectively. The word ' occupation,' as found in these by-laws, must be held to have reference to the vocation, profession, trade, or calling, which the assured is engaged in for hire, or for profit, and not as precluding him from the performance of acts and duties which are simply incidents connected with the daily life of men in any or all occupations; or from engaging in mere acts of exercise, diversion, or recre- ation. This view is not subversive to the word ' temporarily,' found in said section, for there would be full opportunity for giving force and effect to it, in the event that a professional man, merchant, or person in some other calling, should tem- porarily abandon such vocation, and for purposes of profit, or as a means of gaining a subsistence, temporarily employ himself in some more hazardous occupation. This construc- tion of these by-laws seems to be sustained by the authorities. 1 * * It is urged, however, that the contract of insurance contains the words ' in any act or occupation,' instead of the mere words, ' in another occupation,' found in the by-law, and that the words, ' while engaged temporarily, or otherwise, in an act,' can not be ignored; but that they have a definite and clear meaning, and must be given legal force and effect. It is to be noted that the words used in the contract are words se- lected and used by the corporation itself, and are therefore to be interpreted most strongly against it; or that, at all events, they are to be construed according to their common and lit- eral meaning in favor of the insured. The provision of the policy, upon which is based the claim that the demand of appellee is reduced from one under division A to one under division E, is not simply that if deceased was fatally injured ' while engaged temporarily, or otherwise, in any act or occu- pation more hazardous than the one in which he was accepted,' but contains the further requirement that the ' act or occupa- tion ' that will be effective to work such reduction must be one that is ' classed as more hazardous, * * according to the classification given by the rates and by-laws of the associa- tion.' These words last quoted are words of limitation, per- taining to, and qualifying, the terms, ' any act,' and ' occupa- 1 Citing N. A. Life v. Burroughs, v. Ins. Co., 39 Minn. 548; 40 N. W. 69 Pa. St. 43; Stone's Adm'rs v. Cas- Rep. 839. ualty Co., 34 N. J. Law 375; Miller ACCIDENT INSURANCE. 797 tion,' as used in the contract. We have already seen that the classification of hazards made in the by-laws is predicated only upon occupations. There is not in the by-laws, or in the record any classification of hazards in respect to acts. In other words, there is no act which is classified as more or less hazardous than another, and no act which is classed as more hazardous than the occupation designated in the certificate of insurance issued to the deceased. The case, then, does not stand otherwise than it would if the word ' act ' were not found in the contract. The courts below properly held that the claim of appellee was under division A, and was for $5,000." L § 414. "Where an applicant for insurance against accidents makes a true and full statement of his occupation to the agent of the company, the company is bound, after loss, by the classification which the agent gives him; and if he is wrongly classified, according to the rules of the company, the fact that he certifies to his understanding of its classification of risks, and that he belongs to the class given, is immaterial, when in fact his only means of understanding the classifica- tion is through the representations of the agent. 2 "Where an accident company, with knowledge that the insured was ordi- narily a jobber and contractor, though sometimes a farm-hand, classifies him in its policy as a jobber and contractor, it can not, after he has been injured while working as a farm hand, reduce his indemnity to the grade in which farm hands are classified. A company can not after the insured has been in- jured, classify the occupation in which he was injured in a grade other than that specified in the policy, and thus reduce his indemnity to a lower rate of payment." Where one is classified, for the purpose of discriminating employments more or less hazardous and fixing insurance rates in proportion to the hazard, as a "capitalist by occupation," he is not classed as a capitalist, but is insured in a preferred class as a capitalist 1 Union Mutual v. Frohard, 134 111. Co., 94 U. S. 621; Ins. Co. v. Mahone, 228; 25 N. East. Rep. 642. 21 Wall. L52; N. Y. Ace. Co. v. Clay- 8 Pacific Mutual v. Bnowden, 58 ton, 59 Fed. Rep. 569. Fed. Rep. 342: see 2 Amor. Lead. ('as. 3 Bushaw v. Accident Co., 8 N. Y. (5th Ed.) 917; Ins. Co. v. Wilkinson, Supp. 423. 13 Wall. 222, 235, 236; Eamos v. Ins. 798 ACCIDENT INSUKANCE. by occupation. 1 Where a member continues to pay bis assess- ments for more than three years after receiving notice that the classification of his membership has been changed, the contract can not be rescinded on account of the change, but it will be held that he assented to it. 2 § 415. Notice of injury or death. — Accident policies usu- ally provide that notice of an injury shall be given to the com- pany or to its local agent within a certain specified time, and such notice is almost always required as a condition precedent to the right to demand pa} r ment. When the time is specified within which the notice must be given to hold the company on its contract, it must be given within that time, for the in- surers have a right to impose such a condition, in order to investigate at an early moment the nature of the injury and the circumstances under which it occurred, in order to judge of the validity of the claim. Where such a stipulation has neither been complied with nor waived, the insured can not recover on the. policy. 3 A provision in a policy of insurance prescribing a limit of time within which notice of death or injury is to be given, will not be construed as a cause of forfeit- ure where it is not expressly so stipulated in the contract. A policy providing that notice of injury shall be given within twenty-four hours after it occurs, but providing no penalty or forfeiture for failure to give such notice, maybe recovered on, if notice is given within a reasonable time after the injury occurs." But, in such case, notice must be given within a reasonable time, though provisions for forfeiture are not em- bodied in the policy. 5 Unless it is expressly so stipulated in the contract, the notice need not be in writing; 6 nor need any particular form of notice be used, if the fact to be made known is clearly set forth. 7 Where the insured is the only person interested, he is the proper one to give the notice, but he may ' Bean v. Ins. Co., 94 Cal. 581; 29 s Woodfin v. Ins. Co., 41 N. C. (6 Pac. Rep. 1113. Jones, Law,) 558. 2 Margut v. United Brethren, 148 fiKillips v. Ins. Co., 28 Wis. 472. Pa. St. 185; 23 Atl. Rep. 896. i Ri x v . i ns . Co., 20 N. H. 198; Ger- 3 Davis v. Davis, 49 Me. 282; Hey- man i a Ins. Co. v. Boykin, 79 U. S. wood v. Association, 85 Me. 289; 27 (jo Wall.) 433. Atl. Rep. 154. 4 Coventry Mutual v. Evans, 102 Pa. St. 281. ACCIDENT INSURANCE. 799 give it through his agent; and where a third person gives a written notice for him, it is not necessary that his agency shall appear on its face. 1 The contract may require the notice to be given to certain officers or agents of the company. Such requirements must be strictly complied with, and the notice given to the person designated. 2 Where notice of loss is re- quired to be given to the secretary of the company, in writing^ a written notice to him from the local agent, upon informa- tion conveyed by the insured, is sufficient. 3 But where the condition requires that the notice shall be given in writing to the secretary, notice by parol to an agent will be of no effect. 4 Where the policy does not in terms require a statement of the date of an accidental injury, the date in the notice and proof is not so material that a misstatement of it, without any im- proper motive, will prevent the plaintiff from maintaining his action, if the company is in no way misled or prejudiced by it. 5 § 416. In giving a notice there must be no unnecessary de- lay, nothing which the law calls laches. The terms " forth- with," "immediately," and "as soon as possible," used in con- nection with the giving of notice under a policy of insurance, are not to be taken literally, but mean with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. In ordinar} 7 cases, when such terms are used, whether the insured has been duly diligent in giving notice of the injury received by him, or whether his legal representatives, family, heirs, or other proper persons have been guilty of unnecessary delay in giving notice of his accidental death, are, under all the circumstances of such c;iscs. questions of fact to be determined by the jury under proper instructions from the court." Where notice is required to be 1 Stimpson v. Ins. Co., 47 Me. 349: "Patrick v. Ins. Co.. 43 N. II. 621. West Branch Ins. Co. v. Helfenstein, 6 Young v. Travelers' Ins. Co.. so 40 Pa. St. 289; Sims v. Ins. Co., 47 Me. 244; 13 Atl. Rep. 896; American Mo. 51. Ins. Co. v. Norment, 91 Tenn. 1; 18 8 Patrick v. Ins. Co., 43 N. H. 621; S. W. Rep. 895. Inland Co. v. Stauffer, 88 Pa. St. 397. fi Edwards v. Ins. Co., 3 Gill (Md.) West Branch Ins. Co. v. Helfen- 176: Phillips v. Ins. Co., 11 Mo. 320; stein, 40 Pa. St. 289; Germania Ins. Peoria Ins. Co. v. Lewis. 18 II!. 558; Co. v. Curran, 8 Kan. 9; Killips v. O'Brien v. Ins. Co.. 76 N. Y. 459; Ins. Co., 28 Wis. 472; see American Continental Ins. Co. v. Lippold, 3 Ins. Co. v. Norment, 91 Tenn. 1; 18 Neb. 391: Providence Life v. Martin. S. W. Rep. 395. 32 Md. 310; Lyon v. Assurance Co., I 800 ACCIDENT INSURANCE. given " forthwith," a delay of thirty-eight days, 1 or even of eleven days, 2 is unreasonable. Where a by-law of the company required " immediate " notice of a loss, and notice was not given until eleven days after it occurred, and no sufficient ex- cuse was shown for the delay, it was held to be too late. 3 An accident polic} T required " immediate " notice of an injury to be given, and it was held that a notice given six days after the injury, which happened in the city where the policy was issued, and where the company had a resident agent, was too late, where no excuse was shown for the delay. 4 A statute 6 pro- hibited foreign insurance companies doing business in the state from inserting in their policies of insurance a condition re- quiring the insured to give notice of loss forthwith, or within a period of less than five days. It was held 8 that where such a condition was inserted in a policy issued by a foreign insurance company, it was void, but that, nevertheless, under a policy containing such a condition, the insured was required to give notice within a reasonable time, and that an unexplained de- lay of fifty days in giving notice of loss was unreasonable. 7 Where a loss occurred on the 15th day of a month, and the in- sured knew of it on the ISth and sent notice by mail on the 23d, it was held to be a sufficient compliance with a condition of the policy, requiring notice to be given forthwith; 9 and where the notice is received by the company five days after the loss, 46 Iowa 631; Palmer v. Ins. Co., 44 3 Trask v. Ins. Co., 29 Pa. St. 198; Wis. 201; St. Louis Ins. Co. v. Kyle, see Smith v. Ins. Co., 1 Allen 297. 11 Mo. 278; Pennypacker v. Ins. Co., 4 Railway Passenger Assurance Co. 80 Iowa 56; 45 N. W. Rep. 408. But v. Burwell, 44 Ind. 460; 3 Ins. L. J. where there is no dispute as to the 281. facts concerning the giving of the 6 Section 3770, Rev. Stat. 1881 of notice, and the diligence used in that Indiana. regard, the question is one of law for 6 Insurance Co. v. Brim, 111 Ind. the court to decide. Kimball v. Ins. 281; 12 N. East. Rep. 315. Co., 8 Gray (Mass.) 33; Bennett v. ' See Pickels v. Ins. Co., 119 Ind., Ins. Co., 67 N. Y. 274; Pickels v. Ins. 291; 21 N. East. Rep. 898; Baker v. Co., 119 Ind. 291; 21 N. East. Rep. Ins. Co., 124 Ind. 490; 24 N. East. 898; Ins. Co. v. Prim, 111 Ind. 281; Rep. 1041; Ins. Co. v. Lindsey, 26 12 N. East. Rep. 315; see American Oh. St. 348; Patrick v. Ins. Co., 43 N. Ins. Co. v. Norment, 91 Tenn. 1; 18 H. 621; Mellen v. Ins. Co., 17 N. Y. S. W. Rep. 395; McFarland v. U. S. 609. Association (Mo.), 27 S. W. Rep. 436. 8 N. Y. Ins. Co. v. Insurance Co., 20 1 Inman v. Ins. Co., 12 Wend. 452. Barb. 468. 2 Whitehurst v. Ins. Co., 42 N. C. (7 Jones) 433. ACCIDENT INSURANCE. 801 such a condition is complied with. 1 In one case fifteen days was held to be a reasonable time within which to give notice, 2 and in another ten days was held to be a reasonable time. 3 < § 417. The object of notice is to enable the insurance com- pany, within a reasonable time after the death or injury of the insured, to inquire into all the facts and circumstances while they are fresh in the memory of witnesses, in order to deter- mine whether it is liable, or not, upon its contract. The con- dition that notice shall be given operates upon the contract of insurance only subsequent to the fact of the loss, and it must, therefore, receive a liberal and reasonable construction in favor of the beneficiary under the contract. A contract contained the following provision: "Notice of any accidental injury, for which claim is to be made under this certificate, shall be given in writing * * * with full particulars of the accident and injury, and failure to give such written notice within ten days from the date of either injury or death shall invalidate any and all claims under this certificate." On August 22, a large office building in which insured had his office fell, crushing many to death. He was killed, but the fact was not known until the 25th, when his body was found in the ruins. Notice of his death was given on September 2, which was within ten days from the discovery of the body, but not within ten days from the day of the accident, when his death must have occurred. The court said : " The parties having contracted that the no- tice of death should be accompanied by full particulars of the manner in which it occurred, and the attendant circumstances, they evidently intended that it should be given only when the fact and manner of death became known to the parties who were required to act. The fair and reasonable construction of this condition, therefore, is that the ten days within which the notice is to be given did not begin to run from the date of the accident or the disappearance of the insured, but from the time when the body was found, and the important fact of death, with the circumstances and particulars under which it occurred, ascertained. * * To hold that the plaintiff was bound to 1 West Branch Ins. Co. v. Helfen- Ind. App. 361 ; 28 N. East. Rep. 868. stein. 40 Pa. St. 289; Schenck v. Ins. « McNally v. Ins. Co., 137 N. Y. Co., 24 N. J. (4 Zabr.) 447. 389; 33 N. East. Rep. 475. s Germania Ins. Co. v. Deckard, 3 51 802 ACCIDENT INSURANCE. give notice of the death of her husband, with full particulars, before she had any knowledge of the facts, would be to require her, by a technical and literal construction, to do an impossible thing, which was not within the intention of the parties when the contract was made." ' There was a clause in a policy requiring that " in the event of injury, within the meaning of this polic}?", occurring to the assured, he, or in case of his death, his legal representatives, shall as soon thereafter as possible, give notice thereof to the company at their office in C. or to the agent writing the policy, together with the full name, occupation and address of the assured, with full particulars of the accident or injury." The insured died from the effect of a gun-shot wound, at a place so near C, where the office of the company was, that notice of his death might have been given to the company in one day thereafter. The beneficiary lived at the time at the place where the insured died, but did not give notice to the company until eight or ten days after his death. The policy was in the trunk of the insured at C. when he died, and had never been in the possession of or been seen by the beneficiary before the end of said eight or ten days, when he at once notified the company of the death of the insured. It was held that the clause above quoted must receive a reasonable construction; and, under the circumstances of the case, the notice given was sufficient.* A condition in a policy provided that "in the event of accidental injuries for which claim may be made, immediate notice shall be given in writing to the company at Hartford, stating full name, etc., with full par- ticulars of the accident and injury, of which direct and affirm- ative proof shall be furnished within seven months from the happening of the accident. Failure to give such immediate written notice, or to furnish such direct and affirmative proof, within the time aforesaid, shall invalidate all claims under this contract." It was held that the condition did not require the proof of the injury to be sent to Hartford, and on this sub- ject the court said : " If the company intended to require the proofs to be sent to Hartford, Connecticut, it could have so 1 Trippe v. Society, 140 N. Y. 23; 35 2 Provident Life v. Baum, 29 Ind. N. East. Rep. 316;. Insurance Co. v. 236; see Germania Ins. Co. v. Boy- Boykin, 12 Wall. 433. kin, 79 U. S. (12 Wall.) 433. ACCIDENT INSURANCE. 803 provided in express terms. The policy requires the notice to be given to the company at that place, but it does not require the proofs to be furnished the company at that or any other particular place. This is reasonable; for the officers or agents of the company nearest the place of the accident could examine the case and ascertain the facts with much more facility than the officers at the main office in a distant state; and if they were so furnished they would probably have to be sent back for investigation to those representing the company nearer at hand." ' When notice and sufficient proof of the injury are required to be given, sufficient preliminary proo'f must be made to make out a prima facie case of injury result- ing from accident. 2 § 418. Where a policy provides that "in the event of any accident, whether fatal or not, occurring to the insured within the intent and meaning of this policy, notice thereof in writ- ing must be delivered to the company, at their chief office, within seven days after the occurrence of the accident," this provision is not discharged by reason of the fact that, owing to the act of God, the accident was of so sudden and fatal a character that it was impossible to have given the required notice within seven days after the accident; inasmuch as the terms of the policy are such as to negative any presumption bringing it within the class of cases in which it has been held that, in the nature and import of the contract itself, there was that which involved the implied condition that the destruction of the person or thing with which the contract dealt should absolve a party from its performance. Such a contract as the one quoted requires that notice shall be given by some one, and the instantaneous death of the insured does not render it im- possible to do what the condition requires, since it may be done by a survivor. It' the insured does not take the neces- sary means of enabling some one who is likely to survive him to give the necessary notice, the fault is his, not that of the company. If he does not apprise the beneficiary of the exist- ence of the policy, and of t he strict condition contained in it, the misfortune is upon the beneficiary. The instantaneous death of the insured will only occasion the omission to give 1 Scheidercr v. Ins. Co., 58 Wis. 13. 2 N. Am. Life v. Burroughs, 69 Pa. St. 43. 804 ACCIDENT INSURANCE. the necessary notice, when he neglects to provide for that contingency; and the fact that, during the time limited for the giving of notice, no person had knowledge of the existence of the policy, does not excuse the want of timely notice. Such a condition as the one above quoted is not unreasonable* 1 § 419. Waiver of notice. — Provisions of a policy requiring the giving of notice of injury or death are for the benefit of the company and may be waived by it. Such a waiver may be made in express terms, or may be inferred from any acts of an offi- cer or -general agent of the company, which would lead a pru- dent man to think that the giving of the notice would not be insisted upon. Mere knowledge on the part of an agent that an injury has happened to the insured, will not relieve the latter from the duty of giving the notice as required by the contract. 2 If the notice given on the part of the insured is defective or erroneous, and the company retains it without objection beyond a reasonable time to examine and return it, or if the company, after notice has been given, puts its refusal to pay on some other ground, this is a waiver of all objections to the notice. The defect being formal and capable of correction and amendment, must be pointed out to the person offering the notice, in order that he may have an opportunity to supply the needed require- ments. But a failure to give the notice within the time stip- ulated in the contract, is an entirely different matter from a failure to give a notice in due form. The company is not required to notify the insured or the beneficiary of a policy either that notice of an injury or of death must be given within a certain time, or that no notice will be received be- cause the time for the giving of it under the contract has expired. The silence of the insurance company upon a defect in the form of the notice might be very injurious to the assured, but it is not at once seen how the assured could be benefited by notice that he had failed to give information of his loss within the stipulated time, or how he could be preju- diced by the omission to state to him that he had failed to do so. After the time for the giving of the notice has expired, the company need not positively refuse to receive it, or take any 1 Gamble v. Assurance Co., Irish 2 Smith v. Ins. Co., 1 Allen, 297. Reports, 4 Com. L. 204; 2 Big. L. & Ace. Cases, 681. ACCIDENT INSURANCE. 805 other unequivocal steps to indicate its determination to resist the payment of the insurance, unless the notice is tendered. 1 A vote by the directors of a company to postpone indefinitely the subject of a loss will not be deemed a waiver of a condition of a policy requiring notice to be given. 2 The giving of a notice of death or injury may be waived by a mutual insurance com- pany, even when such a notice is required to be given by its charter. A provision for the giving of notice does not touch the substance or essence of the contract, or affect its validity, but relates only to the form or mode in which the liability of the company is to be ascertained and proved. It is for the guidance and benefit of the company, and its officers may waive it. 3 A stipulation in an accident policy that the assured shall claim no waiver by reason of any act of the agent, unless the agent is so authorized by the president or secretary of the company in writing, is confined to those provisions of the pol- icy which make it a valid and binding contract, and does not extend to stipulations which are to be performed after the loss has occurred; and an agent, who has power to adjust losses, and whose recommendations about paying them are followed by the company, must be taken to be a general agent, with power to waive the giving of notice of an injur}'. 4 Where the secretary of a company writes to the beneficiary, or to some one acting for him, stating that the claim is not valid by reason of the cause of the death of the insured, and because of the manner in which the injury was received, it is for the jury to say whether such statement does not indicate an intention to waive the giving of notice. 6 An accident policy required that immediate notice of any accidental injury should be given to the company in writing, and provided that the failure to give such notice within ten days alter the date of such injury should invalidate all claims under the policy. A month after an acci- 1 St. Louis Ins. Co. v. Kyle, 11 Mo. Ins. Co., 72 Cal. 297; 13 Pac. Rep. 863; 278; Patrick v. Ins. Co., 43 N. H. Somers v. Protective Union, 42 Kans. 621; Beatty v. Ins. Co., 66 Pa. St. 9; 619. Brink v. Ins. Co., 70 N. Y. 593. 6 Reynolds v. Association, 1 N. Y. 8 Patrick v. Ins. Co., supra. Sup. 738; Prentice v. Ins. Co., 77 N. 3 Lewis v. Ins. Co., 52 Me. 492; Y. 483; Brink v. Ins. Co., 80 N. Y. Broom, Legal Maxims, 547. 108; American Ins. Co. v. Norment, * Travelers' Ins. Co. v. Harvey, 82 91 Tenn. 1; 18 S. W. Rep. 395. Va. 949; 5 S. E. Rep. 553; Carroll v. 806 ACCIDENT INSURANCE. dent, a letter was addressed to, and received and retained by the company, giving notice of the injury. Afterward, its sec- retary stated to an agent of the plaintiff that the notice was sufficient. The court held that it had waived the requirements as to the notice by receiving and retaining the letter. 1 It is well settled that defenses of insufficient proofs or notice are waived, when the company, with knowledge of all the facts, requires the beneficiary under the contract of insur- ance to do some act or incur some expense or trouble, inconsistent with the claim that the contract had become inop- erative in consequence of a breach of some of its conditions. 2 § 420. Payment of claim from a special fund or in a special manner. — Where claims for indemnity are payable only from the accident fund, or from any moneys which may be realized for that fund from an assessment upon the mem- bers of the society, a claimant's right of recovery is limited to the amount in that fund, and to the amount which can be brought into it by a proper assessment, according to the plan of insurance. 3 1 Brink v. Accident Association, 7 3 Hesinger v. Home Ben. Associa- N. Y. Supp. 847. tion, 41 Minn. 516; 43 N. W. Rep. 2 McNally v. Ins. Co., 137 N. Y. 481; Kerr v. Association, 39 Minn. 389; 33 N. East. Rep. 475; Jones v. 174; Supreme Lodge v. Knight, 117 Ins. Co., 117 N. Y. 103; 22 N. East. Ind. 489; 20 N. East. Rep. 479; Old Rep. 578; Trippe v. Ins. Co., 140 N. Wayne Ass'n v. Nordby, 122 Ind. Y. 23; 35 N. East. Rep. 316; Ins. Co. 446; 24 N. East. Rep. 159. v. Edwards, 122 U. S. 457; 7 Sup. Ct. Rep. 1249. INDEX. [the references are to pages] ACCIDENT INSURANCE. generally 099 what is an accident, 700, 734, ( 2-> negligence contributing to injury, 701 due diligence f< >r personal safety, 703. , I 4 obvious risk, 707 voluntary exposure to danger 707 external, violent and accidental means, 717 external and material cause, 717, 7 1 9 external and visible sign 728 nature, cause and manner of death unknown 730 with reference to a particular employment,. 707, 713, 744, 784, 785, 791 while traveling by public or private conveyance, 735, 744 suicide, 306, 726, 748, 730, 761 ACCIDENTAL INJURY. what is, 719, 721, 734 evidence of, 723, 121. 738 satisfactory proof of, 733. 734 burden of proof, 727, 730, 733, 761 notice of , 798 incapable of direcl and positive proof, 730 nature, cause and manner of death unknown 730 external and material cause 717 external, violent and accidental means 717 or murder, or suicide, 726, 781, 746 fits 722, 758, 755, 769 diving 717 Stepping off train 712, 718 cleaning gun 713 boarding moving train 718, 785, 7'.H lifting 718, 730 strain 713. 730, 780, 7 lu sunstroke 1-2 freezing 738 falling down stairs 788 run over by railroad cars 781, 786, 758 while traveling by public or private conveyance 735 while traveling in compliance with rules of carrier 738, 744 (807) 808 INDEX. [the references are to pagi-s.] ACCIDENTAL INJURY— Continued. received in employment contemplated by the parties, 707, 713, 744 while walking on railroad track, 705, 710, 712, 745 fighting, 750 while under influence of liquor, 751 drowning, 753, 754 choking to death, 719, 757 by inhaling gas, 757, 759 hernia, 762, 766 poison, 721, 757 permanent disability, 771 loss of foot, eye or hand, 770, 777 ACTION AT LAW, see Pleading, Evidence, Burden of Proof, Measure of Damages. on by-laws for benefits, 596, 610 for sick benefits, 595, 601, 602, 606, 610 for benefits, effect of expulsion 106, 594, 613 for damages for expulsion, 107 suits by or against an unincorporated society, 181 proper parties to such actions, 181 by members of unincorporated society, as such, 183 against member, plea of former recovery, 187 for recovery of property of unincorporated society, 184 between members of unincorporated society, 176 for recovery of assessments paid, 523 parties to suit on contract of insurance, 621 misjoinder of parties, 621 delay in bringing suit, 623 limitation of action, 615 for breach of contract of insurance, 643 pleading, breach of promise to pay, 644 pleading, demand for assessment, 647 plea setting up that no fund has been raised by assessment, 648 breach of promise to pay, evidence, 650 measure of damages for breach of contract of insurance, 650, 654, 657, 664 nominal damages for breach of contract of insurance, 654 substantial damages, 657 by original beneficiary, . 622 evidence of cause of death, 631 for damages for fraudulent settlement of claim, 690 interpleader by society, 429, 686 proceedings to obtain payment of judgment, 693 AMOTION, see Expulsion. APPEAL. effect of appeal from order of expulsion, 99 resort to court for reinstatement is not an appeal from society, . . 112 when member must appeal, 98, 214, 217, 595, 600 from void judgment, 101 INDEX. 809 [the references are to pages.] APPEAL— Continued. jurisdiction when appeal is irregularly taken, 102 death of member pending appeal, 108 unjust delay of society in acting on, 101 when decision of appellate tribunal is final,. . .39, 102, 216, 596, 602, 606 APPELLATE TRIBUNAL, see Courts of Society. APPLICATION FOR INSURANCE. when minds of the parties have met, 275 change of health of applicant, 275 when applicant is treated as member, 277 sent by mail, 279 initiation of member, 280 delay in acting on, 282 variance between certificate and, 291 is admissible to show proper beneficiary, 300 ASSESSMENT, see Payment of Assessment. generally, 471 differs from a premium, 14, 42, 473 must be properly levied, and for proper purpose, 473 when presumed to be valid, 475 made by foreign corporation, 476 on new members to pay old losses, 476, 623 levy of, without delay, 477 validity of, may be questioned, 477 society must establish validity of, 301, 477 act of levying is ministerial, 477 custom in levying assessment, 479 for reserve fund, 480 in anticipation of losses, 481 effect of levy of, on claim against society, 482 notice of, 482 when member must have actual notice of, 483, 487, 489 notice by mail sufficient when stipulated for, 49 notice of, by mail 483, 486, 500 evidence as to sending of notice by mail 487, 4fc9, 490, 500 when presumption arises that no notice of was sent 488 notice of, scut by registered letter 492 date of notice of, 491 date of assessment, date of notice 494 notice of, by publication 494 form of notice of, 48$ 500 time within which notice must he sent 486 service of notice of, 491 , 495, 503 insufficient notice of, 498 waiver of formal defect in notice of 630 agreement by society to z'we notice of. to the beneficiary 198 notice of date of payment of, 195 notice to pay, before it is due, 504 S10 INDEX. [the references are to pages.] ASSESSMENT— Continued. computation of time within which, must be paid, 477 485,491, 492, 495, 506, 509 payment of, by member, 505 custom of payment, 506 who may pay, 512, 516 payment of, during life of member, 513 death within thirty days after notice of, 514 days of grace, 530 custom of society to accept past due assessments, 514 officer of society may waive prompt payment of, 193, 197 promise to accept past due assessments, 524 promise of officer to pay, for member, 554 promise of agent to pay, for member, 555 tender of, 482, 520, 531 refusal of society to accept, 522, 530 illegally collected from member, 510 receipt for, may be contradicted, 519 return of assessment once paid, 522 authority of agent to collect, 518 non-payment may operate as expulsion, 128 non-payment of, prior to dissolution, 241 excuse for non-payment, insanity, act of God, 550 excuse for non-payment, Sunday, 552 evidence of non-payment, member's declaration, 626 receipt of, estoppel in pais, 563 receipt of delinquent assessments, 556, 560, 568, 570, 572, 576 retained by society, 570 conditional acceptance of delinquent assessments, 573 attempt to collect delinquent, 585 effect of levy of, ... . i 482, 564, 576, 580, 649 property interest in, 589 mandamus to compel levy of, 638 averment of demand for, 647 evidence of amount which might have been realized by an, 650 payment of, by beneficiary, 441, 444 ATTACHMENT. of benefit fund, 633 ASSIGNEE OF CONTRACT. rights of, 322 et seq., 412 equitable assignment, 326 limitation on right to assign, 328 consent and approval of society, 329 assignment after death of member, 331 assignee of beneficiary, 331 designation of beneficiary is not an assignment of contract, 322 validity of assignment, 333 payment of benefit fund to, 078, 679 INDEX. 811 [tttf. rkferences are to pages.] ARBITRATION CLAUSES. enforcement of, 596, 607, 609 BENEFICIARY, see Who May be Beneficiary. in an ordinary policy of insurance, 403 rights of, in mutual benefit insurance, 272, 405 lias no rights in contract to assign, 331 assignee of contract 322 designated by by-laws or certificate 339 named in charter, 20, 194 may liclongto any specified class, 317 ineffectual designation of, • 312, 340 effect when designation is invalid, 22 want of designation of, 342, 437 incomplete designation of, 448 designation of new beneficiary, 332 designation of by will,* 41 411, 417, 40-2. 42(5. 436, 439, 441. 452, 455, 4.18, 463 when beneficiaries take equally, 399 when beneficiaries hold in joint tenancy 394 agreement of member and beneficiary as to disposition of bene- fit fund, 398 death of member and beneficiary at same moment 308 when a class of persons is designated to take the fund 395, 396 when member becomes, by inheritance, ;:ss death of, during life of member, 39 1 construction of designation of, 334 effect of amer d nent of organic law, ;il 7 statement of relationship of, to member, 344. 348, 350 delivery of certificate to, not necessary I I". gift of certificate to, 441 inserting name of, mistake 299 agreement of society to give notice of assessments to ins marriage of member, effect on designation of 463, L64 when estopped to deny validity of change of i in. 457 rights of , through rights of member to reinstatement,. 103, 546, 551, 555 power of member to appoint,... 332, 405, 410, 413, 415, 152, 158, 162, 163 change of 272, 105 change of beneficiary without the consent of the original bene- ficiary 109 mode of changing 415 when change of. is perfected 481 fraudulent change of 461 when power to change, is exhausted 465 time within which power to change, musf be exercis< d 466 refusal of. to surrender certificate 138, I hi. i ij who may he designated as a new 445 when unincorporated lodge may he ;>,19 creditor, 22, 28, 886, 840, 843, 676, 679 family, :M7. 374, 890, B95, 447 812 INDEX. [the rfferences are to pages.] BENEFICIARY— Con tinned. widow, 337, 340, 341, 343, 365, 368, 371, 399, 400. 401 fund payable to wife for benefit of herself and children, 351, 373 wife and children, 353 wife and children equally, 356 when divorced wife may be, 320 mistress, 343, 379 heirs, legal heirs, heirs at law, 364, 399 next of kin, 338, 364, 372 child born after issuing certificate, 359 child, 357, 373, 395 child, grandchild, 361 orphan, 372 dependent, 376, 399 betrothed, 377 sister 377 mother, 339, 375, 377, 446 niece, 375, 390 relatives, 379, 399 devisees, 41, 313, 341 administrator of member, 337, 343, 388, 391, 394, 460 administrator of '. 391, 393, 394, 396, 397 legal representatives, 335, 380, 391, 392, 451 " friend of" the member, 20, 36, 312 the assured, 383 guardian, 384 estate of the member, 386 may pay assessments on member, 512, 516 effect of return of assessments once paid, 522 when entitled to interest on claim, 692 settlement procured from, by fraud, 689 notice not to pay benefit fund to, 678 payment of benefit fund to, 672 admissibility of declarations of member against, 626 parol evidence to show who is the, 619 limitation of action by, 615 BENEFIT FUND, see Payment of Benefit Fund. payment of, to living members, 7, 13, 15 may not be paid to ineligible member, 24 guaranty fund, 16. 58 tontine fund, 15, 231 when by-laws relating to, may be changed, 50 vested right in, 50, 57, 405 damages for unlawful expulsion payable from, 108 equitable lien on, 327, note payment of losses of another society, 234 duty of officers to protect, 199, 200, 227, 248 when impressed with a trust, , 247 INDEX. 813 [the references are to pages] BENEFIT FUND— Continued. law governing distribution of. 2>-~ priority of death claims on dissolution, 237 distribution of, on dissolution, 236, 239 insolvency of society, 233, 242, 246. 592 is a trust fund 593 misapplication of 199, 200, 227, 233, 246, 248 collected from the public for sufferers, 248 agreement of member and beneficiary as to disposition of, 398 disposition of, by last will, 411 417, 422, 426, 436, 439, 441, 452, 453, 458, 463 collected for sick benefits, 510 payment from reserve fund, 4*0 payment of assessment does not recognize claimant's right to,. . . 482 effect of payment of, into court, 429, 688 lien on for payment of assessments 525 when subject to member's debts, 463 attachment of. garnishment 633 averment that no fund has been raised by assessment, 648 payment of 072 payment of, is not a gift, 7, 672 payment of less amount than is due, |> SS when beneficiaries take equally, 399 in what proportions heirs take the fund 401 adultery of wife or widow, effect on right to, 350 settlement procured by fraud of society, 689 payment of. to creditor, 676. 679 payment of, to wrong person, 675 notice not to pay to beneficiary, 678 member may not enjoin payment of, C91 interest on claim against 692 payment of loss from special fund, 806 BOARD OF TRADE. membership may be sold for benefit of creditors 39 reasonable by-laws of, 40, 45. 18 expulsion from, 8-4. B6, 125 injunction to restrain illegal expulsion from 105 suspension of member, 7.1 BODILY INFIRMITY. of member, 768 known to society 7r,s near-sightedness i> aol a 769 BURDEN OF PROOF. to show that change of beneficiary is invalid 412 as to validity of assessment 477 to establish non-payment of assessment .l::o falsity of statement in application 622 on assignment of certificate, 622 814 INDEX. [THE references are to pages.] BURDEN OF PROOF— Continued. to show good standing of member, 301, 624 mistake in proofs of death, 630 as to measure of damages for breach of contract of insurance, 652, 664 to show negligence, 704, 707 of accidental injury, 727, 730, 733, 761 BY-LAWS. definition of . , 31 dignity of, 23 must apply to all members, 31 only govern officers and members, 32 when third person has rights under, '. . . . 32 are binding on members, 33 member assents to provisions of, 113 when are binding on members, 211 void in part, 33 provisions of, which are binding on member, 273 assignee of certificate bound to know them, 196 must be liberally construed, 32, 625 against common right are strictly construed, 600 affected by custom, 33 waiver of by officer, 1 94 must be introduced in evidence, 33 may be proved by printed copies, . . . , 33 differ from mere rules of business, 35, 274 must be legal 35 relating to strikes, etc. 36 regulating fees and wages, 37, 47 rules for discipline of members must be legal 40 ex post facto laws, 41, 126 must be consistent with charter, 41, 453 what controls validity of, 42 reasonableness of, 44 differ from special stipulations 49 decision of officer may have force of a 291 right to pass is continuous, 66, 209, 219 amendment of, 34, 50, 62 amendment of must be reasonable 58 how, may be amended, 58 et seq. when amendment of, binds member, 59 power to amend is continuous, 250 society may pass or amend, 219 of future enactment, 64 when retroactive, 56, 61 , 62, 65 repeal of, 65, 197, 209 of unincorporated society providing for expulsion, 145 are a part of contract of insurance, 271 variance between certificate and, 294 INDEX. 815 [the references are to pages.] BY-LAWS— Continued. provisions concerning changing beneficiaries, 406, 411 when, prohibit change of beneficiary 415 provisions concerning reinstatement, 542 authority under, to levy assessments, 474 action on, 610 CERTIFICATE OF MEMBERSHIP, see Contract of Insurance. in mutual benefit society 272 what constitutes contract of insurance, 271 delivery of 275 delivery to subordinate lodge, 270 delivery of, to beneficiary, 295 delivery to beneficiary not necessary, 445 effect of delivery of, to beneficiary, 441 gift of, to beneficiary, 441 countersigning of, 277, 281 issued after death of member, 278 where executed 281 delay in issuing 282 construction of, 2 s 4 variance between applicatii >n and 21tl when terms of, are inconsistent with a by-law 2U4 by whom, must be signed 295 must be accepted in its entirety, 295 is a valued policy, 296 reformation of, mistake, 297 good standing of member 301, 531, 535, 541, 5 15, 62 I attachment of, garnishment 633 assignment of, 322 payment of assignee of, 678, 679 failure to issue, 272, provisions concerning changing beneficiaries 406, 111 when prohibits change of beneficiary 41o refusal of beneficiary to surrender 433, 1 M), 1 12 1. iss i >f 434 reformation of by court. 449 limitation of action, 616 pleading on 620 evidence in action on, 620 paymenl of, on surrender of 665 evidence of numberof certificates outstanding 652 CHANGE OF BENEFICIARY, see BENEFICIARY, Who May Be Beneficiary. right of member to change 405 without the consent of the beneficiary 409 consenl of society to change 829, U5, 480, 188, 150 b 3 last will 411, 417, 422, 426, 186, 489, 141,452, 455, 458, 463 by power of appointment 332 405,410,41:?. us, 152, 158, 462, 163, 465, 4G0 810 INDEX. [the references are to pages.] CHANGE OF BENEFICIARY— Coyitinued. where no mode is agreed upon in the contract, 41 presumption that change was properly made, 412 no presumption that a change has been made, 412 may not be made when charter forbids it, 413 when by-laws prohibit, 415 when prohibited by terms of certificate, 415 when mode agreed upon must be substantially followed, 415 requires an affirmative act, 416 where original certificate is in existence, 418 by substituted contract, 418 when prescribed mode is mandatory and exclusive, 420 when prescribed. mode is directory merely, 426 general observations, 429 who may object to validity of change, 415, 429, 430 effect of payment of fund into court, 429, 686 when perfected, 431 refusal of beneficiary to surrender certificate, 433, 440, 442 loss of certificate, 434 when society is estopped to deny the validity of a change of bene- ficiaries, 439 when beneficiary is estopped to deny validity of, 440 effect of delivery to beneficiary on right to make a change, 441 where certificate has been delivered as a gift, 441 when may not be made, special agreement, 444 who may be designated as a new beneficiary, 445 inoperative change, effect on original designation, 446 incomplete designation, 448 in application for reinstatement, 450 when certificate is payable to legal representatives, 451 fraudulent change, 451 by marriage of member, 463, 464 when power to, is exhausted, 465 time within which power to change must be exercised, 466 CHANGE OF OCCUPATION, see Occupation, Classified Risks. what is, 786 when contract does not prohibit, 783 parol evidence concerning, 788 CHARGES AGAINST MEMBER, see Expulsion. must be proved, 92 of unincorporated society, 151 notice of, 94, 122, 127, 129 sufficiency of notice, 130, 133 service and proof of notice of, 134 when notice need not be given, 129 waiver of notice of, 1 35 answering charges when presented, 137 breaches of corporate duty, 83, 127 improper conduct, 123, 125, 150 INDEX. 817 [the references are to pages.] CHARGES AGAINST MEMBER— Continued. bringing suit in public courts, 40, 125 slander of society, 123 defrauding society, 124 may be libelous, 171 CHARITY. when society is regarded as a charity, 244 when a society is not a, 246 mutual benefit society as a charity, 255 eleemosynary charity, 265 CHARTER. regulates plan of insurance, 13, 472 controls the by-laws, 41 is part of contract of insurance, 271 qualification of members, 67 power of expulsion conferred by, 81 franchise is a valuable right, 113, 155 member assents to provisions of, 113 provisions as to beneficiaries, 194 fraternal charter, 215 revocation of fraternal charter, 235, 253 amendment of, 227. 228 is not under control of supreme lodge, 254 prescribing beneficiaries, 311, 335 terms of, liberally construed, 314 effect of amendment of organic law, 317 beneficiary may belong to any specified class, 317 change of beneficiary by last will 341, 452 provisions concerning changing beneficiaries, 406, 411, 413 effect of amendment of organic law 445 authority to levy assessments 473 provisions as to reserve fund, 480 provisions concerning notice of assessment, 561 CHURCH, see Religious Societies. CLASSIFIED RISKS, see Occupation. hazardous occupations 788 when society is bound by its classification 797 when member is bound by classification 798 CLUB. [lability Of members for debts of, ICn. [(Jg expulsion from 83. 1 17 CONSTITUTE >N, see < 'haktf.k. My-i.aws. differs from charter H of incorporated society gg of unincorporated society controls by-laws it effect on, when societj becomes incorporated 45 is part of contract of insurance, 271 52 818 INDEX. [the bfferencf.s are to pagis.] CONSTITUTION— Continued. provisions of which bind member, 273 alteration and repeal of, 63 CONTRACT OF INSURANCE, see Certificate of Membership. rights of member under, 9, 273, 405 charter regulates plan of insurance, 13, 472 change of plan, 58, 670 is testamentary in its nature, 344, 433 must apply to all members of the class, 31 by-laws differ from special stipulations, 49 consent of member to a change in, 58, 273 subject to future by-laws, 58, 62, 274 procured by false representations, 71 is between society and member, 272, 290, 407, 465 application for, 275 et seq. when complete, 275 where executed, 281 delay in issuing, 282 is unilateral, 290, 471 there are several forms of, 637 construction of, 284 should be liberally construed, 625 construction of by officers of society 286 construction given to, by the society, 290 variance between application and certificate, 291 when certificate is inconsistent with the terms of a by-law, 294 by whom, must be signed, 295 delivery of, to beneficiary, 295 must be accepted in its entirety, 295 is a valued policy, 296 reformation of, mistake, 297 novation of, 27, 300, 529 good standing of member, 301, 535, 541, 545, 624 suicide, 303 known violation of law, 306 who may be a beneficiary of, 311 assignment of, 322 et seq. interest of member in, 332, 405, 410, 413, 415, 452, 456, 458, 462, 463, 465, 466 rights of beneficiary in an ordinary policy, 403 rights of beneficiary in mutual benefit insurance, 405 abandonment of old contract by member and society, 418 substitution of new contract, 418 loss of, : 434 effect of delivery of, to beneficiary, 441 delivery to beneficiary not necessary, 445 effect of marriage of member, 463, 464 when power to change beneficiaries is exhausted, 465 INDEX. 819 [THE rfferencfs are to pagis.] CONTRACT OF INSURANCE— Continued. time within which power to change beneficiaries must be exer- cised, 466 membership fee, 468 authority to levy assessments, 473 notice of assessment 482 notice of assessment by mail, 486 date of assessment, date of notice, 494 notice of assessment by publication, 494 service of notice of assessment, 495 insufficient notice of assessment, 498 payment of assessment, 505 payment of assessment out of funds in hands of society, 509 by whom payment of assessment may be made, 512 when assessment must be paid during life of member, 513 payment of assessment, days of grace, 514 payment to subordinate lodge, 516 authority of agents to collect assessments 518 receipt for assessments may be contradicted, 518 refusal of society to accept assessments, 522, 530 tender of assessments, 482, 516. 520 return of assessments once paid, 522 recovery of assessments paid by member, 523 void ab initio, 523 promise of society to accept past due assessments, 524 forfeiture for non-payment of assessment, 526 declaration of forfeiture of, 532. 536 waiver of forfeiture 554 affirmance of, after death of member, 571 action on, 594, 643 suit in equity for breach of, 640 limitation of action, 616 evidence in action on, 620 pleading on, 620 harden of proof, 663, 66 \ measure of damages 652. 664 remedy for breach of 638, 640. 643 measure of damages for changing plan of insurance 670 payment of benefit fund according to terms of 672, 678 forbenefil of creditor 679 repudiation of 57 COURTS, see Appeal. do not consider merits of plans of insurance, 3 decide whether by-law is valid 32 determine whether by-laws are reasonable 44. 45 will not inquire into wisdom of change in by-laws 250 member may resort to 89, 40, 108, 216, 595, 600, 606 will not compel admission of applicant for membership 68 visitorial power of, 44, 112, 213. 851 820 INDEX. [the references are to pages.] COURTS— Continued. are loath to take jurisdiction in internal matters of society, .98, 106, 214 when courts will not take jurisdiction, 217 interfere to protect property rights only, 217 niay not be ousted of jurisdiction, 39, 216, 606 when laws of society will not be interpreted by, 219 injunction to restrain illegal expulsion , 105 effect of expulsion on claim for benefits, 106, 594, 613 have no appellate jurisdiction in cases of expulsion, 112 determine the right to proceed in expulsion, 114 will not investigate weight and competency of evidence in pro- ceedings in expulsion, 115 reinstatement of member by mandamus, 118 will protect right to reinstatement, 546, 551 proceedings in expulsion strictly construed, 122, 154 jurisdiction in matters pertaining to officers, .190, 192 202 when construction of contract of insurance by officers will be adopted by, 290 jurisdiction over societies, 213 status of unincorporated society in, 221 do not regulate unincorporated societies 151 , 153 will not determine whether by-laws of unincorporated society are reasonable, 44 will dissolve unincorporated society, 223 will dissolve incorporated society, 226, 233 may appoint receiver of society, 235 will protect trust funds, 248, 249 when property will be divided by, 251 jurisdiction over religious societies, 257 ecclesiastical jurisdiction 257 will reform certificate for mistakes, 297, 449 will compel beneficiary to execute a trust with the benefit fund, . 398 assume that society has no tribunal, 214 will afford relief in changes of beneficiaries, 420, 431 levy of assessment by, 589 abridging common right to resort to, 597, 600 remedies in courts of society must be exhausted, 98, 214, 597 contract to resort to equity, 642 remedy for breach of contract of insurance, 640, 643 limitation of action, 615 delay in bringing suit, 623 should construe contract liberally, 625 proceedings to obtain payment of judgment 693 restricting operation of judgment against society, 694 COURTS OF SOCIETY, see Appeal. may be established, 39, 102, 216, 596 no presumption that any courts exist, 101, 214 whose decision shall be final 39, 102, 216, 596, 602, 606 appeal to higher courts of society 98 INDEX. 821 [the references are to pages.] COURTS OF SOCIETY— Continued. remedies in must be exhausted, 98, 214, 597 are judicial in their character, 105 jurisdiction of appellate tribunal, 101 when appeal is unjustly delayed, 101 when appeal need not be taken in, 101 death of member pending appeal, 103 tribunal of society expelling a member 138 power of, to expel, must be shown, 1 :> > 3 notice to members of tribunal, 132 testimony of member of, 96 member may waive irregularity in way the court is constituted. 139 consanguinity or affinity to either party, 139 acts judicially in expelling member, 96 are presumed to have acted fairly, 100 where legality of expulsion is determined 107 when must be resorted to for reinstatement of member, 98 methods for settlement of claims against society, 595 CUSTOM. must be proved as a fact, 1 l'">. 858 will not be construed into a by-law, 33 of determining membership, 73 in expulsion of members, 146 in levying assessments, 479 of paying assessments, 506 to accept past due assessments, 513 to pay assessments to certain persons, 521 waiver of forfeiture, 556 to give notice of time when assessments arc due, •">."><» of sending notices, 559, 561 to give days of grace, 562 as to salary of officer, 198 in subordinate lodge 563 to deal with scandalous conduct of members of a church, 172 DEATH CLAIMS, see Benefit Fund. DEATH OF MEMBER. proximate cause of, 768 within ninety days 7"»'i notice of, 798 before issi t certificate 376, ~77 before time for paj ment expires 485, 515 DEVISEES. as beneficiaries, ..341, 411. 117. 122, 126, 136, 439, 4-41. (Vj. |.v,. i:,s, 463 DISEASE. death from, 723, 754. 758, 762, 768, TUT, 768 free from 310 erysipelas, 730, 762, 766, 767 822 INDEX. [the references are to pages.] DISSOLUTION OF SOCIETY. of unincorporated society, 223 et seg. of incorporated society, 226 by its own act, 232 distribution of property, 233 filing of bill for, 242 notice of special meeting, 225 DIVING. accidental injury from, 717 DIVORCED WIFE. when, may be beneficiary, 320, 368, 376 rights under a contract of insurance, 442 DROWNING. death resulting from, 753, 754 DUE CARE FOR PERSONAL SAFETY. in accident insurance, 703, 704, 712, 791 EQUITY, see Courts. reinstatement of expelled member, t 110, 153 when courts will not interfere, 98, 214, 217, 595 dissolution of unincorporated society, 223 dissolution of incorporated society, 226 trust funds of society, 250 remedy in, for breach of contract of insurance, 640 contract to resort to, 642 remedy in equity discussed, 657 interpleader by society, 429, 686 proceedings to obtain payment of judgment, 693 ERYSIPELAS. death from, 730, 762, 767 EVIDENCE, see Burden of Proof. of custom of society, 33, 146, 258, 556, 557, 562 of by-laws, 33 must be introduced to sustain charges •. . . 96 when members of a court may testify, 96 as to debt of unincorporated society, 163 record of meetings of unincorporated society, 164 of want of notice of meeting, 208 of suicide, 303 known violation of law, 306 as to who died first in common disaster, 397 parol, to show what beneficiary is to do with the fund 398 no presumption that right to change beneficiaries is abridged, . . . 412 of the necessity for an assessment, 475 records of society as evidence of validity of assessment, 478 parol, that assessment was levied, 479 as to mailing notices of assessment, 487, 489 prima facie evidence of receipt of notice, 490 of service of notice of assessment, 490, 491, 496 INDEX. 823 [the references are to pages] EVIDENCE— Continued. of receipt of assessment by society, 519 of agency, 519 of statements of officers, 522 of sufficiency of certificate of good health, 546 satisfactory evidence of good health, 546, 575 of waiver of forfeiture, 580 parol, to show who is proper beneficiary, 619 of insurable interest 621 when certificate is not introduced in, 623 of good standing of member, 301. 531, 535, 541, 545, 624 rulings on questions of, 625 of declarations of member, 626 application for reinstatement evidence of forfeiture, 629 common law evidence, 631 breach of promise to pay, 646 of amount which might have been realized by an assessment, . . . 650 parol, to show number of members of society, 651 of fraud in procuring settlement of claim, 689, 691 of negligence avoiding accident insurance 702, 704, 707 of death by disease, 723, 754, 756, 763, 767, 768 of suicide or accidental injury, 726, 748, 750, 752, 761 of murder, 726, 746, 748 parol, concerning change of occupation, 788 of accidental injury, 723, 730, 733, 748, 750, 754, 756, 761 circumstantial evidence of accidental death, 730, 761 EXPULSION, see Forfeiture. by foreign corporation, 40 amotion, suspension, 75 from incorporated society, 78 power conferred by charter, 81 surrender of right of, 90 breaches of corporate duty, 83 from religious society, 88 from church, 90 offense must be proved, 92 right to trial by jury, 91 statute of limitations, 91 double sentence, 91 regularity of proceedings, 92 for offensive language, 92 twice in jeopardy, 93 restoration of member to expel him properly 93 whi'e appeal is pending, n:{ constitution and by-laws must be observed, 94 where no mode is specified, 95 record of proceedings, 96 right of appeal 99 reinstatement through courts of society, 98 S24: INDEX. [tite references are to pages.] EXPULSION— Continued. without jurisdiction, 101 injunction to restrain, 105 effect of, on action for benefits, 106, 613 action for damages for, 107 member physically kept out, 40, 109 when proceedings in are conclusive 112 proceedings must accord with the rules, 114 courts determine the right to proceed in, 114 witnesses in proceedings for, 114 irregularity in proceedings may be waived, 116 when member is insane, 116 notice of charges and meeting, 94, 122, 127, 130, 133 notice to members of tribunal 132 et seq. service and proof of notice, 134 appearance of member, 92, 135 waiver of notice, 135 answering charges when presented, 137 tribunal of the society expelling a member 138 authority of tribunal to expel must be shown, 138 member may waive irregularity, 139 consanguinity or affinity of ■member of tribunal, 139 presumption that proceedings in, are fair, 116 good faith in proceeding, 140, 153, 154 173 malice in proceeding in, 140, 153, 172 from unincorporated society, 142 from unincorporated society under contract of association, 147 proceedings in unincorporated society must be fair and in good faith, 154 review of proceedings in unincorporated societies, 154 charges against member may be libelous, 172 delay in seeking for restoration, 549 EXTERNAL AND VISIBLE SIGN. of accidental death, 728, 761 EXTERNAL, VIOLENT AND ACCIDENTAL MEANS. death or injury from, 717, 719 poison, : 721, 757 choking to death, 719, 757 sunstroke, 722 FAINTING, see Fits. member subject to fainting spells, 754 FINE. provisions for, 91, 150 FITS. death resulting from, 722, 753, 755, 769 FORFEITURE, see Expulsion. charter provisions for. 42, 538 must be provided for, 526 INDEX. 825 [the references are to pages.] FORFEITURE— Continued. for non-payment of assessment 127, 526, 532, 536 non-payment of assessment may work, ipso facto, 536 when affirmative act of society is necessary, 532 when affirmative act of society is not necessary, 536 declaration of nunc pro tunc 534 application for reinstatement as evidence of, 629 society may waive, 537, 539, 554 waiver of, by officer, 193 waiver of, notice to officer, 193 waiver of, procured by false representations, 530, 548 waiver of, by subordinate Lodge 539 waiver of, by reinstatement, 549 restoration after forfeiture, 542 FRATERNAL CHARTER. social or fraternal charter, 215, 235, 253 FREEZING. death by, 723 GARNISHMENT. of benefit fund, 633 GOOD FAITH. in preferring charges against member, 172 in proceedings hi expulsion, 140, 154, 173 GOOD HEALTH. of member, 310. 55 1 . 573 change in health of member 275, 380 as a condition of reinstatement, 545, 54 7 sufficiency of certificate of, 546 inquiry into, 557, 570 satisfactory evidence of, 575, 579 GOOD STANDING. of member, 801, 531, 535, 541, 545, 624 notice of assessment, 482 HEIRS. designation of, 364 widow may l>e an heir of her deceased husband :'><'>•"» the word has a technical signification 867 divorced wife is not an heir 321, 368 when, take tiie fund equally -'>w. 401 pa v met it of fund to 677 iirxi of kin, 338, 864, 872 IIKKXIA. death from 702, 766 INCORPORATED SOCIETY. rights of members may be two-fold 9 corporate rights of member, 9, 5C8 826 INDEX. [the references are to pages.] INCOEPORATED SOCIETY— Continued. not for profit, 9, 14, 15, 23, 40, 227 is governed by its charter, 11 for literary, scientific or religious purposes, 12, 87 when usurping functions, 12 plan of doing business, 13 how plan of doing business must be set forth, 18 corporation de facto, 13, 159 when corporate existence may not be attacked, 19 is not subject to corporation of another state, 40 ultra vires, 19 constitution of, 25 from unincorporated society, 26 inherent power to pass or amend by-laws 219 power to enact by-laws is continuous, 66, 209, 219 by-laws must be legal, 35 by-laws of, must conform to charter, 41 by-laws of, must be reasonable, 44 visitorial power of courts ovei, 44, 112, 214 amendment of by-laws, 33, 50 repeal of by-laws, 65 admission into, 67 power of amotion, 77 power of expulsion, 78, 113 inherent power of expulsion, 88 breaches of corporate duty 83 surrender of right to expel, 90 record of proceedings in expulsion, 95 expulsion irregularly conducted, 113 membership in, is a valuable right, 113 reinstatement to membership in, 112 mandamus to compel reinstatement to, 117 liability of member, 157 when attempted incorporation is invalid, 158 when corporate acts are binding, 210 when acts of, are legally operative, 475 dissolution of, 226, 233 rights of seceding members, 251 act amendatory of organic law, 317, 445 right to change beneficiary of insurance, 405 INHALING GAS. death by, 757, 759 INITIATION. date of 477 may be stipulated for, 49 may be necessary for membership, 280 INJUNCTION. to restrain illegal expulsion, 105, 151 to reinstate member, 110 INDEX. 827 [the references are to pages.] INJUNCTION— Continued. to restrain libel on society, 186 courts niay issue to prevent abuses, 213, 236 erroneous plans of insurance, 220 to restrain unauthorized use of funds, 220, 232 to restrain illegal act of society, 220 member may not enjoin payment of benefit fund, 691 INSANITY OF MEMBER. as an excuse for non-payment of assessment, 550 expulsion of member while insane, 116 INTENTIONAL INJURIES. inflicted by insured or any other person, 726, 746 INTEREST. on claim against society for benefits, 692 INTERPLEADER. by society, 429, 686 INTOXICATING LIQUORS. pledge of total abstinence, 301 use of ; 310 forfeiture of insurance for drinking, 538 change of habits of member, 566 temperate habits, 573 expulsion for use of, 614 injuries received while under influence of, 751 JUDGMENT. of expulsion, when void, 96, 99, 108, 117, 127 against unineoqwrated society, 186 proceedings to obtain payment of, 693 restricting operation of, 694 when judgment of tribunal of the society shall be final, 39 102, 216, 596, 602, 606 KNOWN VIOLATION OF LAW. forfeiture of contract, 306 LEGATEES, see Devisees. LIABILITY OF MEMBER. for debts of incorporated society l.t? where attempted incorporation is invalid 158 for debts of unincorporated society 160 for benefits K56 incurring tbe debt 168 debt, •■ payable oul ol Funds of Bociety," lii'.i notice to creditors of withdrawal from BOCiety 170 for assessments 471 LIBEL AND SLANDER. charge of, against member iji action against member for libel 171 injunction to restrain libel on society, 186 privileged communications, 171 828 INDEX. [the references are to pages.] LIFTING. accidental injury by, 713, 720 LIMITATION OF ACTION. when statutes of limitation apply in proceedings in expulsion, . .91, 153 limitation as to place where action may be brought, 619 limitation as to time when action may be brought, 619 LOCAL LODGE, see Subordinate Lodge. MALICE. in making charges against member, 173 in proceedings in expulsion, 140 in libel and slander, 171 MANDAMUS. to compel admission of member, 70 to compel reinstatement to membership in incorporated society, 99 108, 109, 113, 117 is a discretionary writ, 118, 120 return to the writ, , 122 et seq. when writ will be denied, 218 when right to, for reinstatement is waived 108 not proper remedy for reinstatement to unincorporated society, . . 156 when courts will issue writ of, 134 to compel levy of assessment, 638 to obtain payment of judgment, 693 MARRIAGE OF MEMBER. effect on beneficiary, 463, 464 MARRIAGE SOCIETY. incorporation of, 12, 19 MEASURE OF DAMAGES. for unlawful expulsion, 108 in action on by-laws for benefits, 613 for breach of contract of insurance, 652, 664 for changing plan of insurance, 670 in certain cases, 667, 806 MEDICAL ATTENDANCE. on member, 310 MEDICAL OR MECHANICAL TREATMENT. death from, 761, 762, 763 MEDICAL EXAMINATION. when may be required as a condition for reinstatement, 545, 546 before payment of sick benefits will be made, 611 MEDICAL SOCIETY. schedule of fees unlawful, 37, 47 charges against member, 84, 124 expulsion from, 84, 124 MEETING OF SOCIETY. notice of, 94, 122, 127, 130, 207, 211 waiver of notice of, 135 INDEX. 829 [the references are to pages.] MEETING OF SOCIETY— Continued. quorum must be present to adopt by-laws 32 when quorum presumed to have been present, 209 at which by-laws are amended, 60 election to membership, 71 election of officers, proxies, 188, 231 reading minutes of meeting, 95 record of proceedings, 95 duty of member to vote at, 2C9 exclusion of member from. 110. 224 v< >ting by proxy, 188, 231 for election of officers, 189 special meeting 131, 133, 207 adjourned meeting 208 rules governing future meetings, 208 when corporate acts are binding, 210 on Sunday, 211 disposition of trust funds by vote, 249 levy of an assessment at, 475 MEMBER. rights are two-fold, 9 rights of, in contract of mutual benefit insurance, 9, 405, 599 rights under charter, 11 payment of benefit to living member, 7, 13 assents to charter and by-laws, . : 113 is bound by by-laws, 33, 211 when affected by change of by-laws, 50 when bound by amendment to by-laws, 59 complying with constitution and by-laws, 273 who is a member, 72 when minor may be a member, 74, 228, 290 record may show who are members, 97 is bound by records of the society, 95, 97 initiation of 49, 280, 477 good standing of, 801, 531, 535, 541, 545, 824 good health of 810, 554, 573, 577, 579 change in health of, 27."). 280 inquiry into health of 557, 570 change of habits of, 566 resignation of, 625 insanity of, 116, 288, 550 name of, stricken from rolls 484, 527, 582, 533, 539, 545, 61 1. 625 ageof 24, 25, L95. 196, 290,544,547, 566, 567, ".Tn ol.l age of, M. 576, 579, 775, 779 expulsion of 78, 142 application of, for reinstatement 98 death of member pending appeal 103 must exhaust remedies in society 98, 106. 214. .">!i7 may waive irregularity in way courts of society are constituted, 139 830 INDEX. [THE REFERENCES ARE TO PAG) S.] MEMBER— Continued. may appeal to courts, 39, 40, 103 liability of, 157 liability of, when attempted incorporation is invalid, 158 liability of, for debts of unincorporated society . , 160 ratifying a debt of unincorporated society, 162 unincorporated society is not a partnership 165 of unincorporated society acts for himself only, 166 liability for debt incurred by him, 167 notice of withdrawal from unincorporated society, 170 action for libel against, 171 action against other members, 176 is entitled to notice of charges against him, 94, 122, 127 of unincorporated society . , 221 charges against member of unincorporated society, 151 duty of, to vote 209 when concluded by vote of majority, 249 excluded from meeting, 110, 224 effect of attending meeting 165, 207 has no severable interest in property, ' 178, 222, 250 right of, in property of society, 250 injury to property rights of, 217, 235 action by, for recovery of property, 184 interest of, in benefit fund, 332 407, 411, 413, 415, 454, 458, 462, 463, 464, 465, 463 power of appointment of beneficiary reserved to, 332 405, 410, 413, 415, 452, 458, 462 statement of, as to relationship of beneficiary, 344, 348, 350, 568 contracts for insurance like a stranger, 273 rightof , to change beneficiary, 405 when member does all he can to change his beneficiary 431 when power to change beneficiaries is exhausted, 465 consent of, to a change in contract of insurance, -273 when, may assign contract of insurance, 322 death of beneficiary during life of, 391 interests vest on death of, 395, 396 death of, in common disaster, 397 death of beneficiary and member at the same moment, 398 agreement of member and beneficiary as to disposition of benefit fund 398 effect of levy of an assessment on, 471, 482, 564, 576, 580, 589 must have notice of assessment, 482, 483, 486 failure of, to pay assessments, notice of assessment, 482 marriage of, effect on designation of beneficiary, 463, 464 service of notice of assessment on 491, 495 may waive proper service of notice of assessment, 497 liability for assessments, 471, 589 assessment on new member to pay old losses, 476, 511, 660 validity of assessment against, 473, 477, 479, 480, 481 INDEX. 831 [the references are to pagks.] MEMBER— Continued. payment of assessment by, 505 payment of membership fee, 469 when may pay assessments 477, 485, 401 492, 495, 506, 509, 530 right to have assessments paid out of funds in hands of society,. 509 tender of assessment by, 482, 516, 520 remedy of, when society refuses to accept assessments 522 recovery of assessments paid by, 523 forfeiture of rights for non-payment 526, 532, 536 reinstatement after forfeiture for non-payment 542 neglect of, to procure reinstatement, 545 knowledge of custom of society 556 must submit claim to courts of society, 596 admissibility of declarations of, 626 evidence of number of members in society, 651 may not enjoin payment of claim, 691 must not contribute to injury by negligence 701, 704 bodily infirmity of 768 MEMBERSHIP. contract of 9 rights under contract of 9, 598 in incorporated society 67 admission into unincorporated society, 70 applicant for, can not compel admission 6*. 70 assent to charter and by-laws is a requisite of, 113 election to 71 procured by false representations, 71 admission of ineligible person to, 24 irregularity in admission to, ' qualifications prescribed by charter, 42. <>7 in subordinate lodge, 72. 129. 221, 564 in religious society, 75 in a church 75 how question of, determined 72 proof of, 73. 62 1 resignation of 73 certificate of 271 record of, !)7 fee lor 168, i ?< i expulsion from 81, 142 reinstatement to 98 reinstatement in incorporated Bociety 112 reinstatement to unincorporated nociety 153 irregularity in reinstatement to ■". r_> MEMBERSHIP FEE. note given for • 468 casli payment of 469 payment of. by draft 508 recovery of, 470 832 ■ INDEX. [the. .references are to pages] MURDER. or accidental injury, 726, 746 MUTUAL BENEFIT SOCIETY. is not a charity, 4, 246, 255 definition of insurance, 5, 7 what laws govern, 8 plan of doing business, 13 change of plan of insurance, 58, 220, 227, 670 plans and schemes of insurance, 637 doing business in foreign state, 17 ultra vires, 19 whose decision shall be final, C9, 99, 102, 217, 602, 606 internal affairs of, 98, 214, 217 power of foreign corporation over, 40 agency of subordinate lodges, 432, 441, 516 for raili >ad employes, 49, 785, 791 who are members of, 72 necessity for membership in subordinate lodge, 72, 129. 564 membership in subordinate lodge, 72, 102, 129, 516, 542 minor as a member of, 74, 228, 290 insanity of member, 116, 550 expulsion from, 78, 142 reinstatement to membership, 98 et seq., 153 damages for unlawful expulsion from, 107 liability of member when, unincorporated, 166 officers of, 192 power of officer of, to waive by-laws, 195 officer of, duty to keep books and records, 197 must keep accurate accounts, 231 account books not under seal of secrecy, 203 salary, fees and commissions of officers, 198 liability of officer of, 200 when courts will not interpret laws of, 219 injunction to prevent unauthorized use of funds of, 220, 232 erroneous plans of insurance, 220 is not to be regarded as a partnership, 223 dissolution, distribution of property, 233 buying out another society, 234, 592 distribution of benefit fund on dissolution, 239 when will be regarded as a partnership 244 when funds of are impressed with a trust, 247 distribution of trust funds among members, 249 taxation of, 255 certificate of membership in, 27 1 construction given to contract of insurance by, 290 who may be beneficiary, 311 assignment of contract, 322 construction of designation of beneficiary, 334 rights of beneficiary in contract of insurance, 405 INDEX. 833 [the rkff.rences are to pages.] MUTUAL BENEFIT SOCIETY— Continued. rights of member in contract of insurance, 405 right to change beneficiaries, 405 inherent power to change beneficiaries, 406 contract is between member and the society 407 mode of changing beneficiary , 415 consent of, to change of beneficiaries, 329, 415, 418, 430, 438. 456 when estopped to deny validity of change of beneficiary, 439 interpleader by, 429. 686 mem bership fee, 468 assessments on members, 471 authority to levy assessments, 473 must establish validity of assessment, 477 act of levying assessment is ministerial, 477 effect of levying of assessment by, 471, 482, 564, 576, 580, 649 notice of assessment, 482 notice of assessment by mail, 483, 486, 489, 500 service of notice of assessment, 491, 495, 503 insufficient notice of assessment 498 agreement of, to give notice of assessment to beneficiary, 498 effect of return of assessments once paid, 523 refusal of society to accept assessments 522 authority of agents to collect assessments, 518 payment of assessment by member, 505 payment of assessment to subordinate lodge, 432, 441, 516 tender of assessments to, 482, 5 1 U. 521 1 refusal of society to accept assessments, 530 promise of, to accept past due assessments, 524 forfeiture for non-payment of assessment, 526 declaring forfeiture of contract, 532, 536 proceedings for reinstatement after forfeiture, 542 waiver of forfeiture, 554 waiver of forfeiture, retaining assessments 570 conditional acceptance of delinquent assessments, .")7;; attempt to collect assessments 585 property in assessments levied or to be levied, 589 duty of, to resist illegal claims 47fi. 482, 649, 695 purchase of assets of another society 234, 592 action on contract to pay benefits 5fl i methods for settlement of claims against, 595 delay in bringing suit against, (323 payment of benefit fund <;;•,> settlement procured by fraud 689 proceedings against, to obtain payment of judgment 693 restricting operation of judgment against 694 may be held liable for benefits, though aot for death 780 knowledge of, of occupation of insured, >- NAME. of society may not express its real character 4, 27, 28 53 834: INDEX. [the references are to pages.] NAME — Continued. right to exclusive use of name of society. : 28, 186 of member stricken from rolls, 527, 532, 533, 539, 545, 614, 625 NEGLIGENCE CONTRIBUTING TO INJURY. defense of, 701, 735 NOTICE. of charges against member, .94, 122, 127, 129, 155 sufficiency of notice of charges, 130, 133 records must show notice to expelled member, 95 when notice of meeting need not be given, 129 to members of tribunal trying charges, 132 waiver of, in proceedings in expulsion, 135 of meeting of society, 94, 122, 127, 130 of meeting to elect officers, 189 of meetin; ] to dissolve society 225 of withdrawal of member from unincorporated society, 170 to officer, waiver of forfeiture, 193 from officer is notice from society, 193, 485 to society of change of beneficiary, 329, 41", 430, 456 form of, 208, 485, 500 service and proof of, 134, 208, 491, 495, 503 service of, on Sunday, 211 waiver of formal defect in, .' 630 of intention to levy an assessment, 475 of assessment. 482 of assessment is a condition precedent, 482, 527 of assessment may supply deficiencies in levy, 482 when member must have actual notice of assessment, 483,487, 489 of assessment by mail, 483, 486, 500 time within which notice of assessment must be paid, 486 to pay assessment to specified officer, 484 must conform to the contract, 484 written notice, 484, 529, 798 date of notice by mail, 491 of assessment by registered letter, 492 date of assessment, date of notice, 494 by publication, 494 of date of payment, 495 agreement to give notice of assessment to the beneficiary, 498 insufficient notice of assessment, 498 to pay assessment before it is due, 504 death within thirty days after, 514 failure to give, 527 of suspension of subordinate lodge, 531 provisions of charter concerning giving of, 561 not to pay benefit fund to beneficiary, 678 of death or injury, 798, 799 of injury, who should give, 798 of injury, to a certain officer, 799 INDEX. 835 [the references are to pages.] NOTICE— Continued. date of notice of injury, mistake in, 799 within reasonable time, 799, 800 as soon after accident as possible, 802 accompanied by full particulars of accident, 801 to home office of society , 802, 803 must show accidental injury 803 effect of instantaneous death of insured, 803 waiver of notice by society, 804 OBVIOUS RISK. exposure to, 707, 710 OCCUPATION— See Change of Occupation, Classified Risks. generally 782 statement of, by insured, 782 usual or other, 54, 612, 770 special branches of trades, 783 dangers incident to, 707, 713, 744, 784, 785, 791 classified risks, 788 classification of separate branches of trades, 784 classed as non-insurable, 783 when member is bound by classification, 798 when society is bound by classification, 797, 798 knowledge of society concerning, 788 change of, 563, 783, 786, 788 injury in more hazardous, 789, 791 individual act incident to other occupations, 794 permanent disability, 770 banker 791 capitalist, 797 solicitor, 77f» physician, 777 retired gentleman 774. 785 merchant anil leather cutter, 773 stationary engineer, 789 wopdchopper 7S9 conductor, 784 spare conductor, 7 s '.) switchman 707, 7i:i. 770 railroad employes 786, 7«.u supervising farmer, 7 s ") grocer, 786 livery stable proprietor 785 ice man, proprietor, 777 OFFICER. dejure and de facto, 800, 805 election of 188, 281 election of, proxies 381 when officers hold over, 191, 282 836 INDEX. [the references are to pages.] OFFICER— Continued. powers and duties of, 192 has no power to waive by-laws, 194 may not disregard by-laws, • 196 when decision of, may have the force of a by-law, 291 may not testify as to effect of by-laws, 33 decision of, as to manner of paying assessments, 506 decision of, as to benefit fund, 603, 605 construction of laws by, 625 construction of contract by, 286, 290 is not ultimate judge of sufficiency of certificate of good health, 545, 546 appeal from decision of, 209 statement of opinion of, as evidence, 522 statement of, when competent evidence, 581, 651 when, is a competent witness 626 testimony of, as to sending notice by mail, 487, 489 knowledge of, waiver of forfeiture, 565, 569 attempt by, to collect delinquent assessments, 585 authority to levy assessments, 474 assessments levied by , . 499 discretion as to reserve fund, 219, 480, 685 may waive prompt payment of assessment, 193, 197 may waive forfeiture, 193 statements of, waiver of forfeiture, 554 act of, binds society, 439, 440 notice from officer is notice from society, 484 ministerial acts of, 165 unauthorized act of ministerial officer, 568, 587 suspension of lodge by, 101 suspension of member by, 532 of religious society, 266 of subordinate lodge, 107 of unincorporated society, 259 salary, fees and commissions of, 198, 251 application of salary to payment of assessment, 511 regulation of conduct of 219 damage for misconduct of, 107 misconduct of, 198, 199, 227 duty to keep books and records, 19T liability of, 200 when liable for debt of unincorporated society, 163, 165, 168 sureties on bond of, 203, 205 suit on bond of, 203 defalcation of, 204 advance of money by, . .• 236 must account for funds perverted, 236 retaining property of society, 252 notice to pay assessment to a certain, 485 when notice must be given to a certain, 799 INDEX. S37 [the references are to pages.] OFFICE R— Continued. promise of, to pay assessment for member, 554 promise to member of reinstatement 580 payment by, of benefit fund to wrong person, 676 removal of by courts. 192 OLD AGE. of member, 14, 576, 579, 775, 779 is a physical disability, 14 PAYMENT OF ASSESSMENT, we Assessment. directions to remit in a certain manner, 505 in cash, 506 by draft, 508 by check, 560 effect of partial payment 509 time within which payment may be made 477, 4*5, 491, 492, 495, 506, 513, 515 custom of making payment, 506 during life of member, 513, 515, 570 death of member within thirty days after notice, 514 days of grace, 514, 515, 530 on Sunday, 552 by whom, may be made, 512, 515 by subordinate lodge for member, 535 to subordinate lodge, 516, 542, 571 must be made to certain officers, 485, 521 out of funds in hands of society, 509 return of assessment once paid, 522 recovery of assessments paid 528 reimbursement for, for benefit of another, 535 decision of officer* as to manner of, 506 ' excuse for non-payment 550, 552 PAYMENT OF BENEFIT FUND, see Benefit Fund. is not a gift, 7, 679 rigbts of parties 672 on surrender of certificate r ' s: > into court: interpleader 429. oso to proper person 67a to wrong person; recovery of fund 675 to supposed widow I'"? to assignee of contract 678. 679 to creditor _ 676, <»79 payment <>t' less amounl than is due <■>** procured by fraud ,lv;i - ,; '- 11 right to double payment 691 with interest 692 member may not enjoin, 691 proceedings t<> obtain payment of judgmehl 693 restricting operation of judgment against society, 694 838 INDEX. [the references are to pages.] PAYMENT OF BENEFIT FUND— Continued. in a special manner, 806 from special fund, '. . 806 from the reserve fund, 219, 480, 685 PERMANENT DISABILITY. what is, 612, 770 graded on income of insured, 780 loss of foot, hand or eye, .770, 777 use of mechanical appliance, 779 retired gentleman, 774 merchant and leather -cutter, 773 old age of member, 14, 576. 579, 775, 779 change of by-laws, 54 PHYSICIAY'S CERTIFICATE. may be required for sick benefits, 46, 611 of health of member, 546, 557 sufficiency of, 546, 611 PLEADING, see Action at Law, Equity. action on by-laws for benefits, 610 on contract of insurance, 620 non-payment of assessment, 529 waiver of f orf eiture, 565 insurable interest, 620 there is no presumption that beneficiary has been changed, 412, 622 where change of beneficiary is invalid, 622 breach of promise to pay, 644 averment of demand for assessment, 647 averment that no fund has been raised by assessment, 648 POISON. death or injury from, 721 , 757 POWER OF APPOINTMENT. of beneficiary, 332, 405, 410, 413, 415, 452, 458, 462, 463 when power to change beneficiai-ies is exhausted, 465 time within which power to change beneficiaries must be exer- cised, 466 PROOF OF DEATH, see Death of Member. as a condition precedent to liability, 630 mistake in, 630 cause of death, 631 retained by society, 632 may be waived, 632 by wrong claimant, 631 furnishing, is a demand for an assessment, 648 PROPERTY OF SOCIETY. courts will protect civil or property rights of members, 217, 257 member has no severable interest in, 178, 222, 250 rights of contributors to, 248 confiscation of, by supreme body, 216, 217, 235 INDEX. 839 [the references are to pages.] PROPERTY OF SOCIETY— Continued. disposal of by vote, 209, 210, 225, 248 division of, in case of withdrawal of members, 250, 252, 260 distribution of, on dissolution, 233 in assessments levied or to be levied, 589 religious society 263 PROXIMATE CAUSE. of death, 763 QUO WARRANTO. courts may issue writs of, 213 against society, 14 to test legality of election 189, 190 dissolution of society, 227, 228 officers of unincorporated society, 190, 259 RECORDS OF SOCIETY. in proceedings in expulsion, 95 may be contradicted, 95 a corporation speaks by its record, 95 reading of minutes, 95 when, show premature forfeiture, 534 may be evidence of validity of assessment 478 debt of unincorporated society may be shown by other evidence than, 164 in libel and slander, 172 REINSTATEMENT. application for, 534, 542, 627 effect of application for, 549 application for, as evidence of forfeiture, 629 application for, reciting forfeiture, 549 when right to, accrues, 546, 548 on conditions, 573 imposing new conditions for, 545, 547 sufficiency of certificate of good health, 546 for valid and satisfactory reasons 545, 547, 551, 578 where pay men t alone will reinstate, 547 is not the making of a new contract 319 continues old contract merely 549 change of beneficiary in application for, 450 neglect of member to procure 545 waiver of right to, damages for expulsion 107, 110 proceedings for, in subordinate lodge 542 irregularity in proc Lings for 542 after forfeiture for non-payment 542 right to, effect of levy of assessment 585 procured lis false representations 579 remedies for, in courts of society, 98 appellate tribunals in society, 99, 101 appeal irregularly taken 101 tender of assessments pending appeal for, 520 840 INDEX. [the rfferences are to pages.] REINSTATEMENT— Continued. to membership in incorporated society, 112 mandamus is proper remedy for, 113 delay in applying for, 119, 549 return to the writ of mandamus, * 1 22 decree reinstating member must be presented, 141 by injunction, 110 in unincorporated society, 153 to property rights in unincorporated society, 155 to unincorporated society, proper remedy of expelled member,. . 156 order of reinstatement must be presented to the society, 141 REINSURANCE. what is, 27 forfeiture ")f , 528 by misapplication of funds, 234, 235 RELIGIOUS SOCIETY. membership in, , 75 expulsion from religious corporation, 88 expulsion for non-performance of religious duties, 87, 88, 146, 301 officer of, 259, 263 civil rights, 257 property of, 258 jurisdiction of courts over, 257 title to church property, 263 secession in, division of property, 260 libel and slander, privileged communications, 171 RESERVE FUND. discretion of officers, 219, 480, 685 distribution of, 243 assessments for, 480 distribution of, on dissolution of society, 238 payment froai 15, 16, 58, 231, 685 SCHISM IN SOCIETY. election of officers, 191 in religious society 260 in mutual benefit society, 235 division of property, 251, 252, 260 member may belong to both organizations, 569 right to double payment, 691 SERIOUS ILLNESS, see Good Health. of member, 310, 769 SICK BENEFITS, see Benefit Fund. restrictions on, 46, 601, 603 reasonable by-laws concerning forfeiture of, 46, 47 suspension of, 603 for physical disability, 14, 612 permanent disability, 288, 775 insanity is a disease, 288 INDEX. 641 [THR REFERENCES ARE TO PAGES.] SICK BENEFITS— Continued. graded on income of insured • "» society may be liable for. though not for death , 780 application of, to payment of assessments, 510 amendment of by-laws concerning, 50 et scq. repudiation of contract for 50 et aeq. action for, 595, 601, 602, 606. 610 action for, inquiry into expulsion, 106 effect of expulsion on claim for, 106, 613 measure of damages, 013 payment of, is not a gift, 7 STANDING ON PLATFORM OF CAR. negligence, 706. 709, 713, 738. 744 SUBORDINATE LODGE. is the local body, is usually regarded as agent of supreme lodge 432, 441. 516, 542. 571 fundamental law of, 25, 32 governed by constitution of higher body, 216 membership in, '~- 1*9 necessity for membership in 72. 129, 231, 564 withdrawal from membership in, 564 revocation of social charter of, 215, 235, 253 orders from supreme lodge, 102 custom in 563 separate funds of, '-4 ' confiscation of property of, 217. 235. 254 money collected for sick benefits, "'lit suspension of, 517, 530 officer of, 1 J 7 delivery of contract of insurance to, 276 countersigning certificates of membership 295 when, must prepare proofs of death, 633 when may be a beneficiary, 819 notice of assessment - tv *'- > payment of assessment for member by 585 payment of assessment to, 516 waiver of forfeiture by 589, reinstatement after forfeiture for non-payment 542 SUICIDE. definition of. ;lu:1 or accidental injury 726, 7 1-. 750, 761 SUNDAY. 01 1 meetings on, - ' l notice of meeting Berved on *~n expulsion on ~ 1} payment on, SUNSTROKE. death from, ' '-'- S42 INDEX. [the references are to pages.] SUPEEME LODGE, see Subordinate Lodge. is the governing body, 8, 216 is usually incorporated, 9 constitution of, governs subordinate lodges, 25. 32, 216 orders to subordinate lodge, 102 confiscation of property by, 217, 235 right to property of subordinate lodge, 254 necessity of membership in a subordinate lodge, 72, 129, 221, 564 not bound by custom in subordinate lodge, 5G3 construction of contract of insurance by, 286 290, 291, 506, 546, 603, 605, 625 expulsion from, 115 may have no jurisdiction to expel members, 138 proceeding's under constitution and by-laws for reinstatement, . . 542 reinstatement after forfeiture for non-payment, 542 SURGICAL OPERATION. death from, , 761, 762, 763, 766 SUSPENSION, see Expulsion. suspension, expulsion, amotion, 75 of member, 76 must be provided for, 526, 527 of subordinate lodge, 517, 530 before expiration of specified time, 5b4 of contractual relations between member and society, 582 admissibility of statements of member concerning, 626 TAXATION. of property of mutual benefit society, 255 TENDER. of assessments, 482, 516, 520, 531 must be made to proper officer, 585, 521 TIME. within which notice of assessment must be sent, 486 of notice of as sessment, 483 levy of assessment without delay, 477 computation of, for payment of assessments, " 477 485, 491, 495, 506, 509, 530 when right to reinstatement accrues, 546, 548 within which change of beneficiary may be made, 466 within which notice of accidental injury must be given, 798, 799 TRAVELING BY PUBLIC CONVEYANCE. negligence of passenger, 706, 713, 735 getting on or off moving cars, 738 according to rules of such carrier, 738, 744 TRIBUNAL OF SOCIETY, see Courts op Society. TRUST FUNDS. proper accounts of, must be kept. 197 account books are not under seal of secrecy 203 INDEX. 8-i3 [the references are to pages.] TRUST FUNDS— Continued. distribution on dissolution of society, 233 when funds are impressed with a trust, 247, 591 collected for aid of sufferers, 248 rights of contributors to, . 248 when objects of, can not be accomplished, 249 distribution of, on dissolution of society, 228 vote on distribution of, 209, 2 19 distribution of, among members, 249 of religious societies, 258, 263 agreement of beneficiary to hold benefit fund in trust, 398 ULTRA VIRES. doctrine of, 19 by-laws may be, 41 UNINCORPORATED SOCIETY. status in courts, 221 is not a partnership, 165, 175, 221 right to exclusive use of its name, 28, 186 courts have no visitorial power over, 44, 112, 214 when may be a beneficiary, 319 constitution of, 25, 44 by-laws must be legal 35 reasonableness of acts of, 44, 154 alteration and amendment of by-laws, 34, 50 incorporation of, 26 effect of incorporation on constitution and by-laws, 45 admission to membership, 70 has no inherent power of 'expulsion, 142 power to pass by-laws providing for expulsion 145 power to expel from long usage, 146 p< iwer to expel under contract of association 147 injunction to restrain expulsion from, 1C6 charges against member of, 151 reinstatement to membership in, 153 proper remedy of expelled member 156 liability of member for debts of 160 authority of commit! f, to incur debts, 161 liability of member incurring debt 167 member of acts for himself only 166 member may ratify debt incurred by 162 notice of withdrawal of member from 170 liability of officer of, 201 debt of, payable out of funds of society 169 when officers of. need notact together ,... 165 actions between members, 176 suits by or against 181 action by, for recovery of property 184 judgment against 186 election of officers, 1C0 844 INDEX. [the references are to pages.] UNINCORPORATED SOCIETY— Continued. dissolution of, 223 for public purposes, 245 property of, 250 member has no severable interest, 178, 222, 250 USAGE, see Custom. VERTIGO - , see Fits. is not a bodily infirmity, 769 VESTED RIGHTS. of beneficiary, 272, 403, 626 when beneficiary has, 50 et seq. interests vest on death of member, 395, 396 VISITORIAL POWER OF COURTS. over religious society, 257 over incorporated society, 44, 112, 213 over unincorporated society, 44, 112, 213 VOLUNTARY EXPOSURE TO DANGER. by member, 707, 710 swimming, 710, 714, 756 hunting, 710 stepping off train, 712, 718 hidden danger, 712 cleaning gun, 713 lifting, 71 3. 720 boarding moving train, 713, 785, 791 in attempting to rescue another, 714 climbing out of window, 715 accosting a woman on the street, 716 WAIVER OF FORFEITURE, see Forfeiture. promise to accept delinquent assessments, 524 printed prospectus 554 agreement of officers, 554 custom of society, 556 receipt of assessments, estoppel in pais, 563 as to future payments, 563 unconditional acceptance of assessment, 578 assessments retained by society, *. 570 conditional acceptance of delinquent assessments, 573 receipt of delinquent assessments, 556, 565, 568, 570, 572, 576 levy of assessment on delinquent member, 564, 567, 580 attempt to collect assessment, 585 WALKING ON RAILROAD TRACK. due diligence for personal safety, 705, 710, 712, 745 WEEKLY INDEMNITY, see Sick Benefits. permanent disability, 773 WIFE, WIDOW, see Divorced Wife. as beneficiary, 337,340, 341, 343, 462 INDEX. 8±5 [the references are to pages.] WIFE, WIDOW— Continued. as heir of her husband 321, 365. 368 wife and children, 353 payment of benefit fund to supposed widow, 677 adultery of, affecting benefit fund, 350 divorced wife, 320, 368 WITNESS. when member of court may testify, 96 exclusion of testimony of. in expulsion, 114 when two or more are required, 123 testimony of, concerning service of notice, 135 as to church history, 258 competency of, 625 opinion of, as to age of person, 567 to accidental injuries, 731, 733 WHO MAY BE A BENEFICIARY, see Beneficiary. beneficiaries specified in charter, 311 may belong to any specified class, 317 effect of amendment of organic law, 317 when unincorporated lodge may be, 319 friend of the member, 312 insurable interest, 314 family 317 wife, widow, 337, 340, 341, 343 when divorced wife may be, 320 assignee of contract, 322 r ^ I7? LAW LIBRARY UNIVERSITY OF CALIFORNIA UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 885 201 4