Whigham v. Independent Foresters , 44 Or. 543 ( 1904 )

Mr. Justice Bean,

after stating the facts in the above terms, delivered the opinion of the court.

1. The plaintiff admits in her pleadings that the answers of Whigham on his medical examination were false, but she alleges that the officers and members of the local court had full notice and knowledge thereof, notwithstanding which they admitted him, and continued to recognize him as a member of the order in good standing, and collected assessments and dues from him, and therefore the defendant ought not to be permitted to assert the false warranty as a defense to the action. The subordinate court or lodge of a fraternal society, or an officer thereof, whose duty it is to perform some service for and on behalf of the supreme lodge, is generally regarded as an agent of the governing bodjr, for the purpose of receiving members and collecting assessments and dues. Kerr, Insurance, § 89; Cox v. Royal Tribe, 42 Or. 365 (95 Am. St. Rep. 752, and note, 71 Pac. 73, 60 L. R. A. 620); Patterson v. United Artisans, 43 Or. 333(72 Pac. 1095); Knights of Pythias v. Withers, 177 U. S. 260 (20 Sup. Ct. 611); Modern Woodmen v. Tevis, 117 Fed. 369 (54 C. C. A. 293); Grand Lodge v. Lachmann, 199 Ill. 140 (64 N. E. 1022); Schlosser v. Grand Lodge, 94 Md. 362 (50 Atl. 1048); Grand Lodge v. Brand, 29 Neb. 645 (46 N. W. 95); Bragaw v. Supreme Lodge, 128 N. C. 354 (38 S. E. 905, 54 L. R. A. 602).

2. If, with full knowledge of an applicant’s false answers or statements, a local lodge receives and admits him as a member, or if, after his admission, the officer whose duty it is to collect his assessments learns of the false statements, and thereafter receives the assessments and remits them to the supreme order, the society will, as a general rule, be held estopped from pleading the false statements or representations as a defense to an action on the benefit certificate: Niblack, Ben. Soc. (2 ed.) § 300; Supreme Lodge v. Davis, 26 Colo. 252 (58 Pac. 595); Order of Foresters v. Schweitzer, 171 Ill. 325 (49 N. E. 506); Coverdale v. Royal Arcanum, 193 Ill. 91 (61 N. E. 915); Mee v. Bankers’ Life Assoc. 69 Minn. 210 (72 N. W. 74); Alexander v. Grand Lodge, 119 Iowa 519 (93 N. W. 508); Ball v. Aid Association, 64 N. H. 291 (9 Atl. 103); Supreme Tent v. Volkert, 25 Ind. App. 627 (57 N. E. 203.) But, before there can be an estoppel or waiver, it must appear that the local court or society, or some officer thereof, charged with the performance of some act for the benefit of the supreme order, knew or had notice of the falsity of the answer or warranty contained in the application or examination paper at the time deceased was received as a member, or when his subsequent assessments were received and collected. In the nature of things, there can be no waiver or estoppel without knowledge of the facts upon which it is based. The waiver of a right presupposes a knowledge of the right waived, and, therefore, before defendant can be held to be estopped or to have waived any of its rights by reason of the conduct of a subordinate lodge or its officers, it must be shown that it or they had knowledge of the facts: Kerr, Insurance, § 235; Niblack, Ben. Soc. (2 ed.) § 300; Lewis v. Phœnix Mut. L. Ins. Co. 44 Conn. 72; Moerschbaecher v. Royal League, 188 Ill. 9; Robertson v. Metropolitan L. Ins. Co. 88 N. Y. 541; Bennecke v. Insurance Co. 105 U. S. 355; Ellerbe v. Faust, 119 Mo. 653 (25 S. W. 390, 25 L. R. A. 149).

Now, turning to the record in this case, there was no evidence, as we read it, given or offered on the trial, that the local lodge, or any member or officer thereof, knew at the time Whigham was admitted to the order that his answers to the medical examination were false; nor was there any evidence that knowledge of that fact was brought home to the local lodge or its officers after Whigham’s admission. The medical examination paperwhich contained the questions and answers was not submitted, so far as the evidence shows, to the local lodge; nor were its contents known by the lodge. It was addressed to the executive council of the defendant, and was forwarded direct to the head office at Toronto. Doctor Fenton, the court physician, never saw Whigham until he applied for examination, and knew nothing about his personal habits or history prior to his becoming a member of the order, except as disclosed by the examination. In August, 1899, about a year after Whigham joined the order, the doctor was called to attend him for alcoholism, and again for the same disease in May, July, October, and December, 1900, and January, 1902, but there is no evidence that he knew or had notice that the answers previously made on his medical examination were false. Mr. Sigel, the employer of Whig-ham, testified that in the spring of 189S a committee from some society (he did not know what) called upon him to make inquiry about Whigham’s character and habits; that he told the committee that he had known Whigham ever since he came to Portland in 1892 ; that he was an honest, upright man, of good character, except that he would occasionally go on a spree; that he would sometimes g-o for a month, and sometimes for over a year, without taking a drink, and then he would be off duty for a few days ; that when he was drinking he would not attend to business, and would not go to work until he was all right; that he was perfectly sober for the year and a half prior to that time, so far as the witness knew.

David Phillips, the member of the order that indorsed Whigham’s application, testified that at the time he was a subordinate officer in the court; that he knew Whigham for about six months or a year before his application was made, and knew that he had been accustomed'to going on sprees occasionally; that he so informed quite a number of the members, some of whom belonged to the examining committee, but told them that Whigham had taken the Keeley cure and stopped drinking, or otherwise he would not have recommended him for membership ; that the matter was discussed in the lodgeroom at the time, but not officially in the lodge; that, after Whigham joined the order, it was known by the members that he got drunk occasionally ; that he never drank to such excess as to injure him physically, to the knowledge of the witness; that at one time, while Whigham was the chief officer of the local court, he was in the lodgeroom while under the influence of liquor; that he (the witness) thought that, if Whigham in fact stopped drinking at the time he made application for membership, he was entitled to join the order, and therefore recommended him ; that neither the witness nor any other member of the local court had any knowledge as to what Whigham’s answers were to the questions propounded by the medical examiner. Other witnesses were called to show Whigham’s habits while a member of the order, but this is all the testimony bearing-on the question of waiver, and, as it does not show that the local lodge or its officers had notice or knowledge at any time of the falsity of the warranty in the application and medical examination papers, there is nothing upon which to base a defense of waiver or estoppel. As it is admitted that under the contract the false statements made by Whig-ham will prevent a recovery unless they were waived by the defendant, the motion for a nonsuit should therefore have been sustained.

Considerable was said at the argument and in the brief about the court physician and some of the officers of the local lodge knowing of Whigham’s being repeatedly intoxicated after he became a member of the order, and not reporting such facts, as the rules required ; but, as Whig-ham’s conduct while a member is not relied upon as a defense, it is not necessary to inquire at this time as to the effect on the defendant of such knowledge by the officers of the local lodge.

3. It is argued that the defendant cannot insist upon a breach of the warranty, and claim a forfeiture of the policy from the beginning, without returning the money received by it from Whigham as assessments; but the contract and the rules of the order provide that in case of any concealment, misrepresentation, or untrue statement made by Whigham, all moneys paid by him should be forfeited to the defendant.

It follows that the judgment of the court below must be reversed, but, as the defect in the testimony may be overcome on another trial, the cause will be remanded for such further proceedings as may be proper, not inconsistent with this opinion. Reversed.